MARSHALL C. DANIELS, Plaintiff,
UNITED STATES, Defendant.
AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE.
Marshall C. Daniels brings this action against the United States, challenging an order of the Assistant Secretary of the Navy for Manpower and Reserve Affairs (“Navy”) that discharged him from the United States Naval Academy and required him to reimburse the United States for the educational benefits he received. Daniels claims that the discharge order is invalid because it was premised in part upon an earlier misconduct determination imposed in violation of Naval Academy regulations: he contends that the earlier disciplinary sanction was inconsistent with the manner in which the Command at the Academy ordinarily applied and enforced its regulations, that the applicable regulation had been “amended” in practice, and that therefore, he was held to an improper standard. The United States has moved to dismiss the action under Federal Rule of Civil Procedure 12(b)(6) on the grounds that it is not justiciable. Because “judges are not given the task of running the [Navy], ” Orloff v. Willoughby, 345 U.S. 83, 93 (1953), the Court agrees that Daniels’s claim is not justiciable, and it will grant the motion to dismiss.
According to the amended complaint in this action, Daniels was appointed to the United States Naval Academy on July 2, 2008, as a student, or “midshipman.” Am. Compl. [Dkt. # 12] ¶¶ 13, 17. Although he appears to have completed his first year without any significant disciplinary issues, he began a series of encounters with the disciplinary system during his second year. They culminated in his discharge during his fourth year at the Academy.
I. The Naval Academy’s Conduct System
The Commandant of Midshipmen has developed a manual to govern the disciplinary process. Commandant of Midshipmen Instruction 1610.2E, “Administrative Performance and Conduct System, ” (March 31, 2011) (“the Conduct Manual”), Ex. 5 to Def.’s Mot. to Dismiss or, in the Alternative, for Summ. J. (“Def.’s Mot.”) [Dkt. # 14-5]. The manual sets out the rules of conduct for midshipmen (known as the “Conduct System”) and the procedures for handling violations. Violations of the Conduct System are divided into three categories, in order of severity: minor, major, and 6-K. Conduct Manual at 1-4. Depending on the severity of the charged violation, the midshipman’s case is adjudicated by the appropriate official, who makes a determination with respect to guilt or innocence and determines the appropriate punishment. Id. at 1-2, 3-4, 4-1–4-8, 5-1.
The manual sets out the number of guilty determinations and/or poor grades a midshipman may receive before he can be considered to be “unsatisfactory.” Id. at 6-1–6-2. When a midshipman becomes unsatisfactory in conduct, his entire record is reviewed to determine whether any additional action is required. Id. at 3-10. Based upon this review, the Commandant chooses among the following options: (1) no further action; (2) formal verbal or written counseling; (3) placement on conduct probation and/or remediation; (4) the convening of a Commandant’s hearing for unsatisfactory conduct; or (5) the forwarding of the midshipman’s record to an aptitude board for review. Id.
If after conducting an unsatisfactory conduct hearing, the Commandant recommends a midshipman for disenrollment, a case file is prepared for the Superintendent. Id. at 3-10–3-11. Once the case file is prepared, the Navy adheres to the following procedure, which is mandated under 10 U.S.C. § 6962. First, if the Superintendent of the Navy determines that the conduct of a midshipman is unsatisfactory, he must submit a full report of the facts to the Secretary in writing. Id. § 6962(a)(1). Next, the midshipman must be given an opportunity to examine the report and submit a written statement. Id. § 6962(b). Finally, if the Secretary believes, on the basis of the report and statement, that the determination of the Superintendent is reasonable and well founded, he may discharge the midshipman. Id.
There is also a concurrent disciplinary system called the “Honor Concept” which pertains only to lying, cheating, and stealing. See Commandant of Midshipmen Instruction 1610.3H, “Honor Concept of the Brigade of Midshipmen” (April 13, 2010) (“Honor Concept”), Ex. 7 to Def.’s Mot. [Dkt. # 14-7]. This system also requires that the procedure set out in 10 U.S.C. § 6962 be followed before a midshipman is discharged from the Naval Academy. See Honor Procedures, Ex. 7 to Def.’s Mot. [Dkt. # 14-7] § 0307(i)–0310.
