SPADONE v. MCHUGH
Filing
23
MEMORANDUM OPINION AND ORDER granting in part and denying in part the defendant's motion 14 for summary judgment, denying as moot plaintiff's motion 18 for a hearing. Signed by Judge Richard W. Roberts on 06/06/2012. (DCL)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
ALAN MATTHEW SPADONE,
)
)
Plaintiff,
)
)
v.
)
Civil Action No. 11-1601 (RWR)
)
JOHN M. MCHUGH,
)
)
Defendant.
)
_____________________________ )
MEMORANDUM OPINION AND ORDER
Plaintiff Alan Spadone filed this complaint against
Secretary of the Army John McHugh, alleging that the Secretary’s
actions, including his order disenrolling Spadone from the United
States Military Academy (“West Point”) and directing Spadone to
serve as an enlisted solider in the Army, violated the
Administrative Procedures Act (“APA”), 5 U.S.C. § 702 et seq.,
the Due Process Clause of the Fifth Amendment, and the
Establishment Clause of the First Amendment, and unjustly
enriched the Army.
The Secretary has moved to dismiss the
complaint or for summary judgment.
Because the Secretary is
entitled to judgment on Spadone’s APA and due process claims
since Spadone received the process that was due and the Secretary
did not violate the APA, and the Secretary is entitled to
dismissal of the unjust enrichment claim since the United States
has not waived its sovereign immunity for a claim of unjust
enrichment that seeks equitable relief, the Secretary’s motion
-2will be granted in part.
However, because the Secretary has not
justified dismissing the Establishment Clause claim and disputed
material facts bar summary judgment on that claim, the
Secretary’s motion will be denied in part.
BACKGROUND
The background of this case is discussed more fully in
Spadone v. McHugh, Civil Action No. 11-1601 (RWR), 2012 WL
393056, at * 1-3 (D.D.C. Feb. 8, 2012).
Spadone enrolled at West Point.
Briefly, in July 2007,
(Compl. ¶ 13.)
In
February 2009, Spadone asked West Point’s Dean to allow him to
enroll in a study-abroad program.
The Dean denied Spadone’s
request in September 2009, and denied reconsidering that decision
in October 2009, after Spadone had started his third year of
study at West Point.
(Id. ¶¶ 23-24, 26.)
A cadet who starts a
third year of study incurs an active duty service obligation.
One who leaves before then does not incur an active duty service
obligation.
(Id. ¶¶ 22-23.)
In November 2009, Spadone admitted that he violated West
Point’s honor code by committing plagiarism in writing an
October 2009 essay.
(Def.’s Mot. to Dis., Def.’s Stmt. of Facts
(“Def.’s Stmt.”) ¶¶ 8, 13.)
Spadone submitted another assignment
in November that his course’s professor, Dr. Terri Sabatos,
suspected involved dishonorable documentation.
Spadone told her
he had been merely careless, and he later signed two statements
-3denying that the second essay violated the honor code.
Stmt. ¶¶ 15-16, 20; A.R. 403-404.)
(Def.’s
In February 2010, West
Point’s Commandant for Honor Matters referred Spadone to an Honor
Investigative Hearing for three charges of violating the honor
code: one charge of plagiarizing in the October paper, one charge
of plagiarizing in the November paper, and one charge of lying to
his professor about the November paper.
(Def.’s Stmt. ¶ 25.)
Spadone pled guilty to plagiarizing in the October essay at
an Honors Investigative Board hearing held on March 8, 2010.
The
Honors Investigative Board also determined that the allegations
of plagiarizing in the November essay were supported by a
preponderance of the evidence but the allegation of lying was
not.
(Compl. ¶¶ 42, 44; Def.’s Stmt. ¶¶ 31-32.)
In April 2010, Spadone was questioned about his honor code
violations by a panel composed of the Commandant of Cadets, a
Command Sergeant Major, five cadets from the Cadet Honor
Committee, and Spadone’s Tactical Officer.
(Compl. ¶ 46.)
According to Spadone, the Commandant of Cadets indicated during
the hearing that Spadone had not properly shown contrition or
accepted responsibility for the honor code violations, and
ordered Spadone to stand with his body rigid in a military
posture and to read aloud the “Cadet’s Prayer.”
(Id. ¶¶ 47-48.)
