Memorandum and Order I. Introduction Plaintiff Elias Yu (“Plaintiff” or “Yu”), formerly a first-class midshipman at the United States Merchant Marine Academy (“Academy”), seeks immediate readmission to the Academy, challenging the decision to disenroll him as improper and unlawful. (See Complaint, ECF No. 1.) Defendants United States Department of Transportation (“DOT”), United States Maritime Administration (“MARAD”), the Academy, Mark H. Buzby, Individually and as Administrator of MARAD (“Buzby” or “Administrator”), and James A. Helis, Individually and as Superintendent of the Academy (“Helis” or “Superintendent”)(collectively, the “Defendants”) moves pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Plaintiff’s Complaint, arguing Plaintiff’s only remaining claim is a request for judicial review of the disenrollment decision, an agency action, which is governed by the Administrative Procedure Act, 5 U.S.C. §§701-706 (the “APA”), and which action was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. (See ECF No. 15, hereafter, “Dismissal Motion”); see also ECF No. 18 (Defendants’ Letter Motion to Strike) at 2.) Plaintiff opposes the Dismissal Motion. (See ECF No. 17; hereafter, “Opposition” or “Opp’n”.) For the reasons articulated herein, the Dismissal Motion is GRANTED. II. Background A. Factual Background1 1. Generally (a.) The Defendants The Academy is a federal institution of higher education operated by MARAD, an operating administration of the DOT. The Secretary of Transportation (“Secretary”) is authorized by statute to maintain the Academy, which provides instruction to and prepares individuals for service in the U.S. Merchant Marine. The Secretary has delegated to the MARAD Administrator the authority to carry out the functions and exercise the authorities vested in the Secretary regarding the operation of the Academy, who has, in turn, delegated the direction and supervision of the Academy to the Academy’s Superintendent. In that vein, the Superintendent is delegated authority to issue all regulations necessary for the accomplishment of the Academy’s mission. (b.) The Plaintiff Yu was a first-class midshipman enrolled in the Academy’s Class of 2019. He was majoring in Logistics and intermodal transportation, maintaining a cumulative grade point average above 3.0. Yu had been a member of the Academy’s football team. As part of the Academy’s “Sea Year” Program, in Fall 2017, Plaintiff was assigned to serve aboard the USNS Tippecanoe (hereafter, the “Vessel”). 2. The Oversea Incident On December 8, 2017, while the Vessel was docked in a port in Bahrain, Yu, other Academy midshipmen, and crewmembers of the Vessel went to local establishments while on authorized liberty. Yu alleges he consumed no more than seven (7) alcoholic drinks during that evening including an unknown drink handed to him by a female patron (hereafter, the “Unknown Drink”). Yu further alleges that, after consuming the Unknown Drink, he lost consciousness until he woke up in a holding cell under Bahraini governmental control but, “not knowing how he got there or what had happened.” (Complaint, 26.) “Bahraini [g]overnment personnel informed Plaintiff that he was suspected of assaulting a Chinese national, stealing a vehicle, getting into a car crash and damaging property (motorcycles).” (Id., 27.) Nearly seven (7) hours after his first drink, Yu’s blood alcohol content (“BAC”) was determined by Bahraini governmental authorities to be 0.214. On December 9, 2017 and without the presence of counsel, Yu was first questioned by Bahraini governmental authorities and, then, by agents from the U.S. Naval Criminal Investigative Service (“NCIS”). He informed the NCIS agents of his suspicion that the Unknown Drink he consumed was spiked with a “date rape” drug. “[N]early thirteen (13) hours after the incident had occurred,” NCIS collected blood and urine samples (hereafter, the “Samples”) from Yu. (Id., 34.) 3. Post-Oversea Incident Occurrences While the Bahraini government did not press any charges against Yu, he was removed from the Vessel and returned to the United States. Upon his return, Yu was restricted to the Academy’s grounds. Further, his removal from the Vesel prevented Yu from completing his requisite “Sea Year” studies. On December 18, 2017, Yu’s Samples were sent to the United States for testing; they did not arrive to Dover Air Force Base until January 5, 2018. Thereafter, the Samples were tested by the Forensic Toxicology Laboratory, part of the Armed Forces Medical Examiner System (hereafter, the “Lab”). The Lab’s subsequent report did not: indicate the condition of the Samples upon arrival or upon testing; detect