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September 2, 1976

Cadet Timothy D. RINGGOLD, individually and on behalf of all other similarly situated cadets of the U.S. Military Academy, Plaintiff,
The UNITED STATES of America et al., Defendants

The opinion of the court was delivered by: OWEN


 OWEN, District Judge.

 This action -- an outgrowth of the most recent so-called "West Point cheating scandal" -- contests the constitutionality of the Cadet Honor Code (the "Code") and Honor System (the "System") maintained by the United States Military Academy. Plaintiff Timothy Ringgold, suing on behalf of himself and others similarly situated, is a cadet in his third year of studies charged with a violation of the Honor Code. In previous decisions, I denied his motions for a preliminary injunction and for the convocation of a three-judge court. On this cross-motion, the government has moved to dismiss. Because I am asked to consider affidavits and documents outside the pleadings, I treat this as a motion for summary judgment.

 In his complaint, plaintiff asserts his cause of action in the most general of terms. He contends:

That the illegal fostering, implementation and enforcement of the said Cadet Honor Code is detrimental to and impedes the fulfillment of the mission of West Point in that it is subjectively invoked, unequally implemented and enforced and creative of divisiveness and discontent among the cadets who are expressly required thereunder to spy and inform upon their peers. (para. 18)

 He seeks an injunction (1) banning the Code, (2) eliminating or dismissing all officers or bodies whose function is to implement and enforce it, (3) discontinuing all pending hearings, trials and investigations relating to Code violations, (4) reinstating all cadets previously found guilty, (5) rejecting all resignations submitted in response to charges of Code violations, and (6) expunging from service records all references to Code violations. Although it is difficult to perceive behind the exceedingly general language of his complaint, any specific legal cause of action or basis for the sweeping forms of relief sought, in passing upon this motion, I interpret the complaint to incorporate all the various arguments that he has advanced: specifically, that the Code and System are unconstitutional because (1) the executive branch of government is without the authority to promulgate them, (2) the Code is excessively vague, (3) the same penalty is applied regardless of the seriousness of the violation, (4) the System denies cadets due process of law, and (5) the Code creates divisiveness and encourages various base qualities by requiring cadets to "spy" upon each other.

 The Cadet Honor Code consists of the creed that "a cadet will not lie, cheat, or steal, nor tolerate those who do." The sole sanction for a violation is separation from the Academy.

 Under the Honor System, cadets are given the responsibility for administering the Code and investigating in the first instance suspected violations of it. To fulfill this responsibility, cadets are elected by their peers to the Cadet Honor Committee. In most instances, a suspected violation of the Code is first investigated by a cadet "regimental honor representative," then referred to a subcommittee for further investigation, and, finally, if the subcommittee so recommends, referred to a cadet honor board, consisting of twelve voting members, for a hearing and determination whether there has been a violation. At the hearing, the accused is given the opportunity to testify, to present witnesses on his behalf, to submit questions to other witnesses, and to respond to the evidence against him. If there is a guilty verdict -- which must be unanimous -- the cadet is sent to a "transient" barracks and requested to resign. *fn1"

 The Honor Committee does not have the authority to order the separation of a cadet from the Academy. If that is sought, and if the Superintendent of the Academy concurs, the Committee's findings are sent to a Board of Officers which conducts a further and de novo hearing. Before the Board, an accused cadet is entitled to have counsel, to present evidence on his own behalf and cross-examine adverse witnesses. 32 C.F.R. § 519.1. The Board then submits a recommendation to the Superintendent who in turn forwards his recommendation to the Department of Army Headquarters for final decision. Dept. of Army Regs. 16.03(c).

 Plaintiff was initially charged with the Honor Code violation of "toleration" *fn2" because he asserted, at a meeting with the Undersecretary of the Army and various other cadets, that numerous cadets not then charged with Honor Code violations had engaged in acts comparable to the ones committed by those who had been charged. After he refused to answer questions about this statement put to him by the Chairman of the Honor Committee or appear before the Committee, he was found guilty of toleration by the Committee, and sent to a special barracks. Initially, the Superintendent declined to forward the Committee's finding to a Board of Officers. But after plaintiff questioned him why charges were being dropped and apparently repeated his earlier statement about knowing of unreported violations, the Superintendent recommended that he be investigated by a Board of Officers. It was at this point, prior to a hearing before the Board, that plaintiff filed his complaint. *fn3"

 The government urges that the court does not have jurisdiction to hear plaintiff's complaint. It does not dispute that "[the] relationship between the Cadet Honor Committee and the separation process at the Academy has been sufficiently formalized, and is sufficiently interdependent, so as to bring that committee's activities within the definition of governmental activity for the purposes of our review." Andrews v. Knowlton, 509 F.2d 898, 906 (2d Cir.), cert. denied, 423 U.S. 873, 96 S. Ct. 142, 46 L. Ed. 2d 105 (1975). Nonetheless, the government argues that the complaint should be dismissed because the doctrine of exhaustion of administrative remedies requires plaintiff to appear before an Officer Board and, if necessary, pursue his right to appeal to the Superintendent and Army Headquarters prior to bringing this action. Plaintiff responds that because he challenges the legality of the entire system, rather than confining his attack to procedural aspects of its application, the exhaustion doctrine is not applicable here.

 It is well established that in a typical case involving a decision by military authorities, the plaintiff must exhaust his remedies within the military before appealing to federal court. See, e.g., Michaelson v. Herren, 242 F.2d 693 (2d Cir. 1957). This doctrine is designed both to preserve the balance between military and civilian authorities, Horn v. Schlesinger, 514 F.2d 549 (8th Cir. 1975), and to conserve judicial resources. Yonan v. Seamans, 380 F. Supp. 505 (N.D.Ill.1974). There can be little doubt that if plaintiff were challenging the Committee's findings that he was guilty of toleration, he would be required to exhaust his military remedies before appealing to this court.

 Plaintiff, however, does not deny that he has violated the prohibition against toleration. Rather, he attacks its legal and moral basis, and that of the entire system of which it is a part. To insist that he further pursue his military remedies would be to require him to participate in that very system whose legality he denies.

 Further, it is doubtful that a Board of Officers could consider the arguments raised here. According to Army Regulations, Board proceedings are "administrative and not judicial in nature." 32 C.F.R. § 519.2(b). It is essentially an investigative body, staffed by non-lawyers, whose primary function is to "ascertain the facts" rather than make legal judgments about the validity of the standards in question. 32 C.F.R. § 519.1. And even if the Board could consider plaintiff's contentions, such claims, based solely upon constitutional grounds, are "singularly suited to a judicial forum and clearly inappropriate to an administrative board." Downen v. Warner, 481 F.2d 642, 643 (9th Cir. 1973) (challenge to Marine Corps regulation on grounds of sex discrimination). Although the Staff Judge Advocate apparently reviews the Board's proceedings, the government has pointed to no stage ...

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