Domine et al v. Kumar et al
Filing
33
MEMORANDUM AND OPINION. For the reasons set forth in the Memorandum and Opinion, and orally on the record on July 3, 2012, IT IS HEREBY ORDERED that the Court denies plaintiffs application, by order to show cause, for declaratory relief and a writ of mandamus in its entirety. SO ORDERED. Ordered by Judge Joseph F. Bianco on 7/5/2012. (O'Neil, Jacquelyn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No12-CV-2993 (JFB)
_____________________
DAVID J. DOMINE, ET AL.,
Plaintiffs,
VERSUS
SASHI N. KUMAR, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
July 5, 2012
___________________
Johnson, denying them admission to the
Academy’s Class of 2016.
JOSEPH F. BIANCO, District Judge:
Plaintiffs David J. Domine (“Domine”),
Anthony S. Presutti (“Presutti”) and Zachary
J.
Ryder
(“Ryder”)
(collectively
“plaintiffs”), commenced this action against
Sashi N. Kumar, in his capacity as Interim
Superintendent and Academic Dean
(“Kumar”), Robert Johnson, in his capacity
as Admissions Officer (“Johnson”), Ray
LaHood, in his capacity as Secretary of the
Department of Transportation (“Secretary”),
the United States Merchant Marine
Academy (the “USMMA” or the
“Academy”), the United States Maritime
Administration (the “Administration”) and
the
United
States
Department
of
Transportation
(the
“Department
of
Transportation”),
pursuant
to
the
Administrative Procedures Act, 5 U.S.C.
§§ 701-706 (the “APA”), seeking review of
the decision of the Academy, acting through
By Order to Show Cause, plaintiffs seek
declaratory relief, pursuant to 28 U.S.C.
§ 2201, and for the issuance of a writ of
mandamus, pursuant to 28 U.S.C. § 1361,
directing defendants to enroll the plaintiffs
in the Academy’s Class of 2016. The Class
of 2016 is scheduled to enter the Academy
on Thursday, July 5, 2012. In particular,
plaintiffs argue that, as residents of
Wisconsin who were found to be qualified
candidates for appointment to the Academy
and who were placed on an alternates list,
they were entitled to fill the vacancies for
the Wisconsin allocation under the statute
prior to candidates from a national alternates
list being selected by the Academy to fill
those vacancies. In response, the Academy
has stated that, in filling vacancies after
candidates from various jurisdictions decline
appointments, it has a policy of transitioning
1
appointment to the next qualified alternate
from Wisconsin. However, when three
qualified nominees from Wisconsin declined
their appointments in April, the Academy
extended appointments to the next best
qualified nominees from the national
alternates list, which did not include
plaintiffs. There is no explicit language in
the applicable statute or regulations that
requires that the alternates list from a
particular jurisdiction must be exhausted
before the utilization of a national alternate
list. The language of the statute and
regulations is, at minimum, ambiguous. As
set forth by the Academy’s Director of
Admissions, the Academy (like other federal
service academies) makes the transition to
the national alternate list on April 1 in order
to ensure it call fill its incoming class by the
May 1 date, which is nationally recognized
for college acceptance. Based upon the
record before this Court, this is a reasonable
interpretation by the defendants of the
statute and their own regulations. Thus,
plaintiffs have not demonstrated entitlement
to declaratory relief or the drastic remedy of
a writ of mandamus.
Accordingly,
plaintiffs’ application is denied in its
entirety.
on April 1 from an alternate list by
jurisdiction (in order of merit) to a national
alternate list (in order of merit) for the
purpose of ensuring that it can fill open slots
by the nationally recognized college
acceptance deadline of May 1.
On July 2, 2012, after full briefing and
oral argument on plaintiffs’ request for
emergency relief, the Court orally denied the
request for declaratory relief and the
issuance of the writ of mandamus. For the
reasons set forth on the record and below,
this Court concludes that the defendants’
interpretation of the applicable statute and
its own regulations is reasonable, and
plaintiffs have failed to demonstrate
entitlement to the extraordinary relief of a
writ of mandamus based upon the record
before this Court.
Although plaintiffs
contend that the Academy’s transition to the
national alternate list after April 1 is
inconsistent with the unambiguous language
of the applicable statute and regulations, the
Court disagrees. As a threshold matter,
Congress has not spoken unambiguously in
the statute as to the precise question at issue
– namely, when the transition should be
made to a national list of alternates.
Moreover, Congress has delegated to the
Secretary of Transportation the power to
establish the competitive system for
appointments to the Academy. Specifically,
under the applicable statute, Wisconsin is
allocated four appointments, or offers of
admissions, to the Academy and the
Secretary must appoint individuals to fill
those positions in order of merit of
individuals nominated from that jurisdiction.
For the Class of 2016, the Academy offered
appointments to six qualified nominees from
Wisconsin, thus complying with the statute.
