Case 1:20-cv-02830-ELH Document 8 Filed 10/14/20 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

CHASE STANDAGE,
Plaintiff,
v.

Civ. No. ELH-20-2830

KENNETH J. BRAITHWAITE, et al.,
Defendants.

DEFENDANTS’ MOTION TO DISMISS AND
OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
The Superintendent of the United States Naval Academy (USNA) has the statutory
authority to determine whether “the conduct of a midshipman is unsatisfactory” in discharge
proceedings. 10 U.S.C. § 8462(a)(1). If the Secretary of the Navy believes, on the basis of the
Superintendent’s report and the midshipman’s statement, that the determination of the
Superintendent is “reasonable and well founded,” he may discharge the midshipman from the
Naval Academy and from the naval service. Id. § 8462(b). The Superintendent may initiate similar
proceedings if the continued presence of any midshipman at the Academy is contrary to the best
interest of the service. Id. § 8461. Midshipmen may be placed on involuntary leave without pay
pending separation from the Academy. Id. § 702(b).
Plaintiff challenges his pending discharge proceedings from the USNA on the ground that
his First Amendment rights were violated by the application of the USNA political activities
regulation to his conduct. At the time of filing of this action on September 30, 2020, Midshipman
First Class Chase Standage had been orally notified that he would be processed for separation;
however, processing was halted before formal written notifications, opportunity for rebuttal,

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discharge, or appeal to the Board for Correction of Naval Records (BCNR) could occur. (See ECF
No. 5.)
This Court lacks subject matter jurisdiction to consider Plaintiff’s claims for several
reasons. First, Plaintiff’s claims are not yet ripe for consideration before a court. Second, Plaintiff
has not yet exhausted any avenues of administrative relief, including his opportunity to hear the
Superintendent’s determination in this case, respond to a notification of discharge if required,
allow the Assistant Secretary of the Navy, Manpower & Reserve Affairs (ASN M&RA) 1 to make
a final decision, and appeal to the BCNR. Moreover, even if Plaintiff had exhausted his
administrative remedies, the Court also lacks jurisdiction because Plaintiff’s claims raise a
nonjusticiable military controversy and because Plaintiff fails to articulate claims that would waive
the Federal Government’s sovereign immunity. Similarly, the Court lacks authority to grant
Plaintiff’s requested relief and declare that he graduate, participate in the Voluntary Graduate
Education Program (VGEP), or receive a commission. Consequently, Plaintiff’s Complaint must
be dismissed.
Even if this Court had jurisdiction over Plaintiff’s claims, Plaintiff cannot clearly establish
even one of the four elements required to permit this Court to grant preliminary relief. The burden
is even heavier in cases of military discharge in light of the significant deference courts must give
to military decision-making. Plaintiff comes nowhere close to making this elevated showing.
Therefore, if this Court does exercise jurisdiction here, it should nonetheless deny Plaintiff’s
motion for preliminary injunction.

1

The Secretary of the Navy delegated his authority under 10 U.S.C. § 8462 to the ASN (M&RA)
via SECNAVINST 1531.4A, Ex. A, and SECNAV Memo 1 Nov 2007, Ex. B. Under
SECNAVINST 1531.4A, the ultimate decision for disenrollment of a midshipman for misconduct
resides with the ASN (M&RA).
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BACKGROUND
During June 2020, Plaintiff, under the moniker “Cheese Sandwich,” posted a number of
tweets on Twitter that contained crude commentary on a number of social issues. One such tweet
discusses Breonna Taylor, who died in a no-knock police raid of her apartment on March 13, 2020.
In response to a tweet asking why it was taking so long for Breonna Taylor to receive justice,
Plaintiff tweeted: “Her justice was received on March 13, 2020.” Ex. C. The Naval Academy’s
investigation also found six tweets that advocate the use of lethal force against civilians such as an
airstrike within Seattle, Washington. Ex. D.
On August 6, 2020, the Deputy Commandant found Plaintiff violated Commandant of
Midshipmen Notice (COMDTMIDNNOTE) 5720 on Political Activities of Midshipmen, Ex. E,
and Uniform Code of Military Justice (UCMJ) Article 133 Conduct Unbecoming an Officer and a
Gentleman, 10 U.S.C. § 133. 2 Ex. F. The Chief of Staff considered Plaintiff’s request for
reconsideration on September 2, 2020. Ex. G. The Chief of Staff determined that the
preponderance of evidence supported the findings of misconduct. The reconsideration specifically
rejected Plaintiff’s First Amendment claim:
I do not find that your First Amendment rights were violated.
Midshipman are encouraged to be engaged citizens and are
permitted to express personal political opinions, as long as they do
so in a professional and respectful manner. The issue with your
social media comments was in the manner in which you expressed
your opinions, not necessarily with your opinions themselves.
Id.
In compliance with the separation procedures in Commandant of Midshipmen Instruction

