Doe v. U.S. Merch. Marine Acad. (307 F. Supp. 3d 121, 2018)

JOSEPH F. BIANCO, United States District Judge

Plaintiff John Doe ("plaintiff") brings the instant action against defendants United States Merchant Marine Academy (the "Academy"), James A. Helis, individually and in his capacity as Superintendent of the Academy, the United States Department of Transportation, and the United States of America (collectively, "defendants" or the "government"). Plaintiff claims that defendants improperly and unlawfully suspended him as a result of an unfavorable determination at a hearing at the Academy (the "Hearing"), thereby barring him from completing his final term and graduating with his class. Plaintiff claims that his Hearing and suspension violated the Academy's own rules under the Administrative Procedure Act (the "APA"), and violated the Due Process Clause of the Fifth Amendment. Plaintiff argues that he is, therefore, entitled to equitable and injunctive relief, as well as compensatory and punitive damages.

Plaintiff now seeks a preliminary injunction that would compel the Academy to immediately reinstate plaintiff, permitting him to complete his third-term courses, sit for his licensing examination, and attend the Class of 2018 graduation ceremony.

For the reasons set forth below, the Court concludes that plaintiff has failed to demonstrate a likelihood of success on his APA claim, or on his claim that defendants violated his procedural and substantive due process rights.

With respect to the APA claim, the Court concludes that the Academy's disciplinary proceeding was conducted in a manner that is consistent with the rules and procedures promulgated by the Superintendent pursuant to the authority delegated to him by statute. Although plaintiff argues that various procedures were inconsistent with the Academy's existing rules and policies (including, among other things, proceeding by a Superintendent's Hearing instead of an Executive Board Hearing, and requiring plaintiff to cross-examine the alleged victim through written questions asked by the Superintendent), the Court disagrees. In addition, the Court finds unpersuasive plaintiff's argument that the Superintendent applied the wrong standard in determining whether the alleged victim consented because there is no indication in the record of any such misunderstanding. Moreover, there is substantial evidence in the record, if credited by the Superintendent (including the testimony of the alleged victim of the sexual assault, as well as plaintiff's friend who was present at various times on the night of the alleged assault), to support the Superintendent's decision. In particular, based upon the alleged victim's testimony, there is more than sufficient evidence in the record for the Superintendent to have concluded that she was unable to lawfully consent to sexual activity because of her intoxication. Although plaintiff's testimony contradicted the alleged victim's testimony, and plaintiff also called other witnesses at the Superintendent's Hearing who supported his version of events (and plaintiff emphasized that the Manhattan District Attorney's Office did not initiate charges after conducting an investigation), the Superintendent was entitled to weigh that evidence and make the necessary credibility findings in connection with the charges. Having carefully reviewed the record, the Court does not believe that plaintiff can possibly show that the decision was arbitrary or capricious (or contrary to law) based upon the manner in which the disciplinary proceeding was conducted or the evidence adduced at that proceeding.

The Court also concludes that plaintiff is not likely to succeed on his procedural due process claims. Plaintiff was provided with the following: (1) notice of the charges against him; (2) the right to review the investigatory file; (3) a Superintendent's Hearing during which, although plaintiff had to conduct the Hearing himself, he had the assistance of counsel and a faculty advisor; (4) at the Hearing (which lasted approximately twelve hours and involved eleven witnesses in connection with whether the charges were proven in Phase I), plaintiff was given the opportunity to cross-examine witnesses directly (with the exception of the alleged victim of the sexual assault, for whom he submitted written questions, and follow-up questions, to be asked by the Superintendent), and to testify and to call his own witnesses; and (5) an opportunity to give an opening and closing statement at the Hearing. Based upon well-settled Second Circuit precedent regarding due process requirements in the context of a disciplinary proceeding of this nature, and the Court's careful review of the record before it (including a review of the proceeding itself), the Court concludes that the due process protections afforded to plaintiff at the Hearing were more than sufficient to satisfy the constitutional standard under the Fifth Amendment in this type of disciplinary proceeding. Although plaintiff argues that due process required additional protections, the Court disagrees and emphasizes that due process does not mandate the use of all of the protections of a criminal trial in this type of disciplinary proceeding. To the extent that plaintiff challenges the implementation of the procedures at the Hearing (including the manner in which the Hearing was conducted, such as the number and length of breaks), the Court is not persuaded that any of those purported issues, either individually or collectively, rises to a constitutional magnitude or impacts the fundamental fairness of the proceeding. For example, the Court concludes that plaintiff's allegations of unconstitutional bias by the Superintendent in his dual role as prosecutor and neutral decision-maker are not supported by the case law or the record. Accordingly, plaintiff has not demonstrated a likelihood of success on the merits in connection with his procedural due process claims. For the same reasons, the Court concludes that plaintiff is unlikely to prevail under the exacting standard for demonstrating a substantive due process violation.

In light of the Court's determination that plaintiff has failed to demonstrate a likelihood of success on the merits with respect to any of his claims, he is not entitled to a preliminary injunction. Accordingly, the Court denies the motion.

I. BACKGROUND

The following facts are taken from the complaint, as well as the parties' submissions to the Court.

A. The Statutory and Regulatory Framework

As discussed supra , the allegations in this case arise from a Hearing held by the U.S. Merchant Marine Academy. The Academy is a federal institution operated by the Maritime Administration ("MARAD"), which is an operating administration of the Department of Transportation. (Def. Mem. at 3.) Under 46 U.S.C. § 51301, the Secretary of Transportation is authorized to maintain the Academy as an institution of higher education to prepare its students for service in the U.S. Merchant Marine, among other objectives. 46 U.S.C. § 51301(a).

The Secretary of Transportation delegated authority to carry out its functions under this provision to the MARAD Administrator, 49 C.F.R. § 1.93, who, in turn, delegated direction and supervision of the Academy to the Academy's Superintendent. (Def. Mem. at 3 (citing Maritime Administrative Order, 150-1).) The Academy's operation and maintenance is governed by 46 U.S.C. § 51301 et seq. and regulations promulgated thereunder. Section 51318 establishes that the Superintendent is required to "prescribe a policy on sexual harassment, dating violence, domestic violence, sexual assault, and stalking applicable to the cadets and other personnel of the Academy." 46 U.S.C. § 51318(a). This provision sets forth the "[m]atters to be specified in the policy," including "a procedure for disciplinary action in cases of alleged criminal sexual assault involving a cadet or other Academy personnel," and "any other sanction to be imposed in a substantiated case of sexual harassment, dating violence ... or any other criminal sexual offense." Id. The Superintendent has also been delegated the authority to issue "all regulations necessary for the accomplishment of the Academy's mission." 46 C.F.R. § 310.67.

