20-1356-cv Hearn v. United States

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of February, two thousand twenty-one.

Present: DEBRA ANN LIVINGSTON, Chief Judge, JOSÉ A. CABRANES, GERARD E. LYNCH, Circuit Judges. _____________________________________

JOHN B. HEARN,

Plaintiff-Appellant,

v. 20-1356

UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT OF TRANSPORTATION, UNITED STATES MERCHANT MARINE ACADEMY, MIKEL STROUD, JAMES A. HELIS,

Defendants-Appellees.* _____________________________________

For Plaintiff-Appellant: MICHAEL D. CASSELL, Hogan & Cassell, LLP, Jericho, NY

* The Clerk of Court for the U.S. Court of Appeals for the Second Circuit is respectfully directed to amend the official caption as shown above.

1 For Defendants-Appellees: VARUNI NELSON & DIANE C. LEONARDO for Seth D. DuCharme, Acting United States Attorney for the Eastern District of New York

Appeal from a judgment of the United States District Court for the Eastern District of New

York (Spatt, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant John B. Hearn appeals from the district court’s grant of Defendants’

motion for summary judgment and denial of Hearn’s cross-motion for summary judgment,

dismissing Hearn’s claims under the Administrative Procedure Act,

et seq. (the

“APA”), and the Due Process Clause of the Fifth Amendment. We assume the parties’ familiarity

with the underlying facts, the procedural history of the case, and the issues on appeal.

* * *

We review the district court’s grant of summary judgment de novo. Darnell v. Pineiro,

(2d Cir. 2017). On Hearn’s procedural due process claim, we examine whether

“the school has ‘fully informed [Hearn] of the faculty’s dissatisfaction with [his] progress and the

danger that this posed to timely graduation and continued enrollment,’” and whether the U.S.

Merchant Marine Academy’s “ultimate decision to dismiss [him] was careful and deliberate.”

Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis.,

(2d Cir. 2015)

(quoting Bd. of Curators of Univ. of Mo. v. Horowitz,

(1978)). On his substantive

due process claim we look to whether there was “a substantial departure from accepted academic

norms as to demonstrate that the person or committee responsible did not actually exercise

professional judgment.” Regents of Univ. of Mich. v. Ewing,

(1985). And

finally, we determine whether, as required by the APA, “[t]here [was] sufficient evidence in the

2 record to provide rational support for the choice made by the [Academy].” Const. Pipeline Co.,

LLC v. N.Y. State Dep’t of Envtl. Conservation,

(2d Cir. 2017) (internal quotation

marks omitted). For Hearn’s APA claim in particular, our review is limited, as the district court

correctly asserted, to “whether the administrative record adequately supports the Academy’s

decision, not whether it was proper in light of all the evidence unearthed during discovery.”

App’x 1644–45 (citing Brodsky v. U.S. Nuclear Regulatory Comm’n,

(2d Cir.

2013)).

On independent review of the record and relevant case law, we can find no error in the

district court’s conclusions on any of Hearn’s claims. The Academy disenrolled Hearn after he

failed six courses, including the same course twice, as reflected in Hearn’s official transcript, and

after four separate referrals to the school’s Academic Review Board (“ARB”). The Academy

had more than generously granted him two prior opportunities to get his grades on track through a

prior period of academic probation and then probationary setback, but Hearn continued to violate

the terms of his probation agreements, which required that he not fail any additional course.

Hearn was also afforded the opportunity to appeal the recommendation of the ARB in a hearing

with the Dean of Students (Mikel Stroud), the Academic Dean (Preston DeJean), and the

Superintendent (James Helis), which was conducted in accordance with the Academy’s Academic

Policies Handbook. Finally, Hearn argues that he was entitled to more elaborate process because

his disenrollment was disciplinary rather than academic. Hearn had a previous disciplinary

incident for which he was sanctioned short of disenrollment after a process that he does not

challenge. While that prior disciplinary action was mentioned during his disenrollment

proceeding, the Academy has the discretion to “consider[] and weigh[] a variety of factors” in its

academic evaluation of Hearn. Horowitz,

n.6. Hearn offers no evidence that

3 suggests that the disenrollment process, which the undisputed evidence shows was instituted for

academic reasons, focused on academic matters, and resulted in Hearn’s disenrollment based on

his multiple academic failures, was disciplinary rather than academic. On these facts, we

conclude that the Academy’s decision to disenroll Hearn was rational, “careful and deliberate,”

Dean,

(quoting Horowitz,

), and within “accepted academic norms.”

Ewing,

. Moreover, any alleged factual dispute asserted by Hearn was fully

considered and addressed by the court below. Our independent review of the record compels us

to affirm for substantially the same reasons as those set forth in the district court’s very thorough

decision.

We have considered all of Hearn’s arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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