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Turner v. Spencer

United States District Court, District of Columbia

November 5, 2018

BRANDON TURNER, Plaintiff,
v.
RICHARD V. SPENCER, in his official capacity as United States Secretary of the Navy et al., Defendants.

          MEMORANDUM OPINION

          TREVOR N. MCFADDEN, UNITED STATES DISTRICT JUDGE

         One spring night weeks before his expected graduation, Midshipman Brandon Turner returned intoxicated to his U.S. Naval Academy dormitory from a night on the town. J.A. 41. Instead of sleeping it off, he entered a female classmate's room without her permission, “cornered her in a position where she felt trapped, ” and asked for a kiss. J.A. 50. She refused, so he “called her a derogatory, gender-specific name” and left. J.A. 41. He then confronted another female classmate in the hallway. Without her consent, he put his arm around her, “began to stroke her hair, ” and touched her inappropriately. Id. The classmate managed to break free and escape to her room, locking the door behind her. Id. After classmates reported his behavior, Mr. Turner was ordered to the dormitory's main office. Id. There, he took a breathalyzer test that registered a Blood Alcohol Content of 0.20%, well above the legal threshold for intoxication. Id.

         Following an investigation and disciplinary proceedings, an Assistant Secretary of the Navy expelled Mr. Turner from the Academy. J.A. 39. He was also discharged from the Navy and ordered to repay roughly $180, 000 in educational benefits. Id. Mr. Turner appealed this decision to the Board for Corrections of Naval Records (the “Board”), which upheld the Assistant Secretary's order. J.A. 237. He now brings this challenge, alleging that the Navy violated the Administrative Procedure Act (APA), his constitutional right to due process, and the prohibition on unlawful military command influence. The Court finds that the Navy complied with its regulations and applicable laws and that Mr. Turner received a fair process. It will thus grant summary judgment for the Defendants.

         I.

         Mr. Turner was a student, or “midshipman, ” in the Naval Academy's Class of 2013. Midshipmen must abide by the Academy's rules of conduct set forth in the Administrative Performance and Conduct System Manual (the “Manual”). When a midshipman engages in unsatisfactory behavior, the Manual authorizes the Commandant of Midshipmen-the Academy's second-in-command-to investigate, review the student's record, and hold a hearing. J.A. 201. Based on his findings, the Commandant may (1) elect to take no disciplinary action, (2) place the midshipman on conduct probation or remediation, or (3) recommend the midshipman for separation from the Academy. Id. While the Commandant may impose lesser punishments at his “sole discretion, ” only the Academy's Superintendent “may authorize late graduation.” Id.; J.A. 215.

         If the Commandant believes a midshipman's conduct merits disenrollment, he must submit a memorandum articulating the reasons for this recommendation to the Superintendent. J.A. 201. The Superintendent may then conduct his own hearing or review of the record. J.A. 202. If he agrees, the Superintendent must inform the midshipman of this decision in writing. Id. The student may then submit a statement to the Secretary of the Navy “showing cause why he/she should be retained at the Naval Academy.” Id. The Superintendent is also required to submit to Navy leadership a “full report of the facts.” 10 U.S.C. § 6962. If the Secretary of the Navy believes that the Superintendent's recommendation is “reasonable and well founded, ” he may discharge the midshipman from the Academy and naval service. Id.

         Here, the Commandant launched an investigation shortly after learning of Mr. Turner's misconduct. Compl. 4. The investigating officer found that the midshipman's intoxication “was of a nature to bring discredit upon the naval service, ” that he engaged in “risky drinking, ” and that his “acts amounted to sexual harassment” in violation of the Academy's rules. J.A. 53-54. Based on these findings, the Deputy Commandant forwarded the case to the Commandant with a recommendation that Mr. Turner be separated from the Academy. J.A. 29.

         The Commandant then held a hearing. He reviewed Mr. Turner's record, finding that the midshipman had amassed numerous prior infractions including two “major offenses, ” and that his overall class standing was 1078 out of 1080 students. J.A. 50. The Commandant noted that, like the Deputy, Mr. Turner's Platoon and Battalion Commanders had first “recommended separation based on the egregious nature of the offense.” J.A. 37. But they changed their minds “after listening to the support of the character witnesses and [the] plan for evaluation over the summer.” Id.

         After this hearing concluded, the Commandant “orally informed” Mr. Turner that “he had decided not to recommend separation.” Compl. 6. Instead, the Commandant would recommend “a delayed graduation pending sucessful [sic] completion of dignity and respect remediation, anger management, 30 hours of community service w/a battered women [sic] shelter, and 1 month at sea on a frigate/destroyer/cruiser with a recommendation from the commanding officer.” J.A. 28. But two days later, the Commandant “called [Mr. Turner] and his chain of command into his office and told [them] that he was changing his recommendation to the Superintendent and will now be forwarding [Mr. Turner] for separation.” Id.

         The Superintendent then conducted a “personal interview with Midshipman Turner.” J.A. 41. He too “determined [Mr. Turner's] conduct to be unsatisfactory, ” and so “recommend[ed] Midshipman Turner be discharged from the Naval Academy.” Id. On behalf of the Secretary of the Navy, the Assistant Secretary agreed and ordered Mr. Turner's separation and required him to reimburse the Navy for the full cost of his Academy education, noting that he had “carefully reviewed the matters” and had made his decision based on the Superintendent's recommendation. J.A. 39.

         Mr. Turner appealed this order to the Board. He argued that Navy regulations did not permit the Commandant to reconsider his initial recommendation. Compl. 7. Even if this reconsideration were permissible, he added, the Commandant's final decision must have been unlawfully influenced by the Superintendent in violation Article 37(a) of the Uniform Code of Military Justice. Compl. 10. The Board rejected these claims. It found that Mr. Turner was disenrolled “in compliance with all applicable regulations and statutes” and “did not find evidence of unlawful command influence.” J.A. 237. It also “substantially concurred” with the conclusions of an advisory opinion prepared by a Staff Judge Advocate. Id.

         Mr. Turner relies on similar arguments here. First, he contends that the Commandant's initial recommendation was a “final decision” that “ended consideration of the Plaintiff's separation for conduct reasons.” Pl.'s Mem. in Supp. of Mot. for Summ. J. 10, ECF No. 14-1 (“Pl.'s Mem.”). When the Commandant changed his mind, he “re-open[ed] the hearing without prior notice” to Mr. Turner. Id. at 13. Neither the Manual nor the “applicable standards of due process, ” he claims, allowed the Commandant to do so. Id.

         Second, even if the Navy's regulations allowed the Commandant to reconsider, the “apparent influence of the Superintendent on the Commandant's decision regarding separation . . . constituted unlawful command influence.” Pl.'s Resp. to Defs.' Cross-Mot. for Summ. J. 5, ECF No. 17 (“Pl.'s Response”). Mr. Turner alleges that a “reasonable person could . . . believe under the circumstances that the Superintendent” disagreed with the Commandant and improperly “directed [him] to change his recommendation” to disenrollment. Id. at 6.

         The Defendants-Secretary Richard Spencer, Superintendent Walter Carter, and Commandant Robert Chadwick-maintain that the Naval Academy staff complied with applicable law. Defs.'s Mem. in Supp. of Cross-Mot. for Summ. J. 2, ECF. No. 16 (“Defs.' Mem.”). They also contend Mr. Turner “failed to introduce any evidence demonstrating that the Commandant's ultimate recommendation of ...


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