Pursuant to this statutory grant of authority, the Superintendent has promulgated policies and procedures governing sexual misconduct, including policies aimed at prevention, raising awareness, and conducting disciplinary actions. These regulations include Superintendent Instruction 2016-02 ("SI 2016-02"), which is the Academy's "Sexual Assault, Dating Violence, Domestic Violence, Stalking, Prevention Education, and Response Policy" (ECF No. 14-1 ("SI 2016-02") ), and Midshipman Regulations paragraphs 243(a) and (b) (ECF No. 3 at 48). Paragraph 243 prohibits sexual misconduct, which paragraph 243(a) defines as "acts at the Academy ... or under circumstances that are discrediting to the Academy or the midshipman, or are prejudicial to good order and discipline in the Regiment of Midshipmen." (Id. ) Paragraph 243(b) states that sexual misconduct includes "any actions of a sexual nature that would reasonably excite or satisfy the sexual desires of the actor ... includ[ing] kissing, touching, sexual intercourse of any sort, ... and indecent exposure." (Id. )

SI 2016-02 provides that the Academy "may pursue an administrative investigation and disciplinary proceedings" against an accused midshipman pursuant to the Midshipman Regulations or the Academy's "Procedures for Superintendent's Disciplinary Hearing in the Case of Sexual Assault/Harassment" (the "SA/SH Procedures"). (SI 2016-02 at 5.) Under these policies, the Academy can conduct either a Superintendent's Disciplinary Hearing or an Executive Board Hearing, as discussed infra . In Superintendent's Hearings (the type of hearing at issue in this case), midshipmen have a right to appeal the Superintendent's decision to the Maritime Administrator if the penalty imposed is disenrollment. (ECF No. 14-2 ("SA/SH Procedures") at 2, 5.) Otherwise, midshipmen can request the Superintendent's reconsideration of his decision, but the SA/SH Procedures do not provide a right to appeal to the Maritime Administrator where any other penalty was imposed (id. ). Under the APA, a midshipman can seek judicial review of an Academy Hearing decision once it is "final" and there is "no other adequate remedy in a court." 5 U.S.C. § 704.

B. The Complaint

The following allegations are taken from the complaint filed by plaintiff in the instant action.

1. The Alleged Misconduct

The Academy held the Hearing at issue in this case to decide whether plaintiff had violated the Academy's sexual assault policy, in response to allegations following the Academy's annual Ring Dance the previous summer. (Compl. ¶ 19.) Every August, the midshipmen in the rising senior class receive their class rings during a formal ceremony, and the Academy holds the Ring Dance to celebrate this milestone event. (Id. )

Plaintiff, a member of the Academy's Class of 2018, attended the Ring Dance for his class on August 12, 2017. (Id. ¶¶ 22-23.) Midshipmen typically attend this dance with dates and, as plaintiff did not have one, a friend (the "Friend") suggested that he could set plaintiff up with his date's sister. (Id. ¶¶ 20, 23.) The Friend told plaintiff that the sister (the "Complainant") was "hotter" than his own date, and conveyed his interest in a sexual relationship with her. (Id. ¶ 24.) Plaintiff accepted the Friend's offer to arrange the date. (Id. ¶ 23.)

The Academy is located on Long Island and, as the dance was held in Manhattan, plaintiff arranged to stay in a hotel near the venue-as many midshipmen do-the night of the dance. (Id. ¶¶ 21, 25.) The Friend had also arranged to stay in Manhattan that night, as well as the night before, and was sharing a room with Complainant and her sister (his date). (Id. ¶ 25.) The night before the dance, plaintiff met the Friend and their dates for drinks at a bar in midtown, where he met Complainant for the first time. (Id. ) Plaintiff and Complainant spent time together that night and had alcoholic drinks. (Id. ¶ 25.)

According to the complaint, the next night-the night of the dance, plaintiff and the Friend checked into separate rooms at a different hotel from the one where the Friend had stayed the night before, with Complainant and her sister again staying in the Friend's room. (Id. ¶ 27.) Prior to the dance, plaintiff and the Friend purchased and drank wine together, but Complainant did not have any. (Id. ¶ 29.) At the venue, plaintiff and Complainant presented photo identification demonstrating that they were over twenty-one to get a wristband for free drinks. (Id. ¶ 32.) Complainant, who was eighteen years old, allegedly presented false identification that the Friend helped her obtain. (Id. ¶ 33.)

Plaintiff and Complainant spent several hours at the dance together. As is tradition, plaintiff kissed Complainant on the cheek at the end of the Ring Dipping Ceremony during the dance. (Id. ¶¶ 20, 34.) Later in the night, plaintiff and Complainant were seen dancing "provocatively" and kissing, and no one tried to stop them. (Id. ¶ 35.) Complainant allegedly initiated the kissing. (Id. )

After the dance, plaintiff and Complainant spent time together on the Friend's hotel room balcony with a group of midshipmen and their dates. (Id. ¶¶ 36-38.) According to the complaint, plaintiff and Complainant were not drinking. (Id. ¶ 38.) At the end of the night, Complainant told her sister and the Friend that she intended to sleep in plaintiff's room. (Id. ) Plaintiff was not part of this conversation. (Id. ) The sister and the Friend expressed their disapproval, but neither they nor anyone else did anything more to stop her. (Id. ¶ 39.) The Friend told plaintiff not to engage in sexual intercourse with Complainant because she was too intoxicated. (Id. ¶ 40.) According to the complaint, plaintiff had not planned to and agreed that he would not have sexual intercourse with Complainant. (Id. ) Complainant took her suitcase, and she and plaintiff left for her room. (Id. ¶ 41.)

It is further alleged that, as soon as plaintiff and Complainant entered plaintiff's hotel room, Complainant began kissing plaintiff, and then initiated sexual contact. (Id. ¶ 42.) She allegedly "made it clear through her words and actions she wanted to engage in sexual intercourse with Plaintiff, was consenting ..., and had the mental capacity to consent, including without limitation by telling Plaintiff to put on a condom." (Id. ¶ 43.) Plaintiff asserts that he had not anticipated having sexual intercourse with Complainant, so he did not have a condom with him. (Id. ¶ 44.) According to the complaint, "at the Complainant's behest" plaintiff purchased a condom from a kit in the hotel room. (Id. ) Plaintiff and Complainant had sexual intercourse then and a second time that night, after Complainant allegedly initiated by positioning herself on top of plaintiff. (Id. ¶ 45.) Plaintiff asserts that the second time they had intercourse, "[a]gain, through her words and actions Complainant made it clear to [him] that she wanted to engage in sexual intercourse with him, was consenting ... and had the mental capacity to consent." (Id. ) Complainant then changed into clothing to sleep and slept in the bed with plaintiff. (Id. ¶ 46.)

