Full opinion text
MEMORANDUM OPINION CHARLES R. RICHEY, District Judge. INTRODUCTION Before the Court in the above-captioned case are the parties’ cross-Motions for Summary Judgment, as well as their oppositions and replies thereto. This case was originally filed as a preliminary injunction. On July 28, 1994 the Court held a hearing and issued an Order on August 1, 1994 which, with the parties’ consent, consolidated a hearing on the Plaintiff’s Motion for Preliminary Injunction with a final determination on the merits of the case, pursuant to Rule 65 of the Federal Rules of Civil Procedure. The parties informed the Court that there would be no dispute as to material facts and that the matter could be resolved through cross-motions for summary judgment. On September 29, 1994, the Court held a hearing on the parties’ cross-motions for summary judgment. The Plaintiff filed a preliminary injunction seeking reinstatement to the United States Merchant Marine Academy (“USMMA” or “Academy”). He was admitted to the Academy in July of 1991. Thereafter he developed diabetes but managed to complete his first year. In September of 1992, the Academy informed him that he would be disenrolled due to his medical condition. The Plaintiff argues that the Defendants’ actions violate both the Maritime Education and Training Act of 1980, 46 App. U.S.C. § 1295 (“META”), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. (“Section 504”). In his motion, the Plaintiff seeks a preliminary and permanent injunction requiring the Academy to reinstate Lane immediately, compensatory damages, including out-of-pocket costs, loss of professional opportunity, and pain and suffering, attorneys’ fees, and costs. The Defendants argue, in sum, that the META imposes on USMMA graduates an obligation to serve in an armed forces reserve unit upon graduation as a condition of receiving an education at the Academy. The Defendants contend that the Plaintiff cannot satisfy his reserve service obligation because he has insulin-dependent diabetes mellitus and, therefore, does not meet the physical standards established by the Department of Defense for a commission in the armed forces reserve. According to the Defendants, the Plaintiff cannot satisfy an essential statutory requirement as a condition of attending the Academy and, therefore, he cannot be considered an “otherwise qualified person with a disability” for purposes of Section 504 of the Rehabilitation Act. The Defendants further argue that the agency’s interpretation of the statute warrants due deference by the Court, and assert sovereign immunity with respect to damages. Alternatively, the Plaintiff argues, in sum, that the META nowhere authorizes the per se exclusion of a student simply because he has a medical condition which precludes admission into the naval reserve, when that same condition in no way limits the student’s ability to serve in the merchant marine. He further argues that the META mandates only that students qualify for a merchant marine license — not that they also qualify to serve in the naval reserve — and contends that he is eligible for a merchant marine license. Moreover, the Plaintiff maintains that the Court need not afford the agency deference because it has not consistently followed their alleged practice of disenrolling cadets who fail to meet the requirements for a naval reserve commission, and because the plain language of the META demonstrates that no such practice is required. Finally, the Plaintiff asserts that Section 504 was also violated because he was denied the opportunity to complete his education at a federally funded academic institution solely because he developed a disability. Upon careful consideration of the papers filed by both parties for dispositive relief, the oral arguments of counsel, the applicable law, and the entire record in this ease, the Court has determined that the Plaintiffs Motion shall be granted, and the Defendants’ Motion shall be denied. The Court finds that the Defendants violated Section 504 of the Rehabilitation Act by disenrolling Lane solely on the basis of his diabetes and without making any attempt to reasonably accommodate his disability. The Stipulated Facts reveal that James Griffin Lane has repeatedly achieved an “outstanding” rating on the physical readiness exam administered by the Academy, that it is undisputed that James Griffin Lane may qualify for a merchant marine license if he maintains control of his diabetes, that his physician has reported that his diabetes mellitus is under “extremely good control,” and that the Academy has allowed students in the past with a lost limb, a lost eye, brain damage, and color blindness to remain at the Academy and graduate despite their disabilities. Nevertheless, the Defendants now refuse to acknowledge that the Rehabilitation Act requires any reasonable accommodation — or even an attempt to provide reasonable accommodation — of Lane’s diabetes mellitus. The Court simply cannot accept this untenable reading of the Rehabilitation Act. The Court thus finds that the Defendants have not shown that Lane has failed to meet an essential program requirement under Section 504 or, critically, that the Academy would suffer undue hardship by reasonably accommodating the diabetes mellitus of this otherwise extremely well qualified cadet. The Defendants argue that the META dictated their disenrollment of Lane. However, the Court further finds that the plain language of the META does no such thing. Neither the statute, the regulations promulgated thereunder, nor the agency’s inconsistent practices support the Defendants’ position that the Academy was obliged to disen-roll Lane upon discovery of his diabetes mel-litus. The Court finds that, despite the Defendants’ assertions to the contrary, the META contains no requirement that cadets such as Lane meet all physical requirements for a commission in the armed forces reserve or suffer unconditional expulsion from the Academy. Moreover, the Court finds that the agency’s reading of the META does not warrant due deference because it is contradicted by the plain language of the statute, and because the USMMA has acted inconsistently with respect to Lane and other disabled students. Accordingly, the Court shall order the United States Merchant Marine Academy to reinstate forthwith Plaintiff James Griffin Lane as a student at the USMMA, and shall require the Defendants to take all steps necessary to permit Lane to resume his maritime training as soon as practicable. Finally, the Court finds that the Plaintiff is entitled to compensatory damages for his injuries. As a result of the Court’s findings, judgment must be entered in favor of the Plaintiff. The Court shall issue an Order of even date herewith consistent with this Memorandum Opinion. BACKGROUND In 1990, the Plaintiff, James Griffin Lane, applied for an appointment to the U.S. Merchant Marine Academy, a federal service academy that trains men and women to serve as commercial merchant marine officers and as commissioned officers in the United States armed forces. As a condition of his appointment, the Plaintiff was required to undergo a physical examination to determine if he met the requisite physical qualifications. On November 29, 1990, the Department of Defense Medical Examination Review Board (“DOD-MERB”) administered the examination. Two days earlier, the Plaintiff had submitted