The opinion of the court was delivered by: WARD
ROBERT J. WARD, District Judge.
Plaintiff and defendants each move for summary judgment pursuant to Rule 56, Fed. R. Civ. P. For the reasons hereinafter stated, the plaintiff's motion is denied and the defendants' cross-motion is granted.
This is an action by a former cadet at the United States Military Academy at West Point (the " Academy") seeking declaratory and injunctive relief determining that his separation from the Academy and his discharge from the United States Army were in violation of the due process requirements of the Fifth Amendment to the United States Constitution, setting aside the discharge approved by defendant Secretary of the Army; and ordering defendants to grant him a Bachelor of Science degree and a commission in the United States Army.
Plaintiff was originally scheduled to graduate from the Academy and to receive a commission in the United States Army in June, 1972. On or about June 2, 1972, an Academic Board convened at the Academy determined that plaintiff was deficient in conduct as a result of his having received demerits in excess of the total allowed for the period from January to June, 1972 and recommended plaintiff's separation from the Academy. The recommendation was approved by defendant Secretary of the Army Froehlke who ordered plaintiff discharged on June 21, 1972. Plaintiff was processed out of the Academy on that date.
Plaintiff, alleging that the procedures employed by the Academic Board violated the due process requirements of the Fifth Amendment, commenced this action for injunctive and declaratory relief and in his original complaint sought reinstatement to the Academy. This Court, Frankel, D.J., relying heavily on Hagopian v. Knowlton, 346 F. Supp. 29 (S.D.N.Y. 1972), aff'd, 470 F.2d 201 (2d Cir. 1972), granted plaintiff a preliminary injunction requiring his reinstatement. Unlike the order entered in Hagopian, Judge Frankel stated that
"the injunction now to be entered will not limit the measure of plaintiff's reinstatement pending trial and final decision of this case. If any such limitations are to be imposed, they will follow only after specific application to the court upon reasonable notice."
Plaintiff returned to the Academy and repeated his senior year.
The defendants appealed from the order granting the preliminary injunction, but withdrew their appeal on consent after the decision handed down by the Court of Appeals in Hagopian v. Knowlton, 470 F.2d 201 (2d Cir. 1972), which set forth minimal due process standards governing the dismissal of cadets from the Academy.
Following the Court of Appeals' decision in Hagopian, supra, the Academic Board was reconvened; and after a hearing purportedly complying with the due process requirements set forth in Hagopian, supra, the Board again recommended that plaintiff be dismissed. The Secretary of the Army approved this recommendation. As a result of these actions by defendants, plaintiff was not graduated from the Academy, and did not receive a degree or a commission in the United States Army. His discharge from the Army has not been effected pending application to this Court.
This Court granted defendants' motion to dismiss the complaint on grounds of mootness with leave to plaintiff to serve and file a supplementary complaint asserting any allegations plaintiff had concerning the proceedings subsequent to the entry of the preliminary injunction.
Plaintiff thereafter served and filed a supplementary complaint and the instant motions are addressed thereto. Since it is clear that the initial hearing granted to plaintiff did not comport with the requirements of due process as laid down in Hagopian, supra, this Court must determine whether the preliminary injunction entered herein barred a subsequent rehearing and, if it did not, whether that rehearing met due process standards.
Plaintiff argues that the terms of the preliminary injunction required the Academy to make an application to the Court before dismissing plaintiff following a rehearing. This Court does not so interpret the terms of the injunction quoted supra at page 1120. The limitations referred to those imposed in Hagopian, supra, 346 F. Supp. 29, 35 (S.D.N.Y. 1972), aff'd, 470 F.2d 201 (2d Cir. 1972) -- admission to athletic or extra-curricular activities, avoidance of "controversy or conduct likely to lead to disruption, or interference with the morale or discipline of the institution." The decision granting the preliminary injunction made no determination concerning the possibility of the Academy holding a second hearing pending trial. Any requirement that plaintiff not be dismissed without application to this Court was complied with by the defendants' motion of June 7, 1973 for an order dissolving the preliminary injunction and dismissing plaintiff's complaint as moot.
Plaintiff challenges the procedures employed at his second hearing on numerous due process grounds:
1. The Academic Board which recommended dismissal was ...