According to the complaint, in the morning, Complainant and plaintiff stayed in bed talking and cuddling. (Id. ¶ 47.) Complainant added herself as a "friend" to plaintiff's Snapchat account. (Id. ) The Friend texted plaintiff to say he needed assistance tidying the balcony in his room. (Id. ¶ 48.) Complainant jokingly said to plaintiff that she would be sick if they had to go clean, which plaintiff texted to the Friend, but the two decided to return to the Friend's room. (Id. ) However, Complainant had also texted her sister to inform her of what had happened the night before and, within a few minutes, the Friend texted plaintiff to say he knew he had had sexual intercourse with Complainant. (Id. ¶¶ 49-50.) According to the complaint, Complainant had not given plaintiff any reason to think she was upset. In addition to adding herself to his Snapchat account, before leaving, Complainant allegedly told plaintiff she had had a good time and hugged him goodbye. (Id. ¶ 49.)

Later that night, the Friend accused plaintiff of sexually assaulting Complainant, claiming that she had been too intoxicated to consent. (Id. ¶ 50.) Over the course of the next several weeks, the Friend and Complainant started dating. (Id. ¶ 51.)

In October 2017, Complainant's mother contacted law enforcement. (Id. ¶ 52.) According to the complaint, Complainant was "adamant" that she did not want to file charges, but her mother and others pressured her to do so. (Id. ) Complainant called plaintiff twice several months after the Ring Dance to ask what had happened that night, claiming not to remember. (Id. ¶ 51.) Law enforcement arranged and recorded those phone calls. (Id. )

2. The Investigation

According to the complaint, the Academy was notified of the alleged sexual assault in October 2017. (Id. ¶ 53.) Allegedly, the Friend, Complainant's new boyfriend, pressured her to file a complaint with the Academy, and first reported the allegations. (Id. ¶¶ 52, 54.) According to the Superintendent, Complainant's mother first reported the alleged sexual assault to the Academy. (Decl. of James A. Helis ("Helis Decl.") ¶ 9.) The initial report was then referred to the Director of the Academy's Department of Public Safety, Jeffrey Thomas. (Compl. ¶ 55.) Thomas then contacted Complainant's mother, who described the allegations and informed him that the matter had been reported to law enforcement. (Id. ¶ 56.)

On November 1, 2017, Thomas met with the detective in the New York City Police Department ("NYPD") assigned to investigate the complaint (the "Detective") and a Special Agent from the Department of Transportation Inspector General's Office. (Id. ¶ 57.) That day, Thomas also contacted Complainant's mother to arrange an interview with Complainant. (Id. ¶ 58.) Rather than agree to the interview, on November 3, 2017, Complainant's mother responded with an emailed, unsigned, unsworn statement that was allegedly from her daughter. (Id. ) On November 9, 2017, Thomas conducted a phone interview with Complainant. (Id. ¶ 59.) He asked follow-up questions, but did not go through each of her allegations. (Id. ) This phone interview was the only time Thomas spoke with Complainant. (Id. )

Also on November 9, 2017, the Detective informed Thomas that Complainant and her mother contacted him about bringing criminal charges. (Id. ¶ 60.) The Detective requested that Thomas not interview plaintiff until the Detective had spoken with him. (Id. ) On November 13, 2017, the Detective interviewed plaintiff at the Academy. (Id. ¶ 61.) Thomas was present throughout the interview. (Id. ) Plaintiff was not informed that the Academy was also conducting an investigation. (Id. ) The Detective read plaintiff his Miranda rights, and plaintiff waived his right to remain silent and voluntarily submitted to the Detective's questioning. (Id. ¶ 62.) Plaintiff did not have counsel, an advisor, or his parents present. (Id. ) Plaintiff asserts that he answered all questions and was honest and forthright. (Id. ) According to the complaint, he "never wavered" regarding what happened the night of the Ring Dance, insisting that Complainant was "a willing, active and consenting participant in all sexual activity, and at times was the aggressor," and noting that she had asked him to get a condom and positioned herself on top of him to initiate sex. (Id. ¶ 63.) Plaintiff was also firm about the fact that Complainant was not too intoxicated, had the mental capacity to, and did, in fact, consent to all sexual activity. (Id. ¶ 64.)

3. The Notice of Disciplinary Charges

On January 10, 2018, the Academy provided plaintiff with a "Notice of Superintendent's Disciplinary Hearing" (the "Notice") that directed plaintiff to appear for a hearing on January 19, 2018, and outlined the charges against him. (Id. ¶¶ 65-70; ECF No. 3-1 at 3.) The Notice stated that plaintiff was charged with violating Superintendent Instruction 2016-02 and Midshipman Regulations paragraphs 243(a) and (b) by sexually assaulting his date to the Ring Dance at a hotel in New York City after the dance. (Id. ) The Notice also stated that plaintiff was charged with violating Midshipman Regulations paragraph 204(f) by failing to prevent Complainant, who was underage, from drinking unlawfully or irresponsibly. (Id. )

In addition to listing the charges against plaintiff, the Notice included a list of eleven witnesses that the Academy "may" call at the Hearing, a list of plaintiff's rights prior to and at the Hearing, the SA/SH Procedures, the Academy's "Investigation Report," and plaintiff's file, including his academic files, midshipman profile, company file, personnel jacket, and Sea Year file. (Compl. ¶¶ 71-72; ECF No. 3-1 at 4-5.)

The list of plaintiff's rights prior to and at the Hearing includes, among others, the right "[t]o question all witnesses, whether called by the Academy or by you, except for the Complainant .... You may, however, submit written questions for [the Complainant] to the Superintendent, who shall review the questions and ask those questions relevant to the proceedings." (Id. )

The SA/SH Procedures are not included or referenced in the Midshipman Regulations and are not available online (unlike the Midshipman Regulations and SI 2016-02). (Compl. ¶ 74.) These procedures include a list of the "Rights of Respondent," including his rights:

• To present evidence including but not limited to documentary evidence and the testimony of reasonably available witnesses during each phase of the hearing (determination whether violation occurred and penalty phase, if necessary)....