The Academy initially extended five
appointments to the top five qualified
nominees from Wisconsin; when one
nominee from Wisconsin declined prior to
April 1, the Academy extended an
I. BACKGROUND
A. Factual Background
The following facts are drawn from the
plaintiff’s complaint and petition for Writ of
Mandamus (“Compl.”) as well as from
defendants’ opposition papers. As a review
of the facts demonstrates, the material facts
are essentially not in dispute for purposes of
the motion; rather, plaintiffs challenge the
defendants’ interpretation of the applicable
statute and regulations pertaining to
admission to the Academy.
2
According to the complaint, plaintiffs
are residents of the State of Wisconsin
which, each year, is allocated four vacancies
in the Academy’s entering Class. (Compl.
¶ B.) Plaintiffs were each duly nominated
by a Wisconsin Senator or Member of
Congress for admission to the Academy’s
Class of 2016. (Id. ¶ C.) Plaintiffs were
found to be academically and otherwise
qualified for appointment to the Academy,
and were designated by Kumar and Johnson
as “on hold” or “alternate” candidates for
appointment to the Academy and were
promised consideration for entry into the
Class of 2016 as vacancies occurred “‘on the
state [Wisconsin] listings. . .’” (Id. (citing
Pl.’s Exs. 1 and 2).)
According to the defendants, the
Academy extends more appointments than
actual spaces in the class and the total
number of appointments that are extended is
based upon the expected number of
acceptances versus declinations, which
constitutes the “yield.” (Captain Robert
Johnson Declaration in Opposition to
Plaintiff’s Order to Show Cause, dated June
22, 2012, (the “Johnson Declaration”), ¶ 7.)
The estimated yield for the Class of 2016 is
73%, and thus, appointments were extended
to 390 applicants, in anticipation of
enrolling a class of 277. (Id. ¶ 10.)
However, 281 accepted these appointments.
(Id.) Each appointment letter notifies the
applicant that he or she must accept by May
1 and failure to accept by May 1 is deemed a
rejection of the appointment. (Id ¶ 12.)
Prior to April 1, if an appointment is
declined, the Academy extends an
appointment to the next alternate from the
same jurisdiction. (Id. ¶ 21.) On or about
April 1, the Academy takes the remaining
qualified nominees from each jurisdiction
who have not yet received appointments and
creates a national alternates list on which all
of those remaining nominees are ranked in
order of merit, regardless of jurisdiction.
(Id. ¶ 22.) After April 1, if an appointment
is declined, the Academy extends an
appointment to the next alternate on the
national alternates list, in order of merit.
(Id. ¶ 23.)
According to plaintiffs, only one
candidate
from
Wisconsin
accepted
appointment, and therefore, three vacancies
allocated to Wisconsin still exist because the
three candidates designated as “principal”
candidates declined their appointment to the
Academy’s Class of 2016. (Id. ¶¶ D, 13.)
In May 2012, plaintiffs learned of the three
remaining Wisconsin vacancies and
immediately asked Kumar and Johnson to
comply with the C.F.R. and their promises
to appoint them to these vacancies. (Id.
¶ E.) Plaintiffs argue that since they are
qualified
alternate
candidates
from
Wisconsin, they were and are entitled to
appointments to fill Wisconsin’s vacancies
in the Class of 2016 before any nonWisconsin residents. (Id. ¶ 14.) Kumar and
Johnson refused.
(Id. ¶ E.)
After
unsuccessful efforts, on June 6, 2012,
counsel wrote to LaHood and Matsuda
seeking immediate administrative relief.
(Id. ¶ F.) On June 14, 2012, their request
was denied. (Id. ¶ G.)1
appointments. (See Declaration of Captain Robert
Johnson in Opposition to Plaintiff’s Order to Show
Cause, June 22, 2012, at ¶ 33 (“There are several
other jurisdictions in the same position as Wisconsin
this year. Wisconsin is one of thirteen States with
more appointments extended by the USMMA this
year than the number of appointments allocated to
that State by law, with fewer acceptances than the
number allocated.
Each of those States had
additional qualified nominees who ultimately did not
receive appointments once they were placed on the
national alternates list because they did not rank
highly enough in order of merit.”).)
1
Defendants noted that there were qualified
nominees from twelve other states who were in the
same position as plaintiffs, and also did not receive
3
been my experience that qualified
applicants
receive
offers
of
admission at other institutions of
higher education. The longer the
USMMA waits to transition to the
national alternates list, the greater the
risk of losing that qualified applicant
to another institution, many of which
require non-refundable deposits as
early as March 1. In addition, it has
been my experience that the reason
many applicants wait until late April
to decline an offer of admission to
the USMMA is because they are
waiting to hear from a competing
Service Academy. Consequently,
the USMMA moves to the national
alternates list on or about April 1
because the USMMA wants to enroll
the best qualified incoming class
possible from the pool of qualified
applicants, and does not want to lose
the best qualified candidates to
competing institutions. Significantly,
if the USMMA did not transition to
the national alternates list on or
about April 1, it would be at risk of
under-enrollment
and
a
less
qualified
entering
class
in
contravention
of
46
U.S.C.
§ 51302(d)(3).