a medical history form which asked whether he had at any time “blood, protein, or sugar in urine;” to this, he answered “no.” The results of a urinalysis test administered later by DODMERB were “negative” for sugar in the urine. On June 4, 1991, DODMERB stamped on the Plaintiffs medical evaluation form that he was “medically qualified” and “recommended for service academies and ROTC programs,” and the Plaintiff entered the Academy the next month. On February 1, 1991, Lane consulted a private family physician and reported excessive thirst and hunger. A test showed he had an elevated blood sugar level, and the doctor directed the Plaintiff to limit his intake of calories and take an oral hypoglycemic medication to reduce his blood sugar level. Over a period of seven weeks, Lane’s blood sugar level fluctuated between the normal range and higher. In September or October of that year, the Plaintiff had the flu and began to lose weight and again experience excessive thirst and hunger. In December 1991, the Plaintiff was diagnosed with diabetes mellitus by Dr. Didace Kabatsi, a private endocrinologist, who performed several tests on blood and urine samples. On February 11, 1992, Lane visited Dr. Daniel Kalash, Chief Medical Officer at the Academy, who recorded in his notes that the Plaintiff advised that he had an “intermittent history during [the] past several months of glycosuria [sugar in the urine] and [elevated] blood sugar” and that he had been treated for his condition. He further recorded that the Plaintiff reported he was monitoring his “blood sugar in [his] barracks” and that “all findings [were] normal.” Finally, he made the following notes: “Assess: Early Diabetes type I” and “Capt. Bauer notified & communicated problem to BuMed.” At that time, Bauer was the Head of the Department of Naval Science at the Academy. Dr. Kalash instructed the Plaintiff to continue observing his blood sugars and report abnormalities and symptoms, and told him that he would repeat the lab workup at the end of the Plaintiff’s third class, or sophomore year. In March 1992, the Plaintiff consulted Dr. Jay Skyler, an endocrinologist at the University of Miami, and President of the American Diabetes Association. Dr. Skyler confirmed that Lane had diabetes, recommended insulin therapy, and referred him to Dr. S. Mark Tanen, an endocrinologist in Northern Virginia. In early July 1992, shortly before commencing his second year, the Plaintiff began seeing Dr. Tanen and, upon Dr. Tanen’s recommendation, began insulin therapy. In a letter dated July 23, 1992, the Plaintiffs father, J.W. Lane, Jr., notified Paul Krinsky, the Superintendent of the Academy, that his son had began taking insulin to control his diabetes. On September 4, 1992, the Plaintiff learned that a Physical Examination Review Board (“PERB”) hearing had been scheduled for September 8, 1992 to determine his “medical suitability for continuance” at the Academy. The hearing was to confirm that the Plaintiff had insulin-dependent diabetes mellitus, as indicated in his father’s July 23,1992 letter. At the hearing, which Lane attended unaccompanied, the PERB did not evaluate the particular circumstances of Lane’s case other than verify his status as a diabetic. On September 16,1992, the PERB advised the Superintendent of the Academy that the Plaintiff had insulin-dependent diabetes and that, under U.S. Navy commissioning standards, this was “a disqualifying condition for military service” and, accordingly, that the Plaintiff “would not be commissionable in the Navy/Merchant Marine Reserve Program.” The PERB further advised, however, that Lane may not be ineligible for a Coast Guard merchant marine license as the “requirements do not seem to be as rigid as the Navy requirements but a waiver is required when an applicant is insulin-dependent and may not be automatic[;] it would depend on the specifics of the condition.” In contrast to the Department of the Navy, the United States Coast Guard grants merchant marine licenses, including those which permit holders to serve as deck officers at sea, to persons with diabetes mellitus who obtain a waiver of Coast Guard physical qualifications standards with respect to diabetes. Waivers are issued to individuals who show to the Coast Guard’s satisfaction that their diabetes is under control and that they are otherwise physically qualified for a merchant marine license. As of December 1993, more than fifty persons with diabetes, some insulin-dependent, are sailing on an active merchant marine license. On September 21, 1992, the Superintendent advised the Plaintiff that he would be separated from the Academy effective December 18, 1992, and stated that “Adult-onset (Type I) diabetes is a disqualifying condition for military service. You are not eligible for appointment as Midshipman, MMR/USNR nor for commissioning as a Naval Reserve Officer.” The Superintendent advised Lane that he would be permitted to continue to take classes at the Academy through December 18, 1992, and thus complete the first half of his sophomore year. This did not include participation in shipboard training, however. Lane achieved a 3.4 grade point average during his first year at the Academy, rowed crew, and participated in various sea-going activities, including a four to five day journey up the East Coast in a tugboat, during which storm conditions caused the boat to undergo 40 degree rolls. The Plaintiff’s medical records contain no indication that he had any medical problems associated with these activities, and in November 1992, Lane achieved an “outstanding” rating on the physical readiness exam administered by the Academy, as he had achieved each time it was administered previously. In December 1992, Dr. Tanen concluded that Lane’s diabetes was under “extremely good control” and noted that he had not experienced any incapacitating episodes due to his condition. In early October 1992, the Plaintiffs father wrote to Captain Warren G. LeBack, then-Administrator of the U.S. Maritime Administration (“MARAD”), to challenge the Superintendent’s decision. In a letter dated January 15,1993, LeBack responded to the Plaintiffs request for a review of the decision, and between January 15, 1993 and April 15, 1994, the Plaintiff took steps to obtain the assurances specified in the January 15,1993 letter. On April 15, 1994, MARAD Administrator A.J. Herberger issued a letter to Lane stating, in part, that Lane could not meet physical qualifications standards applicable to midshipmen at the USMMA because “insulin dependent diabetes disqualifies an individual from receiving a commission in any component of the reserve of the armed forces of the United States.” The Department of the Navy has consistently applied the same physical qualifications standards with respect to diabetes mel-litus, which is a disqualifying condition for commissioning in all active duty and reserve units of the armed forces. In recent years, however, students have attended and graduated from the Academy despite having developed physical disabilities while they were students, which include loss of a limb, loss of an eye, brain damage, and color blindness. Moreover, students with insulin-dependent diabetes have enrolled in and recently graduated from at least one state maritime academy, the Maine Maritime Academy. STATUTES AND REGULATIONS APPLICABLE TO THIS CASE The Plaintiff claims violations of both the Maritime Education and Training Act of 1980, 46 App. U.S.C. § 1295 (“META”), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. (“Section 504”). I. The META In the META, Congress assigned the United States Merchant Marine Academy a two-fold mission: “education and training of citizens of the United States who are capable of providing for the safe and efficient operation of the merchant marine of the United States at all times and as a naval and military auxiliary in time of war and national emergency.” 