• To question all witnesses, whether called by the Academy or by Respondent.

(Id. ¶ 75; ECF No. 3-1 at 7.) As plaintiff states in his complaint, the SA/SH Procedures did not authorize the Academy to prohibit him from questioning Complainant, or to prohibit him from calling witnesses whose identities were provided in a timely manner. (Compl. ¶ 76.) Neither the SA/SH Procedures nor SI 2016-02 specifies the standard of proof the Superintendent will apply when deciding the case, and the Superintendent never stated what standard he would apply. (Id. ¶ 77.)

Plaintiff was "expressly prohibited" from providing a copy of the Notice and accompanying documents to his counsel. (Id. ¶ 73.) Plaintiff's counsel formally requested a copy of the Notice on January 10, 2018 and, having received no response, again on January 11, 2018. (Id. ¶ 78.)

On January 11, 2018, plaintiff's counsel notified the Academy that law enforcement had cleared plaintiff of any wrongdoing, and that its investigation had been closed without any charges filed against plaintiff. (Id. ¶ 79; see also Helis Decl. ¶ 14 (discussing the Manhattan District Attorney's Office and NYPD criminal investigation).) Plaintiff's counsel argued that the Hearing should not proceed because "law enforcement had concluded that the Complainant was lawfully able to and had consented to engage in sexual activity with Plaintiff." (Id. ) Additionally, plaintiff's counsel requested a 60-day adjournment to review the materials the Academy had provided to plaintiff and prepare for the Hearing. (Id. ¶ 80.) The Academy required plaintiff's counsel to sign a confidentiality agreement, and then, on January 12, 2018, provided counsel with plaintiff's materials in redacted form. (Id. ¶¶ 81, 84.)

The Academy stated that the law enforcement decision had "no impact" on and did not "inform" its disciplinary proceedings because plaintiff was charged with violations of the Academy's "policies, not ... a criminal act." (Id. ¶ 82.) The Academy also denied the request for a 60-day adjournment, so plaintiff's counsel requested a 30-day adjournment. (Id. ¶ 83.) On January 16, 2018, plaintiff was granted a one-week adjournment from January 19 to January 26, 2018. (Id. ¶ 85.) The Academy stated that this was "sufficient time" to prepare. (Id. ) On January 17, 2018, the Academy issued a revised Notice advising plaintiff's counsel of the new Hearing date. (Id. ¶ 86.)

On January 23, 2018, plaintiff secured a faculty advisor to assist him at the Hearing. (Id. ¶ 87.) The advisor had never served in this role before, and the Academy provided him with no training or guidance. (Id. ¶ 88.) On January 24, 2018, the Academy notified plaintiff's counsel that the two Notices incorrectly stated the date of the alleged misconduct as occurring in October, rather than August, and that the Hearing was therefore adjourned to February 9, 2018. (Id. ¶ 89.) The Academy issued a revised Notice advising plaintiff's counsel of the new Hearing date on January 25, 2018. (Id. ¶ 86.)

On January 26, 2018, plaintiff's advisor emailed counsel for the Academy regarding due process concerns, including:

(a) [that the Notice] prohibit[ed] Plaintiff from cross-examining the Complainant in direct contravention of the SA/SH Procedures; (b) unexplained redactions in the Investigation File; (c) [that the Academy was] affording the Complainant the right to be present throughout the proceedings and to have an advisor contrary to all other witnesses who were not provided with such rights and those rights were not provided for in the SA/SH Procedures; (d) [that the Academy was] affording the Complainant an opportunity to make a victim impact statement which is not provided for by the SA/SH Procedures; and (e) inconsistencies between the rights and protocols set forth in the Hearing Notice and those in the SA/SH Procedures.

(Id. ¶ 91; ECF No. 3-1 at 21-22.) The Academy's counsel addressed a number of plaintiff's advisor's concerns in an email dated January 29, 2018. (ECF No. 3-1 at 25-26.) With respect to plaintiff's right to question Complainant directly, the Academy's counsel explained that "the right to question witnesses does not confer the right to do so directly," and referred the advisor to the statement in the Notice that plaintiff "may submit written questions for the Complainant to the Superintendent, who shall review ... and ask those questions relevant to the proceeding." (Id. at 26.)

On January 29, 2018, plaintiff's advisor formally lodged objections to "the Superintendent's decision to utilize procedures cobbled together from differing policies and protocols, at his discretion." (Compl. ¶ 92.) The objections included that the Academy was holding a Superintendent's Hearing rather than an Executive Board Hearing, which was available under the Midshipman Regulations. (Id. ) He also demanded that the Academy fully comply with its policies and procedures, in particular those requiring:

• The Complainant to be treated like all other witnesses and permitted only to attend the hearing while being questioned, and appear without an advisor;

• Plaintiff to be free to question the Complainant directly, like any other witness; [and]

• The Complainant not to be allowed to deliver a victim impact statement in the event the Hearing entails a Phase II (penalty phase).

(Id. ¶ 93.) On January 30, 2018, the Academy denied these requests. (Id. ¶ 94.)

On January 31, 2018, the Academy notified plaintiff's advisor and counsel that the Superintendent intended to call only four of the eleven witnesses identified in the three Notices. (Id. ¶ 95.) The Superintendent reserved the right, however, to call any of the other witnesses at the Hearing if he found their testimony to be necessary. (Id. ) That day, plaintiff's advisor responded: "My sense ... is that the [Superintendent] will only be calling witnesses that he believes help make the case that [plaintiff] is guilty of the charges." (ECF No. 3-1 at 28.) The advisor also raised concerns about the Superintendent's role as both prosecutor for the Academy and "impartial" judge. (Compl. ¶ 97.) He cited SI 2016-02, which provides that "the accused has the 'right to an investigation and disciplinary process conducted in a manner that ... is not conducted by individuals with a conflict of interest,' " and continued, "[i]t seems obvious to me that being both prosecutor and judge is an inherent conflict of interest." (ECF No. 3-1 at 28.)