Defendants assert that this is done once
each jurisdiction has received the minimum
number of appointments as required under
46 C.F.R. § 310.53(b), in order to ensure
that the Academy fills its incoming class by
the nationally recognized college acceptance
deadline of May 1. (Id.) In particular, as set
forth in detail in the Supplemental
Declaration of Captain Robert Johnson
(Director of Admissions as the USMAA),
the transition to the national list after April 1
not only allows them to enroll the best
qualified class, but also avoids the
possibility that the USMAA will be underenrolled:
On or about April 1, the USMAA
extends an appointments [sic] to the
number of alternates on the national
alternates list, in the order of merit in
accordance with the statutory
command
of
46
U.S.C.
§ 51302(d)(3), required to meet its
projected yield. This is done to
ensure that the USMMA fills its
incoming class by the nationallyrecognized
college
acceptance
deadline of May 1. The USMMA
did not extend any appointments
after on or about April 1. The
USMAA transitions to its national
alternates list in order to enroll the
best qualified class.
In my
experience, as the May 1 national
deadline approaches, the longer the
USMMA waits to begin extending
appointments from the national
alternates list, the less likely it will
be able to enroll the best qualified
candidates off that list. Depending
on when an applicant has completed
his or her application, as set forth
above, a qualified applicant may
have been waiting since as early as
October to receive a response to the
application. At the same time, it has
(Supplemental Declaration of Captain
Robert Johnson, dated July 3, 2012,
(“Supplemental Johnson Declaration”),
¶¶ 11-17 (emphasis added).)
As noted above, the State of Wisconsin
is allocated four appointments to the
Academy.
(Johnson Declaration, ¶ 5.)
According to defendants, more than four
individuals were nominated from Wisconsin
for admission to the Class of 2016, the
Academy
reviewed
the
nominees,
determined an order of merit, and extended
an appointment to the top five qualified
4
USMMA did not extend any
appointments after on or about April
1, despite the fact that six national
alternates list appointees declined
their appointments. Plaintiffs did not
rank among the top thirty on the
Class of 2016 national alternates list.
nominees. (Id.) Prior to April 1, 2012, one
Wisconsin nominee who received an
appointment declined, and thus, the
Academy extended an appointment to the
next qualified alternate from Wisconsin.
(Id. ¶ 25.) Thus, prior to April 1, six
appointments were offered to qualified
nominees from Wisconsin, and plaintiffs
were not among them. (Id. ¶ 26.) As of
April 1, 2012, five appointments to qualified
nominees from Wisconsin were still open.
(Id. ¶ 27.) On or about April 1, 2012, the
Academy moved plaintiffs to the national
alternate list where they were ranked in
order of merit together with all other
remaining qualified nominees. (Id. ¶ 28.)
Only one of the six qualified nominees from
Wisconsin who received an appointment
accepted and of the four remaining
appointments that were extended, three were
declined during the month of April and one
never responded, and thus was deemed
declined as of May 2. (Id. ¶ 29.) When the
three qualified nominees from Wisconsin
declined their appointment in April, the
Academy followed its standard admissions
procedure and extended appointments to the
next best qualified nominee from the
national alternates list. (Id. ¶ 30.) Plaintiffs
were not selected from the national
alternates list to receive an appointment.
(Id. ¶ 31.)
(Supplemental Johnson Declaration, ¶¶ 1821.)
Finally, the defendants note that the
Academy’s
admissions
practice
of
transitioning to a national list on or about
April 1 of each year “is consistent with the
practices followed by other Federal service
academies that have similar admissions
procedures.” (Johnson Declaration, ¶ 34.) In
particular, the Academy’s Director of
Admissions explains:
[I]t is my understanding that the
United States Military Academy and
the United States Naval Academy
both similarly interpret the term
“appointment” (as that term is used
in the laws governing their
admissions procedure) to mean an
“offer of admission,” rather than an
enrollment. In addition, it is my
understanding that those academies
transition from a list of qualified
nominees from each jurisdiction to a
national list on or about April 1 of
each year, as the USMMA does.
The Supplemental Johnson Declaration
contains the following additional statistics:
(Id.)
This year the national alternates list
consisted of 250 qualified applicants.
For the Class of 2016, the USMAA
extended thirty appointments from
the national alternates list, twentyfour of whom accepted by the May 1
deadline.
Consistent with the
USMMA practice over the last three
admission cycles, having achieved
its yield for the Class of 2016, the
B. Procedural History
Plaintiffs brought this action, by Order
to Show Cause, on June 14, 2012. The
parties participated in a telephone
conference on June 15, 2012, and the Court
set a briefing schedule.
Defendants
submitted their opposition on June 22, 2012.
5
Anderson v. Bowen, 881 F.2d 1, 5 (2d Cir.
1989) (quoting Lovallo v. Froehlke, 468
F.2d 340, 343 (2d Cir. 1972)). In short, as
the Supreme Court has emphasized,
mandamus “is a ‘drastic and extraordinary’
remedy ‘reserved for really extraordinary
causes.’” Cheney v. U.S. Dist. Court for the
Dist. of Columbia, 542 U.S. 367, 380 (2004)
(quoting Ex parte Fahey, 332 U.S. 258, 25960 (1947)).
Plaintiffs filed their reply in June 28, 2012.
