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David J. Domine, et al v. Sashi N. Kumar


July 5, 2012


The opinion of the court was delivered by: Joseph F. Bianco, District Judge:


Johnson, denying them admission to the Academy's Class of 2016.

Plaintiffs David J. Domine ("Domine"), Anthony S. Presutti ("Presutti") and Zachary By Order to Show Cause, plaintiffs seek J. Ryder ("Ryder") (collectively declaratory relief, pursuant to 28 U.S.C. "plaintiffs"), commenced this action against § 2201, and for the issuance of a writ of Sashi N. Kumar, in his capacity as Interim mandamus, pursuant to 28 U.S.C. § 1361, Superintendent and Academic Dean directing defendants to enroll the plaintiffs ("Kumar"), Robert Johnson, in his capacity in the Academy's Class of 2016. The Class as Admissions Officer ("Johnson"), Ray of 2016 is scheduled to enter the Academy LaHood, in his capacity as Secretary of the on Thursday, July 5, 2012. In particular, Department of Transportation ("Secretary"), plaintiffs argue that, as residents of the United States Merchant Marine Wisconsin who were found to be qualified Academy (the "USMMA" or the candidates for appointment to the Academy "Academy"), the United States Maritime and who were placed on an alternates list, Administration (the "Administration") and they were entitled to fill the vacancies for the United States Department of the Wisconsin allocation under the statute Transportation (the "Department of prior to candidates from a national alternates Transportation"), pursuant to the list being selected by the Academy to fill Administrative Procedures Act, 5 U.S.C. those vacancies. In response, the Academy §§ 701-706 (the "APA"), seeking review of has stated that, in filling vacancies after the decision of the Academy, acting through candidates from various jurisdictions decline appointments, it has a policy of transitioning on April 1 from an alternate list by appointment to the next qualified alternate jurisdiction (in order of merit) to a national from Wisconsin. However, when three alternate list (in order of merit) for the qualified nominees from Wisconsin declined purpose of ensuring that it can fill open slots their appointments in April, the Academy by the nationally recognized college extended appointments to the next best acceptance deadline of May 1. qualified nominees from the national alternates list, which did not include On July 2, 2012, after full briefing and plaintiffs. There is no explicit language in oral argument on plaintiffs' request for the applicable statute or regulations that emergency relief, the Court orally denied the requires that the alternates list from a request for declaratory relief and the particular jurisdiction must be exhausted issuance of the writ of mandamus. For the before the utilization of a national alternate reasons set forth on the record and below, list. The language of the statute and this Court concludes that the defendants' regulations is, at minimum, ambiguous. As interpretation of the applicable statute and set forth by the Academy's Director of its own regulations is reasonable, and Admissions, the Academy (like other federal plaintiffs have failed to demonstrate service academies) makes the transition to entitlement to the extraordinary relief of a the national alternate list on April 1 in order writ of mandamus based upon the record to ensure it call fill its incoming class by the before this Court. Although plaintiffs May 1 date, which is nationally recognized contend that the Academy's transition to the for college acceptance. Based upon the national alternate list after April 1 is record before this Court, this is a reasonable inconsistent with the unambiguous language interpretation by the defendants of the of the applicable statute and regulations, the statute and their own regulations. Thus, Court disagrees. As a threshold matter, plaintiffs have not demonstrated entitlement Congress has not spoken unambiguously in to declaratory relief or the drastic remedy of the statute as to the precise question at issue a writ of mandamus. Accordingly, -- namely, when the transition should be plaintiffs' application is denied in its made to a national list of alternates. entirety.


Moreover, Congress has delegated to the Secretary of Transportation the power to establish the competitive system for appointments to the Academy. Specifically, A. Factual Background under the applicable statute, Wisconsin is allocated four appointments, or offers of The following facts are drawn from the admissions, to the Academy and the plaintiff's complaint and petition for Writ of Secretary must appoint individuals to fill Mandamus ("Compl.") as well as from those positions in order of merit of defendants' opposition papers. As a review individuals nominated from that jurisdiction. of the facts demonstrates, the material facts For the Class of 2016, the Academy offered are essentially not in dispute for purposes of appointments to six qualified nominees from the motion; rather, plaintiffs challenge the Wisconsin, thus complying with the statute. defendants' interpretation of the applicable The Academy initially extended five statute and regulations pertaining to appointments to the top five qualified admission to the Academy. nominees from Wisconsin; when one nominee from Wisconsin declined prior to April 1, the Academy extended an