On February 8, 2018, plaintiff's counsel submitted an 11-page letter objecting to the Academy's policies, procedures, and protocols on the basis that they were fundamentally unfair and provided insufficient due process. (Compl. ¶ 98.) Plaintiff's objections included:

• Proceeding with the Hearing in the face of a law enforcement determination that there was no probable cause to believe Plaintiff engaged in nonconsensual sexual activity or contact with the Complainant;

• Proceeding by way of a Superintendent's Disciplinary Hearing under the SA/SH Procedures instead of an Executive Board;

• The Superintendent's conflicting roles as "advocate" for the Academy, "neutral judge" presiding over the proceedings, and "jury" determining the facts;

• Prohibiting counsel's right to participate in the Hearing;

• Prohibiting counsel's presence in the Hearing room;

• The Complainant's presence in the Hearing room throughout the proceedings;

• Prohibiting Plaintiff from directly questioning the Complainant;

• The Superintendent's decision not to call exculpatory witnesses;

• Consideration by the Superintendent of unsworn statements contained in the investigation report;

• Consideration of photographs of purported bruises to the Complainant's legs;

• The Superintendent's access of the entire investigation report;

• The Academy's failure to obtain critical evidence during the investigation;

• The failure of statements in the investigation report to be in the first person as required by Academy rules and regulations;

• The failure to provide Plaintiff with the training records of those who investigated and adjudicated the charges against him;

• Restrictions imposed on Plaintiff as to the use and disclosure of the contents of the investigation file.

(Id. ; ECF No. 3-1 at 39-49.)

4. The Hearing, Phase I

The Hearing began on Friday, February 9, 2018, at approximately 10:15 a.m., and concluded at approximately 9:45 p.m. that night. (Compl. ¶¶ 99, 115; Helis Decl. ¶ 21.) There were brief pauses and a short lunch break during the Hearing. (Compl. ¶ 99.) The parties contest whether the Superintendent provided a dinner break. (Id. ; Helis Decl. ¶ 21.) The entire proceeding was recorded. (Compl. ¶ 99.)

Plaintiff was present with his faculty advisor and counsel throughout the proceeding. (Id. ¶ 100.) Two attorneys represented plaintiff, but the Academy permitted only one attorney to be present in the hearing room. (Id. ) The Superintendent questioned witnesses on behalf of the Academy, presided over the Hearing, acted as fact-finder, made the determination as to whether plaintiff violated the Academy's rules, and decided his penalty. (Id. ¶ 101; see also SA/SH Procedures at 3-4.)

The Hearing began with a "summary rejection" of plaintiff's 11-page objection letter, with no further explanation. (Id. ¶ 102.) Plaintiff, his advisor, and Complainant gave opening statements. (Id. ¶ 103.) The Superintendent then called Complainant to testify and questioned her regarding the allegations. (Id. ) According to the complaint, the Superintendent posed questions in a "neutral, non-confrontational manner, even after [Complainant] provided obviously false and inconsistent testimony." (Id. ) The Superintendent prohibited plaintiff from questioning Complainant directly. (Id. ¶ 104.) Instead, plaintiff submitted a list of cross-examination questions to the Superintendent. (Id. ) The complaint states that the Superintendent "refused to ask the Complainant questions that would have revealed her lack of credibility, including those concerning her relationship with ... the 'Friend.' " (Id. ) The Superintendent elicited hearsay testimony from Complainant regarding her conversations with law enforcement. (Id. ¶ 105.) The complaint alleges that Complainant suggested that the criminal investigation had not been closed, and was not active "because she had not definitively stated she wanted to pursue charges." (Id. ) According to the complaint, Complainant's testimony was "contradictory, inconsistent with statements she made previously, inconsistent with the testimony of others, changed repeatedly, and was replete with falsehoods." (Id. ¶ 106.)

Ten hours into the Hearing, after plaintiff had examined ten witnesses, the Superintendent called plaintiff to testify. (Id. ¶ 107.) According to the complaint, he "vigorously and aggressively" cross-examined plaintiff, "questioning his version of events and his judgment on the night in question." (Id. ¶ 108.) Plaintiff alleges that the Superintendent "had not acted in the same manner towards the Complainant." (Id. )

According to the complaint, Complainant's sister "declined to appear" to testify. (Id. ¶ 109.) The Superintendent asked plaintiff to speculate as to why Complainant's sister wanted Complainant to sleep in the same room as her even though, based on plaintiff's testimony, it was clear that he had not discussed this with the sister and "was unaware of her view." (Id. )

The complaint also alleges that the Superintendent aggressively cross-examined plaintiff on a misstatement of the record regarding a fellow midshipman's warning that Complainant was intoxicated, even though that midshipman testified at the Hearing that he had no opinion as to her level of intoxication. (Id. ¶ 110.) That midshipman testified that he did not know how much, if anything, Complainant drank that night, and that he had not said anything about it to plaintiff. (Id. )

The Superintendent cross-examined plaintiff regarding his own level of intoxication, focusing on the number of drinks plaintiff had consumed without regard to the amount of time. (Id. ¶ 111.)

According to the complaint, the Superintendent elicited hearsay statements that law enforcement officers had made to Complainant, but precluded similar testimony as "impermissible hearsay" when plaintiff's counsel sought to testify regarding (1) plaintiff's candor and truthfulness during his voluntary interview with the Detective, and (2) the fact that the law enforcement investigation had been closed. (Id. ¶ 112.)

Counsel for the Academy had indicated that breaks would be permitted during plaintiff's testimony as long as there was no pending question. (Id. ¶ 113.) Regardless, according to the complaint, the Superintendent refused multiple requests for breaks, including a dinner break over six hours after the end of the lunch break. (Id. )

According to the complaint, plaintiff was "honest and forthright" in his testimony, which was "consistent with his prior statements and was corroborated by other witnesses and documentary evidence." (Id. ¶ 114.)

The Superintendent called three witnesses-namely, Complainant and two midshipmen. (Id. ¶ 116.) According to the complaint, the Superintendent believed these midshipmen "would support the charges." (Id. ) He did not call Complainant's sister or "any of the many midshipmen who had interacted with and observed the Complainant on the night in question." (Id. ) According to the complaint, plaintiff "was forced" to call seven witnesses, six of whom were midshipmen who testified about their interactions with or observations of Complainant the night of the Ring Dance. (Id. ¶ 117.) These witnesses provided exculpatory evidence "proving the Complainant was not intoxicated to the point of being unable to consent to sexual activity, she willingly engaged in sexual activity with Plaintiff, and she lied during her testimony" at the Hearing and in her statement to Thomas. (Id. ) Plaintiff was also forced to call Thomas, who had conducted the Academy's investigation. (Id. ¶ 118.)