The prayer says in part, “O God, our Father, Thou Searcher of
human hearts, help us to draw near to Thee in sincerity and
-4truth.
May our religion be filled with gladness and may our
worship of Thee be natural. . . .
duty to Thee[.]”
Help us . . . in doing our
(Id. ¶ 47.)
In May 2010, West Point’s Superintendent disenrolled Spadone
from West Point for the summer of 2010, delayed his graduation by
one year, placed Spadone in a “suspended separation status” until
graduation, and enrolled Spadone in the Honor Mentorship Program
(“HMP”) under specific conditions.
¶ 41.)
(Compl. ¶ 51; Def.’s Stmt.
Spadone was told to begin the HMP process before leaving
West Point for the summer, but Spadone did not do so.
After
returning in the fall, he did not engage in the HMP for over a
month until an officer directed him to do so, and he refused to
wear an HMP brass insignia as ordered.
(See A.R. 21.)
In October 2010, the Special Assistant to the Commandant for
Honor Matters recommended vacating the suspension of Spadone’s
separation from West Point because Spadone had not submitted
journal entries that met the requirements of the HMP.
¶ 65; A.R. 23.)
(Compl.
In December 2010, the West Point Superintendent
suspended Spadone and placed him on an authorized leave of
absence without pay pending the Army’s final decision on his
disenrollment.
(Compl. ¶ 75.)
In August 2011, Spadone learned
that the Secretary signed orders disenrolling Spadone from West
Point and ordering Spadone to report in October 2011 for two
years on active duty as an enlisted soldier.
(Id. ¶¶ 82, 86.)
-5Spadone filed his complaint for injunctive relief in this
action in September 2011 challenging the Secretary’s actions as
arbitrary, capricious and in violation of due process.
He also
alleged that ordering him to read aloud the Cadet’s Prayer
violated the Establishment Clause of the First Amendment, and
that the delay in denying his study abroad enrollment unjustly
enriched the Army by triggering his active duty military service
obligation.
In addition to back pay, his complaint seeks full
reinstatement at West Point and expungement of all records of his
HMP failure, or, in the alternative, an order requiring the
Secretary to discharge Spadone from West Point without requiring
a period of enlisted military service.
relief that is just and proper.
He also seeks any other
(Compl. ¶ 150.)1
The Secretary has now moved to dismiss or for summary
judgment on all counts of Spadone’s complaint.
Spadone opposes.
DISCUSSION
“‘Summary judgment may be appropriately granted when the
moving party demonstrates that there is no genuine issue as to
any material fact and that moving party is entitled to judgment
as a matter of law.’”
Pueschel v. Nat’l Air Traffic Controllers
Ass’n, 772 F. Supp. 2d 181, 183 (D.D.C. 2011) (quoting Bonaccorsy
v. Dist. of Columbia, 685 F. Supp. 2d 18, 22 (D.D.C. 2010)
1
The Secretary has changed Spadone’s reporting date from
October 10, 2011 to July 23, 2012. (See Notice of Pl.’s
Reporting Status at 2.)
-6(citing Fed. R. Civ. P. 56(c)).
“‘In considering a motion for
summary judgment, [a court is to draw] all ‘justifiable
inferences’ from the evidence . . . in favor of the nonmovant.’”
Pueschel, 772 F. Supp. 2d at 183 (quoting Cruz-Packer v. Dist. of
Columbia, 539 F. Supp. 2d 181, 189 (D.D.C. 2008) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986));
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)).
“The relevant inquiry ‘is the threshold inquiry of
determining whether there is a need for a trial - - whether, in
other words, there are any genuine factual issues that properly
can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.’”
Single Stick,
Inc. v. Johanns, 601 F. Supp. 2d 307, 312 (D.D.C. 2009) (quoting
Anderson, 477 U.S. at 250) (overruled on other grounds by Prime
Time Int’l Co. v. Vilsack, 599 F.3d 678 (D.C. Cir. 2010)).
A
genuine issue is present in a case where the “evidence is such
that a reasonable jury could return a verdict for the non-moving
party,” a situation wholly distinct from a case where the
evidence is “so one-sided that one party must prevail as a matter
of law.”
Anderson, 477 U.S. at 248, 252.
“In general, courts tread ‘lightly on the military domain,
with scrupulous regard for the power and authority of the
military establishment to govern its own affairs within the broad
confines of constitutional due process.’”
