MEMORANDUM AND ORDER “Few decisions properly rest so exclusively within the discretion of the appropriate government officials than the selection, training, discipline and dismissal of the future officers of the military and Merchant Marine. Instilling and maintaining discipline and morale in these young men who will be required to bear weighty responsibility in the face of adversity — at times extreme — is a matter of substantial national importance scarcely within the competence of the judiciary.” Wasson v. Trowbridge, 382 F.2d 807, 812 (2d Cir. 1967) Plaintiff N.B., a former cadet, brings the instant action against defendants United States Merchant Marine Academy (the “Academy”), the United States Department of Transportation, and the United States of America. Plaintiff claims defendants unlawfully disenrolled him as a result of an unfavorable determination at an Academy disciplinary hearing finding plaintiff sexually assaulted a fellow midshipman (the “complainant”). Plaintiff argues the hearing violated the Administrative Procedure Act (the “APA”) and the Due Process Clause of the Fifth Amendment. Plaintiff claims that he is 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 him, thereby permitting him to graduate from the Academy and receive his diploma, and further seeks a consolidated determination with the merits of the action. For the reasons set forth below, the plaintiff’s request for consolidation with the merits is GRANTED, but his request for a preliminary injunction is DENIED and the matter DISMISSED. BACKGROUND A. Procedural History On November 17, 2020, the Academy notified plaintiff that he was charged with violating Superintendent Instruction 2018-04, Sexual Assault, Sexual or Gender-Based Harassment, Relationship Violence, Stalking, and Retaliation Policy (“SI 2018-04″) and Chapter 3.12 of the Midshipman Regulations, Sexual Assault, Sexual or Gender-Based Harassment, Relationship Violence, Stalking, and Sexual Exploitation (“Midshipman Regulations Chapter 3.12″). Administrative Record (“AR”)1. On November 30, 2020, the Academy’s Executive Board (the “Board”) held a hearing via Zoom over which the Deputy Superintendent presided and, by a vote of 3-0, found by a preponderance of the evidence that plaintiff had violated SI 2018-04 and Midshipman Regulations Chapter 3.12 by sexually assaulting the complainant, and recommended that plaintiff be disenrolled from the Academy. AR 307-10, 312. On December 10, 2020, the Superintendent upheld the Board’s findings and disenrolled plaintiff. AR 312-13. That same day, plaintiff requested an appeal to the Maritime Administrator. AR 314. On March 16, 2021, the Acting Maritime Administrator upheld the Superintendent’s decision. AR 946. On March 28, 2021, plaintiff filed the complaint in this action, seeking relief from his allegedly unlawful disenrollment from the Academy. DE 1. On April 5, 2021, the Court1 granted a Temporary Restraining Order (TRO) ordering that plaintiff be reinstated to the Academy and permitted to attend classes pending determination of plaintiff’s preliminary injunction. DE 8. Plaintiff now moves for a preliminary injunction and seeks consolidation with a trial on the merits pursuant to Fed. R. Civ. P. 65. DE 12. Pending this Court’s review of the Academy’s disciplinary decision, plaintiff is currently in deferred graduate status.2 DE 19. B. Facts Plaintiff met complainant in September 2017 during their first year at the Academy. AR 26. Plaintiff and complainant had a consensual, intermittent relationship that lasted until December 2017. AR 26, 37, 135. During this time, plaintiff and complainant engaged in “rough” sex, but always with consent. AR 34, 37, 635-36, 437-38, 139. Plaintiff and complainant were disciplined by the regiment for having a relationship during their “plebe” year and subsequently terminated their relationship. AR 26, 135, 137. In March 2018, complainant began a relationship with another midshipman. AR 26. In November 2018, complainant’s boyfriend left for his “sea year” just as plaintiff returned from his. AR 26, 43. Around this time, complainant and plaintiff reconnected after complainant sent plaintiff old photos via Facebook. AR 199-200, 359-60. Then, in December 2018, plaintiff and complainant had a number of sexual encounters that are the subject of the underlying dispute. Complainant testified that plaintiff had sex with her three times without her consent in December 2018. In the first incident, plaintiff visited complainant’s room one evening unannounced while her roommate was away. AR 28. Plaintiff sat himself down in a chair and started speaking with complainant about whether they should be friends. AR 28. As plaintiff drew himself closer to complainant, she climbed up onto her desk and then the windowsill to back away. AR 28. Plaintiff gave complainant a kiss, and she pushed away. “No, we shouldn’t do this, I have a boyfriend,” she told him. AR 28, 308. Undeterred, plaintiff wrestled