According to the complaint, plaintiff found the Hearing procedures to be "physically and emotionally overwhelming and grueling." (Id. ¶ 119.) The Hearing lasted for nearly twelve hours, during which plaintiff, with "absolutely no legal training," "serve[d] as his own attorney throughout, giving opening and closing statements, making legal and factual arguments and objections, and examining witnesses, all in addition to having to testify and being subjected to vicious cross-examination by the Superintendent." (Id. )

At the end of the day, the Hearing was adjourned until Monday, February 12, 2018, for the Superintendent's decision and, if necessary, the punishment phase of the proceeding. (Id. ¶ 120.) The Hearing reconvened on February 12, 2018, at 10:00 a.m., and the Superintendent rendered his decision, finding that plaintiff had violated SI 2016-02 and Midshipman Regulations paragraph 243(a). (Id. ¶ 121.) He dismissed the paragraph 243(b) charge as redundant, and dismissed the paragraph 204(f) charge (that plaintiff failed to prevent the underage Complainant from drinking unlawfully or irresponsibly). (Id. ) According to the complaint, the Superintendent issued no findings of fact and never explained the basis for his decision. (Id. ¶ 122.)

5. The Hearing, Phase II

Immediately after rendering his decision, the Superintendent began the punishment phase of the proceedings. (Id. ¶ 123.) Plaintiff was permitted to call only five character witnesses, even though neither the Midshipman Regulations nor the SA/SH Procedures requires this limitation. (Id. ) The Superintendent also questioned plaintiff again. (Id. ) Complainant was permitted to make a victim impact statement. (Id. ¶ 124.) The Superintendent did not question her, and plaintiff was not permitted to do so. (Id. )

The Superintendent adjourned this phase of the Hearing to deliberate. (Id. ¶ 125.) After approximately two hours, plaintiff was notified that the Superintendent had additional questions for plaintiff. (Id. ) The Superintendent did not, however, appear to ask these questions and, after another hour, reconvened the Hearing and pronounced plaintiff's punishment without asking further questions. (Id. ¶¶ 125-26.) The Superintendent suspended plaintiff for the rest of the academic year (referred to as a "setback"), or one nine-week term. (Id. ¶ 127.) In reality, however, the remaining classes plaintiff needs to complete to graduate are offered only during the third term each year and, therefore, his punishment amounted to a year-long suspension. (Id. ¶ 128.)

According to the complaint, plaintiff was informed that he was not entitled to appeal the Phase I decision or Phase II punishment; his only recourse was to seek reconsideration by the Superintendent. (Id. ¶ 129.)

6. The Reconsideration Application

Plaintiff submitted a notice of intention to seek reconsideration of the Superintendent's decisions in both phases. (Id. ¶ 130.) Plaintiff's notice stayed the setback, so he was permitted to remain on campus, complete his second term courses and finals, and begin the third term, which started on March 9, 2018. (Id. ¶ 131.)

On March 2, 2018, plaintiff's counsel submitted plaintiff's application for reconsideration. (Id. ¶ 132.) His application included the following: additional character letters, a letter from plaintiff "addressing what he learned from this process, raising concerns about the punishment imposed, and suggesting alternative punishments," a letter from plaintiff's parents regarding the financial hardship they experienced due to the Hearing, a letter from plaintiff's faculty advisor regarding the impact of the punishment on plaintiff's ability to complete his requirements for graduation, and a copy of counsel's February 8, 2018 objection letter. (Id. ) Plaintiff's application raised objections to the finding of guilt, the lack of due process as a result of the Hearing procedures, the findings that he argued were against the weight of the evidence and inconsistent with law enforcement findings, and the Superintendent's failure to apply the relevant definition of consent from SI 2016-02. (Id. ¶ 133.) Plaintiff expressed his concerns that the punishment would impact his ability to "successfully complete his studies" and obtain his degree, mariner's license, and military commission. (Id. ¶ 134.) He proposed alternative punishments that he believed would have a more positive impact on the Academy and his classmates. (Id. )

On March 20, 2018, the Superintendent issued a decision denying plaintiff's request for reconsideration, without explanation. (Id. ¶ 135.) Plaintiff had completed 20% of his final term. (Id. ) He was required to complete check-out procedures and depart immediately on a "leave of absence," and returned home. (Id. ¶¶ 136-37.)

C. The Superintendent's Declaration

The Superintendent submitted a declaration along with defendants' memorandum of law in opposition to plaintiff's motion for injunctive relief. In his declaration, the Superintendent describes his position at the Academy, including his role in disciplinary proceedings. He explains that the Superintendent is responsible for "all programs, activities and facilities at the Academy, including the academic and regimental programs." (Helis Decl. ¶ 1.) As Superintendent, he is authorized to issue regulations necessary for the accomplishment of the Academy's mission, which include the Superintendent Instructions and other policies and directives. (Id. ¶ 6.) The Superintendent describes the Academy's Midshipman Regulations as the "student code of conduct," and explains that when midshipmen violate these regulations or other Academy policies, they can be charged with violations ranging from Class III (least egregious) to Class I (most egregious). (Id. ¶ 7.)

According to the declaration, the Superintendent is responsible for holding a Superintendent's Hearing when midshipmen are charged with Class I violations. (Id. ¶ 8.) Violations of SI 2016-02 (the sexual assault/harassment policy) constitute Class I violations, "[g]iven the nature of such misconduct allegations," and, therefore, it is Academy policy for the Superintendent to hear these cases. (Id. ) The Superintendent explains that the procedures in Superintendent's Hearings and Executive Board Hearings are "substantially similar," and that "each affords the same due process protections." (Id. ) During his time at the Academy, the Superintendent has held six other sexual assault hearings. (Id. ¶ 30.) He exonerated one student of the alleged sexual assault, and found the other five had violated the Academy's policy against sexual assault and disenrolled them. (Id. )

The Superintendent also describes the procedures applied in these cases generally, and in plaintiff's case in particular. He first sets forth a brief overview of the underlying facts in plaintiff's case, the criminal investigation, and the Academy's investigation. (Id. ¶¶ 9-12.) The Superintendent explains that, in plaintiff's case, he reviewed the Deputy Superintendent's decision on January 10, 2018 to set the Hearing for January 19, 2018, and found that the 60-day extension plaintiff requested was "unacceptable," but agreed to an extension to January 26, 2018. (Id. ¶ 13.) He disagreed with plaintiff that "there was no urgency to the hearing as Complainant was not a student at the Academy," in light of the severity of the allegations. (Id. ) According to the declaration, plaintiff's attorneys were not available on the new Hearing date, so the Hearing was rescheduled to February 9, 2018. (Id. ¶ 15.)