Spadone, 2012 WL
-7393056, at *3 (quoting Friedberg v. Resor, 453 F.2d 935, 937 (2d
Cir. 1971)).
To show that interference into the personnel decisions
of the Superintendent is warranted, Spadone must make a
very compelling case that he was denied process
explicitly given to him by statute, or that the Army’s
decision was arbitrary or capricious. “The Court's
deference to the military is at its highest ‘when the
military, pursuant to its own regulations, effects
personnel changes through the promotion or discharge
process.’” Housman v. Baratz, 916 F. Supp. 23, 28
(D.D.C. 1996) (quoting Dilley v. Alexander, 603 F.2d
914, 920 (D.C. Cir. 1979)). Judicial review of
personnel decisions of the armed forces is limited to a
determination of whether they were arbitrary,
capricious or contrary to the Constitution, statutes,
or governing regulations. Housman, 916 F. Supp. at 28
(citing Blevins v. Orr, 721 F.2d 1419, 1421 (D.C. Cir.
1983)).
Spadone, 2012 WL 393056, at *5.
I.
COUNTS 1-6: APA AND DUE PROCESS
The APA “requires courts to ‘hold unlawful and set aside
agency action, findings, and conclusions’ that are ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.’”
Wilhelmus v. Geren, 796 F. Supp. 2d 157,
160 (D.D.C. 2011) (quoting 5 U.S.C. § 706(2)(A)).
A decision is
arbitrary or capricious under the APA if an agency failed to
provide a reasoned explanation, failed to address reasonable
arguments, or failed to consider an important aspect of the case.
See Pettiford v. Sec’y of the Navy, 774 F. Supp. 2d 173, 181-82
(D.D.C. 2011).
“‘[T]he scope of review under the arbitrary and
capricious standard is narrow and a court is not to substitute
-8its judgment for that of the agency.’”
Pettiford, 774 F. Supp.
2d at 182 (quoting Motor Vehicle Mfrs. Ass’n v. State Farm, 463
U.S. 29, 43 (1983).2
Count 1 of Spadone’s complaint alleges that the Secretary’s
decision to disenroll Spadone for failing to follow the
requirements of the HMP violated the APA because it was
arbitrary, capricious, and an abuse of discretion.
Specifically,
Spadone argues that the Secretary relied on undefined, nebulous
concepts that were not present in West Point’s regulations, such
as journal entries “denying the intent” of West Point’s
guidelines.
(Pl.’s Mem. at 8.)
Spadone also asserts that the
HMP regulations do not provide an ascertainable standard to
determine whether a cadet violates the HMP, and that the
2
Spadone may have waived the claims found in Counts 2
through 6 of the complaint. As was mentioned in the previous
opinion,
[a] review of the record reveals that most of the
claims in the complaint that could have been raised
below were not raised below. “Generally . . . issues
and arguments not made before the relevant military
correction board or administrative agency are deemed
waived and could not be raised in a judicial tribunal.”
Christian v. United States, 46 Fed. Cl. 794, 802
(2000). Spadone does not refute that he raised during
the administrative proceedings just one of the claims
presented in his complaint, namely, a challenge to the
standards used for finding that Spadone failed the HMP
program. (Def.’s Opp’n at 19; Def.’s Mem. in Supp. of
Mot. for Summ. J. at 5, 8.)
Spadone, 2012 WL 393056, at *5. However, even if Spadone has not
waived the claims in Counts 2 through 6, judgment will be entered
against him for the reasons discussed below.
-9Secretary abused his discretion by failing to provide Spadone
with the opportunity to write extra journal entries for weeks
when he was unable to write the sufficient amount.
(Compl.
¶¶ 97-106.)
However, the Secretary provided a reasoned explanation that
offered fair grounds for his decision.3
See Chamness v. McHugh,
814 F. Supp. 2d 7, 14 (D.D.C. 2011) (finding that a decision of
the Army Board for Correction of Military Records was not
arbitrary or capricious since it “minimally contain[ed] a
rational connection between the facts and the choice made”).
Although Spadone argues that the HMP lacked measurable standards
for components such as journal entries, the Secretary explained
that Spadone failed to comply with even unambiguous requirements
of the HMP.
3
Spadone was told to begin the HMP process before
That is not always the case with agency decisions.
