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Alan Matthew Spadone v. John M. Mchugh

February 8, 2012

ALAN MATTHEW SPADONE, PLAINTIFF,
v.
JOHN M. MCHUGH, DEFENDANT.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Alan Spadone filed this complaint against Secretary of the Army John McHugh, alleging that the Secretary's actions, including his order disenrolling Spadone from the United States Military Academy ("West Point") and directing Spadone to serve as an enlisted solider in the Army, violated the Administrative Procedures Act ("APA"), 5 U.S.C. § 702 et seq., the Due Process Clause of the Fifth Amendment, and the Establishment Clause of the First Amendment, and unjustly enriched the Army. Spadone has moved for a preliminary injunction directing the Secretary to re-enroll Spadone in West Point to give Spadone the opportunity to earn a degree and an officer's commission in the Army by May 2012. (Pl.'s Mem. in Supp. of Mot. for Preliminary Injunction ("Pl.'s Mem.") at 4.) The Secretary opposes.*fn1

Because Spadone has not shown irreparable harm or a likelihood of success on the merits, his motion will be denied.*fn2

BACKGROUND

In July 2007, Spadone enrolled at West Point. (Compl. ¶ 13.) In February 2009, a West Point faculty member granted Spadone permission to apply to study abroad at Pembroke College at the University of Cambridge. In July 2009, Spadone learned that he had been accepted by the study abroad program. (Id. ¶¶ 16-17.) Spadone asked West Point's Dean to allow him to enroll in the program, but Spadone knew he would resign before starting his third year of study if the Dean denied the request. Beginning a third year of study triggers a cadet's obligation to provide five years of active duty military service and three years of service in the reserves. (Id. ¶¶ 19-24, 92.)

The Dean denied Spadone's request in September 2009. However, the Dean told Spadone that the decision could be reconsidered if outside funds were available to pay for the program. (Id. ¶¶ 27, 29.) On October 1, 2009, the Dean was informed that Spadone raised $25,000 from private donors, enough to fund his enrollment in the program. However, the next day, the Dean still denied Spadone's request to enroll in the program despite the funding. (Id. ¶¶ 30-32.) By then, Spadone, having anticipated enrollment approval, had started his third year of study at West Point. (Id. ¶¶ 23-24, 26.)

Spadone was enrolled at that time in a course titled EN 302, Advanced Composition. He submitted an essay in that course in late October that West Point's honor committee investigated on suspicion of plagiarism, which is a violation the West Point honor code. (Compl. ¶ 33; Def.'s Stmt. of Facts in Supp. of Mot. to Dismiss or in the Alternative for Summ. J. ("Def.'s Stmt.")

¶¶ 6, 13.) On November 18, 2009, Spadone admitted that he plagiarized in violation of the honor code. (Def.'s Stmt. ¶ 13.) On November 19, 2009, Spadone submitted another essay for EN 302 that the course's professor suspected involved dishonorable documentation. Spadone told her he had been merely careless, and he later signed two statements denying that his November 19 essay violated the honor code. (Def.'s Stmt. ¶¶ 15-16, 20; A.R. 403-404.)

In February 2010, West Point's Commandant for Honor Matters referred Spadone to an Honor Investigative Hearing for three charges of violating the honor code: one charge of plagiarizing in the October paper, one charge of plagiarizing in the November 19th paper, and one charge of lying to his professor about the November 19th paper. (Def.'s Stmt. ¶ 25.) At an Honors Investigative Board hearing held on March 8, 2010, Spadone pled guilty to plagiarizing in the October essay. In addition, the Honors Investigative Board determined that the allegations of plagiarizing in the November 19th essay were supported by a preponderance of the evidence but the allegation of lying was not. (Compl. ¶¶ 42, 44; Def.'s Stmt. ¶¶ 31-32.)

In April 2010, Spadone was questioned about his honor code violations by a panel composed of the Commandant of Cadets, a Command Sergeant Major, five cadets from the Cadet Honor Committee, and Spadone's Tactical Officer. (Compl. ¶ 46.) According to Spadone, the Commandant of Cadets indicated during the hearing that Spadone had not properly shown contrition or accepted responsibility for the Honor Code violations, and ordered Spadone to stand with his body rigid in a military posture and to read aloud the "Cadet's Prayer."*fn3 (Id. ¶¶ 47-48.) In May 2010, West Point's Superintendent decided to disenroll Spadone from West Point for the summer of 2010, delay his graduation by one year, place Spadone in a "suspended separation status" until graduation, and enroll Spadone in the Honor Mentorship Program ("HMP") under specific conditions. (Compl. ¶ 51; Def.'s Stmt. ¶ 41.)

According to Spadone, he was required to draft two written journal entries each week as part of the HMP. (Compl. ¶¶ 59-61.) In October 2010, the Special Assistant to the Commandant for Honor Matters recommended vacating the suspension of Spadone's separation from West Point because Spadone had not submitted journals that met the requirements of the HMP. (Id. ¶ 65.) In November 2010, West Point's Superintendent issued a memorandum recommending separating Spadone from West Point for failing to successfully complete his HMP. (Id. ¶ 71.) In December 2010, Spadone was suspended from West Point and placed on an authorized leave of absence without pay pending the Army's final decision on his disenrollment. (Id. ¶ 75.) In August 2011, Spadone learned that the Secretary signed orders disenrolling Spadone from West Point and ordering Spadone to report in October 2011 for two years on active duty as an enlisted soldier. (Id. ¶¶ 82, 86.)

Spadone filed the complaint in this action in September 2011 challenging the Secretary's actions as arbitrary, capricious and in violation of due process. He also alleged that ordering him to read aloud the Cadet's Prayer violated the Establishment Clause of the First Amendment, and that the delay in denying his study abroad enrollment unjustly enriched the Army by triggering his military service obligation. In addition to back pay, his complaint seeks full reinstatement at West Point and expungement of all records of his HMP failure, or, in the alternative, an order requiring the Secretary to discharge Spadone from West Point without requiring a period of enlisted military service. (Compl. ¶ 150.)*fn4

Spadone has now moved for a preliminary injunction ordering the Secretary to re-enroll him at West Point pending the outcome of this case. The Secretary opposes Spadone's ...


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