with her on the desk, attempting to remove her shorts as she repeatedly told him no. AR 28. “It was a continuous protest,” complainant testified. AR 28. She tried pushing him away, but plaintiff was too strong for her. AR 28. Plaintiff removed her shorts and penetrated her. AR 28, 308. Stunned, complainant cried that night, guilt-ridden that she had been “forced to cheat” on her boyfriend. AR 30. Trying to pretend as if nothing happened, complainant blamed herself for not “fight[ing] back hard enough” and continued socializing with the same circle of friends, including plaintiff. AR 30-31. In the second incident, complainant and plaintiff were drinking in his room one night with friends. AR 31. All the chairs were taken, so complainant sat on the bed. AR 31. After the friends left, plaintiff sat on the bed beside complainant. AR 31. Complainant told plaintiff she did not want to have sex and pushed him away. AR 31. Plaintiff grabbed complainant’s head, placed his genitals into her mouth, and forced her to perform oral sex. AR 31, 33-34. Suddenly, another midshipman entered the room, and complainant hid under the blanket. AR 31. Complainant tried to leave when the midshipman exited the room, but plaintiff begged her to stay and told her he loved her. AR 31. Complainant left once plaintiff fell asleep. AR 31. She was up all night, angry that once again she had been “forced to cheat.” AR 31. In text messages, complainant told plaintiff that “this really has to stop,” and “I really don’t want anything anymore.” AR 269. The third incident took place when complainant returned to plaintiff’s room to confront him over the coerced oral sex. AR 31. After she yelled at him, plaintiff became angry and shut the door before she could leave. AR 35. He then forced her over a chair, pinned her arm behind her back, and pulled down her pants. AR 31. Complainant struggled and repeatedly told plaintiff to stop and let her go. AR 31, 35-36. Ignoring her protests, plaintiff said he could not control himself. AR 31-32. Complainant faced the door as plaintiff penetrated her from behind, “almost as if [she] was being taunted.” AR 32. Following this incident, complainant deleted plaintiff from her contacts and blocked him. AR 32. According to plaintiff, he and complainant had four, not three, sexual encounters during the subject period. The first encounter on December 1, 2018 only involved foreplay. Plaintiff and complainant touched each other’s intimate parts and complainant gave plaintiff a hickey. AR 205, 644, 651. Plaintiff and complainant, both in relationships at the time, convinced themselves this was not “technically” cheating. AR 205. Complainant did not recall this “half incident,” and testified that plaintiff got a hickey because she bit him to stop anything further from happening. AR 473-75. After this encounter, complainant sent plaintiff a number of suggestive but ambiguous text messages. In one text, for example, complainant told plaintiff she felt “adicted [sic]” to sex and needs sex “ at least once” a day but “it wouldn’t be worth it” because she felt an emotional attachment to her boyfriend. AR 227-28. In plaintiff’s account, the second encounter occurred on December 5, 2018. One evening, plaintiff visited complainant in her room and sat in a chair beside her. AR 589. As plaintiff inched towards complainant, she backed away but did not climb onto the windowsill. AR 138. Plaintiff placed her leg on his lap, and they talked and laughed as he rubbed her feet. AR 138-39, 589. Although complainant told plaintiff, “no, I have a boyfriend,” there was a “kinky, sexual, kind of playfulness about it” which he interpreted as role-play. AR 139. Measuring 5′ 4”, plaintiff claims he does not have the stature to have sex with complainant on a desk. AR 330, 592. Plaintiff avers that complainant climbed up the ladder into her bunkbed and he joined her. AR 590. Plaintiff then locked the door, allegedly at complainant’s instruction. AR 28, 590. Although complainant tried to stop plaintiff from pulling down her shorts, plaintiff maintains she held her shorts loosely in a manner suggestive of role-play. AR 140. Complainant then opened her legs, and they had sexual intercourse. AR 309. At the hearing, plaintiff testified that he believed the sex was consensual even though complainant said “no” and had not consented to role-playing: Deputy Superintendent: She said the word N-O? Plaintiff: Yes, ma’am. Deputy Superintendent: Okay. And then you went on and you say it was a kinky sexual kind of playfulness about it, like it’s dirty to do that with her…. Did you agree on any sort of role playing? Plaintiff: During the event, we didn’t say specifically that we were going to role play[.]“ … Deputy Superintendent: So, what — so you’re saying [is] that you, even though she said no, you thought it was consensual? Plaintiff: Yes, ma’am. AR 594-96. After that night, plaintiff “heavily” questioned himself whether complainant wanted to have sex with him. AR 139. In his statement to the Board, plaintiff acknowledged, “The way I am explaining it, it does sound weird and when I say if any other girl would have said no I would have stopped immediately. My initial reaction was that she was being playful. I can’t say specifically that we were role playing, we didn’t consent to that was a role playing situation.” AR 139. Although plaintiff felt upset and thought he should have clarified the situation, plaintiff believed his assumptions were correct after complainant began visiting his room. AR 139. The next day, for instance, complainant texted plaintiff to ask if she could store leftovers in his refrigerator. AR 259-62. Eight days later, complainant texted plaintiff that she was not pregnant and “you can wake me up if you bring me a drink.” AR 279. According to plaintiff, complainant reversed the order of the third and fourth encounters. AR 645. In his account, he and complainant had sexual intercourse on the chair in his room on December 9, 2018. AR 263, 652. The last sexual encounter, which involved oral sex, took place a week later on December 16, 2018. AR 280. That night, plaintiff invited complainant over to his room for a drink. AR 367. According to plaintiff, complainant said she wanted to show him her new oral sex skills. AR 136. Plaintiff laid down in bed and she crawled in with him. AR 136. Complainant then tied her hair into a ponytail, climbed on top of plaintiff, and performed oral sex. AR 369. Plaintiff said in his statement that this last sexual encounter was the only time it was “fully consensual” and there was no role playing. AR 141. The midshipman who walked in on complainant performing oral sex also witnessed complainant on top of plaintiff. However, he did not “particularly remember” the incident because he was drunk. AR 123, 564. The following day, complainant texted plaintiff that she “really like[s] forehead kisses” and sent him photos of them together at Winter Ball. AR 283, 286. For over a year and a half, complainant did not formally accuse plaintiff of sexual assault. Although complainant knew these sexual encounters were not consensual, complainant did not call it rape because “it felt harsh.” AR 30. Complainant did not consider these incidents rape until mid — to late 2019. AR 30, 39. In a message with plaintiff over social media, she accused him of sexual assault, which plaintiff found extremely upsetting. AR 142. Nonetheless, on April 7, 2020 complainant wrote to her boyfriend that, “I never felt like I was raped.” AR 109. She told him, “I felt like I had cheated on you and I deserved all your hatred for it.” AR 109. On June 29, 2020, complainant filed a restricted report against plaintiff with the Academy and then unrestricted the report on October 5, 2020, thereby allowing an investigation to begin. AR 19, 134. In October 2020, the Public Safety Officer (the “Safety Officer”) interviewed six midshipmen, including plaintiff and the complainant, about the alleged sexual assaults. On November 6, 2020, the Safety Officer submitted his investigation file to the Deputy Superintendent. AR 19. On November 17, 2020, the Deputy Superintendent notified plaintiff that he was charged with violating SI 2018-04 and Midshipman Regulations Chapter 3.12 for allegedly sexually assaulting the complainant. AR 1, 307. SI 2018-04 prohibits the “intentional touching of a sexual nature…without the consent of another person.” AR 948. The notice of hearing named the three officers presiding over the Executive Board Disciplinary Hearing and the four witnesses the Academy intended to call at the hearing. AR 1-2. The Safety Officer was not one of the three officers on the Board. The notice, which plaintiff signed, advised him of his rights: 1) “To receive a copy of the investigatory file;” 2) “To seek the advice and assistance of legal counsel…[who] may be present at the hearing to consult and advise you, but may not otherwise participate;” 3) “To challenge the impartiality of any of the hearing officers;” 4) “To remain silent through the hearing;” 5) “To be present during the entire hearing;” 6) “To make opening and closing statements;” 7) “To present evidence including but not limited to documentary evidence and the testimony of reasonably available witnesses;” 8) “To question all witnesses,” except complainant whom the plaintiff may question by submitting questions the Board will review and ask; 9) “To receive, upon request, a copy of the recording of the hearing;” and 10) “To appeal a decision of disenrollment.” AR 2-4. Attached to the notice was a copy of the Executive Board’s Standard Operating Procedure (SOP) for sexual assault hearings, which states, “Executive Board Disciplinary Hearings are conducted in an informal, non-adversarial manner” and “[t]he rules of evidence for judicial proceedings do not apply….” AR 4, 6. In addition, the SOP provides that a hearing officer must have received annual training on the adjudication of sexual misconduct cases and be trained in seven subject areas. AR 6. Finally, the Academy also provided plaintiff the full investigatory file compiled by the Safety Officer. AR 307. Before the hearing, plaintiff submitted to the Board over 100 pages of supposedly exculpatory text messages between himself and complainant. AR 197-306. On November 30, 2020, the Board held the hearing via Zoom. AR 339. The Board listened to six witnesses, two of whom were called by the plaintiff. AR 307. Plaintiff’s faculty advisor was present during the entirety of the hearing. AR 307. Plaintiff had an opportunity to question each of the witnesses called by the Academy, and gave an opening and closing statement. AR 357-79. Following the plaintiff’s opening statement, the Board called the Safety Officer to provide an executive summary of his investigation. AR 379-92. Per the Academy’s SOP, the investigator is to provide a “brief statement” summarizing the investigation. AR 14. Before summarizing the three alleged sexual assaults, the Safety Officer testified that “hormones…released in a traumatic event can interfere with the victim’s ability to gather, organize and consolidate memories.” AR 383. He listed the side effects of PTSD and commented that complainant has “related or displayed almost all of these effects of being sexually assaulted.” AR 384. When asked by the Deputy Superintendent, the Safety Officer confirmed that the complainant displayed the characteristics of a sexual assault victim. AR 392-93. When plaintiff asked the Safety Officer whether it is “normal” for a sexual assault to occur when the victim climbs up a ladder into bed, he replied, “In my experience, a sexually assaulted victim, number one, doesn’t remember everything about the encounter and, number two,…they become very submissive…because of these hormones that are released.” AR 401-02. Plaintiff did not object to the Safety Officer’s testimony. During plaintiff’s questioning, the Safety Officer stated that he read “some” of the text messages plaintiff submitted. AR 398. Complainant testified that plaintiff misrepresented their conversations by cherry-picking texts, while plaintiff maintained that he omitted only irrelevant text messages. AR 487, 630. At the end of Phase I, the determination phase, the Board deliberated and unanimously found by a preponderance of the evidence that plaintiff violated SI 2018-04 and Midshipman Regulations Chapter 3.12 by sexually assaulting the complainant. AR 307, 673-74. In Phase II, the sanction phase, plaintiff called three character witnesses and made a statement in his defense. AR 675-707. After deliberating, the Board announced that plaintiff should be disenrolled. AR 707. On December 8, 2020, the Board summarized its findings in a recommendation to the Superintendent. AR 307. In its recommendation, the Board determined by a preponderance of the evidence that plaintiff sexually assaulted complainant based upon, inter alia, plaintiff’s admission that complainant told him “no, I have a boyfriend, we shouldn’t do this,” plaintiff’s admission that he did not believe complainant meant “no,” plaintiff’s admission that “if any other girl would have said no I would have stopped immediately,” and plaintiff’s admission that he did not obtain consent for a sexual role-playing experience and interpreted her protests as role-playing. AR 308. In its recommendation, the Board considered plaintiff’s defenses that complainant told him to lock the door before they had sex, that she subsequently sought him out in his room, and said she wanted to show him her new oral sex tricks. AR 309. The Board discounted plaintiff’s testimony because of his own admission that she said “no” before they had sex and that he heavily questioned himself after their first encounter. The Board also discounted the text messages plaintiff submitted because complainant testified that plaintiff had excluded text messages where she protested against his unwanted sexual advances. AR 309. Indeed, plaintiff only presented 12 days out of 55 days of text messages. AR 309. The Board noted the Safety Officer’s testimony that complainant displayed characteristics of a sexual assault victim such as “anger, confusion, and inability to maintain eye contact.” It also noted two other witnesses’ testimony that after December 2018 complainant’s affect changed, from that of a “social butterfly” to seemingly depressed. AR 309. The Board believed that plaintiff’s actions rendered his Academy career unrecoverable and doubted his ability to perform as a mariner because of issues of trustworthiness. AR 310. Thus, the Board recommended disenrollment because plaintiff’s behavior revealed he lacks the characteristics of an exemplary leader. AR 310. STANDARD OF REIVEW A party seeking preliminary injunctive relief must demonstrate “(1) irreparable harm absent injunctive relief; (2) either a likelihood of success on the merits, or a serious question going to the merits