Cf. Wilhelmus, 796 F. Supp. 2d at 163-164 (holding that the Army
Board for the Correction of Military Records acted arbitrarily
and capriciously when it affirmed a decision to recoup $137,630
from a cadet who was disenrolled for unintentionally failing the
Cadet Physical Fitness Test because the Board ignored precedent
that disallowed recoupment for failing that test); El Rio Santa
Cruz Neighborhood Health Ctr., Inc. v. Dep’t of Health and Human
Serv., 300 F. Supp. 2d 32, 42-43 (D.D.C. 2004) (holding that the
Secretary of Health and Human Services acted arbitrarily and
capriciously when it denied malpractice insurance coverage to
physicians who were situated similarly to other physicians who
were granted malpractice insurance coverage); Wagner v. Geren,
614 F. Supp. 2d 12, 18-20 (D.D.C. 2009) (holding that the Army
Board for Correction of Military Records arbitrarily and
capriciously denied the plaintiff a 20-year service retirement
because when it calculated the plaintiff’s service time, it
relied on a document that it could not produce or otherwise prove
existed).
-10leaving West Point for the 2010 summer but he did not, he failed
to engage in the HMP for over a month after returning in the fall
of 2010 until an officer directed him to do so, and he refused to
wear a brass insignia as ordered.
It was not arbitrary or
capricious for the military to sanction such misbehavior, and
second-guessing the sanction’s severity is not within the limited
purview of judicial review of the military’s personnel decisions.
Count 2 alleges that the Secretary violated Spadone’s Fifth
Amendment right to due process by not providing Spadone with a
hearing or an opportunity to present a defense after he was
deemed to have failed the HMP and before the Secretary
disenrolled him.
(Compl. ¶¶ 107-110.)
In Count 3, Spadone
alleges that the Secretary violated his Fifth Amendment right to
due process and the APA by failing to complete the cadet honor
proceedings within 40 days in violation of West Point’s own
internal procedures.
The procedure he cites explains that
“standard processing time for honor cases, under normal
circumstances, is 40 days from inception through a finalized
decision by the Superintendent.”
¶ 204.)
(Id. ¶ 95, citing USCC PAM 15-1
In Count 4, Spadone asserts that the Secretary violated
Spadone’s Fifth Amendment right to due process and the APA by
failing to separate him immediately after he failed the HMP
program, and the delay deprived Spadone of his chance to enroll
-11in a different college or secure other employment.
(Compl.
¶¶ 122-27.)
In general, a procedural due process violation consists of a
(1) deprivation by the government, (2) of life, liberty, or
property, (3) without due process of law.
Lightfoot v. Dist. of
Columbia, 273 F.R.D. 314, 319 (D.D.C. 2011) (citing Propert v.
Dist. of Columbia, 948 F.2d 1327, 1331 (D.C. Cir. 1991)).
Spadone has shown neither that the Secretary deprived him of
a liberty or property interest, nor that the process he received
was inadequate.
See Kentucky Dep’t of Corr. v. Thompson, 490
U.S. 454, 460 (1989).
“[T]here is no protected property interest
in continued military service.”
Wilhelm v. Caldera, 90 F. Supp.
2d 3, 8 (D.D.C. 2000); see also Hanson v. Wyatt, 552 F.3d 1148,
1158 (10th Cir. 2008).
In addition, the record shows that
Spadone received notice in October 2010 that he was deemed to
have failed the HMP4 (A.R. 21-22), and that Spadone used his
opportunity to present a defense before he was disenrolled.
His
attorney submitted to the West Point Superintendent in
December 2010 a letter (A.R. 12-15)5 challenging Spadone’s
proposed separation based upon his alleged failure to complete
the HMP as “arbitrary and capricious, an abuse of discretion, and
4
5
The complaint concedes as much.
(Compl. ¶ 109.)
The letter sought relief but did not request a hearing.
(A.R. 12 ¶ 2.)
-12not in accordance with the law.”
(Id. at 12.)
The Secretary’s
disenrollment decision was amply explained to Spadone.
Aside
from the fact that Spadone did not raise this challenge below, he
cites no authority for a court to override an amply explained
military disenrollment decision that was announced beyond the
“standard processing time . . . under normal circumstances.”
Nor can it be true that according Spadone due process after he
failed the HMP program, rather than immediately separating him
without it, violates due process or the APA.