The parties participated in oral argument on
July 2, 2012. As requested by the Court,
defendants filed a supplemental declaration
on July 3, 2012. Plaintiffs filed a response to
the supplemental declaration on July 3,
2012. Additional argument also was heard
on July 3, 2012. The Court then ruled orally
from the bench denying the request for the
writ, and stated that this written
Memorandum and Order would follow.
III. STANDARD OF REVIEW
II. MANDAMUS RELIEF
Section 702 of the APA provides that
“[a] person suffering legal wrong because of
agency action, or adversely affected or
aggrieved by agency action within the
meaning of a relevant statute, is entitled to
judicial review thereof.” 5 U.S.C. § 702. In
its review, a court may:
28 U.S.C. Section 1361 provides that
“[t]he district courts shall have original
jurisdiction of any action in the nature of
mandamus to compel an officer or employee
of the United States or any agency thereof to
perform a duty owed to the plaintiff.” 28
U.S.C. § 1361. “The extraordinary remedy
of mandamus under 28 U.S.C. § 1361 will
issue only to compel the performance of “‘a
clear nondiscretionary duty.’” Pittston Coal
Group v. Sebben, 488 U.S. 105, 121 (1988)
(quoting Heckler v. Ringer, 466 U.S. 602,
616 (1094)); see also Escaler v. U.S.
Citizenship & Immigration Servs., 582 F.3d
288, 292 (2d Cir. 2009) (“Of course,
mandamus is an extraordinary remedy,
intended to aid only those parties to whom
an official or agency owes ‘a clear
nondiscretionary duty.’” (quoting Heckler,
466 U.S. at 616)). Moreover, the Second
Circuit
has
articulated
the
strict
requirements for this extraordinary remedy:
(2) hold unlawful and set aside
agency
action,
findings,
and
conclusions found to be –
(A) arbitrary, capricious, an
abuse of discretion, or otherwise
not in accordance with law . . .
5 U.S.C. § 706(2)(A).
“The scope of review under the
‘arbitrary and capricious’ standard is narrow
and a court is not to substitute its judgment
for that of the agency.” Motor Vehicle Mfrs.
Ass’n of U.S., Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856,
2867 (1983). “Nevertheless, the agency
must examine the relevant data and
articulate a satisfactory explanation for its
action including a ‘rational connection
between the facts found and the choice
made.’” Id. (citing Burlington Truck Lines v.
United States, 371 U.S. 156, 168, 83 S.Ct.
239, 245-246, 9 L.Ed.2d 207 (1962)).
The prerequisites for issuance of a
writ of mandamus are peremptory:
“(1) a clear right in the plaintiff to
the relief sought; (2) a plainly
defined and peremptory duty on the
part of the defendant to do the act in
question; and (3) no other adequate
remedy available.”
6
stated that, “[w]e have long recognized that
considerable weight should be accorded to
an executive department’s construction of a
statutory scheme it is entrusted to
administer, and the principle of deference to
administrative interpretations.” Id.
Under Supreme Court and Second
Circuit jurisprudence, “[w]hether a court
defers to an agency’s interpretation ‘depends
in significant part upon the interpretative
method used and the nature of the question
at issue.’” Encarnacion v. Astrue, 568 F.3d
72, 78 (2d Cir. 2009) (quoting Barnhart v.
Walton, 535 U.S. 212, 222 (2002)). First,
“[w]hen Congress has entrusted rulemaking
authority under a statute to an administrative
agency, we evaluate the agency’s
implementing regulations under Chevron
U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 104 S. Ct. 2778,
81 L. Ed.2d 694 (1984).” Id.
In 2001, the Supreme Court considered
the limits of Chevron deference owed to
administrative practice in applying a statute
in United States v. Mead Corporation, 533
U.S. 219, 121 S. Ct. 2164, 150 L.Ed.2d 292
(2001). In Mead, the Court held that:
[a]dministrative implementation of a
particular
statutory
provision
qualifies for Chevron deference
when it appears that Congress
delegated authority to the agency
generally to make rules carrying the
force of law, and that the agency
interpretation claiming deference
was promulgated in the exercise of
that authority. Delegation of such
authority may be shown in a variety
of ways, as by an agency’s power to
engage in adjudication or notice-andcomment rulemaking, or by some
other indication of a comparable
congressional intent.
In Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., the Court
set forth a two-step process to determine
whether deference should be given to an
agency interpretation of its regulations and
governing statutes:
First, always, is the question whether
Congress has directly spoken to the
precise question at issue. If the intent
of Congress is clear, that is the end
of the matter; for the court, as well as
the agency, must give effect to the
unambiguously expressed intent of
Congress. If, however, the court
determines Congress has not directly
addressed the precise question at
issue, the court does not simply
impose its own construction on the
statute, as would be necessary in the
absence of an administrative
interpretation. Rather, if the statute is
silent or ambiguous with respect to
the specific issue, the question for
the court is whether the agency’s
answer is based on a permissible
construction of the statute.
