Attorneys for the Navy secretary and the Naval Academy superintendent have asked a federal judge to dismiss a midshipman’s lawsuit against them, saying the court doesn’t have jurisdiction to rule on a recommendation that the mid is unfit for service because of racists tweets he sent last summer.
The motion to dismiss and a response, standard initial steps in a lawsuit, spelled out additional arguments in the dispute just before a hearing Friday in U.S. District Court. A federal judge will consider Midshipman 1st Class Chase Standage’s request to block the Navy’s steps to dismiss him until his lawsuit can be heard.
Adm. Sean Buck, Superintendent of the Naval Academy, recommended Standage be separated from the academy after an investigation found that his series of tweets sent over the summer were inappropriate and, in some cases, racist. Tweets included calling for drone strikes on civilians, which some considered to be antifa activists, and saying Breonna Taylor “received justice” when she was killed by police officers while asleep in her bed in Louisville, Kentucky.
Standage’s attorney, Naval Academy grad Jeffrey McFadden, has asked that the motion to dismiss be denied.
McFadden did not respond to requests for comment. The U.S. Attorney’s Office for Maryland declined to comment.
In arguing that Judge Ellen Hollander should dismiss the lawsuit, U.S. Attorney for Maryland Robert Hur and Assistant U.S. Attorney Kelly Marzullo argued that Braithwaite and Buck are entitled to sovereign immunity, which gives the federal government protection from lawsuits without its consent.
It’s up to Standage to prove the need to waive that immunity, and Hur and Marzullo argued the lawsuit does not meet such a burden, according to the motion to dismiss filed Oct. 14.
In his Oct. 20 response, McFadden cites a 1967 case Wasson v. Trowbridge, in which a midshipman at the U.S. Merchant Marine Academy challenged his separation on the basis of lack of due process. In the case, the government, too, argued sovereign immunity, but the federal judge hearing the lawsuit found it did not apply.
Hur and Marzullo also argued that Standage prematurely filed the lawsuit. Braithwaite has yet to decide on the recommendation and the process has been stalled by the legal proceedings.
Because Standage had not exhausted all of his administrative appeals, including hearing Buck’s determination, responding to a notice of discharge, appealing to the assistant secretary of the Navy for manpower and reserve affairs and the Board of Correction of Naval Records, his claims are “not yet ripe for consideration before a court,” the attorneys argued.
However, McFadden argued that Standage does not need to exhaust all administrative options, and questioned the integrity of the process. He highlighted President Donald Trump’s executive order and an Office of Management and Budget directive stopping any training on critical race theory.
“A Superintendent who violated the regulation concerning MIDN Standage’s out-processing, who continues to violate the President’s executive order and OMB directive on critical race theory indoctrination at taxpayer’s expense, and a Secretary of the Navy who has not ordered the Superintendent to stop doing so, now ask this Court to defer to the integrity of their administrative and military processes,” McFadden wrote in his motion.
Even if the judge decides the courts have the jurisdiction to hear the lawsuit, Hur and Marzullo argue that the case should be dismissed because it has no merit and that hearing it will have a damaging effect on the Navy.
“The question is ultimately whether [Standage’s] conduct is unsatisfactory considering his violations of Article, 133, [Uniform Code of Military Justice], and the [Naval Academy’s] political activities instruction,” they wrote.
The federal attorneys argue that Standage’s claims that his First and Fifth amendment rights were violated will not hold up because a determination that conduct was unbecoming an officer is the responsibility of the superintendent and that deciding on fitness to serve is a military decision.
If this lawsuit is heard, there will be potential interference in the military’s functioning, Hur and Marzullo wrote.
“This case — if heard at this premature time — will open the door to untimely complaints by future midshipmen and military personnel who seek to circumvent the ‘hierarchy of command’ that is critical to the United State’s ability to maintain a ready and lethal fighting force,” the attorneys wrote.
McFadden, in his response, argues that Standage faces harm from potentially being expelled.
“The harm continues each day MIDN Standage sits under Defendants’ Sword of Damocles, irrespective of the possibility that [the assistant secretary of the Navy, Manpower and Reserve Affairs] might reject the Superintendent’s separation recommendation,” McFadden wrote.
Hollander will hear arguments over a preliminary injunction in a remote session because of coronavirus safety restrictions at the courthouse in Baltimore.
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