to make them a fair ground for trial, with a balance of hardships tipping decidedly in the plaintiff’s favor; and (3) that the public’s interest weighs in favor of granting an injunction.” Red Earth LLC v. United States, 657 F.3d 138, 143 (2d Cir. 2011) (citation omitted). In addition, where the preliminary injunction 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.” Doe v. United States Merch. Marine Acad., 307 F. Supp. 3d 121, 143 (E.D.N.Y. 2018) (citing Sussman v. Crawford, 488 F.3d 136, 140 (2d Cir. 2007) (citations omitted)). Further, if the party seeks a “mandatory injunction” altering the status quo, then the party must make a “‘clear’ or ‘substantial’ showing of a likelihood of success on the merits.’” Doe, 307 F. Supp. at 143 (citing Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996)). The Court has “wide discretion in determining whether to grant a preliminary injunction,” as it is “one of the most drastic tools in the arsenal of judicial remedies.” Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007) (citations omitted). DISCUSSION A. Consolidation with a Determination on the Merits Plaintiff requests to consolidate the motion for a preliminary injunction with a “trial on the merits” pursuant to Rule 65 of the Federal Rules of Civil Procedure. DE 12 at 5. Rule 65(a)(2) of the Federal Rules of Civil Procedure provides that “[b]efore or after beginning the hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing.” When consolidating a motion for a preliminary injunction with a trial on the merits, “the court must preserve any party’s right to a jury trial.” Fed. R. Civ. P. 65(a)(2). There is no right to trial by jury for APA claims, which are equitable in nature. 5 U.S.C. §702 (“A person suffering legal wrong because of agency action…is entitled to judicial review thereof”) (emphasis added); Cox v. United States, 332 U.S. 442, 453 (1947) (“[T]he constitutional right to jury trial does not include the right to have a jury pass on the validity of an administrative order.”). Under Rule 65(a)(2), a matter may be consolidated where the parties are permitted to present all material evidence. Abraham Zion Corp. v. Lebow, 761 F.2d 93, 101 (2d Cir. 1985). Since the full record is before the Court, a separate trial on the merits would be a waste of time and resources. Moreover, the government has not objected to plaintiff’s request to consolidate the motion for a preliminary injunction with a trial on the merits. DE 17 at 1; DE 18 at 1. As such, the Court exercises its discretion to consolidate the merits of this case with the preliminary injunction determination herein. B. Irreparable Harm “A showing of irreparable harm is ‘the single most important prerequisite for the issuance of a preliminary injunction.’” Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (citation omitted). “[T]he alleged injury must be one incapable of being fully remedied by monetary damages.” Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir. 1990). The irreparable harm must be actual and imminent, not remote or speculative, and must establish that such harm is likely in the absence of an injunction. Id. Additionally, the moving party should act diligently to enforce their rights because delay may “indicate an absence of the kind of irreparable harm required to support a preliminary injunction.” Costello v. McEnergy, 767 F. Supp. 72, 78 (S.D.N.Y. 1991) (quoting Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir. 1985)). Plaintiff has shown he will suffer irreparable harm if not granted injunctive relief. Absent injunctive relief, plaintiff will not receive his diploma or U.S. Coast Guard License and will not be permitted to take the officer’s oath into the armed services. DE 19. Without question, this is a serious matter. Courts in this circuit have previously held that a disruption of one’s education constitutes irreparable harm. See, e.g., Doe v. Univ. of Connecticut, No. 3:20-CV-92 (MPS), 2020 WL 406356, at *2 (D. Conn. Jan. 23, 2020) (“[A] two-year suspension and a sanction for sexual assault would indeed ‘forever change[]‘ the trajectory of [plaintiff's] education and career” because “he would need to explain a gap on his résumé”); see also Doe v. Rensselaer Polytechnic Inst., No. 1:20-CV-01359 (BKS)(CFH), 2020 WL 6544607, at *6 (N.D.N.Y. Nov. 6, 2020) (losing coursework completed prior to plaintiff’s mid-semester suspension is sufficient to show irreparable harm). Monetary relief cannot compensate plaintiff for loss of his college diploma or fill the resulting gap in his education.3 Plaintiff diligently sought injunctive relief in this Court just twelve days after the Acting Maritime Administrator dismissed his appeal. DE 1. Although the government claims plaintiff failed to demonstrate an urgency to return to school because he missed make-up classes, DE 17 at 31, following this Court’s TRO, plaintiff completed all second trimester exams and attended his third trimester classes. DE 12-1,