According to the complaint, plaintiffs According to the defendants, the are residents of the State of Wisconsin Academy extends more appointments than which, each year, is allocated four vacancies actual spaces in the class and the total in the Academy's entering Class. (Compl. number of appointments that are extended is ¶ B.) Plaintiffs were each duly nominated based upon the expected number of by a Wisconsin Senator or Member of acceptances versus declinations, which Congress for admission to the Academy's constitutes the "yield." (Captain Robert Class of 2016. (Id. ¶ C.) Plaintiffs were Johnson Declaration in Opposition to found to be academically and otherwise Plaintiff's Order to Show Cause, dated June qualified for appointment to the Academy, 22, 2012, (the "Johnson Declaration"), ¶ 7.) and were designated by Kumar and Johnson The estimated yield for the Class of 2016 is as "on hold" or "alternate" candidates for 73%, and thus, appointments were extended appointment to the Academy and were to 390 applicants, in anticipation of promised consideration for entry into the enrolling a class of 277. (Id. ¶ 10.) Class of 2016 as vacancies occurred "'on the However, 281 accepted these appointments. state [Wisconsin] listings. . .'" (Id. (citing (Id.) Each appointment letter notifies the Pl.'s Exs. 1 and 2).) applicant that he or she must accept by May 1 and failure to accept by May 1 is deemed a

According to plaintiffs, only one rejection of the appointment. (Id ¶ 12.) candidate from Wisconsin accepted Prior to April 1, if an appointment is appointment, and therefore, three vacancies declined, the Academy extends an allocated to Wisconsin still exist because the appointment to the next alternate from the three candidates designated as "principal" same jurisdiction. (Id. ¶ 21.) On or about candidates declined their appointment to the April 1, the Academy takes the remaining Academy's Class of 2016. (Id. ¶¶ D, 13.) qualified nominees from each jurisdiction In May 2012, plaintiffs learned of the three who have not yet received appointments and remaining Wisconsin vacancies and creates a national alternates list on which all immediately asked Kumar and Johnson to of those remaining nominees are ranked in comply with the C.F.R. and their promises order of merit, regardless of jurisdiction. to appoint them to these vacancies. (Id. (Id. ¶ 22.) After April 1, if an appointment

¶ E.) Plaintiffs argue that since they are is declined, the Academy extends an qualified alternate candidates from appointment to the next alternate on the Wisconsin, they were and are entitled to national alternates list, in order of merit. appointments to fill Wisconsin's vacancies (Id. ¶ 23.) in the Class of 2016 before any non-

Wisconsin residents. (Id. ¶ 14.) Kumar and Johnson refused. (Id. ¶ E.) After appointments. (See Declaration of Captain Robert unsuccessful efforts, on June 6, 2012, Johnson in Opposition to Plaintiff's Order to Show counsel wrote to LaHood and Matsuda Cause, June 22, 2012, at ¶ 33 ("There are several seeking immediate administrative relief. other jurisdictions in the same position as Wisconsin this year. Wisconsin is one of thirteen States with

(Id. ¶ F.) On June 14, 2012, their request more appointments extended by the USMMA this was denied. (Id. ¶ G.)*fn1 year than the number of appointments allocated to that State by law, with fewer acceptances than the number allocated. Each of those States had additional qualified nominees who ultimately did not

Defendants assert that this is done once been my experience that qualified each jurisdiction has received the minimum applicants receive offers of number of appointments as required under admission at other institutions of 46 C.F.R. § 310.53(b), in order to ensure higher education. The longer the that the Academy fills its incoming class by USMMA waits to transition to the the nationally recognized college acceptance national alternates list, the greater the deadline of May 1. (Id.) In particular, as set risk of losing that qualified applicant forth in detail in the Supplemental to another institution, many of which Declaration of Captain Robert Johnson require non-refundable deposits as (Director of Admissions as the USMAA), early as March 1. In addition, it has the transition to the national list after April 1 been my experience that the reason not only allows them to enroll the best many applicants wait until late April qualified class, but also avoids the to decline an offer of admission to possibility that the USMAA will be under- the USMMA is because they are enrolled: waiting to hear from a competing