Id. at 226-227. Thus, Chevron deference is
generally unwarranted where a policy is not
contained in the regulations themselves or
another format authorized by Congress for
issuing legislative rules, but rather is
explained in an informal source, such as a
training manual. See, e.g., Estate of Landers
v. Leavitt, 545 F.3d 98, 106 (2d Cir. 2009)
(“Although nonlegislative rules are not per
se ineligible for Chevron deference as a
general matter, we are aware of few, if any,
instances in which an agency manual, in
particular, has been accorded Chevron
deference.”).
467 U.S. 837, 843-44, 104 S.Ct. 2778, 81
L.Ed.2d 694 (1984). Further, the Court
7
(a) In General. – The Secretary of
Transportation shall maintain the
United States Merchant Marine
Academy as an institution of higher
education to provide instruction to
individuals to prepare them for
service in the merchant marine of the
United States, to conduct research
with respect to maritime-related
matters, and to provide such other
appropriate
academic
support,
assistance, training, and activities in
accordance with the provisions of
this chapter as the Secretary may
authorize.
However, as the Second Circuit has
noted, pursuant to Auer v. Robbins, 519 U.S.
452 (1997), “[a] similar deference applies
when an agency interprets its own
regulations.” Encarcion, 568 F.3d at 78.
More specifically, “[t]hat interpretation,
regardless of the formality of the procedures
used to formulate it, is ‘controlling unless
plainly erroneous or inconsistent with the
regulation[s].’” Id. (quoting Auer, 519 U.S.
at 461 (internal quotation marks omitted)).
Finally, “[e]ven if neither Chevron nor
Auer applies, an agency’s interpretation is
still entitled to respect according to its
persuasiveness under Skidmore v. Swift &
Co., 323 U.S. 134, 65 S. Ct. 161, 89 L.Ed.
124 (1944).” Encarcion, 568 F.3d at 78.
The weight given to an interpretation under
Skidmore “depends ‘upon the thoroughness
evident in its consideration, the validity of
its reasoning, its consistency with earlier and
later pronouncements, and all those factors
which give it power to persuade.”
Encarcion, 568 F.3d at 79 (quoting
Skidmore, 323 U.S. at 140.)
(b) Recruitment. – The Secretary of
Transportation may, subject to the
availability of appropriations, expend
funds available for United States
Merchant
Marine
Academy
operating expenses for recruiting
activities, including advertising, in
order to obtain recruits for the
Academy and cadet applicants.
46. U.S.C. § 51301. Title 46, Section 51302
governs the nomination and competitive
appointment of candidates to the Academy.
46 U.S.C. § 51302. Section (a) sets forth the
requirements for appointment and Section
(b) sets forth how a candidate can be
nominated for appointment. 46 U.S.C.
§ 51302(a) and (b); See also 46 C.F.R.
§ 310.53. Section (c) of U.S.C. § 51302
provides the number of allocated positions
for competitive appointments for each
jurisdiction for each year.
46 U.S.C.
§ 51302(c).
In the instant case, because the
Academy’s policy of transferring to a
national list on April 1 is not contained in
the regulations themselves, the Court does
not apply Chevron deference to the
interpretation. However, because it does
involve an agency’s interpretation of its own
regulations, Auer deference is warranted. In
any event, even under the Skidmore
standard, the Court concludes that it is
entitled to respect according to its
persuasiveness because of the validity of its
reasoning, as discussed below.
The statute gives the Secretary of
Transportation the power to establish the
system of appointment.
The statute
provides: “The Secretary shall establish a
competitive system for selecting individuals
nominated under subsection (b) to fill the
IV. DISCUSSION
A.
The Statute and Regulations
Title 46, Section 51301 of the United
States Code provides that:
8
positions allocated under subsection
(c). . . .” 46 U.S.C. § 51302(d)(1). The
statute further provides that, “[t]he Secretary
shall appoint individuals to fill the positions
allocated under subsection (c) for each
jurisdiction in the order of merit of the
individuals
nominated
from
that
jurisdiction.”
46 U.S.C. § 51302(d)(2).
However, the statute further states that “[i]f
positions remain unfilled after the
appointments are made under paragraph (2),
the Secretary shall appoint individuals to fill
the positions in the order of merit of the
remaining individuals nominated from all
jurisdictions.” 46 U.S.C. § 51302(d)(3).
46 C.F.R. § 310.53(e)(1). Moreover, the
regulations provide the following:
Selection of midshipmen for
appointment to fill vacancies allotted
to the various States and other
locations, as specified in § 310.53(b)
(1) and (2) of this subpart, shall be in
order of merit. The order of merit
shall be determined on the scores of
the required entrance examinations,
on assessment of the academic
background of the individual and on
such other factors as are considered
by the Academy to be effective
indicators of motivation and the
probability of successful completion
of training at the Academy. No
preference shall be granted in
selecting individuals for appointment
because one or more members of
their immediate families are alumni
of the Academy.
The federal regulations promulgated
under this statute explain that:
(1) The Administrator2 shall make
appointments to fill the vacancies
allocated pursuant to paragraph (b)
of this section from among qualified
nominees, in order of merit, from
each geographical area. The order of
merit shall be established according
to the procedure as specified in
§ 310.57(b). Such appointments first
shall be made from among residents
of each geographic area listed in
paragraph (b) of this section.