The Superintendent explains that, like Executive Board Hearings, Superintendent's Hearings have two phases. (Id. ¶ 16.) During Phase I, the Superintendent applies a preponderance of the evidence standard in determining whether the midshipman committed the charged misconduct. (Id. ) The Superintendent determines the "appropriate discipline" at Phase II. (Id. )

With regard to the witnesses in plaintiff's case, the Superintendent asserts that he determined that he "did not need to hear from" seven of the witnesses identified in the Investigation Report because, "based on summaries of their interviews, they did not have first-hand knowledge of the alleged misconduct." (Id. ¶ 17.) He asked Academy counsel to inform plaintiff of this decision, and that plaintiff could include any of those individuals that he wanted to call to testify on his witness list. (Id. ) Plaintiff included four of the seven witnesses on his list for Phase I, and one on his list for Phase II, all of whom testified in their respective phases. (Id. )

The Superintendent states that he learned prior to the Hearing that Complainant's sister was unavailable to attend because she was away at college. (Id. ¶ 18.) The Superintendent further asserts that, upon information and belief, Academy counsel relayed to plaintiff's attorneys his message that the sister could testify at the Hearing by telephone. (Id. ) Plaintiff's attorneys did not consent and, thus, the sister did not testify. (Id. )

The declaration explains that, during a Superintendent's Hearing, a midshipman's attorney may consult with and advise his client, but cannot otherwise participate. (Id. ¶ 19.) The Superintendent states that plaintiff's attorney and his faculty advisor consulted with and advised him "throughout" both phases of his Hearing. (Id. ) In Executive Board Hearings, on the other hand, an accused may have an attorney present only if he or she is also criminally charged for the conduct at issue in the Academy proceeding. (Id. ) Plaintiff, therefore, would not have been permitted to have an attorney present had his case instead been heard by an Executive Board. (Id. ) The Superintendent notes that Complainant was accompanied by counsel during Phase I, but not Phase II of the Hearing (counsel was not available during Phase II). (Id. ¶ 20.)

The Superintendent states that he began plaintiff's Hearing by explaining that he was not persuaded by the arguments in plaintiff's attorneys' February 8, 2018 letter. (Id. ¶ 21.) He asserts that he provided breaks, including a dinner break, although the on-campus cafeteria was closed at that time. (Id. ) Academy counsel had informed plaintiff's attorneys that the Hearing could continue past the end of the business day. (Id. )

According to the declaration, plaintiff spent almost an hour questioning the Friend. (Id. ¶ 22.) The Friend answered questions about his disciplinary records-including that he was currently on restriction for misconduct-about the state of his past and current friendship with plaintiff, and about his relationship with Complainant. (Id. ) The Superintendent prohibited questions regarding the Friend's "sex life," which he states "was consistent with [his] not allowing [such] questions" regarding Complainant or others. (Id. ) The Superintendent reviewed a recording of the Hearing and asserts that plaintiff's attorney audibly directed plaintiff to ask certain questions of the Friend that plaintiff can be heard refusing to ask. (Id. ¶ 23.)

Plaintiff began calling witnesses at approximately 5:00 p.m., and the Superintendent permitted the testimony of all of his witnesses except his attorney, Gerald Lefcourt. (Id. ¶ 24.) Plaintiff informed the Superintendent that Lefcourt would testify that the Detective found plaintiff to be credible. (Id. ) The Superintendent states that he precluded this testimony because "as the presiding official, I assess credibility, and the opinions of others as to credibility are not relevant." (Id. )

According to the declaration, plaintiff was "ably assisted" by his attorney and faculty advisor. (Id. ¶ 25.) They all had identical, approximately 3-inch binders with questions prepared for plaintiff to ask witnesses, and counsel "appeared to frequently direct Plaintiff's attention to specific questions" for him to ask. (Id. ) Counsel and the faculty advisor frequently whispered to plaintiff. (Id. )

Plaintiff provided the Superintendent with a ten-page typed list of questions for him to ask Complainant, along with some handwritten questions. (Id. ¶ 26.) The Superintendent states that he asked "most of the questions," but "declined to ask" those relating to Complainant's sexual activity. (Id. ) He also accepted additional follow-up questions from plaintiff after Complainant answered the first set of questions, and again asked those he deemed relevant. (Id. )

In arriving at his adverse decision at the conclusion of Phase I, the Superintendent states that he "considered all the documentation and witness testimony, as well as [plaintiff and his advisor's] lengthy opening and closing statements." (Id. ¶ 28.) In his deliberations as to plaintiff's punishment, the Superintendent considered the Phase II testimony by plaintiff, his advisor, and plaintiff's five character witnesses, Complainant's impact statement, plaintiff's overall academic, Regimental, and disciplinary record, and twenty-three written statements of support for plaintiff. (Id. ¶ 29.) The Superintendent determined that plaintiff "should be set back to the Class of 2019, subject to terms and conditions of probation for his rehabilitation, which would be supervised by an Academy mentor." (Id. )

The Superintendent explains that the Academy's academic calendar "is not as flexible as those at most universities," and that many courses are offered in sequence, and at limited times. (Id. ¶ 33.) As a result, when a midshipman goes on a leave of absence "for any reason," that student "normally" returns the next year at the start of the same term during which he or she departed. (Id. ) The Superintendent explains that this is the reason that Academy policy is not to suspend a student during disciplinary proceedings, but rather to "move[ ] forward as expeditiously as possible while insuring that any accused Midshipman is afforded his/her due process protections." (Id. ) Midshipmen are then expected to comply immediately with the decision once it is made. (Id. )

In the declaration, the Superintendent also notes that plaintiff ignored his multiple admonitions at the Hearing not to share information about the proceedings with "anyone outside the room," including through social media. (Id. ¶ 35.) Plaintiff sent three messages to his classmates via Facebook, stating: (1) during the break between phases, that plaintiff was "found guilty of sexual assault and now [a]wait[s] punishment from [the Superintendent]" (ECF No. 14-5); (2) after Phase II, that he planned to "appeal and fight [his setback] with every ounce of strength that I have" (ECF No. 14-6); and (3) also after Phase II, that, "for those who haven't heard the superintendent has ruled that I committed a serious class 1 violation" (ECF No. 15). In a separate disciplinary proceeding, plaintiff was found to have committed a Class I violation for failing "to comply with the specific orders of a commissioned officer or superior" by posting these messages, despite the Superintendent's orders. (Id. ¶ 36.)