46 U.S.C.App. § 1295(1). Moreover, the statute directs the Secretary of Navy, in cooperation with the Maritime Administrator, to assure that the training of merchant marine officers at the USMMA includes programs for “naval science training in the operation of merchant marine vessels,” and that the programs be “consistent with United States Navy standards and needs.” Id. § 1295(2). The Plaintiff claims that the Academy’s primary mission is to serve the merchant marine, and that its secondary goal is to serve as naval and marine reserve. Thus, he contends, Congress did not categorically require that all students at all times meet naval reserve requirements, only that they at all times meet merchant marine requirements. The Defendants argue that both purposes are primary and that, therefore, the Plaintiffs inability to meet requisite physical qualifications for naval reserve status precludes him from continuing at the USMMA. The Court finds, however, that this statutory language does not clearly lead to either conclusion. It is undisputed that Congress anticipated that the USMMA would serve both the merchant marine and the armed forces reserve. The obligations Congress imposed on cadets at the USMMA with respect to each, however, are covered by other portions of the statute. The Court thus observes that the extent of these obligations is the seminal issue posed by this dispute. The parties’ main contention is over three portions of the statute which explicitly deal with the armed forces reserve. The statute requires that “[a]ny citizen of the United States selected for appointment ... must agree to apply for midshipman status in the United States Naval Reserve (including the Merchant Marine Reserve, United States Naval Reserve) before being appointed as a cadet at the Academy.” 46 U.S.CApp. § 1295b(b)(3)(F) (emphasis added). The final authority to appoint cadets to a reserve post lies with the Secretary of the Navy: Any citizen of the United States who is appointed as a cadet at the Academy may be appointed by the Secretary of the Navy as a midshipman in the United States Naval Reserve (including the Merchant Marine Reserve, United States Naval Reserve). 46 U.S.C.App. § 1295b(c) (emphasis added). The key statutory language at issue in this case, however, deals with a cadet’s commitment agreements once he or she is appointed: Each individual appointed as a cadet at the Academy ... who is a citizen of the United States, shall as a condition of appointment to the Academy sign an agreement committing such individual— (A) to complete the course of instruction at the Academy, unless the individual is separated by the Academy; (B) to fulfill the requirements for a license as an officer in the merchant marine of the United States on or before the date of graduation from the Academy of such individual; (C) to maintain a license as an officer in the merchant marine of the United States for at least 6 years following the date of graduation from the Academy of such individual; (D) to apply for an appointment as, to accept if tendered an appointment as, and to serve as a commissioned officer in the United States Naval Reserve (including the Merchant Marine Reserve, United States Naval Reserve), the United States Coast Guard Reserve, or any other Reserve unit of an armed force of the United States, for at least 6 years following the date of graduation from the Academy of such individual; and (E) to serve in the foreign or domestic commerce and the national defense of the United States for at least 5 years following the date of graduation from the Academy (i) as a merchant marine officer; (ii) as an employee of the United States maritime industry, if the Secretary determines that service under (i) is not available to such individual; (iii) as a commissioned officer on active duty in the armed forces of the United States or in the National Oceanic and Atmospheric Administration; or (iv) any combination of (i), (ii) or (iii). 46 U.S.C.App. § 1295b(e)(l) (emphasis added). The Plaintiff argues that this language is conditional, such that cadets only have to apply for and, if tendered, accept a commission in the armed forces reserve. The Defendants contend that this language creates a binding obligation both to serve in the naval reserve or some other armed forces reserve unit and, by implication, to meet physical requirements for such a commission. Next, the parties focus attention on the power of the Secretary of the Navy to waive any of the statutory service obligations in cases of individual “hardship.” The relevant provisions read as follows: If the Secretary determines that any individual who has attended the Academy for not less than 2 years has failed to fulfill the part of the agreement ... such individual may be ordered by the Secretary of the Navy to active duty in the United States Navy to serve for a period of time not to exceed 2 years. In cases of hardship as determined by the Secretary, the Secretary may waive this paragraph. 46 U.S.C.App. § 1295b(e)(2) (emphasis added). The statute continues with a similar provision: If the Secretary determines that any individual has failed to fulfill any part of the agreement ... such individual may be ordered to active duty to serve a period of time not less than 3 years.... In cases of hardship as determined by the Secretary, the Secretary may waive this paragraph. Id. § 1295b(e)(3)(A) (emphasis added). While the Plaintiff argues that this language proves that Congress did not intend the per se rule that cadets qualify for the naval reserve at all times, the Defendants assert that this language only affords waiver for hardship incurred by cadets during their third or fourth years at the Academy. Further, the parties disagree over how to interpret properly the provision of the statute addressing the awarding of Bachelor of Science degrees to cadets: The Superintendent of the Academy may confer the degree of bachelor of science upon any individual who has met the conditions prescribed by the Secretary and who, if a citizen of the United States, has passed the examination for a merchant marine officer’s license. No individual may be denied a degree ... because the individual is not permitted to take such examination solely because of physical disqualification. Id. § 1295b(g) (emphasis added). The Plaintiff argues that the Defendants violated the META under this provision by disenrolling him due solely to his medical condition, while the Defendants assert that this provision speaks only to qualifying for merchant marine licenses, not to meeting armed forces reserve requirements. Finally, the parties discuss the agency regulations promulgated under the META. The Academy is administered by the Maritime Administration (“MARAD”), which is within the Department of Transportation (“DOT”). The general regulatory provisions promulgated under the META with respect to the USMMA read as follows: Midshipmen are appointed to the Academy for training to prepare them to become officers in the U.S. merchant marine. The Academy, located at Kings Point, New York, is maintained by the Government as a part of the Administration. After successful completion of the 4-year course of study, a graduate of the Academy shall receive a Bachelor of Science degree and a merchant marine license as either a third officer or third assistant engineer ... issued by the U.S. Coast Guard. If qualified, an officer may be commissioned as an officer in a reserve component of an armed force of the United States. 