Thereafter, appointments shall be
made from among residents of each
geographic area listed in paragraph
(b) of this section. Thereafter
appointments shall be made from
among remaining qualified nominees
(national alternates) in order of merit
regardless of the area of residence.
46. C.F.R. § 310.57(b). Candidates are
notified of the results of the selection
process “about May 1 each year.” 46 C.F.R.
§ 310.57 (c). The regulations also provide
that “[a]lternates will replace principal
candidates who decline appointment or fail
to meet the physical requirements or the
security and suitability investigation.” 46.
C.F.R. § 310.57 (c).
B.
Analysis
Plaintiffs argue that they are entitled to
fill the three vacancies in Wisconsin’s
allocation to the Class of 2016. (Compl.
¶ H.)
Plaintiffs further argue that the
defendants’ decision “[I]s invalid because it
was made on unreasonable grounds and
without proper consideration of the
circumstances,” and that the decision not to
extend appointments to the plaintiffs was
arbitrary. (Compl. ¶¶ H, 16). Plaintiffs take
the position that the “defendants’ position
2
“Administrator” is defined in the regulations as
“[t]he Administrator of the Maritime Administration”
and “Administration” is defined in the regulations as
“[t]he Maritime Administration, Department of
Transportation.” 46 C.F.R. § 310.51.
9
patently violates the above regulations and
the Academy’s published position defining
its admission processes and was therefore
based on unreasonable grounds.” (Compl.
¶ 15.) However, for the reasons set forth
below, this Court concludes that the
defendants’ interpretation of the statute and
regulations is reasonable, and that plaintiffs
are not entitled to a writ of mandamus.
Transportation from a national list of
alternates. If “appointments” referred to the
actual enrollment of students rather than an
offer of admission, this statutory scheme and
language would simply not make sense.
Thus, it is clear from that statutory language
and framework that the defendants’
interpretation of an appointment as “an offer
of admission” is reasonable.
1. Appointments
2. Transition from State Alternate List to
National List
Defendants argue that the term
“appointment” is used in the laws governing
the admission procedures to the Academy to
mean an “offer of admission.” (Johnson
Declaration, ¶¶ 6, 34.) Based on the plain
meaning of the term in the statute, it is clear
that the defendants’ interpretation is correct.
Plaintiffs allege that “Defendant[s]
Kumar (and Johnson) have taken the
position that if they ‘offer’ appointments to
a state’s principle candidates, and if such
candidates do not accept by May 1, they can
then ignore and skip that part of the
regulations requiring that a state’s vacancies
be offered to a state’s alternate candidates
before such vacancies be offered to national
alternate
candidates. . . . defendants’
position patently violates the above
regulations and the Academy’s published
position defining its admission processes
and was therefore based on unreasonable
grounds.”
(Compl. ¶ 15.)
The Court
disagrees with the plaintiffs’ position and
concludes that defendants’ interpretation of
the statute and regulations is reasonable.
Although “[a]ppointment” is not defined
in the relevant statute or regulatory scheme,
the statutory language makes clear that it is a
reference to an offer of admission, not
enrollment.
In particular, the statute
provides that individuals may be nominated
for competitive appointment by those
persons enumerated in the statute. 46
U.S.C. § 51302(d)(1). The statute also gives
the Secretary of Transportation the power to
appoint individuals to fill the positions for
each jurisdiction. 46 U.S.C. § 51302(d)(2);
see also 46 C.F.R § 310.53. Moreover, the
statute also provides that “[i]f positions
remain unfilled after the appointments are
made under paragraph (2), the Secretary
may appoint individuals to fill the positions
in the order of merit of the remaining
individuals
nominated
from
all
jurisdictions.” 46 U.S.C. § 51302(d)(3); see
also 46 C.F.R § 310.53 Thus, it is clear
from the statutory language in Section
51302(d)(3) that, like an offer of admission,
a potential enrollee in the Academy may
turn down the appointment, and an alternate
may be selected by the Secretary of
First, the statute clearly gives the
Secretary the authority to establish the
system for selecting individuals who will
receive appointments.
See 46 U.S.C.
§ 51302(d)(1). The statute, however, directs
that “[t]he Secretary shall appoint
individuals to fill the positions allocated
under subsection (c) for each jurisdiction in
the order of merit of the individuals
nominated from that jurisdiction.” 46 U.S.C.
§ 51302(d)(2). The statute clearly provides
that “[i]f positions remain unfilled after the
appointments are made under paragraph (2),
the Secretary shall appoint individuals to fill
10
alternates will be considered from their
geographic location, but they will then be
considered from a national alternatives list
regardless of their location. The regulation
is silent as to the timing of that transition.
the positions in the order of merit of the
remaining individuals nominated from all
jurisdictions.” 46 U.S.C. § 51302(d)(3)
(emphasis added). Thus, the language of the
statute provides that unfilled vacancies are
to be filled from all jurisdictions, not just by
the alternates of each geographic location.
