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. The Secretary has moved to dismiss the complaint or for summary judgment. Because the Secretary is entitled to judgment on Spadone's APA and due process claims since Spadone received the process that was due and the Secretary did not violate the APA, and the Secretary is entitled to dismissal of the unjust enrichment claim since the United States has not waived its sovereign immunity for a claim of unjust enrichment that seeks equitable relief, the Secretary's motion will be granted in part. However, because the Secretary has not justified dismissing the Establishment Clause claim and disputed material facts bar summary judgment on that claim, the Secretary's motion will be denied in part.
The background of this case is discussed more fully in Spadone v. McHugh, Civil Action No. 11-1601 (RWR), 2012 WL 393056, at * 1-3 (D.D.C. Feb. 8, 2012). Briefly, in July 2007, Spadone enrolled at West Point. (Compl. ¶ 13.) In February 2009, Spadone asked West Point's Dean to allow him to enroll in a study-abroad program. The Dean denied Spadone's request in September 2009, and denied reconsidering that decision in October 2009, after Spadone had started his third year of study at West Point. (Id. ¶¶ 23-24, 26.) A cadet who starts a third year of study incurs an active duty service obligation. One who leaves before then does not incur an active duty service obligation. (Id. ¶¶ 22-23.)
In November 2009, Spadone admitted that he violated West Point's honor code by committing plagiarism in writing an October 2009 essay. (Def.'s Mot. to Dis., Def.'s Stmt. of Facts ("Def.'s Stmt.") ¶¶ 8, 13.) Spadone submitted another assignment in November that his course's professor, Dr. Terri Sabatos, suspected involved dishonorable documentation. Spadone told her he had been merely careless, and he later signed two statements denying that the second 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 paper, and one charge of lying to his professor about the November paper. (Def.'s Stmt. ¶ 25.)
Spadone pled guilty to plagiarizing in the October essay at an Honors Investigative Board hearing held on March 8, 2010. The Honors Investigative Board also determined that the allegations of plagiarizing in the November 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." (Id. ¶¶ 47-48.) The prayer says in part, "O God, our Father, Thou Searcher of human hearts, help us to draw near to Thee in sincerity and truth. May our religion be filled with gladness and may our worship of Thee be natural. . . . Help us . . . in doing our duty to Thee[.]" (Id. ¶ 47.)
In May 2010, West Point's Superintendent disenrolled Spadone from West Point for the summer of 2010, delayed his graduation by one year, placed Spadone in a "suspended separation status" until graduation, and enrolled Spadone in the Honor Mentorship Program ("HMP") under specific conditions. (Compl. ¶ 51; Def.'s Stmt. ¶ 41.) Spadone was told to begin the HMP process before leaving West Point for the summer, but Spadone did not do so. After returning in the fall, he did not engage in the HMP for over a month until an officer directed him to do so, and he refused to wear an HMP brass insignia as ordered. (See A.R. 21.)
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 journal entries that met the requirements of the HMP. (Compl. ¶ 65; A.R. 23.) In December 2010, the West Point Superintendent suspended Spadone and placed him on an authorized leave of absence without pay pending the Army's final decision on his disenrollment. (Compl. ¶ 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 his complaint for injunctive relief 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 active duty 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. He also seeks any other relief that is just and proper. (Compl. ¶ 150.)*fn1
The Secretary has now moved to dismiss or for summary judgment on all counts of Spadone's complaint. Spadone opposes.
"'Summary judgment may be appropriately granted when the
moving party demonstrates that there is no genuine issue as to any
material fact and that moving party is entitled to judgment as a
matter of law.'" Pueschel v. Nat'l Air Traffic Controllers Ass'n, 772
F. Supp. 2d 181, 183 (D.D.C. 2011) (quoting Bonaccorsy
v. Dist. of Columbia, 685 F. Supp. 2d 18, 22 (D.D.C. 2010)
citing Fed. R. Civ. P. 56(c)). "'In considering a motion for
summary judgment, [a court is to draw] all 'justifiable inferences'
from the evidence . . . in favor of the non-movant.'" Pueschel, 772 F.
Supp. 2d at 183 (quoting Cruz-Packer v. Dist. of Columbia, 539 F.
Supp. 2d 181, 189 (D.D.C. 2008) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986)); Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)). "The relevant inquiry 'is the
threshold inquiry of determining whether there is a need for a trial -
- whether, in other words, there are any genuine factual issues that
properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.'" Single Stick, Inc.
v. Johanns, 601 F. Supp. 2d 307, 312 (D.D.C. 2009) (quoting Anderson,
477 U.S. at 250) (overruled on other grounds by Prime Time Int'l Co.
v. Vilsack, 599 F.3d 678 (D.C. Cir. 2010)). A genuine issue is present
in a case where the "evidence is such that a reasonable jury could
return a verdict for the non-moving party," a situation wholly
distinct from a case where the evidence is "so one-sided that one
party must prevail as a matter of law." Anderson, 477 U.S. at 248,
"In general, courts tread 'lightly on the military domain, with scrupulous regard for the power and authority of the military establishment to govern its own affairs within the broad confines of constitutional due process.'" Spadone, 2012 WL 393056, at ...