46 C.F.R. § 310.52(a) (emphasis added). The regulations also reiterate the statutory requirement that USMMA cadets “[a]pply for an appointment as, accept any tendered appointment as and serve as a commissioned officer in the USNR (including the Merchant Marine Reserve, USNR), the United States Coast Guard Reserve, or any other Reserve component of an armed force of the United States....” 46 C.F.R. § 310.58(a)(4) (emphasis added). The relevant regulations regarding physical standards for admission and training of midshipmen at the USMMA read as follows: Physical standards. (1) A candidate shall meet the physical requirements prescribed by the Department of the Navy for appointment as Midshipman, USNR [United States Naval Reserve] (including the Merchant Marine Reserve, USNR) and the requirements prescribed by the U.S. Coast Guard for original licensing as a third mate and third assistant engineer. All candidates shall have color perception and refractive error within the limits prescribed by the Department of the Navy or by the U.S. Coast Guard, whichever are higher. 46 C.F.R. § 310.56(a) (emphasis added). In addition, the regulations provide for waiver of some medical requirements for enrolled students and applicants to the USM-MA: (2) The requirement to meet these standards is a continuing one and shall apply through graduation from the Academy. Failure to meet the standards while attending the Academy is grounds for, and may lead to disenrollment. Individuals who have completed at least two years of study and, as a result of an accident, illness or other cause (during official duty), fail to meet this requirement may be permitted to remain at the Academy at the discretion of, and under conditions set by, the Administrator.... 46 C.F.R. § 310.56(a) (emphasis added). Later, the regulations state: The Administrator shall have the discretion to grant waivers of the service obligation contract in cases where there would be undue hardship or impossibility of performance due to accident, illness, or other justifiable reason. 46 C.F.R. § 310.58(f). The Plaintiff argues that, like the META, the regulations employ conditional language which, along with the allowance for waiver upon hardship, support the conclusion that the agency does not follow a hard and fast rule that all Academy students meet requirements for a naval reserve commission at all times. The Defendants, however, point to another regulatory provision in order to demonstrate that the agency policy is clear: Since commissioning in the United States Navy, or any other branch of the Armed Forces, is a requirement for graduation, no waivers unll be granted for medical conditions which would prevent commissioning in at least a restricted status in the U.S. Navy Reserve. Id. § 310.56(d) (emphasis added). As discussed in detail below, the Court finds that the META does not contain a clear statutory requirement that every cadet both serve in, and at all times meet physical qualifications for, commissioning in the armed forces reserve. This conclusion is critical to the Court’s analysis under Section 504. The Court further finds that the agency’s regulatory interpretation of the META in 46 C.F.R. § 310.56(d) does not support the Defendants’ contention that the META obliged them to separate Lane from the USMMA for failure to meet physical requirements for commissioning in the naval reserve. II. SECTION 504 OF THE REHABILITATION ACT The Plaintiff claims that, even if the Defendants could show that Congress required all Academy students to meet physical criteria for commissioning in the naval reserve, it would not necessarily follow that such a requirement is “essential” within the meaning of Section 504, which states: No otherwise qualified handicapped individual with a disability in the United States ... shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency.... 29 U.S.C. § 794(a) (Supp.1994) (emphasis added). The relevant DOT regulation reads as follows: Qualified individual with handicaps means — (1) With respect to education services provided by the U.S. Merchant Marine Academy or the U.S. Coast Guard Academy, an individual with handicaps who meets the essential eligibility requirements for participation in and receipt of such services, including the physical standards applicable to the U.S. Naval Reserve or the U.S. Coast Guard. 49 C.F.R. § 28.103. The Plaintiff argues that, here, Lane is clearly qualified to continue at the Academy. The Defendants argue that, since commissioning in a reserve unit of the armed forces is, under their reading of the META, a statutory requirement for receiving an education at the USMMA, physical qualification for such a commission is necessarily an “essential” condition which must be satisfied. The Court agrees with the Plaintiff that the Defendants have violated Section 504 by disen-rolling him solely on the basis of his diabetes mellitus, without attempting to provide reasonable accommodation, and without making an individualized determination under Section 504. The Court shall now turn to its analysis of the Defendants’ actions with respect to Plaintiff Lane under both statutes. DISCUSSION 1. THE PLAIN LANGUAGE OF THE META DOES NOT REQUIRE ALL CADETS TO BE ELIGIBLE FOR RESERVE SERVICE AT ALL TIMES The crux of the Defendants’ argument under both statutes rests on the agency’s reading of the META as expressly mandating that all USMMA students meet the physical requirements for commissioning in the armed forces reserve. The Court finds that the Defendants have unreasonably stretched the plain language of the META too far. It is undisputed that, on its face, the META sets forth a requirement that USM-MA students apply for and, if tendered, accept an appointment as a commissioned officer in the naval reserve, or another reserve unit of the armed forces. 46 U.S.C. § 1295b(e)(l). From this language, the Defendants conclude not only that the META contains an express requirement that all USMMA students serve in the armed forces reserve, but that it further contains a clear requirement that all students at all times meet physical eligibility requirements for commissioning in the reserve. The Defendants concede in their papers that the physical eligibility requirement is, at best, implied from the statute. Defendants’ Motion, at 20. Thus there is no clear mandate from Congress that Lane or any other cadet meet physical standards for the naval reserve. Accordingly, the Court finds that the Defendants’ further arguments under the META and Section 504 lack merit because they are based on the erroneous premise that the META contains a clear and unconditional requirement that all enrolled students meet armed forces reserve requirements. A. The META only mandates that USMMA students qualify for a license as an officer in the merchant marine and apply for and, if tendered, accept a commission in the armed forces reserve. The Defendants maintain that the “apply for” and “accept if tendered” language of the META requires that cadets obtain a commission in an armed forces reserve unit as a condition of receiving a taxpayer-funded education at the USMMA. 