II. Factual Background
According to the amended complaint, Daniels was found in violation of the Honor Concept during his second year at the Naval Academy for cheating on a physics examination. Am. Compl. ¶ 17. The Academy permitted Daniels to remain, but it required him to undergo remediation. Am. Compl. ¶ 19. Daniels completed his remediation on February 28, 2011. Am. Compl. ¶ 20.
Daniels’s next violation occurred during his third year at the Naval Academy. Am. Compl. ¶ 21. He was assigned weekend duty for the weekend of Friday March 4 to Sunday March 6, 2011. Am. Compl. ¶ 28(a). According to the amended complaint, Daniels was actually on duty only on Friday and Sunday, and he “was not assigned to do actual duty” on Saturday March 5. Am. Compl. ¶¶ 28(b), (c). On the night of Saturday March 5, Daniels signed out, as midshipmen are required to do when they depart from the Naval Academy Grounds, and he went into Annapolis, where he states that he drank three beers. Am. Compl. ¶¶ 28(d)–(f). He asserts that he returned to his room and went to bed before midnight. Am. Compl. ¶ 28(g).
Daniels alleges that his assigned job for Sunday was not supposed to begin until noon, but he was roused out of bed with a number of other midshipmen for a “6:00 a.m. muster.” Am. Compl. ¶¶ 28(h)–(i). At that point, an Officer detected the smell of alcohol, and breathalyzer tests were administered to all the midshipmen that had been awoken. Am. Compl. ¶¶ 28(j)–(k). Daniels’s test detected a 0.035 blood alcohol level, which demonstrated alcohol use. Am. Compl. ¶ 28(k). Thereafter, on March 11, 2011, Daniels pled guilty to major misconduct in violation of Commandant of Midshipmen Instruction 1601.10E, paragraphs 0100.b and d, which ban alcohol consumption while on duty or within twelve hours of assuming duty. Am. Compl. ¶¶ 29–30; AR 107. As a result, Daniels was placed on conduct probation from May 17, 2011 to January 12, 2012. Am. Compl. ¶¶ 21, 38; see also Disposition of Conduct Case #111554, AR 84–85 (“Violation of the terms of your conduct probation may immediately result in a recommendation to the Superintendent that you be separated from the Naval Academy.”)
At the start of the next school year, on September 4, 2011, while Daniels was still on probation, he was found in bed with a female midshipman. Am. Compl. ¶ 22. This is a conduct violation, and Daniels admitted his guilt. Am. Compl. ¶¶ 23–24. After reviewing Daniels’s record, the Commandant recommended to the Superintendent of the Naval Academy on September 15, 2011 that Daniels should be disenrolled from the Naval Academy and discharged from the Naval Service,  AR 68, and on September 28, 2011, the Superintendent of the Naval Academy provided the same recommendation to the Secretary, AR 67. See also Am. Compl. ¶¶ 26–27. According to the amended complaint, the female midshipman, who was not on probation at the time of the conduct violation, was retained at the Naval Academy. Am. Compl. ¶ 27.
On October 12, 2011, Daniels, by counsel, submitted his response to the recommendation. Am. Comp. ¶ 41; see AR 73–82. On December 1, 2011, the Secretary of the Navy, through his designee, ordered that Daniels be discharged from the Naval Academy. Am. Compl. ¶ 42; AR 64. Pursuant to 10 U.S.C. § 2005(d)(1), (2), and 37 U.S.C. § 303a(e), he also ordered recoupment of $140, 584.61 for educational benefits that Daniels had received. Am. Compl. ¶¶ 6, 42; AR 64.
On January 24, 2012, Daniels paid the United States $3, 965.62 pursuant to a demand letter that he received from the Department of Defense, Defense Finance ...