Count 5 claims that the Secretary violated Spadone’s
Fifth Amendment right to due process and the APA by wrongly
advising Spadone in August 2010 that he had already begun his
third year and incurred his active duty military service
obligation.
(Compl. ¶¶ 128-134.)
Count 6 asserts that the
Secretary violated Spadone’s Fifth Amendment right to due process
and the APA by failing to advise Spadone of his right to remain
silent before he was interviewed about his first honor code
violation.
(Id. ¶¶ 38-39, 135-138.)
The record shows that the Secretary is entitled to judgment
on Counts 5 and 6.
The advice that Spadone complains of in
Count 5 was not objectively wrong, as Spadone had begun his third
year even before he committed his first honor code violation in
October 2009.
Similarly, Spadone has failed to rebut the record
evidence that the interview in which he was not initially
-13informed of his right to remain silent was not one that required
a prior advice of rights.6
The professor to whom Spadone
submitted the plagiarized essay conducted an “approach for
clarification . . . to determine if there [was] a reasonable
explanation for the situation. . . .
There is no requirement to
provide a rights warning during an approach for clarification.”
(Def.’s Stmt. ¶¶ 11-12.)7
Therefore, judgment will be entered
for the Secretary on Counts 1 through 6.
II.
COUNT 7: ESTABLISHMENT CLAUSE
Count 7 alleges that the Secretary violated Spadone’s rights
under the Establishment Clause when, during the April 2010
6
The caption of Count 6 and paragraph 138 within that Count
refer to questioning in connection with a single honor code
violation, not multiple alleged violations. Paragraph 38 of the
complaint, which Count 6 incorporates by reference (Compl.¶ 135),
specifies that the questioning occurred during the interview
conducted by Major Anthony George, Dr. Terri Sabatos, and Cadet
Adam J. Bishop.
Sworn statements by Dr. Sabatos, Cadet Bishop
and Major George reflect that the contact occurred on November 6,
2009 and was “an approach for clarification” about the
October essay. (A.R. at 575, 580, 601.) The three met in
advance to review the proper way to conduct an approach for
clarification to assure that it was not an accusatory session
(id. at 580, 601), and Major George told Spadone during the
interview that this was not an accusation, but a chance to
clarify the similarities between his paper and a journal article.
(Id. at 575, 581.)
7
Even if Dr. Sabatos’ interview regarding the November
essay were at issue, the Secretary’s dismissal decision was based
upon a full record that included careful examination and
assessment of this interview as an approach for clarification
that required no prior advice of rights. (See A.R. 70-106,
196-98.) Spadone has provided no basis for substituting a
judicial assessment for the Secretary’s.
-14hearing, the Commandant of Cadets forced Spadone to recite a
religious prayer.
(Compl. ¶¶ 139-144.)
The Establishment Clause
provides that “Congress shall make no law respecting an
establishment of religion.”
U.S. Const. amend. I.
The Supreme
Court has explained that “the purpose of the Establishment and
Free Exercise Clauses of the First Amendment is ‘to prevent, as
far as possible, the intrusion of either [the church or the
state] into the precincts of the other.’”
Lynch v. Donnelly, 465
U.S. 668, 672 (1984) (citing Lemon v. Kurtzman, 403 U.S. 602, 614
(1971)).
“For decades, the Supreme Court has tested the
constitutionality of state action under the Establishment Clause
pursuant to a standard first articulated in Lemon. . . .”
v. Bush, 355 F. Supp. 2d 265, 283 (D.D.C. 2005).
Newdow
The Lemon test
upholds a government’s action only if it has a “secular . . .
purpose” and its “principal or primary effect . . . neither
advances nor inhibits religion.”
Lemon, 403 U.S. at 612-13.
And
the Constitution guarantees that government must not coerce
anyone to support or participate in religion or its exercise.
Lee v. Weisman, 505 U.S. 577, 587 (1992).
For example, military
service academies violate the Establishment Clause when they
force their students to attend religious services.
See Anderson
v. Laird, 466 F.2d 283, 290 (D.C. Cir. 1972).
The Secretary does not argue that a compelled monotheistic
prayer has a secular purpose or that it does not advance
-15religion.
Instead, the Secretary argues that Spadone lacks
standing to assert an Establishment Clause claim.
