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CODY v. SCOTT

July 5, 1983

ROBERT F. CODY, Plaintiff
v.
WILLARD W. SCOTT, LT. GENERAL, as SUPERINTENDENT OF THE UNITED STATES MILITARY ACADEMY, WEST POINT, NEW YORK, et al., Defendants



The opinion of the court was delivered by: OWEN

OPINION AND ORDER

 OWEN, District Judge

 Plaintiff Robert F. Cody, a fourth-year cadet at the United States Military Academy, West Point, New York, commenced this action to stay his separation from the Academy as a consequence of certain events described hereafter. Before me are cross-motions for summary judgment by plaintiff and defendants Lt. General Willard W. Scott, the Superintendent of the Academy and John O. Marsh, Jr., the Secretary of the Army.

 On March 11, 1983, a military policeman confronted plaintiff and a fellow cadet as they sat in that latter's car in a parking lot on Academy grounds. At that time the military policeman discovered certain evidence indicating that the two cadets possessed and had recently used marijuana. *fn1" As a consequence, they were taken to a military police station at the Academy and defendant Scott, as their military commander, was informed. At that time Paragraph 10.09 of the Regulations for the United States Military Academy (USMA Reg. ") empowered Scott to proceed either by formal military court martial, see 10 U.S.C. § 934, involving possible criminal penalties or by a less formal investigative hearing, see USMA Reg. 1-10, involving possible separation from the Academy. Scott elected to convene an investigative hearing to inquire into the incident, and appointed Lt. Colonel David M. McClellan as Investigating Officer ("I.O.").

 In the performance of his duties as I.O., McClellan informed plaintiff of the hearing and the charges against him. He also notified plaintiff of his right to consult with legal counsel -- either civilian or military -- and to present evidence at the hearing as well as to cross-examine adverse witnesses, object to the introduction of evidence, and remain silent if he so desired. Regulation 1-10 does not permit counsel to participate at the investigative hearing, *fn2" but does require the exclusion of evidence seized in a bad faith unlawful search. *fn3"

 The investigative hearing was held over five days in April, 1983. Plaintiff, who elected to avail himself of the assistance of military counsel, participated in the hearing, cross-examined witnesses, called witnesses, and testified on his own behalf. His counsel, although not allowed to participate in the hearing, assisted in the preparation and conduct of the case and was available for consultation even during the hearings themselves. At the hearing, certain evidence which plaintiff now claims should have been excluded under the Fourth Amendment was admitted.

 On May 2, 1983, the I.O. issued his findings and recommendations. He concluded that plaintiff had wrongfully possessed and used marijuana in violation of the USMA regulations and he recommended that plaintiff be separated from the Academy. His recommendation was forwarded to defendant Scott together with a brief prepared by plaintiff's counsel. Scott thereupon issued prior to issuing his recommendation that plaintiff be separated from the Academy, transferred to the Army Reserve and ordered to active duty. On May 23, 1983, this recommendation was forwarded to the Department of the Army. Further action on Scott's recommendation has been held in abeyance during this Court's consideration of the issues. Plaintiff has not pursued his remedies with the Army Board of Correction of Military Records pursuant to 10 U.S.C. §§ 1551-54.

 To avoid the anticipated consequences of the I.O.'s recommendation, plaintiff commenced this action and now seeks injunctive relief compelling, in effect, his reinstatement to the Academy. Two questions are before me: 1) whether plaintiff's action is foreclosed because he has failed to exhaust his administrative remedies, and 2) whether, if not, his due process rights were violated by the use of the investigative hearing in these circumstances.

 As to the first issue, defendants contend that plaintiff has failed to exhaust at least two avenues of administrative relief still available to him. The Secretary of the Army has not yet reviewed and approved the recommendation of separation and plaintiff has not taken his appeal to the Army Board for Correction of Military Records pursuant to 10 U.S.C. §§ 1551-54. Either of these avenues, at least facially, affords plaintiff the opportunity for full relief.

 It is a "long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 82 L. Ed. 638, 58 S. Ct. 459 (1938). This principle has been applied to exhaustion of the military administrative process on numerous occasions, e.g., Stanford v. United States, 413 F.2d 1048 (5th Cir. 1969) and it should not be ignored absent special circumstances, e.g., Sohm v. Fowler, 124 U.S. App. D.C. 382, 365 F.2d 915 (D.C. Cir. 1966). Neither the low probability of success in the administrative proceeding, e.g., Hodges v. Callaway, 499 F.2d 417 (5th Cir. 1974), nor the assertion that administrative review proceedings threatened violation of constitutional rights, e.g., Nelson v. Miller, 373 F.2d 474 (3rd Cir. 1967), has been held to meet this special circumstance standard.

 Plaintiff has not advanced adequate justification to short-cut the normal administrative procedure. Although his chances of success before the military may be realistically assessed as slim, a disciplinary proceeding such as that before the court is particularly within the competence of the Board of Correction. See, e.g., Kolesa v. Lehman, 534 F. Supp. 590 (N.D.N.Y. 1982). Plaintiff's action is therefore barred by the administrative exhaustion doctrine.

 Even were the administrative exhaustion doctrine not applicable here, however, plaintiff's petition would still be unfounded. Without question, plaintiff could not be separated from the Academy, transferred to the Army Reserve, and ordered to active duty without being afforded certain procedural due process. Nevertheless, the fact that plaintiff must be afforded some procedural protection prior to the deprivation of protected rights does not carry with it the guarantee that he is entitled to the full panoply of protection available in a military court martial even though the underlying charges could have justified invoking such a proceeding. "Due process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972); see, Mathews v. Eldridge, 424 U.S. 319, 334-35, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976) (wherein the Supreme Court sets forth a general formula for resolving what process is due in a particular situation). In order to determine what process is due, a court must focus on the rights of the individual at peril, the sanctions with which he is faced, and the protections that will be afforded him before he is deprived of those rights and those sanctions are applied. Contrary to plaintiff's assertions here, an individual is not entitled to the full range of procedural protection simply because he could have been exposed to criminal charges. He is not. What is at issue here is plaintiff's fitness to continue training to be a graduate of West Point and thereafter assume command roles in the United States Army. Thus, it is the possible sanction to which one must look in order to determine what procedural protection is appropriate. Where the sanction is less than could be imposed by a court martial, procedural protection may be adjusted commensurately.

 While I note the very real loss to which plaintiff is subjected by his separation from the academy, that eventuality is no more or less than that for which plaintiff contracted when he entered West Point. *fn4"

 With this background in mind, it is clear that none of the individual claims which plaintiff presses upon the court is sufficient to warrant the relief he seeks. Moreover, each of plaintiff's individual claims has been considered, and rejected, by ...


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