should not have intervened in the proceedings between Guitard and the Navy." Id. at 740. Further, "the imperatives concerning military discipline require the strict application of the exhaustion doctrine in military cases." Id. District courts in this Circuit have applied the exhaustion doctrine to cases involving administrative proceedings at West Point and other military service academies. For example, in Cody v. Scott, 565 F. Supp. 1031 (S.D.N.Y. 1983), a West Point cadet sought an order staying his separation from the Academy following disciplinary proceedings in which he was found guilty of drug use. 565 F. Supp. at 1031. As in the case at bar, the cadet in Cody brought an action in the district court prior to the Secretary of the Army's review of the case, and prior to seeking relief pursuant to the Army Board of Correction of Military Records. 565 F. Supp. at 1033. Finding that "plaintiff has not advanced adequate justification to short-cut the normal administrative procedure[,]" the district court found the action barred by the administrative exhaustion doctrine. Id.
Similarly, in Kolesa v. Lehman, 534 F. Supp. 590 (N.D.N.Y. 1982), the plaintiff, a scholarship student in the Navy Reserve Officers Training Corps ("NROTC") was disenrolled from NROTC and ordered to commence active duty following a hearing before a Review Board that he had used illicit drugs and had shown only marginal military performance in the NROTC program. 534 F. Supp. at 591. In lieu of appealing to the Board of Correction of Naval Records ("BCNR"), the plaintiff brought an action in the district court to restrain the Secretary from ordering the plaintiff to active duty. Id. Finding that the notice provided to the plaintiff failed to appraise him of all of the matters that would be considered by the Board of Review, and thus raised constitutional concerns, the district court nevertheless declined to issue a preliminary injunction, opining that "an airing of plaintiff's claims in a BCNR will cure any constitutional deficiencies that may have attended his Board of Review hearing[.]" Id. at 595. The parties in Kolesa having consented to the continuation of a temporary restraining order pending entry of final judgment, the district court retained jurisdiction but refrained from decision on the substance of the plaintiff's claims pending completion of the administrative review process. Id.
The record submitted to this Court warrants a similar restraint. To date, Phillips's case has proceeded through the seemingly exhaustive investigative and review procedures established by the Academy. See supra at 5-12. Phillips has, however, attempted to "short-cut" the normal administrative process by bringing an action in this Court before a final decision by the Department of the Army and before seeking redress from the Army Board for the Correction of Military Records. Case law in this Circuit clearly holds that in military disciplinary and honor code proceedings, courts must await the exhaustion of the administrative process. See Guitard, 967 F.2d at 740; Kolesa, 534 F. Supp. at 595; Cody, 565 F. Supp. at 1034.
As to matters raised by Phillips in this Court regarding procedural irregularities, e.g., the impartiality and propriety of the Honor Board proceedings and admission of opinion testimony -- stages in the administrative review process remain in which such alleged procedural irregularities may be addressed.
This is especially true as to the asserted violation of the "60-day rule," which is imposed by the Secretary of the Army on the Academy. (See USCC 15-1, 2-18 through 2-20.)
Because the decision to separate Phillips from the Academy is not final, and because he has not exhausted the available avenues of administrative review, this Court declines to intervene in the proceedings between Phillips and the Department of the Army, and the instant motion is denied.
B. Phillips's Allegations as to Due Process and Administrative Procedure Act Violations
Notwithstanding that the Court disposes of the instant motion on the aforementioned ground, the Court notes that a review of applicable case law and of the record before the Court strongly suggest that Phillips has not made the necessary showing for a preliminary injunction. In short, the record before the Court does not indicate a likelihood of success on the merits of the claims that the Academy has violated Phillips's rights to due process and under the Administrative Procedure Act.
"The general standard for issuing a preliminary injunction is well-settled. 'The party seeking the injunction must demonstrate (1) irreparable harm should the injunction not be granted, and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party seeking injunctive relief.'" Able v. United States, 44 F.3d 128, 130 (2d Cir. 1995) (citing Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir. 1991)). However, "as long as the action to be enjoined is taken pursuant to a statutory or regulatory scheme . . . government action with respect to [a] litigant requires application of the 'likelihood of success' standard." Able, 44 F.3d at 131. Moreover, a preliminary injunction is an extraordinary remedy not to be routinely granted. Medical Soc'y v. Toia, 560 F.2d 535 (2d Cir. 1977).
Undoubtedly, Phillips is entitled to full due process protection in the underlying proceedings which may, or may not, in the final analysis, culminate in his separation from the Academy. See Tully v. Orr, 608 F. Supp. 1222, 1226 (E.D.N.Y. 1985); Cody v. Scott, 565 F. Supp. at 1034; Lightsey v. King, 567 F. Supp. 645, 648 (E.D.N.Y. 1983). Due process is a flexible concept, however, and in this Circuit the standard is clear: in military separation proceedings such as Phillips's, an individual must be given a full and fair hearing. Wasson v. Trowbridge, 382 F.2d 807 (2d Cir. 1967).
The individual must receive notice of the charges against him and a fair opportunity to present a defense. He should be given the opportunity to appear, and to present statements, evidence and witnesses on his behalf. With respect to counsel, the Court in Wasson reasoned that counsel is not ordinarily required where the proceeding is noncriminal in nature; where the proceeding is essentially investigative and the government does not proceed with counsel, and where the individual concerned is sufficiently mature and educated to develop the facts adequately.
Kolesa v. Lehman, 534 F. Supp. at 593-94; see Hagopian v. Knowlton, 470 F.2d 201 (2d Cir. 1972) (hearing and opportunity to present evidence, witnesses and testimony required when the separation of a cadet is envisioned, but representation by counsel not required), questioned on other grounds, Phillips v. Marsh, 687 F.2d 620, 624 (2d Cir. 1982) (Winters, J., concurring).
Additionally, as with any other agency, actions by the Academy, other than those committed to agency discretion by law, are subject to the requirements of the Administrative Procedure Act, 5 U.S.C. §§ 551, et seq.. See Ornato v. Hoffman, 546 F.2d 10, 14 (2d Cir. 1976). However, the APA requires only that the Academy, as any other agency, follow its own procedures. Id.; Smith v. Resor, 406 F.2d 141 (2d Cir. 1969). "When regulations prescribe specific steps to be taken to insure due process they must be substantially observed." Friedberg v. Resor, 453 F.2d 935, 938 (2d Cir. 1971). Thus, due process requires that the Academy afford cadets, such as Phillips, certain procedural protections, see supra at 17, in separation proceedings; the APA requires that the Academy act in accordance with the procedures it has imposed upon itself in ensuring due process requirements are met. See Lightsey v King, 567 F. Supp. at 649-50 (where Merchant Marine Academy ("MMA") procedures provided for an Honor Board hearing to determine the veracity of honor code allegations, the MMA could not disregard the findings of that board).
The Court notes that although Phillips's claims are replete with allegations that the Academy failed to follow its own procedures, (see e.g., Suppl. Aff. at 4, 5, 6, 10-11), and allegations that the Academy breached certain "customs" and "norms" (see Suppl. Aff. at 9), in imposing a sanction in Phillips's case, and further, that the Academy actions were "arbitrary and capricious," (see id. at 10-12), the Court has been provided by Phillips with no factual support on which to reach such a conclusion. On the other hand, Academy regulations and the Administrative record, submitted in opposition to the instant motion by Phillips, strongly suggest that the Academy has abided by its own, self-imposed procedures regarding the investigation and processing of Honor Code violations. See supra at 5-12.
The administrative record indicates that the Academy regulations, which appear to have been scrupulously observed, provided ample notice to Phillips of the accusations against him, a full and fair hearing in which he could object to Board members and evidence, cross-examine adverse witnesses, and present witnesses in his own behalf -- with the assistance of counsel with whom he could consult. See supra at 7-9. Further, Phillips had the opportunity to submit statements at different stages of the proceedings, i.e., to the Investigative Team, see supra at 6, and to the Superintendent, see supra at 9, before a decision was made by the Superintendent to recommend separation. It would appear, on the basis of the record currently before the Court, that Academy procedures complied with due process, and further, that this is a case in which the Academy substantially complied with its own procedures. Accordingly, the likelihood of success on the merits of Phillips's claims appear, at this juncture, slim at best.
Despite the foregoing discussion of the merits of Phillips's claims, the Court reiterates that Phillips's motion for a preliminary injunction is denied because Phillips has not exhausted his administrative remedies and administrative avenues of relief remain open.
For the foregoing reasons, Plaintiff Steven Phillips's motion for an order reinstating him to full academic status at the United States Military Academy at West Point is DENIED.
Dated: Hauppauge, New York
January 2, 1996
DENIS R. HURLEY, U.S.D.J.