The Superintendent states that the Academy "has a significant interest in ensuring that it bestows a diploma on an individual who has not only complied with all of its graduation requirements ... but also is of exemplary character. The Academy owes it to the taxpayers who fund the education of the Midshipmen at the Academy to only graduate those who have so complied, and who will serve their obligation with distinction." (Id. ¶ 37.)

D. Procedural History in the Instant Action

On March 28, 2018, plaintiff filed the complaint in this action, as well as a motion for a preliminary injunction. At a hearing that afternoon, plaintiff also requested a temporary restraining order permitting plaintiff to attend classes in advance of the preliminary injunction hearing. The parties submitted letters regarding the request for a temporary restraining order on March 29, 2018. The Court held a telephone conference on March 30, 2018, and declined to grant plaintiff's motion for a temporary restraining order at that time, but moved the preliminary injunction hearing from April 6 to April 4, 2018, in light of plaintiff's concerns about missed classes. Defendants filed their opposition on April 3, 2018, which included a memorandum of law as well as the declaration by the Superintendent discussed supra .

The Court held the preliminary injunction hearing on April 4, 2018. Prior to the preliminary injunction hearing, the government provided the Court with an audio recording of the Academy Hearing, but had not yet prepared a transcript. On April 5, 2018, the Court granted plaintiff a temporary restraining order in light of its finding that, in its absence, plaintiff would suffer irreparable harm while awaiting the Court's decision (which would follow the Court's review of the transcript of the disciplinary proceeding). The temporary restraining order stayed any disciplinary action by the Academy and permitted plaintiff to attend classes until the Court issued its preliminary injunction decision. At the Court's direction, on April 10, 2018, the government filed a copy of the transcript of the Academy Hearing under seal. The government also provided an unredacted copy of the administrative record. The Court has now reviewed the administrative record, including the transcript of the Hearing, and has fully considered all of the arguments and submissions of the parties.

II. STANDARD OF REVIEW

"The preliminary injunction 'is one of the most drastic tools in the arsenal of judicial remedies.' " Grand River Enters. Six Nations, Ltd. v. Pryor , No. 02-CV-5068, 2006 WL 1517603, at *6 (S.D.N.Y. May 31, 2006) (quoting Hanson Tr. PLC v. SCM Corp. , 774 F.2d 47, 60 (2d Cir. 1985) ). In order to prevail on a motion for a preliminary injunction, a party must establish: "(1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor." MyWebGrocer, LLC v. Hometown Info., Inc. , 375 F.3d 190, 192 (2d Cir. 2004) (quoting Merkos L'Inyonei Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc. , 312 F.3d 94, 96 (2d Cir. 2002) ). A preliminary injunction is generally not appropriate where monetary damages will serve as adequate compensation. See Tucker Anthony Realty Corp. v. Schlesinger , 888 F.2d 969, 975 (2d Cir. 1989) ; Abish v. Nw. Nat'l Ins. Co. of Milwaukee, Wis. , 924 F.2d 448, 454 (2d Cir. 1991) ("In a few instances, however, we have recognized exceptions to this general rule and found irreparable harm where a party sought only money damages." (citations omitted) ).

Under the first prong of the test, "[t]o establish irreparable harm, plaintiffs must demonstrate an injury that is neither remote nor speculative, but actual and imminent." Id. (citations omitted). With regard to the second prong, where a party seeks a preliminary injunction that will affect governmental action "taken in the public interest pursuant to a statutory or regulatory scheme, the injunction should be granted only if the moving party meets the more rigorous likelihood-of-success standard." Sussman v. Crawford , 488 F.3d 136, 140 (2d Cir. 2007) (citations omitted); accord, Lynch v. City of New York , 589 F.3d 94, 98 (2d Cir. 2009). Further, where the movant seeks an injunction that will alter the status quo (a "mandatory" rather than "prohibitory" injunction), the party must make a " 'clear' or 'substantial' showing of a likelihood of success on the merits.' " Jolly v. Coughlin , 76 F.3d 468, 473 (2d Cir. 1996) (citation omitted).

III. DISCUSSION

For the reasons set forth below, the Court finds that plaintiff fails to meet the second prong of the preliminary injunction standard-that is, likelihood of success on the merits. Plaintiff has asserted claims under the APA and the Due Process Clause, alleging both substantive and procedural due process violations. As discussed below, the Court concludes that the second prong is not met because: (1) plaintiff has failed to show that defendants' actions were arbitrary and capricious, or otherwise in violation of the APA; and (2) plaintiff has failed to demonstrate that defendants violated his procedural or substantive due process rights in connection with the disciplinary proceeding.

A. Administrative Procedure Act

1. Applicable Law

Plaintiff challenges the Superintendent's decisions under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Defendants are agents under the APA, 5 U.S.C. § 701, and the APA provides that agency action is subject to judicial review when it is "final" and there is "no other adequate remedy in a court," id. § 704. "[T]he Administrative Procedure Act provides that '[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof,' unless review is precluded by statute or the complained-of decision was committed to agency discretion." Ruiz v. Mukasey , 552 F.3d 269, 273 (2d Cir. 2009) (quoting 5 U.S.C. § 702 ).

Under the APA, a reviewing court shall "hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." See 5 U.S.C. § 706(2)(A). Under this standard, "the scope of review is ... narrow, and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The agency's decision is "entitled to a presumption of regularity." Citizens to Pres. Overton Park, Inc. v. Volpe , 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders , 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). "Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.' " Motor Vehicle Mfrs. Ass'n of U.S., Inc. , 463 U.S. at 43, 103 S.Ct. 2856 (quoting Burlington Truck Lines v. United States , 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962) ). Accordingly, an agency action is arbitrary and capricious where "the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id. at 42, 103 S.Ct. 2856.

2. Analysis

Plaintiff argues that he is entitled to a preliminary injunction under the APA on the grounds that the Academy "failed to follow its own rules, policies, procedures and regulations and denied Plaintiff his due process rights," and "[this] failure ... was arbitrary and capricious." (Pl. Mem. at 24.) Defendants argue that (1) they did, in fact, follow their policies and procedures, and (2) their decision was not arbitrary, capricious, or contrary to law. For the following reasons, based on its review of the record, the Court agrees with defendants and concludes that plaintiff has no likelihood of success on this claim.

The Court first notes that defendants are entitled to deference with regard to their policies, which were enacted in accordance with 46 U.S.C. § 51318 and other regulatory authority governing the Academy's operations. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. , the Supreme Court established a two-step process for courts to follow in determining whether an agency's interpretation of its regulations or governing statutes is entitled to deference:

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congres