any ethanol or drugs; indicate any tests were conducted to detect Tramadol, GHB, or similar commonly used “date rape” drugs. On January 18, 2018, Yu voluntarily went to the Academy’s clinic to request an alcohol dependency evaluation; his request was denied. On February 1, 2018, he sought an alcohol evaluation at Northwell-Zucker Hillside Hospital, Addiction Recovery Services (hereafter, “Hospital”). He was tested for alcohol multiple times at the Hospital; each time Yu tested negative for alcohol consumption. Yu also underwent a hair follicle drug test which tested for the presence of foreign substances during the approximate time frame of the Oversea Incident; that test came back positive for GHB and Tramadol, two common “date rape” drugs. In comparison, standard midshipmen drug testing performed upon Yu in early November 2017 detected no drugs in Yu’s system. 4. The Phase I Executive Board Disciplinary Hearing “Per the Midshipman Regulations, Executive Board Disciplinary Hearing’s [sic] are divided in[to] two phases: Phase I (the ‘guilt’ phase) and Phase II (the ‘discipline/punishment’ phase). Phases are run consecutively.” (Id., 87.) On March 14, 2018, the Academy served Yu with a “Notice of Executive Board Disciplinary Hearing” (hereafter, the “First Notice”). According to the First Notice, Yu was charged with seven (7) counts of violating the Academy’s 2011 Midshipman Regulations,2 to wit: [Charge] (1) On or about 09 December 2017, you failed to conduct yourself with propriety, sobriety, decorum and sound judgment by consuming an excessive quantity of alcohol, physically assaulting a Chinese national, stealing the Chinese national’s 2012 Volvo with his six year old and one and one-half year old children inside, driving the vehicle down an alleyway and crashing it into motorcycles, and then fleeing on foot, in Juffair, Bahrain, in violation of Sections 102, 104.a.2, 201.a, and 1104 of the Midshipman Regulations, and paragraph 3 of Superintendent Instruction 2016-04, USMMA Sea Year Conduct Policy; [Charge] (2) On or about 09 December 2017, you physically assaulted a Chinese national, in Juffair, Bahrain, in violation of Sections 221.b and 1109.15 of the Midshipman Regulations; [Charge] (3) On or about 09 December 2017, you consumed an excessive quantity of alcohol, and engaged in drunken behavior, including but not limited to, physical assault of a Chinese national, theft of the Chinese national’s 2012 Volvo with his six year old and one and one-half year old children inside, drunken driving, damage of personal property of Saudi Arabian nationals, and fleeing on foot, in Juffair, Bahrain, in violation of Sections 204.a and 1105.c.3 of the Midshipman Regulations; [Charge] (4) On or about 09 December 2017, you engaged in conduct which reflects discredit on the Academy and the Regiment of Midshipmen by consuming an excessive quantity of alcohol, physically assaulting a Chinese national, stealing the Chinese national’s 2012 Volvo with his six year old and one and one-half year old children inside, driving the vehicle down an alleyway and crashing it into motorcycles, and then fleeing on foot from the scene of the crimes, in Juffair, Bahrain, in violation of Section 1109.11 of the Midshipman Regulations; [Charge] (5) On or about 09 December 2017, you operated a vehicle in a reckless or careless manner in such a way as to endanger the lives or property of others, in Juffair, Bahrain, in violation of Section 1109.13 of the Midshipman Regulations; [Charge] (6) On or about 09 December 2017, you stole a Chinese national’s vehicle, in Juffair, Bahrain, in violation of Section 1109.18 of the Midshipman Regulations; and, [Charge] (7) On or about 09 December 2017, you willfully vandalized the personal property of Saudi Arabian nationals, in Juffair, Bahrain, in violation of Section 1109.5 of the Midshipman Regulations. (Complaint, 57 (emphasis eliminated)(hereafter, collectively, the “Charges”).) Among other things, the First Notice identified witnesses the Academy intended to call and was served with an uncertified copy of the NCIS Investigation File (hereafter, the “Report”). Phase I of the Disciplinary Hearing was scheduled for March 21, 2018 but, upon Plaintiff’s request, was adjourned to provide him additional time to prepare for that Hearing. On April 11, 2018, a Second Notice of Hearing was issued by the Academy accompanied by an “NCIS Supplemental Report”; the cited authority, the Charges, and the Executive Board members who would conduct the Disciplinary Hearing remained unchanged. In addition, the Academy identified its intended witnesses. In response, the Plaintiff sent the Academy his list of intended witnesses. When the Academy requested Plaintiff agree to waive the testimony of the Academy’s witnesses, Plaintiff declined; the Phase I Disciplinary Hearing was again adjourned without date. On June 27, 2018 and pursuant to Superintendent Instruction 2018-07, the Academy issued new Midshipman Regulations, which allegedly superseded the prior 2011 Midshipman Regulations. The Academy’s final3 Notice of Hearing was issued in accordance with the 2018 Midshipman Regulations, but the Charges remained unchanged, citing the 2011 Midshipman Regulations; additionally, the final Notice of Hearing contained a footnote acknowledging the revised 2018 Midshipman Regulations, instructing that the Executive Board would be following the hearing procedures set forth in the 2018 Midshipman Regulations, but also stating that “[s]ince the alleged misconduct with which you are charged occurred when the previous Midshipman Regulations were in effect, the [C]harges reference the sections from those 2011 Midshipman Regulations.” (Id., 78.) Thereafter, the parties exchanged amended witness lists. Phase I of Yu’s Disciplinary Hearing commenced on July 25, 2018. Deputy Superintendent Rear Admiral Susan L. Dunlap chaired the five-member Executive Board; Helis “did not participate in-person at the hearing; he did not listen to live witnesses or to the Plaintiff; and, he did not question witnesses of the Plaintiff.” (Id., 86.) The Academy called three witnesses, none of whom were: NCIS agents or investigators; the Chinese national who was the alleged assault victim; Bahraini government officials or other individuals involved in the Oversea Incident; Lab technicians; or experts regarding drug or alcohol consumption. Nor did the Academy submit any original or sworn affidavits from these potential witnesses. Similarly, the Academy did not introduce the original or a certified NCIS Report. Hearsay evidence was admitted during the Phase I Hearing. By a vote of 3-to-2, Yu was found guilty of Charges 1, 2, 3, 4, and 6; he was found guilty of Charge 5 by a vote of 4-to-1. Yu was unanimously found not guilty of Charge 7. 5. The Phase II Executive Board Disciplinary Hearing During the Phase II Disciplinary Hearing, Plaintiff provided more than eighteen written statements on his behalf to demonstrate his good character, exceptional performance and potential for service. He also made an oral statement to the Executive Board, as did his advisor. In addition, fifteen character witnesses testified on Yu’s behalf; one of Yu’s character witnesses was his father, who testified, inter alia, that he had never seen his son intoxicated, stating, “we’re Asian, and so the alcohol does not sit well with us.” (Admin. Record at 1237-38 (Phase II Hr’g Tr. 238:20-21).) By a vote of 3-to-2, the Executive Board recommended Yu be retained at the Academy with sanctions, i.e., he: be set back to the Class of 2020; continue with alcohol counseling; attend an anger management class; and contribute in some manner to the “Sea Year” lecture on alcohol to bring attention to the dangers of drink-spiking overseas (hereafter, the “Recommendation”). 6. Helis’ Decision4 On August 1, 2018, as the Academy’s Superintendent, Helis issued his Decision regarding the Executive Board’s Recommendation, which stated in relevant part: Prior to deciding whether the charges against you were proven by a preponderance of the evidence, the Executive Board fully reviewed the NCIS Investigatory File…which was provided to you at the time you received the Notice. The Executive Board also considered your voluntary opening and closing statements (which you provided orally), your responses to its questions, and the supplemental documentary evidence you submitted to it. Finally, the Executive Board considered the testimony of the witnesses called by the Academy in Phase I…. You did not call any witnesses in Phase [I]. * * * Prior to its decision as to the appropriate penalty for these violations, the Executive Board fully reviewed your academic file and transcript…, your personnel jacket…, your company file…, your Midshipman Profile…, and your Sea Year file…, all of which were provided to you…. In addition, the Executive Board considered additional information you provided during Phase II of the hearing, including the voluntary statement you provided…, the voluntary statement of your advisor…, all the written character statements you provided, and the oral testimony of the 15 witnesses you called in Phase II…. The Executive Board recommended that you be retained at the Academy…. * * * Prior to making my decision in this case, I thoroughly reviewed all of the evidence made available to the Executive Board, and listened to portions of the recording of the hearing. The preponderance of evidence clearly shows that you were very intoxicated. Bahraini authorities conducted a blood-alcohol test shortly after the incident at which you were determined to have a blood-alcohol level of.214. While the NCIS blood-alcohol test conducted over eleven hours later indicated no alcohol in your system, the time lapse would account for this. The preponderance of evidence also clearly shows that, without provocation, you attacked a man on the street, stole his car and kidnapped his children who were in the vehicle, drove the vehicle recklessly while under the influence of alcohol, crashed the vehicle, and attempted to flee the scene of the accident, leaving the children in the car. Your actions were dangerous to yourself and others, and reflect great discredit upon you and the Academy. You also embarrassed the U.S. Navy and Military Sealift Command (MSC), as you were on liberty from your assigned MSC vessel at the time of this incident, and an officer from the vessel had to report to Bahraini authorities to secure your release from jail. Your only defense is that you believe you may have unknowingly consumed a drug in a beer provided you by a woman in a bar earlier that evening. There is no evidence that supports this claim. The hair follicle test for the presence of drugs that you presented only shows the presence of Tramadol, a prescription pain killer. The test only shows that you took this drug within a 90 day window. You presented many materials on Gamma-Hydroxy Butyric acid (GHB), but the test shows only normal levels that naturally occur within the body. You also presented materials on Rohypnol, which is a benzodiazepine. The test did not indicate the presence of benzodiazepine. The Navy drug screen performed within hours after the incident was also negative for drugs. You provided NCIS investigators two different versions of when you might have taken the drug. The two versions involved different bars, and described different drinks. You were also told by your father in a text message that you should say you thought you were drugged. You replied, “I’m sticking with I got drugged.” You argued that you were drugged by people who wished to do you harm and rob you, yet there is no evidence of any attempt by anyone to do so. You claim to have no memory of any of the events involving the assault, auto theft, kidnapping, reckless driving, and fleeing the scene of the accident because you were drugged. If true, this loss of memory is likely to be the result of your extreme intoxication as shown by the blood-alcohol test performed by Bahraini officials. I find that the preponderance of the evidence clearly supports the charges. I accept the findings of the Executive Board…. * * * Your misconduct is completely unacceptable. The blood-alcohol test administered by Bahraini officials clearly shows an extreme level of intoxication on your part. Between Regimental training, sea year lectures, and being a member of one of the Academy’s NCAA intercollegiate athletic teams, you have heard on repeated occasions the importance of being responsible with alcohol consumption. You failed to conduct yourself responsibly, in [a] manner consistent with the expectations of a leader of character preparing himself to serve as an officer in the Merchant Marine and the Armed Forces. You have brought embarrassment on the Academy, the Regiment, and yourself, as well as the U.S. Navy, and raised serious questions as to whether you can be trusted with the responsibilities of officership. Accordingly, I have decided to disenroll you from the Academy. (Helis Decision (emphases added).) On August 22, 2018, Yu appealed the Helis Decision to the MARAD. On October 2, 2018, Buzby, Administrator of the MARAD, informed Yu that his appeal was denied; he was given 48 hours to vacate the Academy grounds. B. Procedural Background 1. Plaintiff’s Complaint On October 4, 2018, Yu filed his Complaint, raising three causes of action: seeking a determination that Helis’s Decision was arbitrary and capricious, warranting its being set aside, and, thereby facilitating Yu’s re-enrollment in the Academy (see Complaint, First Cause of Action,
139-145); asserting the Defendants violated Yu’s substantive due process rights by allegedly violating the “Academy’s own policies, rules and regulations” and improperly disenrolling him from the Academy, which “was arbitrary and capricious and did not involve the exercise of proper judgment” and seeking, inter alia, injunctive relief as a result of Defendants’ alleged violation (see Complaint, Second Cause of Action,