46 U.S.C. App. § 1295b(e)(l). By necessary implication> the Defendants argue, the statute also contains a requirement that cadets meet the physical standards to satisfy that obligation. The Court finds, however, that the language of the META speaks for itself. The plain language of the META requires each cadet to apply for an appointment in the reserve and, if an appointment is offered, to accept it. Indeed, it is undisputed that cadets must apply for such a position. However, the only logical way to give effect to the “if tendered” language is to conclude that, upon application for a reserve commission, receipt of such commission becomes conditioned on an evaluation of the cadet’s eligibility for a reserve unit at that time. Consequently, in section 1295b(b)(3)(F), Congress required that individuals selected for appointment at the Academy “must agree to apply for midshipman status in the United States Naval Reserve ... before being appointed as a cadet at the Academy.” Id. (emphasis added). The statute further states that individuals appointed as cadets at the Academy “may be appointed ... as a midshipman in the United States Naval Re-serve_” 46 U.S.C.App. § 1295b(c) (emphasis added). Thus, consistently, Congress employed unconditional language only to express the requirements that cadets apply for the reserve, and conditional language to express the possibility that cadets “may be appointed” as midshipmen in the reserve upon graduation. The Court finds no support for the Defendants’ suggestion that Congress did not require what the plain language expresses, namely, that all cadets apply for and accept if tendered a commission in the armed forces reserve but, rather, that Congress required that all cadets serve in, and at all times qualify for, the reserve. Moreover, in the same subsection containing the “apply for” and “accept if tendered” language, namely, 46 U.S.C.App. § 1295b(e)(l), Congress affords cadets a choice in meeting their duty “to serve in the foreign or domestic commerce and the national defense” upon graduation. Id. § 1295b(e)(l)(E). Congress expressly provided that, as part of their commitment agreement, students must serve as either merchant marine officers, employees in the maritime industry, or commissioned officers. Id. The Defendants argue that the statutory active duty requirement is entirely separate from the alleged reserve service requirement, and remind the Court that statutes must be read to give meaning to every section. This, however, is precisely what the Court intends to do. Again, the Court finds that nowhere does the META require, as the Defendants assume, that each and every cadet serve in the armed forces reserve. It only requires that students apply for a reserve commission and accept one if tendered. With respect to the META’s express active duty requirement, however, the META gives cadets a choice. As long as each cadet serves in one of the three capacities listed in the statute, they have fulfilled their post-graduation commitment under the META. The Court finds that, given the express statutory allowance of a choice upon graduation regarding active duty, it cannot conclude that, on the other hand, Congress impliedly intended an unconditional requirement that all cadets serve in a reserve unit of the armed forces. Accordingly, the Court also finds that there is no merit to the Defendants’ contention that the statute impliedly requires that all cadets be qualified for armed forces reserve positions throughout their training. Furthermore, the Court observes that other subsections of the META are wwconditional; thus Congress knew how to make an express, mandatory requirement when it wanted to. For example, in the same section which sets forth the “apply for” and “accept if tendered” language, the statute unconditionally requires cadets to complete the Academy’s course of instruction, to fulfill the requirements for a license as an officer in the merchant marine of the United States, to maintain a license as an officer in the merchant marine of the United States for at least 6 years following graduation, and to serve as either a merchant marine officer, an employee in the maritime industry or as a commissioned ofScer in the armed forces upon graduation. 46 U.S.CApp. § 1295b(e)(l)(A)-(E). The Court observes that, if Congress so clearly intended to make service in, and qualification for, the reserve an unconditional requirement, it would have used the unconditional language it employed throughout the rest of section 1295b(e)(l) in order to say just that. Moreover, because the statute contains a provision regarding fulfillment of the requirements for a merchant marine license, the absence of such a provision regarding the requirements for a reserve commission suggests that Congress did not intend that satisfaction of standards for service in the reserve be an absolute graduation requirement. See I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 432, 107 S.Ct. 1207, 1213, 94 L.Ed.2d 434 (1987) (“[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion”) (quoting Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983)). The Defendants explain the tentative nature of the language in the META as reflecting the President’s appointment power — because the President, acting through the Secretary of the Navy, is empowered under the Constitution to determine who will be offered a reserve commission, Congress cannot mandate appointment. However, Congress has used much stronger language than that of the META to mandate that graduates of Annapolis and West Point accept positions in the reserve if an active duty commission is not tendered. See 10 U.S.C. § 6959(a)(3) (App.1994) (graduates “mil accept an appointment as a commissioned officer in the Naval Reserve”) (emphasis added); 10 U.S.C. § 4348(a)(3) (App.1994) (graduates “will accept an appointment as a commissioned officer as a reserve for service in the Army Reserve or Air Force Reserve”) (emphasis added). Moreover, even accepting ar-guendo Defendants’ argument that the tentative nature of the META’s language reflects the reservation of the appointment power to the President, Congress still could have required every student to meet the requisite qualifications for a naval reserve commission in the event that the President does appoint certain students to the reserve. Instead, Congress required only that cadets fulfill the requirements for obtaining a merchant marine license. The Defendants themselves point to the military academy statutes cited above, which contain the “accept” and “if tendered” language in describing the active duty requirements, to support their argument that all cadets must serve in the armed forces reserve and therefore must meet physical prerequisites for the reserve while at the USM-MA. See 10 U.S.C. § 6959(a) (Annapolis); 10 U.S.C. §§ 4348(a)(3) (West Point). The Defendants assert that the language of the META mirrors the language employed by Congress in these statutes “which has been recognized as creating the service obligations of graduates” of Annapolis and West Point. Defendants’ Opposition, at 10-11. The Defendants further warn that, if the Court invalidates the reserve service requirement at the USMMA, it must also invalidate the same requirement at the Naval, Military, Air Force and Coast Guard Academies because each uses the same statutory language to create the same obligations. The Court finds these arguments without merit. First, it is undisputed that the Annapolis Academy and West Point serve only a military purpose. In contrast, Congress charged the USMMA with a dual purpose and, accordingly, gave cadets a choice of where to serve their active duty after graduation. 