Moreover, plaintiffs’ reliance on 46
C.F.R. § 310.57(c) is misplaced. Although
plaintiffs are correct that it states that
“[a]lternates
will
replace
principal
candidates who decline appointment or fail
to meet the physical requirements or the
security and suitability investigation,” it
does not specify whether alternates will be
selected by geographic location or off of a
national list. Thus, the regulations do
provide that the Academy may extend
appointments to alternates, first based on
geography, then based on merit regardless of
residency.
Here,
the
USMAA
extended
appointments to a total of six qualified
nominees from Wisconsin, which was above
the allocation of four appointments for
Wisconsin. Although plaintiffs contend that
the statute requires the creation of an
alternate list of qualified nominees by
jurisdiction and the exhaustion of that list
before the selection of alternates on a
national level, the statute does not contain
any such language. The statute is, at a
minimum, ambiguous as to whether an
alternate list by jurisdiction is required and,
if so, whether that list must be exhausted
before transition to an national alternate list.
In light of the ambiguity in the statute
and regulations, the USMMA’s policy of
transitioning to the national list of alternates
after April 1 is not plainly erroneous or
inconsistent with the statute or regulations.
As explained in the supplemental
declaration, the transition to the national list
of alternates after April 1 is necessary to
ensure that the USMMA will be able to fill
its incoming class by the nationallyrecognized college acceptance deadline of
May 1. As the USMMA’s Director of
Admissions emphasizes, “Significantly, if
the USMMA did not transition to the
national list on or about April 1, it would be
at risk of under-enrollment and a less
qualified entering class in contravention of
46 U.S.C. § 51302(d)(3).” (Supplemental
Johnson Declaration, ¶ 17.) Thus, when the
USMMA’s compelling need to ensure that it
will be able to fill its incoming class
pursuant to the authority delegated by
Congress is analyzed in light of the
ambiguity in the statute and regulations as to
the transition to a national alternate list, the
The regulations also are ambiguous on
the issue of the timing of the transition to a
national list of alternates. Plaintiffs rely on
46 C.F.R. § 310.53(e)(1) and 310.57(c) and
claim that when read together, “it is clear
that the alternates from each state must
replace principals from that state who
decline appointments or fail to meet other
requirements.” (Compl. ¶ 10.) 46 C.F.R.
§ 310.53(e)(1)
provides
that,
after
appointments are made from among the
residents of each geographic area,
“[t]hereafter, appointments shall be made
from among residents of each geographic
area listed in paragraph (b) of this section.”
However, the section further states that
“[t]hereafter appointments shall be made
from among remaining qualified nominees
(national alternates) in order of merit
regardless of the area of residence” 46
C.F.R. § 310.53(e)(1) (emphasis added).
Thus, the very regulation relied upon by
plaintiffs clearly indicates that first
11
As explained in the Johnson Declaration,
the candidates are transferred to the national
alternates list on or about April 1 “[t]o
ensure that the [Academy] fills its incoming
class by the nationally recognized college
acceptance deadline of May 1.” (Johnson
Declaration, ¶ 23.) According to defendants,
May 1 is “the national date used universally
by all colleges, universities, and service
academies in the United States as the
deadline for accepting offers of admission.”
(Defendants’ Brief in Opposition to
Plaintiffs’ Order to Show Cause, 3-4.) Thus,
there is a “‘rational connection between the
facts found and the choice made.’” Motor
Vehicle Mfrs. 463 U.S. at 43 (quoting
Burlington, 371 U.S. at 168).
defendants’ interpretation of the statute and
its own regulations is reasonable.
Although plaintiffs argue that the statute
and regulations give the defendants
absolutely no discretion to move to the
national list until all the qualified alternates
from Wisconsin have been given
appointments according to the allocation and
have declined, that arguments fails for two
reasons. First, as discussed above, no such
language is explicitly contained in the
statute or regulations. Second, such an
interpretation, which would deprive the
defendants of all discretion as it relates to
the timing of appointments, could lead to
absurd results. For example, such a narrow
interpretation of the statute and regulations
would potentially require the defendants to
keep an appointment open to a state
alternate indefinitely, until the USMAA
received a response either accepting or
declining the appointment. Thus, the lack of
discretion to set deadlines and utilize the
national alternate list when necessary could
jeopardize the USMAA’s ability to fill its
incoming class. The USMAA, where the
statute and regulations are ambiguous,
should be permitted to interpret its own
regulations in a manner that allows the
USMAA, once appointments are initially
made in accordance with the statutory
allocations by jurisdiction, to fill any
remaining vacancies by utilizing an alternate
list by jurisdiction until April 1, but then
transitioning to the national alternate list to
ensure that the Class of 2016 is filled. Their
interpretation of their own regulations is
entitled to deference and is reasonable in
light of the ambiguous language of the
statute and regulations, as well as the
practical issues that the USMAA must
confront in creating and implementing an
admissions procedure that will allow for the
Class of 2016 to be filled from the list of
qualified
alternates,
regardless
of
jurisdiction.
Here, Congress has clearly given the
Secretary of Transportation, inter alia, the
power to maintain the Academy and develop
a system for competitive appointment of
individuals. 46 U.S.C. §§ 51301, 51302(d).
