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LEBRUN v. ENGLAND

July 11, 2002

KENNETH L. LEBRUN, PLAINTIFF,
V.
GORDON R. ENGLAND, SECRETARY OF THE NAVY, DEFENDANT.



The opinion of the court was delivered by: Walton, District Judge.

  MEMORANDUM OPINION

This matter is before the Court on Defendant's Motion to Dismiss or, in the alternative, for Summary Judgment ("Def.'s Mot.") and Plaintiff's Cross-Motion for Summary Judgment.*fn1 Upon consideration of the parties' submissions, the Court concludes that defendant's motion to dismiss must be denied because plaintiff timely filed his complaint with this Court in compliance with 28 U.S.C. § 2401 (a) (2000), and the equitable doctrine of laches is not a bar to the filing of this action. However, because the Court must defer to the agency's substantive decision, Musengo v. White, 286 F.3d 535, 538 (D.C.Cir. 2002); Kreis v. Sec'y. of the Air Force, 866 F.2d 1508, 1514-15 (D.C.Cir. 1989), provided that the decision was not arbitrary, capricious, an abuse of discretion, contrary to law or regulation, or unsupported by substantial evidence, 5 U.S.C. § 706 (2) (2000), it must award defendant summary judgment. This result is demanded since the Court finds that the defendant exercised his discretion in a reasonable manner in relying on the review of the Naval Academy's decision to dismiss the plaintiff's petition that was conducted by the Board for Correction of Naval Records ("BCNR"), and there is otherwise no basis to set aside the defendant's decision under 5 U.S.C. § 706 (2).*fn2

I. Background

A brief recitation of the facts of this case is a necessary prelude to the Court's analysis of the legal challenges raised in the parties' pleadings. The plaintiff, Kenneth LeBrun, was appointed as a midshipman to the United States Naval Academy ("Academy") on June 27, 1962, and was scheduled to graduate from the Academy in 1966. Administrative Record ("A.R.") at 191, 721. Prior to his discharge from the Academy, the plaintiff excelled at the Academy and was elected Class President and Chairman of the Honor Committee during his second class year, or his junior year. Id. at 304-05. However, on December 18, 1965, the plaintiff was alleged to have committed a "false muster", which is defined as the fraudulent act of indicating an individual present when he was not, in fact, present.*fn3 Id. at 160. The plaintiff and the defendant disagree as to the circumstances surrounding this incident.

The plaintiff contends that the incident arose from the muster that was scheduled to follow the evening meal (the "Evening Muster"), and not the muster scheduled at the end of the day (the "Midnight Muster") as alleged by the defendant. Id. at 306. The plaintiff asserts that when the Evening Muster was conducted late, his newly-assigned roommate, Midshipman Bruce Dyer ("Dyer"), was not present and the midshipman conducting the muster, Midshipman Ray Gadberry ("Gadberry"), was reluctant to sign the muster sheet. Id. At Gadberry's request, the plaintiff allegedly began to search for Dyer and was told by another midshipman that Dyer had been present in the area but had left after the muster was not conducted at the scheduled time. Id. The plaintiff asserts that the Academy's Regulation Book explicitly stated that a midshipman signing the muster sheet had to have knowledge of another midshipman's presence, but this did not have to be personal knowledge, as the Honor Code entitled one midshipman to rely upon the word of another midshipman. Id. at 306-07. The plaintiff subsequently signed the Evening Muster sheet representing that Dyer was present. Id. at 307. Later, during the Midnight Muster, the plaintiff asserts that Gadberry advised him that Dyer was absent and they both agreed to report him as absent for the Midnight Muster. Id. The plaintiff is adamant that he never signed the Midnight Muster inspection board. Id.

As indicated, the defendant asserts that the disciplinary proceedings were initiated because of the Midnight Muster. Id. at 186. Defendant also disagrees with plaintiff's version of the facts in other respects. The defendant alleges that during the Midnight Muster, Gadberry found that Dyer was absent from his room, the plaintiff was awakened, and Gadberry questioned him about Dyer's whereabouts. Id. at 186-87. The plaintiff allegedly told Gadberry that Dyer must be in the area and he went back to sleep. Id. Gadberry, assisted by Midshipman Nickolai Kobylk ("Kobylk"), then searched the area, and after speaking to Midshipman William Crenshaw, Jr. ("Crenshaw"), who was believed to know where Dyer was, returned to awake the plaintiff. Id. After the plaintiff was awakened, Kobylk informed him about the discussion with Crenshaw and the plaintiff allegedly took the muster inspection board from Gadberry and stated that he would assume the responsibility of signing it. Id. At this point, the plaintiff allegedly erased a mark that indicated Dyer's absence and signed the inspection board. Id. Gadberry subsequently returned and told the plaintiff that he thought Dyer should be marked absent, but the plaintiff allegedly responded that he was somewhere in the vicinity and went back to sleep. Id. Thereafter, Gadberry went to the Battalion Office, placed an absent mark after Dyer's name, erased the plaintiff's name and signed his own name on the inspection board. Id.

It is undisputed that upon the plaintiff's return from Christmas holiday leave two weeks later, his company officer, Lieutenant Umstead ("Umstead"), advised the plaintiff that an investigation has been commenced regarding Dyer's absence and the plaintiff's false muster.*fn4 Id. at 308-09. The following chain of events are, however, also disputed.