46 U.S.C.App. § 1295b(e)(l)(E). Thus there is no support for the sweeping conclusion that the Court’s holding with respect the USMMA will have grave implications for service academies whose sole purpose is to provide the military with trained officers. Indeed, the unique nature of the “dual purpose” of the USMMA is what, at bottom, generated this dispute. In addition, the language of 10 U.S.C. § 6959(a) and § 4348(a), when read in context, does not mirror that of the META. Rather, both Title 10 statutes contain unconditional language requiring that cadets “will accept an appointment as a commissioned officer” in the reserve if an appointment in the regular Army, Air Force or Marines is not tendered. 10 U.S.C. §§ 6959(a), 4346(a) (App.1994) (emphasis added). Thus in these statutes, Congress used unconditional language to create the reserve requirement, and conditional language to create the active duty requirement. Similarly, the META contains an unconditional requirement to obtain and maintain merchant marine license, and a conditional requirement to serve in the armed forces reserve. 46 U.S.C.App. § 1295b(e)(l)(B)-(D). Moreover, unlike in the META, in neither military academy statute did Congress include the lesser preliminary requirement that cadets apply for a commission in either the regular armed forces or the reserve. Clearly, Congress envisioned something different, to at least some degree, for students appointed to the USM-MA than it did for students at Annapolis or West Point. The Court finds that it must give effect to congressional intent as expressed by the plain language of the META. B. The META’s language affording waivers for hardship and precluding the denial of degrees based solely on an inability to meet the physical requirements for obtaining a merchant marine license undermines the Defendants’ central argument. In support of the argument that Congress created a mandatory requirement that all cadets meet the physical qualifications for a commission in the armed forces reserve, the Defendants claim that the statutory language affording waiver in cases of hardship creates a quid pro quo between a cadet and the Government — if the cadet fails to fulfill his or her agreement, the Secretary of the Navy can order him or her to active duty in the armed services as a “pay back” for receiving a taxpayer-funded education at the USMMA. See 46 U.S.C.App. § 1295b(e)(2)-(8)(A). The Defendants further contend that this deal assumes that each cadet would be qualified to serve in a reserve unit of the armed forces. The Plaintiff argues, however, that the language waiving this duty for “hardship” confirms that Congress did not intend that it be mandatory for all cadets to meet physical qualifications for a naval reserve commission at all times. The Court agrees with the Plaintiff that the language affording waiver for hardship undermines the argument that USMMA students at all times must meet physical requirements for a commission in the naval reserve. Indeed, the Defendants cannot, and do not, deny that a waiver exists, but argue that the agency’s interpretation of the statute as strictly limiting the waiver to students in their third or fourth years at the Academy, is a reasonable one. The Court notes at the outset that, in arguing that the hardship waiver only applies to third or fourth year students, the Defendants concede that the reserve requirements, if any, do not apply at all to students in their first and second years. In particular, the Defendants state that “a midshipmen’s obligations under the statute do not even become effective until a student has completed 2 years of study_ Thus, prior to their junior year, there is nothing for the Secretary to waive.” Defendants’ Opposition, at 18-19. The Defendants argue that the Academy can disenroll first and second year students who fail to meet the requirements for a reserve commission because “the government can see immediately that it will not get the benefit of its bargain with that midshipman.” Id. at 19. However, the Court observes that, if the Defendants concede that the reserve obligations do not apply to students such as Lane, their argument that Lane was separated from the Academy because of his failure to meet statutory reserve requirements loses any merit. The Court is puzzled and unpersuaded by the Defendants inconsistent statements. The Defendants want to argue on one hand that, because the statute contains a clear requirement that cadets meet prerequisites for a reserve commission, Lane’s disen-rollment was warranted. Yet on the other hand, the Defendants want to argue that the agency’s refusal to extend the statute’s waiver provisions to first and second year students is warranted because the clear requirement regarding reserve duty does not apply to such students. The Defendants cannot have it both ways. Moreover, the Court finds that the Defendants’ alternative argument that Lane’s disenrollment was permissible because “the government is justified in terminating the arrangement before any obligation is incurred” in order to get its “benefit of the bargain” is wholly unsupported by the statute or the regulations. Id. at 19. Moreover, notwithstanding the hardship provisions, the Court finds the language of 46 U.S.CApp. § 1295b(g) difficult to square with the Defendants’ main contention. That provision expressly states that “[n]o individual may be denied a degree ... because the individual is not permitted to take [the merchant marine officer’s license] examination solely because of physical disqualification.” 46 U.S.CApp. § 1295b(g). The Defendants argue that this language allows cadets to graduate despite physical disabilities disqualifying them from receiving a merchant marine officer’s license. Read in conjunction with § 1295b(e)(l)(B), which requires that cadets obtain their license as a precondition to receiving a USMMA degree, the Defendants assert that section 1295b(g) alleviates the “harsh result” which would follow from statutorily precluding cadets from receiving a degree where they develop a physical disability which disqualifies them from obtaining a merchant marine license. Defendants’ Opposition, at 13-14. The Defendants contend that this provision operates to remove the statutory pre-condition to graduation where cadets develop a physical problem late in their studies, but in no way relieves graduates of their separate active duty and reserve service obligations, as the Plaintiff maintains. The Court finds the Defendants’ argument unconvincing. The Court agrees that this provision in no way directly speaks to the alleged requirement that all cadets meet physical qualifications for commissioning in the armed forces reserve. However, the fact that Congress afforded an express waiver of a express condition for admission to the USMMA is quite telling. It is undisputed that Congress intended all cadets to fulfill the requirements for, and to maintain a license as, an officer in the merchant marines. 