“[A] showing of standing is an essential and unchanging
predicate to any exercise of [a court’s] jurisdiction.”
Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C.
Cir. 1996) (internal quotation marks omitted). In
order for a plaintiff to establish standing to bring a
constitutional claim, Article III requires that the
plaintiff demonstrate (1) that he has suffered "an
injury in fact" that is “(a) concrete and
particularized and (b) actual and imminent, not
conjectural or hypothetical,” (2) that there exists
“a causal connection between the injury and the conduct
complained of,” that is, that the injury is “fairly
traceable to the challenged action of the defendant,”
and (3) that it is “likely, as opposed to merely
speculative, that the injury will be redressed by a
favorable decision.” Lujan v. Defenders of Wildlife,
504 U.S. 555, 560–61 (1992) (internal quotation marks
and citations omitted).
Urban Health Care Coalition v. Sebelius, Civil Action No. 06-2220
(RWR), 2012 WL 1035392, at *3 (D.D.C. March 29, 2012).
“An alleged Establishment Clause injury is sufficiently
concrete and particularized when the plaintiff sees or hears a
government-sponsored religious display or speech that offends his
or her beliefs.”
Newdow v. Roberts, 603 F.3d 1002, 1014 (D.C.
Cir. 2010) (Kavanaugh, J., concurring) (citing In re Navy
Chaplaincy, 534 F.3d 756, 764 (D.C. Cir. 2008)).
Spadone, of
course, has alleged not that he merely witnessed offensive
government-sponsored religious speech, but that the government
coerced him into uttering the government-sponsored religious
speech.
He has sufficiently alleged an injury in fact.
-16In claiming that Spadone has failed to establish that his
injury was fairly traceable to the Commandant’s order forcing
Spadone to recite the prayer, the Secretary misidentifies the
injury as Spadone’s dismissal (Def.’s Mem. in Supp. of Mot. for
Summ. J. (“Def’s Mem.”) at 39-40), a claimed due process and APA
injury.
It is beyond debate that Spadone’s claimed Establishment
Clause injury is fairly traceable to the Commandant’s challenged
order.
Likewise, in arguing that Spadone’s reinstatement will
not redress the Establishment Clause injury, even the Secretary
acknowledges that reinstatement is not the relevant relief.
(Def.’s Mem. at 41 (“the proper remedy is an injunction
precluding” action violating the Establishment Clause).)
Spadone
filed a complaint for injunctive relief that prays for relief
that is “just and proper.”
(Compl. ¶ 150(f).)
Any Establishment
Clause injury established here likely would be redressed by a
proper injunction barring forced religious prayer.
Thus, Spadone
has standing to challenge the Secretary’s alleged Establishment
Clause violation.
The Secretary’s argument that Spadone waived his
Establishment Clause claim asserts that granting the relief of
setting aside the decision dismissing Spadone from West Point
would improperly inject the judiciary into discretionary
personnel and disciplinary decisions.
(Def.’s Mem. at 9-10.)
Here, too, the Secretary’s argument is misfocused upon relief
-17that would not flow from a proven Establishment Clause claim, and
his explanation presents no cogent reason for dismissing Count 7.
Finally, in seeking summary judgment on Count 7, the Secretary
suggests a dispute about a material fact that would bar summary
judgment.
While Spadone alleges that the Commandant forced
Spadone to recite a religious prayer, the Secretary asserts that
there is no indication in the administrative record that this
occurred.
(Def.’s Mem. at 40.)
The Secretary’s motion, then,
will be denied as to Count 7.
III. COUNT 8: UNJUST ENRICHMENT
Count 8 alleges that the Secretary would be unjustly
enriched if he were allowed to force Spadone to serve as an
enlisted soldier.
(Compl. ¶¶ 145-149.)
The Secretary argues
that Count 8 should be dismissed for lack of jurisdiction because
the United States has not waived its sovereign immunity for
claims of unjust enrichment that seek equitable relief as opposed
to monetary damages.
(Id. at 23.)
“In reviewing a motion to dismiss for lack of subject matter
jurisdiction, a court ‘accepts as true all of the factual
allegations contained in the complaint[.]’”
Teton Historic
Aviation Found. v. U.S. Dep’t of Def., 686 F. Supp. 2d 75, 78
(D.D.C. 2010) (quoting Peter B. v. CIA, 620 F. Supp. 2d 58, 67
(D.D.C. 2009)) (some internal quotations omitted).