According to the plaintiff, several weeks after Umstead's investigation was initiated, he received a message instructing him to go to a specified location to meet the Superintendent.*fn5 Id. at 309. Upon entering the room where he had been told to report, the plaintiff became aware that the Superintendent, the Commandant, his Battalion Officer, and Umstead were all present. Id. The plaintiff was allegedly asked several questions by the Superintendent regarding the incident and, according to the plaintiff, was not given an opportunity to address, clarify the situation, or defend himself in any way. Id. at 309-10. After only a few minutes from when the meeting started, the plaintiff states that he was dismissed and informed that he had just "had a trial." Id. at 310. The plaintiff asserts that he was not informed of the specific charges he was facing and because he had "been trained to trust, respect and obey his superiors," he did not dispute their authority.*fn6 Id. at 310. The plaintiff further alleges that later that same day, he met with the Superintendent privately and was informed that the Superintendent was recommending to the Secretary that he be dismissed from the Academy. Id. at 311. The Superintendent allegedly informed the plaintiff that such a recommendation would automatically result in a dismissal, and that if the plaintiff did not agree to resign, he would personally ensure that the plaintiff would receive a dishonorable discharge. This, he was told, would have the likely effect of prohibiting him from being admitted to another reputable college and being able to obtain employment. Id. at 311-12. After this meeting, the plaintiff states that he spoke with an officer, who represented that he was the Academy's attorney, who informed him that the Superintendent's statement that a dismissal is automatically granted upon the Superintendent's recommendation was correct. Id. at 312. The plaintiff further claims that the Academy's attorney failed to advise him that he could appeal a dismissal decision. Id. The plaintiff was instructed to draft a resignation statement, but, according to the plaintiff, after he did so the Superintendent rejected it and provided the plaintiff with a different version prepared by the Superintendent's staff, which plaintiff signed. Id. at 312-13.

The defendant's version of the events that resulted in the plaintiff's dismissal from the Academy, was compiled by the BCNR in 1993 and 1994, and relies upon all records involving this incident that could be located at that time, in addition to written statements that were submitted by several individuals.*fn7 The most notable declaration submitted to the BCNR was from former Commandant Kinney. Although he was not able to independently recall any of the facts and circumstances surrounding this incident due to the significant lapse of time, he was, however, able to provide guidance about how such matters were normally handled. Id. at 164-68. The former Commandant stated that such matters involving fraud could be handled under either the Academy's conduct system or the more punitive honor system, but because a false muster was considered a serious matter, it was proper to handle this violation in the conduct system. Id. at 167. The former Commandant also stated that the normal procedure employed for such an infraction was for a violation report to be reviewed by several layers of an accused midshipman's chain of command. Id. at 160-66. Once the Commandant received a report, he stated that "it was an unwavering practice" to privately interview the midshipman and ask the midshipman to discuss "anything that might serve to exonerate him, or mitigate or extenuate his actions." Id. at 162. The Commandant could then either dismiss the charges, impose some form of punishment, or send the case forward to the Superintendent with a recommendation for a discharge. Id. at 163. However, prior to recommending a discharge to the Secretary, the former Commandant stated that he always informed the midshipman of his intent to make that recommendation and the midshipman's option to resign. Id. Finally, the former Commandant discussed the Superintendent's policy regarding meeting with a midshipman accused of a disciplinary violation. Id. at 165-66. The former Commandant stated that he was always present at such meetings, often along with the midshipman's battalion and company officers. Id. at 166. The former Commandant described the Superintendent as "friendly and outgoing with the midshipmen," and during the course of such disciplinary hearings/meetings the Superintendent "wanted to hear what the midshipman had to say in defense, extenuation or mitigation."*fn8 Id. Upon reviewing all of the evidence of record, a majority of the BCNR found "no error or injustice warranting corrective action" and that the plaintiff "committed misconduct, [and] elected to halt further discharge processing by voluntarily submitting a conditional resignation." Id. at 744-45. After "`personally review[ing] the entire record [and] carefully consider[ing] both the majority and minority reports,' the Secretary approved the Majority's findings and conclusions, and declined to afford the plaintiff any relief."*fn9 Def.'s Mot. at 7 (quoting A.R. at 710).

II. Analysis

A. Motion to Dismiss

It is axiomatic that this Court's jurisdiction to entertain the plaintiff's complaint must be established as a threshold matter. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). As the Supreme Court stated in Ex Parte McCardle, 74 U.S. 506, 7 Wall. 506, 514, 19 L.Ed. 264 (1868),

[w]ithout jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle.

The defendant argues that the plaintiff's complaint should be dismissed because it is barred by both the statute of limitations and by the equitable doctrine of laches. A brief review of the procedural history of the proceeding that was conducted by the BCNR and the administrative review that was conducted thereafter is critical to the resolution of these issues.

In March 1993, nearly twenty-six years after his resignation from the Academy, the plaintiff submitted his petition to the BCNR requesting that he be awarded a degree from the Academy and that all references to his resignation be expunged from his records. A.R. at 367. Despite the delay in filing the petition, the BCNR, on January 31, 1995, determined that it was in the interests of justice to waive the applicable three-year statute of limitation as permitted by 10 U.S.C. § 1552 (b) (2000).*fn10 As already indicated, the BCNR then issued a divided report and recommendation, with the majority concluding that the plaintiff's petition should be denied. Id. at 720-48. After reviewing the entire record and considering both the majority and minority reports issued by the BCNR, on February 22, 1995, the Secretary adopted ...


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