46 U.S.C.App. § 1295b(e)(l)(B)-(C). From these clear mandates, a requirement that cadets meet the requisite physical qualifications for such a license can be easily implied. If not, these express requirements would be meaningless. The Defendants apply the same reasoning to imply a requirement that cadets meet armed forces reserve qualifications from section 1295b(e)(l)(D), which contains the “apply for” and “accept if tendered” language. That language, however, does not set forth the same clear mandate contained in the provisions listed directly before it. Moreover, it is undisputed that the requirements for a merchant marine license are not as rigorous as those for a reserve commission. See Stipulated Facts at ¶36. Indeed, the Defendants conceded at the hearing that Lane could obtain such a license if his diabetes were kept under control. In addition, the Court notes that at least 50 people with the same condition are currently operating under a merchant marine license at sea. Id. at ¶ 39. It then follows that, because the physical qualifications for a merchant marine officer’s license are less stringent than those required for a naval reserve commission, and because the statute explicitly states that a cadet cannot be denied a diploma because he or she could not meet the qualifications for a merchant marine officer’s license, it would be illogical to conclude that the same person with the same disability would be subject to disenrollment for failure to meet the more stringent — but implied — naval reserve prerequisites. The Defendants argue that section 1295b(g) is irrelevant because it applies only to merchant marine license requirements, not to qualifications for commissioning in the reserve. This argument, however, does nothing to explain why Congress would intend such inconsistent results with respect to physical disqualification for express, versus implied, sets of requirements. The Defendants claim that, while section 1295b(g) applies to merchant marine license requirements, the statutory provisions for waiver upon hardship apply to the alleged naval reserve requirement. Under section 1295b(e)(3)(A), a cadet who fails, to meet his or her maritime or military reserve service obligations must perform active duty military service for a period of three to five years, depending on the'unexpired portion of their obligation. If the Secretary of Defense is unable or unwilling to order the defaulting graduate to active duty service, the Secretary of Transportation may recover the cost of educating that individual. Id. § 1295b(e)(3)(B). The Defendants further observe that Congress authorized the Secretary of Transportation to waive the provision allowing defaulting graduates to be called to active duty service in cases of hardship. Id. § 1295b(e)(3)(A). The Defendants thus conclude that this provision, not section 1295b(g), provides authority for the agency to excuse a defaulting graduate’s reserve service obligations. However, these latter provisions deal with punishment for fading to comply with the express requirements for appointment to the Academy. If a cadet fails to meet these requirements, such punishment is automatically imposed under the statute. At that point, the Secretary may waive the punishment upon a finding of hardship. This is a very different scheme from that of section 1295b(g) which completely waives an express requirement to graduation, with no repercussions. Again, how Congress would on one hand expressly avoid the “harsh result” of precluding cadets from graduating from the United States Merchant Marine Academy for their failure to meet physical requirements for a merchant marine license, yet on the other impliedly mandate that these same cadets meet more stringent standards for a reserve commission or lose their appointment at the Academy, is a mystery which the Defendants have not explained. To use the Defendants’ characterization of the purpose behind section 1295b(g), the latter result, which the Defendants condone, is a particularly “harsh” one which Congress surely would not have intended if, as the Defendants concede, it intended to prevent the harsh result of precluding cadets from graduating for failure to meet physical prerequisites to obtaining a merchant marine license. Moreover, this result contradicts the Defendants’ argument that Congress intended the USMMA to serve two priorities equally, namely, to serve the merchant marine and to serve the armed forces reserve. Rather, under the Defendants’ construction of the statute, Congress must have intended that more leniency be employed with respect to merchant marine license requirements than with respect to armed forces reserve requirements. Surely, this could not have been Congress’s intention for the United States Merchant Marine Academy. The Court thus concludes that the META does not contain a requirement that all cadets, absent a waiver for hardship late in their education, must at all times meet physical prerequisites for commissioning in the armed forces reserves if they are to remain at the Academy. Finally, the Defendants argue that the Plaintiffs interpretation of section 1295b(g) effectively nullifies any physical requirements for graduation because it presumes that Congress simultaneously established service in the merchant marine as a condition of attending the USMMA and precluded the Academy from enforcing that requirement through physical prerequisites to admission. However, the Defendants ignore the distinction between admission and graduation after enrollment. This provision clearly applies to enrolled cadets, and the Plaintiffs argument speaks to enrolled cadets. Nowhere do the Defendants point to any authority indicating that section 1295b(g) also applies to individuals seeking enrollment. Both section 1295b(g) and the waiver provisions envision situations where cadets begin their education at the USMMA and, for some reason, face an obstacle to meeting every provision in the META, whether the obstacle is self-imposed or not. Accordingly, the Court sees no reason why it cannot adopt the Plaintiffs view and remain in consonance with the express requirements the META sets forth for appointment to the Academy. C. MARAD’s own regulations, and its inconsistent interpretation thereof, belie the Defendants’ argument that the USMMA has an unconditional rule that all cadets meet all physical requirements for commissioning in the armed forces reserve, absent waiver late in their education. As discussed above, the Court finds that the agency’s decision to separate Lane from the Academy upon discovery of his diabetes mellitus conflicts with the plain language of the statute. Moreover, the Court observes that the agency’s own past practices and regulations undermine the Defendants’ claim that MARAD was bound to disenroll Lane when it learned of his diabetes. First, the Court observes that in cases involving disabilities other than diabetes, disabled students have been allowed to remain at the Academy and receive their academic degree. Stipulated Facts at ¶ 37. The Defendants do not contest that the Academy allowed students to remain at school and graduate despite the Academy’s