Service Academy. Consequently,

On or about April 1, the USMAA the USMMA moves to the national extends an appointments [sic] to the alternates list on or about April 1 number of alternates on the national because the USMMA wants to enroll alternates list, in the order of merit in the best qualified incoming class accordance with the statutory possible from the pool of qualified command of 46 U.S.C. applicants, and does not want to lose § 51302(d)(3), required to meet its the best qualified candidates to projected yield. This is done to competing institutions. Significantly, ensure that the USMMA fills its if the USMMA did not transition to incoming class by the nationally- the national alternates list on or recognized college acceptance about April 1, it would be at risk of deadline of May 1. The USMMA under-enrollment and a less did not extend any appointments qualified entering class in after on or about April 1. The contravention of 46 U.S.C. USMAA transitions to its national § 51302(d)(3). alternates list in order to enroll the best qualified class. In my (Supplemental Declaration of Captain experience, as the May 1 national Robert Johnson, dated July 3, 2012, deadline approaches, the longer the ("Supplemental Johnson Declaration"), USMMA waits to begin extending ¶¶ 11-17 (emphasis added).) appointments from the national alternates list, the less likely it will As noted above, the State of Wisconsin be able to enroll the best qualified is allocated four appointments to the candidates off that list. Depending Academy. (Johnson Declaration, ¶ 5.) on when an applicant has completed According to defendants, more than four his or her application, as set forth individuals were nominated from Wisconsin above, a qualified applicant may for admission to the Class of 2016, the have been waiting since as early as Academy reviewed the nominees, October to receive a response to the determined an order of merit, and extended application. At the same time, it has an appointment to the top five qualified nominees. (Id.) Prior to April 1, 2012, one USMMA did not extend any Wisconsin nominee who received an appointments after on or about April appointment declined, and thus, the 1, despite the fact that six national Academy extended an appointment to the alternates list appointees declined next qualified alternate from Wisconsin. their appointments. Plaintiffs did not (Id. ¶ 25.) Thus, prior to April 1, six rank among the top thirty on the appointments were offered to qualified Class of 2016 national alternates list. nominees from Wisconsin, and plaintiffs were not among them. (Id. ¶ 26.) As of (Supplemental Johnson Declaration, ¶¶ 18-April 1, 2012, five appointments to qualified 21.) nominees from Wisconsin were still open. (Id. ¶ 27.) On or about April 1, 2012, the Finally, the defendants note that the Academy moved plaintiffs to the national Academy's admissions practice of alternate list where they were ranked in transitioning to a national list on or about order of merit together with all other April 1 of each year "is consistent with the remaining qualified nominees. (Id. ¶ 28.) practices followed by other Federal service Only one of the six qualified nominees from academies that have similar admissions Wisconsin who received an appointment procedures." (Johnson Declaration, ¶ 34.) In accepted and of the four remaining particular, the Academy's Director of appointments that were extended, three were Admissions explains: declined during the month of April and one never responded, and thus was deemed [I]t is my understanding that the declined as of May 2. (Id. ¶ 29.) When the United States Military Academy and three qualified nominees from Wisconsin the United States Naval Academy declined their appointment in April, the both similarly interpret the term Academy followed its standard admissions "appointment" (as that term is used procedure and extended appointments to the in the laws governing their next best qualified nominee from the admissions procedure) to mean an national alternates list. (Id. ¶ 30.) Plaintiffs "offer of admission," rather than an were not selected from the national enrollment. In addition, it is my alternates list to receive an appointment. understanding that those academies (Id. ¶ 31.) transition from a list of qualified nominees from each jurisdiction to a The Supplemental Johnson Declaration national list on or about April 1 of contains the following additional statistics: each year, as the USMMA does.

This year the national alternates list (Id.) consisted of 250 qualified applicants.

For the Class of 2016, the USMAA B. Procedural History extended thirty appointments from the national alternates list, twenty- Plaintiffs brought this action, by Order four of whom accepted by the May 1 to Show Cause, on June 14, 2012. The deadline. Consistent with the parties participated in a telephone USMMA practice over the last three conference on June 15, 2012, and the Court admission cycles, having achieved set a briefing schedule. Defendants its yield for the Class of 2016, the submitted their opposition on June 22, 2012.

Plaintiffs filed their reply in June 28, 2012. Anderson v. Bowen, 881 F.2d 1, 5 (2d Cir. The parties participated in oral argument on 1989) (quoting Lovallo v. Froehlke, 468 July 2, 2012. As requested by the Court, F.2d 340, 343 (2d Cir. 1972)). In short, as defendants filed a supplemental declaration the Supreme Court has emphasized, on July 3, 2012. Plaintiffs filed a response to mandamus "is a 'drastic and extraordinary' the supplemental declaration on July 3, remedy 'reserved for really extraordinary 2012. Additional argument also was heard causes.'" Cheney v. U.S. Dist. Court for the on July 3, 2012. The Court then ruled orally Dist. of Columbia, 542 U.S. 367, 380 (2004) from the bench denying the request for the (quoting Ex parte Fahey, 332 U.S. 258, 259-writ, and stated that this written 60 (1947)).

Memorandum and Order would follow.



Section 702 of the APA provides that 28 U.S.C. Section 1361 provides that "[a] person suffering legal wrong because of "[t]he district courts shall have original agency action, or adversely affected or jurisdiction of any action in the nature of aggrieved by agency action within the mandamus to compel an officer or employee meaning of a relevant statute, is entitled to of the United States or any agency thereof to judicial review thereof." 5 U.S.C. § 702. In perform a duty owed to the plaintiff." 28 its review, a court may: U.S.C. § 1361. "The extraordinary remedy of mandamus under 28 U.S.C. § 1361 will (2) hold unlawful and set aside issue only to compel the performance of "'a agency action, findings, and clear non-discretionary duty.'" Pittston Coal conclusions found to be --

Group v. Sebben, 488 U.S. 105, 121 (1988) (quoting Heckler v. Ringer, 466 U.S. 602, (A) arbitrary, capricious, an 616 (1094)); see also Escaler v. U.S. abuse of discretion, or otherwise Citizenship & Immigration Servs., 582 F.3d not in accordance with law . . . 288, 292 (2d Cir. 2009) ("Of course, mandamus is an extraordinary remedy, 5 U.S.C. § 706(2)(A). intended to aid only those parties to whom an official or agency owes 'a clear "The scope of review under the non-discretionary duty.'" (quoting Heckler, 'arbitrary and capricious' standard is narrow 466 U.S. at 616)). Moreover, the Second and a court is not to substitute its judgment Circuit has articulated the strict for that of the agency." Motor Vehicle Mfrs. requirements for this extraordinary remedy: Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856,

The prerequisites for issuance of a 2867 (1983). "Nevertheless, the agency writ of mandamus are peremptory: must examine the relevant data and "(1) a clear right in the plaintiff to articulate a satisfactory explanation for its the relief sought; (2) a plainly action including a 'rational connection defined and peremptory duty on the between the facts found and the choice part of the defendant to do the act in made.'" Id. (citing Burlington Truck Lines v. question; and (3) no other adequate United States, 371 U.S. 156, 168, 83 S.Ct. remedy available." 239, 245-246, 9 L.Ed.2d 207 (1962)).

Under Supreme Court and Second stated that, "[w]e have long recognized that Circuit jurisprudence, "[w]hether a court considerable weight should be accorded to defers to an agency's interpretation 'depends an executive department's construction of a in significant part upon the interpretative statutory scheme it is entrusted to method used and the nature of the question administer, and the principle of deference to at issue.'" Encarnacion v. Astrue, 568 F.3d administrative interpretations." Id. 72, 78 (2d Cir. 2009) (quoting Barnhart v.

Walton, 535 U.S. 212, 222 (2002)). First, In 2001, the Supreme Court considered "[w]hen Congress has entrusted rulemaking the limits of Chevron deference owed to authority under a statute to an administrative administrative practice in applying a statute agency, we evaluate the agency's in United States v. Mead Corporation, 533 implementing regulations under Chevron U.S. 219, 121 S. Ct. 2164, 150 L.Ed.2d 292 U.S.A., Inc. v. Natural Resources Defense (2001). In Mead, the Court held that: Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed.2d 694 (1984)." Id. [a]dministrative implementation of a particular statutory provision In Chevron U.S.A. Inc. v. Natural qualifies for Chevron deference Resources Defense Council, Inc., the Court when it appears that Congress set forth a two-step process to determine delegated authority to the agency whether deference should be given to an generally to make rules carrying the agency interpretation of its regulations and force of law, and that the agency governing statutes: interpretation claiming deference was promulgated in the exercise of First, always, is the question whether that authority. Delegation of such Congress has directly spoken to the authority may be shown in a variety precise question at issue. If the intent of ways, as by an agency's power to of Congress is clear, that is the end engage in adjudication or notice-andof the matter; for the court, as well as comment rulemaking, or by some the agency, must give effect to the other indication of a comparable unambiguously expressed intent of congressional intent.

Congress. If, however, the court determines Congress has not directly Id. at 226-227. Thus, Chevron deference is addressed the precise question at generally unwarranted where a policy is not issue, the court does not simply contained in the regulations themselves or impose its own construction on the another format authorized by Congress for statute, as would be necessary in the issuing legislative rules, but rather is absence of an administrative explained in an informal source, such as a interpretation. Rather, if the statute is training manual. See, e.g., Estate of Landers silent or ambiguous with respect to v. Leavitt, 545 F.3d 98, 106 (2d Cir. 2009) the specific issue, the question for ("Although nonlegislative rules are not per the court is whether the agency's se ineligible for Chevron deference as a answer is based on a permissible general matter, we are aware of few, if any, construction of the statute. instances in which an agency manual, in particular, has been accorded Chevron 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 deference.").

L.Ed.2d 694 (1984). Further, the Court

However, as the Second Circuit has (a) In General. -- The Secretary of noted, pursuant to Auer v. Robbins, 519 U.S. Transportation shall maintain the 452 (1997), "[a] similar deference applies United States Merchant Marine when an agency interprets its own Academy as an institution of higher regulations." Encarcion, 568 F.3d at 78. education to provide instruction to More specifically, "[t]hat interpretation, individuals to prepare them for regardless of the formality of the procedures service in the merchant marine of the used to formulate it, is 'controlling unless United States, to conduct research plainly erroneous or inconsistent with the with respect to maritime-related regulation[s].'" Id. (quoting Auer, 519 U.S. matters, and to provide such other at 461 (internal quotation marks omitted)). appropriate academic support, assistance, training, and activities in Finally, "[e]ven if neither Chevron nor accordance with the provisions of Auer applies, an agency's interpretation is this chapter as the Secretary may still entitled to respect according to its authorize. persuasiveness under Skidmore v. Swift & Co., 323 U.S. 134, 65 S. Ct. 161, 89 L.Ed. (b) Recruitment. -- The Secretary of 124 (1944)." Encarcion, 568 F.3d at 78. Transportation may, subject to the The weight given to an interpretation under availability of appropriations, expend Skidmore "depends 'upon the thoroughness funds available for United States evident in its consideration, the validity of Merchant Marine Academy its reasoning, its consistency with earlier and operating expenses for recruiting later pronouncements, and all those factors activities, including advertising, in which give it power to persuade." order to obtain recruits for the Encarcion, 568 F.3d at 79 (quoting Academy and cadet applicants. Skidmore, 323 U.S. at 140.)

46. U.S.C. § 51301. Title 46, Section 51302

In the instant case, because the governs the nomination and competitive Academy's policy of transferring to a appointment of candidates to the Academy. national list on April 1 is not contained in 46 U.S.C. § 51302. Section (a) sets forth the the regulations themselves, the Court does requirements for appointment and Section not apply Chevron deference to the (b) sets forth how a candidate can be interpretation. However, because it does nominated for appointment. 46 U.S.C. involve an agency's interpretation of its own § 51302(a) and (b); See also 46 C.F.R. regulations, Auer deference is warranted. In § 310.53. Section (c) of U.S.C. § 51302 any event, even under the Skidmore provides the number of allocated positions standard, the Court concludes that it is for competitive appointments for each entitled to respect according to its jurisdiction for each year. 46 U.S.C. persuasiveness because of the validity of its § 51302(c). reasoning, as discussed below.

The statute gives the Secretary of


Transportation the power to establish the system of appointment. The statute

A. The Statute and Regulations provides: "The Secretary shall establish a competitive system for selecting individuals Title 46, Section 51301 of the United nominated under subsection (b) to fill the States Code provides that:

positions allocated under subsection 46 C.F.R. § 310.53(e)(1). Moreover, the (c). . . ." 46 U.S.C. § 51302(d)(1). The regulations provide the following: statute further provides that, "[t]he Secretary shall appoint individuals to fill the positions Selection of midshipmen for allocated under subsection (c) for each appointment to fill vacancies allotted jurisdiction in the order of merit of the to the various States and other individuals nominated from that locations, as specified in § 310.53(b) jurisdiction." 46 U.S.C. § 51302(d)(2). (1) and (2) of this subpart, shall be in However, the statute further states that "[i]f order of merit. The order of merit positions remain unfilled after the shall be determined on the scores of appointments are made under paragraph (2), the required entrance examinations, the Secretary shall appoint individuals to fill on assessment of the academic the positions in the order of merit of the background of the individual and on remaining individuals nominated from all such other factors as are considered jurisdictions." 46 U.S.C. § 51302(d)(3). by the Academy to be effective indicators of motivation and the The federal regulations promulgated probability of successful completion under this statute explain that: of training at the Academy. No preference shall be granted in

(1) The Administrator*fn2 shall make selecting individuals for appointment appointments to fill the vacancies because one or more members of allocated pursuant to paragraph (b) their immediate families are alumni of this section from among qualified of the Academy. nominees, in order of merit, from each geographical area. The order of 46. C.F.R. § 310.57(b). Candidates are merit shall be established according notified of the results of the selection to the procedure as specified in process "about May 1 each year." 46 C.F.R. § 310.57(b). Such appointments first § 310.57 (c). The regulations also provide shall be made from among residents that "[a]lternates will replace principal of each geographic area listed in candidates who decline appointment or fail paragraph (b) of this section. to meet the physical requirements or the Thereafter, appointments shall be security and suitability investigation." 46. made from among residents of each C.F.R. § 310.57 (c). geographic area listed in paragraph (b) of this section. Thereafter B. Analysis appointments shall be made from among remaining qualified nominees Plaintiffs argue that they are entitled to (national alternates) in order of merit fill the three vacancies in Wisconsin's regardless of the area of residence. allocation to the Class of 2016. (Compl. ¶ H.) Plaintiffs further argue that the defendants' decision "[I]s invalid because it was made on unreasonable grounds and patently violates the above regulations and Transportation from a national list of the Academy's published position defining alternates. If "appointments" referred to the its admission processes and was therefore actual enrollment of students rather than an based on unreasonable grounds." (Compl. offer of admission, this statutory scheme and ¶ 15.) However, for the reasons set forth language would simply not make sense. below, this Court concludes that the Thus, it is clear from that statutory language defendants' interpretation of the statute and and framework that the defendants' regulations is reasonable, and that plaintiffs interpretation of an appointment as "an offer are not entitled to a writ of mandamus. of admission" is reasonable.

1. Appointments 2. Transition from State Alternate List to National List

Defendants argue that the term "appointment" is used in the laws governing Plaintiffs allege that "Defendant[s] the admission procedures to the Academy to Kumar (and Johnson) have taken the mean an "offer of admission." (Johnson position that if they 'offer' appointments to Declaration, ¶¶ 6, 34.) Based on the plain a state's principle candidates, and if such meaning of the term in the statute, it is clear candidates do not accept by May 1, they can that the defendants' interpretation is correct. then ignore and skip that part of the regulations requiring that a state's vacancies Although "[a]ppointment" is not defined be offered to a state's alternate candidates in the relevant statute or regulatory scheme, before such vacancies be offered to national the statutory language makes clear that it is a alternate candidates. . . . defendants' reference to an offer of admission, not position patently violates the above enrollment. In particular, the statute regulations and the Academy's published provides that individuals may be nominated position defining its admission processes for competitive appointment by those and was therefore based on unreasonable persons enumerated in the statute. 46 grounds." (Compl. ¶ 15.) The Court U.S.C. § 51302(d)(1). The statute also gives disagrees with the plaintiffs' position and the Secretary of Transportation the power to concludes that defendants' interpretation of appoint individuals to fill the positions for the statute and regulations is reasonable. each jurisdiction. 46 U.S.C. § 51302(d)(2); see also 46 C.F.R § 310.53. Moreover, the First, the statute clearly gives the statute also provides that "[i]f positions Secretary the authority to establish the remain unfilled after the appointments are system for selecting individuals who will made under paragraph (2), the Secretary receive appointments. See 46 U.S.C. may appoint individuals to fill the positions § 51302(d)(1). The statute, however, directs in the order of merit of the remaining that "[t]he Secretary shall appoint individuals nominated from all individuals to fill the positions allocated jurisdictions." 46 U.S.C. § 51302(d)(3); see under subsection (c) for each jurisdiction in also 46 C.F.R § 310.53 Thus, it is clear the order of merit of the individuals from the statutory language in Section nominated from that jurisdiction." 46 U.S.C. 51302(d)(3) that, like an offer of admission, § 51302(d)(2). The statute clearly provides a potential enrollee in the Academy may that "[i]f positions remain unfilled after the turn down the appointment, and an alternate appointments are made under paragraph (2), may be selected by the Secretary of the Secretary shall appoint individuals to fill the positions in the order of merit of the alternates will be considered from their remaining individuals nominated from all geographic location, but they will then be jurisdictions." 46 U.S.C. § 51302(d)(3) considered from a national alternatives list (emphasis added). Thus, the language of the regardless of their location. The regulation statute provides that unfilled vacancies are is silent as to the timing of that transition. to be filled from all jurisdictions, not just by the alternates of each geographic location. Moreover, plaintiffs' reliance on 46 C.F.R. § 310.57(c) is misplaced. Although

Here, the USMAA extended plaintiffs are correct that it states that appointments to a total of six qualified "[a]lternates will replace principal nominees from Wisconsin, which was above candidates who decline appointment or fail the allocation of four appointments for to meet the physical requirements or the Wisconsin. Although plaintiffs contend that security and suitability investigation," it the statute requires the creation of an does not specify whether alternates will be alternate list of qualified nominees by selected by geographic location or off of a jurisdiction and the exhaustion of that list national list. Thus, the regulations do before the selection of alternates on a provide that the Academy may extend national level, the statute does not contain appointments to alternates, first based on any such language. The statute is, at a geography, then based on merit regardless of minimum, ambiguous as to whether an residency. alternate list by jurisdiction is required and, if so, whether that list must be exhausted In light of the ambiguity in the statute before transition to an national alternate list. and regulations, the USMMA's policy of transitioning to the national list of alternates The regulations also are ambiguous on after April 1 is not plainly erroneous or the issue of the timing of the transition to a inconsistent with the statute or regulations. national list of alternates. Plaintiffs rely on As explained in the supplemental

46 C.F.R. § 310.53(e)(1) and 310.57(c) and declaration, the transition to the national list claim that when read together, "it is clear of alternates after April 1 is necessary to that the alternates from each state must ensure that the USMMA will be able to fill replace principals from that state who its incoming class by the nationally-decline appointments or fail to meet other recognized college acceptance deadline of requirements." (Compl. ¶ 10.) 46 C.F.R. May 1. As the USMMA's Director of § 310.53(e)(1) provides that, after Admissions emphasizes, "Significantly, if appointments are made from among the the USMMA did not transition to the residents of each geographic area, national list on or about April 1, it would be "[t]hereafter, appointments shall be made at risk of under-enrollment and a less from among residents of each geographic qualified entering class in contravention of area listed in paragraph (b) of this section." 46 U.S.C. § 51302(d)(3)." (Supplemental However, the section further states that Johnson Declaration, ¶ 17.) Thus, when the "[t]hereafter appointments shall be made USMMA's compelling need to ensure that it from among remaining qualified nominees will be able to fill its incoming class (national alternates) in order of merit pursuant to the authority delegated by regardless of the area of residence" 46 Congress is analyzed in light of the C.F.R. § 310.53(e)(1) (emphasis added). ambiguity in the statute and regulations as to Thus, the very regulation relied upon by the transition to a national alternate list, the plaintiffs clearly indicates that first defendants' interpretation of the statute and As explained in the Johnson Declaration, its own regulations is reasonable. the candidates are transferred to the national alternates list on or about April 1 "[t]o Although plaintiffs argue that the statute ensure that the [Academy] fills its incoming and regulations give the defendants class by the nationally recognized college absolutely no discretion to move to the acceptance deadline of May 1." (Johnson national list until all the qualified alternates Declaration, ¶ 23.) According to defendants, from Wisconsin have been given May 1 is "the national date used universally appointments according to the allocation and by all colleges, universities, and service have declined, that arguments fails for two academies in the United States as the reasons. First, as discussed above, no such deadline for accepting offers of admission." language is explicitly contained in the (Defendants' Brief in Opposition to statute or regulations. Second, such an Plaintiffs' Order to Show Cause, 3-4.) Thus, interpretation, which would deprive the there is a "'rational connection between the defendants of all discretion as it relates to facts found and the choice made.'" Motor the timing of appointments, could lead to Vehicle Mfrs. 463 U.S. at 43 (quoting absurd results. For example, such a narrow Burlington, 371 U.S. at 168). interpretation of the statute and regulations would potentially require the defendants to Here, Congress has clearly given the keep an appointment open to a state Secretary of Transportation, inter alia, the alternate indefinitely, until the USMAA power to maintain the Academy and develop received a response either accepting or a system for competitive appointment of declining the appointment. Thus, the lack of individuals. 