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PHILLIPS v. UNITED STATES

January 2, 1996

STEVEN PHILLIPS, Plaintiff, against THE UNITED STATES OF AMERICA, POGO WEST, Secretary of the Army, LIEUTENANT GENERAL, HOWARD D. GRAVES, UNITED STATES MILITARY ACADEMY, Defendants.


The opinion of the court was delivered by: HURLEY

 HURLEY, District Judge

 In the above-captioned action, Plaintiff Stephen Phillips ("Phillips") alleges that Defendants have violated his constitutional right to due process and his rights under the Administrative Procedure Act, 5 U.S.C. § 551, et seq., by suspending him from the United States Military Academy at West Point ("the Academy"). Currently before the Court is Plaintiff's motion, brought by Order to Show Cause, for an order reinstating Plaintiff to full academic status at the Academy, with privileges restored, pending final determination of the action. For the reasons stated below, Plaintiff's motion is denied. *fn1"

 BACKGROUND

 Phillips was admitted as a cadet to the Academy in June, 1993. He attended the Academy regularly until October, 1995, when he was suspended from the Academy following an investigation of alleged Cadet Honor Code violations, to wit, it was alleged that Phillips lied in response to questions posed by a superior officer. *fn2" The conduct of the Academy in the Honor Code Investigation, and Phillips's suspension, form the factual bases of Phillips's Complaint.

 Phillips, in his Verified Complaint, Order to Show Cause with supporting affirmations, and Supplemental Affirmation, alleges six causes of action against Defendants. Specifically, Phillips alleges that:

 
1) Defendants violated the Administrative Procedure Act ("APA") and denied him due process of law in failing to permit Phillips's counsel to participate in the voir dire of members of the Honor Board ("the Board") (see Suppl. Aff. at 1-4);
 
2) the Academy denied Phillips due process of law in that the Board failed to follow Board procedures by receiving "redundant" and "cumulative" opinion testimony which was prejudicial to Phillips (see id. at 5-6);
 
3) & 4) the Academy denied Phillips due process of law in that the Board "failed to follow and adhere to procedures designed to allow a voir dire that provides Plaintiff with fair and impartial board members[.]" (id. at 6-8);
 
5) the finding of the Board was not supported by substantial evidence (id. at 9), and
 
6) the Academy violated the APA by the following "arbitrary and capricious acts":
 
i) substantial disregard of the findings and recommendations of the Board, (id. at 10);
 
ii) imposition of a sanction not commensurate with Phillips's infraction, labeled "minor" by Phillips, (id.);
 
iii) submission of Phillips's case to the Secretary of the Army in derogation the Army's "60 day rule," (id.), and
 
iv) failure to follow established procedures related to the voir dire of Board members and the admission of opinion testimony. (Id. at 11.)

 Defendants, in opposition, argue that: 1) the failure to allow Phillips's counsel to participate in voir dire violates neither due process nor the APA (Defs.' Mem. Further Supp. at 5-12); 2) the Honor Investigative Hearing and Academy proceedings were conducted in accordance with Academy procedures (id. at 12-16); and 3) the record reflects that the findings of the Board were supported by substantial evidence. (Id. at 18-19.) Additionally, Defendants argue that Phillips has failed to exhaust his administrative remedies. *fn3" (Id. at 19-20.)

 In reply to the Defendants' submissions *fn4" in opposition to Phillips's motion, Phillips elected to request that the Court consider his original and supplemental affirmations and memoranda in support of the instant motion. The matter being fully briefed, the Court proceeds with its factual and legal analysis.

 A. The Honor Committee Investigative Procedures and The Proceedings Below

 The Cadet Honor Code states that a cadet will not "lie, cheat or steal, nor tolerate those who do." (See USCC 15-1 at 2-1.) The Procedures to be followed when it is alleged that a cadet has violated the Honor Code, providing numerous stages of investigation and review, are outlined in USCC 15-1, chapter 2 ("the Procedures"). Those stages ...


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