learning, during the term of their enrollment, that the students were color blind. Id. Notably, unlike diabetes mellitus, color blindness is a disability which, as the Court is advised, disqualifies an individual from obtaining not only a naval reserve commission, but a merchant marine license as well. Plaintiffs Motion for Preliminary Injunction, Exhibit 15 at ¶ 6 (Declaration of Commander Joseph Geb-hard). See also 46 C.F.R. § 10.205(d). In addition, in recent years, students have attended and graduated from the Academy despite the loss of a limb, loss of an eye, and brain damage, while they were students. Stipulated Facts at ¶37. Moreover, the Academy’s actions with respect to Lane were inconsistent with its alleged per se policy. The Stipulated Facts reveal that, in addition to allowing other disabled students to graduate despite this rule, Dr. Kalash, the Academy’s Chief Medical Officer assessed Lane back in February of 1992 as having “Early Diabetes Type I,” yet took no action. In addition, Dr. Kalash noted that “Capt. Bauer notified & communicated problem to BuMed,” the Head of the Department of Naval Science at the Academy, and instructed Lane to monitor his blood sugar levels and report any abnormalities. Stipulated Facts at ¶¶ 13-14. Moreover, upon receipt of a letter from Lane’s father requesting review of the agency’s decision, Captain LeBack, then-Administrator of MARAD, did not invoke the unconditional rule that enrolled cadets who discover conditions which disqualify them for naval reserve service must be disenrolled, but put Lane on “administratively approved absence status” and afforded him “the opportunity to establish as fact the arguments raised on [his] behalf.” Plaintiffs Motion for Preliminary Injunction, Exhibit 11 at 3 (letter from Le-Back to Lane dated January 15, 1993). Thus, rather than acting immediately to disenroll Lane in accordance with its alleged “long standing” policy, the Academy permitted Lane to remain at the school for close to a year before finally separating him from the Academy, and for seven months before initiating proceedings to do so. See Stipulated Facts at ¶¶ 11-19, 21-22, 27. Moreover, the agency’s own regulations contradict the Defendants’ claim that this “long standing” policy is clear and has been consistently implemented. The Plaintiff argues that the government claims discretionary authority under its own regulations to permit candidates to remain at the Academy despite failure to meet naval reserve requirements. Thus, he claims, there is no per se exclusion of all students not meeting these requirements. The Defendants claim that, because of his diabetes, the Plaintiff cannot meet the physical requirements set forth in the regulations, which mandate Lane’s disen-rollment but fulfill congressional intent by allowing for waiver upon hardship incurred by cadets late in their education. The Court first observes that the regulations do, in part, require candidates for admission to “meet the physical requirements ... for appointment as Midshipman, [United States Naval Reserve,]” as well as those for obtaining a merchant marine license. 46 C.F.R. § 310.56(a). Moreover, the regulations state that failure to meet these standards “while attending the Academy is grounds for, and may lead to disenrollment.” Id. § 310.56(a). However, the Court finds the regulations internally inconsistent. For example, the regulations state that “[individuals who have completed at least two years of study and, as a result of an accident, illness or other cause (during official duty), fail to meet this requirement may be permitted to remain at the Academy at the discretion of, and under conditions set by, the Administrator....” Id. Later, however, the regulations allow for waiver for hardship without imposing any limitation on first and second year students. Id. § 310.58(f). Moreover, the Court finds that these regulations, read together with others, simply do not support the Defendants’ claim that a per se rule exists which required Lane’s disen-rollment after his first year. First, the regulations properly employ the conditional language of the statute, and definitively state that cadets “are appointed at the Academy for training to prepare them to become officers in the U.S. merchant marine” and that after graduation they shall receive a merchant marine license. Id. § 310.52(a). Later, the regulations state that “fijf qualified, an officer may be commissioned as an officer in a reserve component of an armed force of the United States.” Id. (emphasis added). Thus the mission of the USMMA, here reflected as its primary one, to train students to become merchant marine officers is made clear, the need for students to qualify for merchant marine licenses is made clear, and the fact that cadets may — not must — be commissioned in the armed forces reserve, if qualified, is made clear. Notably, the regulations recognize that only “qualified” students may be commissioned as officers in the armed forces reserve, and thus assume that all enrolled students will not qualify. 46 C.F.R. § 310.52. The Court observes that such a reading is consistent with the language of the META and does not justify the Defendants’ peremptory expulsion of Lane for failure to qualify while a student at the USMMA. Second, the regulations require that cadets “Mpply for an appointment as, [and] accept any tendered appointment as” a commissioned officer in the United States Naval Reserve, the United States Coast Guard Reserve or any other Reserve component of the armed forces. Id. § 310.58(a)(4) (emphasis added). Thus, under the agency’s express regulations, Lane can fulfill his statutory obligations by serving in the Coast Guard Reserve. The Defendants have conceded that Coast Guard service is possible if Lane keeps his condition under control, and they have conceded that Dr. Tanen, an endocrinologist treating Lane, has concluded that Lane’s diabetes is under “extremely good control.” Stipulated Facts at ¶ 30. Third, the Defendants point out that the regulations also state that “no waivers will be granted for medical conditions which would prevent commissioning in at least a restricted status in the U.S. Navy Reserve.” Id. § 310.56(d). However, this language directly conflicts with the Defendants’ own interpretation of the META itself. The Defendants do not contest that the META allows for waiver upon a finding of hardship, and argue that these provisions apply directly to the requirement that all cadets meet armed forces reserve qualifications. In this regulatory provision, however, the agency precludes the very waiver which the Defendants argue, and the Court agrees, Congress clearly set forth in 46 U.S.C.App. §§ 1295b(e)(2)-(3)(A). Accordingly, the Court declines to bind itself to 46 C.F.R. § 310.56(d), as it is unsupported by the META, while other regulatory provisions, which the Court shall follow, are consistent with the plain language of the META. D. Because the Court finds that the Defendants’ alleged policy mandating the separation of Lane from the Academy upon discovery of his diabetes is not supported by the statute or its regulations, the Court shall not defer to the Defendants’ espoused reading of the META. In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984), the Supreme Court set forth the method by which federal courts shall review an agency’s construction of a statute it administers: