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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 ...

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