“The
plaintiff bears the burden of establishing that the court has
-18jurisdiction over a claim.”
Teton Historic Aviation Foundation,
686 F. Supp. 2d at 78.
“The Federal Government cannot be sued without its consent.”
United States v. Navajo Nation, 129 S. Ct. 1547, 1551 (2009).
The government’s consent to be sued cannot be inferred or
“‘implied but must be unequivocally expressed.’”
Franconia
Assocs. v. United States, 536 U.S. 129, 141 (2002) (quoting
United States v. King, 395 U.S. 1, 4 (1969)); Strong-Fisher v.
Lahood, 611 F. Supp. 2d 49, 53 (D.D.C. 2009).
“‘Jurisdiction
over any suit against the Government requires a clear statement
from the United States waiving sovereign immunity . . . together
with a claim falling within the terms of the waiver.’”
Cartwright Int’l Van Lines, Inc. v. Doan, 525 F. Supp. 2d 187,
194 (D.D.C. 2007) (quoting United States v. White Mountain Apache
Tribe, 537 U.S. 465, 472 (2003)).
Courts lack subject matter
jurisdiction to hear claims filed against the government that do
not fall within the scope of a waiver of sovereign immunity.
See
P&V Enterprises v. United States Army Corps of Eng’rs, 516 F.3d
1021, 1026-1027 (D.C. Cir. 2008); Ballard v. Holinka, 601 F.
Supp. 2d 110, 121 (D.D.C. 2009) (noting that sovereign immunity
is jurisdictional in nature).
The Little Tucker Act, 28 U.S.C. § 1346(a)(2), provides
jurisdiction in federal district courts for claims seeking less
than $10,000 in monetary damages against the United States
-19founded upon express or implied contracts.
However, the Little
Tucker Act does not provide a waiver of sovereign immunity for
claims against the United States where a party seeks equitable
relief, as opposed to monetary relief, against the United States
for breach of a contract.
Wright v. Foreign Serv. Griev. Bd.,
503 F. Supp. 2d 163, 178 (D.D.C. 2007).
A plaintiff’s request
for back pay does not transform “what is ‘in essence’ a claim for
equitable relief into a claim for money damages.”
Wright, 503 F.
Supp. 2d at 179.
Here, Spadone’s claim for unjust enrichment fails to allege
a viable waiver of sovereign immunity, or, frankly, any viable
jurisdictional basis.
Spadone’s complaint is, in essence, a
claim for equitable relief.
He seeks an order setting aside his
disenrollment and reinstating him as a student at West Point, or
an order requiring the Secretary to discharge Spadone from West
Point without requiring him to serve a period of enlisted
service.
While the complaint does ask for “monetary damages for
back pay no greater than $10,000” (Compl. ¶ 150(d)), Spadone has
abandoned that request.
His opposition asserts that he does not
seek monetary damages for Count 8; rather, he “is requesting
equitable relief to prevent Defendant from unjust enrichment in
the form of Cadet Spadone’s service as an enlisted soldier.”
(Pl.’s Opp’n at 25.)
In his opposition, Spadone invokes the
APA’s waiver of sovereign immunity, but Spadone does not provide
-20any support for the proposition that an action that would
unjustly enrich the Secretary would be actionable as arbitrary or
capricious under the APA.
CONCLUSION
Spadone has not established that his suspension and
disenrollment from West Point violated the APA or his right to
due process, and Spadone failed to demonstrate a waiver of
sovereign immunity for his claim of unjust enrichment.
However,
summary judgment is premature on Spadone’s Establishment Clause
claim, and the Secretary’s faulty reasoning does not warrant
dismissing that claim.
Therefore, it is hereby
ORDERED that the defendant’s motion [14] to dismiss or for
summary judgment be, and hereby is, GRANTED in part and DENIED in
part.
Count 8 of Spadone’s complaint will be dismissed, and
judgment will be entered in favor of the Secretary on Counts 1
through 6.
The remainder of the motion will be denied.
It is
further
ORDERED that the plaintiff’s motions [18] [21] for a hearing
be, and hereby are, DENIED as moot.
SIGNED this 6th day of June, 2012.
/s/
RICHARD W. ROBERTS
United States District Judge
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