46 U.S.C. §§ 51301, 51302(d). discretion to set deadlines and utilize the The statute promulgated by Congress clearly national alternate list when necessary could provides that after the Secretary appoints jeopardize the USMAA's ability to fill its individuals to fill positions for each incoming class. The USMAA, where the jurisdiction in order of merit, the remaining statute and regulations are ambiguous, unfilled positions shall be filled "[i]n the should be permitted to interpret its own order of merit of the remaining individuals regulations in a manner that allows the nominated from all jurisdictions." 46 U.S.C. USMAA, once appointments are initially § 51302(d). Thus, implicit in the statute is made in accordance with the statutory the need for the Secretary to ensure that allocations by jurisdiction, to fill any there is a full class of upcoming students. In remaining vacancies by utilizing an alternate order to fulfill this task, it is necessary that list by jurisdiction until April 1, but then certain deadlines, consistent with Congress' transitioning to the national alternate list to mandate, be set in place. Moving candidates ensure that the Class of 2016 is filled. Their from a geographical list of alternates to a interpretation of their own regulations is national alternates list approximately one entitled to deference and is reasonable in month prior to May 1 is consistent with the light of the ambiguous language of the need to fill an incoming class. Thus, there is statute and regulations, as well as the a need to determine an incoming class for practical issues that the USMAA must the Academy by early May of each year, and confront in creating and implementing an therefore, moving candidates to a nationally admissions procedure that will allow for the ranked list on or about April 1 each year is a Class of 2016 to be filled from the list of qualified alternates, regardless of jurisdiction.

reasonable construction of the applicable However, this summary is not statute and regulations.*fn3 inconsistent with the defendants' interpretation of the governing statute and Plaintiffs also attempt to argue that their regulation. As noted above, the website interpretation of the statute is consistent with does tell applicants that, if the state fails to the Academy's website's description of the fulfill its allotment, there will be a national appointment and alternate process. list of alternatives, ranked in order of merit, Plaintiffs note that the website states that from which vacancies will be filled. The "remaining qualified candidates will be website is silent as to when the transition to designated as alternates, to be appointed in the national alternate list will occur. In order of merit should openings occur within other words, it does not articulate the their states. (emphasis added) . . . In the particular point in time at which the event that a state fails to satisfy its USMAA makes the determination that the allotment, appointments to fill the unfilled state has failed to fulfill its allotment and the vacancies are determined from the national transition is made to the national alternate list of alternates, ranked in order of merit as list. Thus, although the April 1, 2012 date described above. . . . (emphasis added). of moving the candidates to the national list (Compl. ¶¶ 11-12, (citing is not noted, such a transition is not*fn4 inconsistent with the website's language. In any event, the language of the website,

while it may considered by the Court, is not any section of the relevant statute or regulation that unambiguously gives them a right to be appointed. Moreover, as discussed supra, this Court has found that, given the ambiguity in the statute and regulations, defendants' interpretation of its own regulations is entitled to deference and is reasonable. Accordingly, plaintiffs are not entitled to mandamus relief.


For the reasons set forth above, and orally on the record on July 3, 2012, the Court denies plaintiffs' application, by order to show cause, for declaratory relief and a writ of mandamus in its entirety.


JOSEPH F. BIANCO United States District Judge

Dated: July 5, 2012 Central Islip, NY

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