The statute promulgated by Congress clearly
provides that after the Secretary appoints
individuals to fill positions for each
jurisdiction in order of merit, the remaining
unfilled positions shall be filled “[i]n the
order of merit of the remaining individuals
nominated from all jurisdictions.” 46 U.S.C.
§ 51302(d). Thus, implicit in the statute is
the need for the Secretary to ensure that
there is a full class of upcoming students. In
order to fulfill this task, it is necessary that
certain deadlines, consistent with Congress’
mandate, be set in place. Moving candidates
from a geographical list of alternates to a
national alternates list approximately one
month prior to May 1 is consistent with the
need to fill an incoming class. Thus, there is
a need to determine an incoming class for
the Academy by early May of each year, and
therefore, moving candidates to a nationally
ranked list on or about April 1 each year is a
12
reasonable construction of the applicable
statute and regulations.3
However, this summary is not
inconsistent
with
the
defendants’
interpretation of the governing statute and
regulation. As noted above, the website
does tell applicants that, if the state fails to
fulfill its allotment, there will be a national
list of alternatives, ranked in order of merit,
from which vacancies will be filled. The
website is silent as to when the transition to
the national alternate list will occur. In
other words, it does not articulate the
particular point in time at which the
USMAA makes the determination that the
state has failed to fulfill its allotment and the
transition is made to the national alternate
list. Thus, although the April 1, 2012 date
of moving the candidates to the national list
is not noted, such a transition is not
inconsistent with the website’s language. In
any event, the language of the website,
while it may considered by the Court, is not
a binding agency interpretation.
Plaintiffs also attempt to argue that their
interpretation of the statute is consistent with
the Academy’s website’s description of the
appointment
and
alternate
process.
Plaintiffs note that the website states that
“remaining qualified candidates will be
designated as alternates, to be appointed in
order of merit should openings occur within
their states. (emphasis added) . . . In the
event that a state fails to satisfy its
allotment, appointments to fill the unfilled
vacancies are determined from the national
list of alternates, ranked in order of merit as
described above. . . . (emphasis added).
(Compl.
¶¶
11-12,
(citing
4
http://www.usmma.edu/admissions).)
3
As noted supra, defendant Johnson also states that
other federal service academies follow the same
procedure:
In sum, for the reasons discussed supra,
plaintiffs have not demonstrated an
entitlement to a writ of mandamus. As
discussed above, in order for a writ of
mandamus pursuant to 28 U.S.C. 1361, there
must be “(1) a clear right in the plaintiff to
the relief sought; (2) a plainly defined and
peremptory duty on the part of the defendant
to do the act in question; and (3) no other
adequate remedy available.” Anderson, 881
F.2d at 5. However, plaintiffs have failed to
demonstrate that they have a clear right to
enrollment in the Academy’s 2016 class, nor
have they demonstrated that the defendants
had a peremptory duty to offer them an
appointment.
As discussed supra, the
statutory scheme and regulations provide
that alternates will be selected based on
geography and then based on a nationally
ranked list. Plaintiffs are unable to identify
It is my understanding that [the Academy’s]
admissions practice is consistent with the
practices followed by other Federal service
academies that have similar admissions
procedures.
For example, it is my
understanding that the United States
Military Academy and the United States
Naval Academy both similarly interpret the
term “appointment” (as the term is used in
the laws governing their admissions
procedures) to mean an “offer of
admission,” rather than an enrollment. In
addition, it is my understanding that those
academies transition from a list of qualified
nominees from each jurisdiction to a
national list on or about April 1 of each year,
just as the [Academy] does.
(Johnson Declaration, ¶ 34.) Thus, although not
dispositive, the evidence that several other federal
service academies in the United States have reached
the same interpretation under analogous statutes and
regulations provides additional support for the
reasonableness of the defendants’ interpretation.
cited
text
was
located
http://www.usmma.edu/admissions/facts/appointment
s.shtml (accessed June 26, 2012).
4
The Court was unable to locate the cited text at
http://www.usmma.edu/admissions. However, the
13
any section of the relevant statute or
regulation that unambiguously gives them a
right to be appointed.
Moreover, as
discussed supra, this Court has found that,
given the ambiguity in the statute and
regulations, defendants’ interpretation of its
own regulations is entitled to deference and
is reasonable. Accordingly, plaintiffs are
not entitled to mandamus relief.
V. CONCLUSION
For the reasons set forth above, and
orally on the record on July 3, 2012, the
Court denies plaintiffs’ application, by order
to show cause, for declaratory relief and a
writ of mandamus in its entirety.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: July 5, 2012
Central Islip, NY
* * *
The attorney for plaintiffs is Lawrence J.
Bowles, Nourse & Bowles, LLP, One
Exchange Plaza at 55 Broadway, New York,
New York 10006-3030. Defendants are
represented by Loretta E. Lynch, United
States Attorney, by James Knapp and
Thomas A. McFarland, Assistant United
States Attorneys, 610 Federal Plaza, Central
Islip, New York 11722.
14
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