2

The military has jurisdiction over offenses based on the status of the accused as a member of the
Armed Services. Solorio v. United States, 483 U.S. 435, 450-51 (1987). Although midshipmen are
not commissioned officers, Article 133, UCMJ, expressly applies to midshipmen. 10 U.S.C. § 933.
3

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(COMDTMIDNINST) 1610.2K, Administrative Performance and Conduct System, Ex. H, the
Chief of Staff conducted a hearing with Plaintiff on September 10, 2020, Ex. I. The Chief of Staff
considered Plaintiff’s case file and overall record, written and in-person character witnesses, and
Plaintiff’s attorney’s submissions. Id. The Chief of Staff recommended to the Superintendent that
Plaintiff be disenrolled from the Naval Academy and wrote: “Midshipman First Class Standage
has lost my confidence in his ability to make sound decisions and to uphold the core values
expected from an officer in the Navy.” Id.
Following an emergency telephone conference on the day this action was filed, the Court
ordered the suspension Plaintiff’s disenrollment process pending the outcome of his Motion for
Preliminary Injunction. (ECF No. 5.) If the Superintendent does submit a report recommending
discharge under 10 U.S.C. § 8462(a), Plaintiff will be given an opportunity to examine the report
and submit a written statement before Secretarial action. 10 U.S.C. § 8462(b).
LEGAL STANDARDS
I.

Motion to Dismiss for Lack of Subject Matter Jurisdiction
A motion to dismiss for lack of subject matter jurisdiction raises the question of whether

the court has the authority to hear and decide the case. See Davis v. Thompson, 367 F. Supp. 2d
792, 799 (D. Md. 2005). The plaintiff bears the burden of proving that subject matter jurisdiction
exists. See Piney Run Preservation Ass’n v. Cnty. Comm’rs of Carroll Cnty., Md., 523 F.3d 453,
459 (4th Cir. 2008). When a defendant challenges subject matter jurisdiction, the court is to regard
the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings
without converting the motion to one for summary judgment. Evans v. B.F. Perkins Co., 166 F.3d
642, 647 (4th Cir. 1999) (quoting Richmond, Fredericksburg & Potomac R. Co. v. U.S., 945 F.2d
765, 768 (4th Cir. 1991)). In addition, the court may properly grant a motion to dismiss for lack of

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subject matter jurisdiction “where a claim fails to allege facts upon which the court may base
jurisdiction.” Davis, 367 F. Supp. 2d at 799 (citation omitted).
II.

Preliminary Injunction
“A preliminary injunction is ‘an extraordinary remedy that may only be awarded upon a

clear showing that the plaintiff is entitled to such relief.’” Mountain Valley Pipeline, LLC v. W.
Pocahontas Props. Ltd. P’ship, 918 F.3d 353, 366 (4th Cir. 2019) (quoting Winter v. Nat. Res.
Def. Council, 555 U.S. 7, 22 (2008)). A party seeking a preliminary injunction bears the burden of
establishing that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in
the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction
is in the public interest. Winter, 555 U.S. at 20. Each of these four factors must be satisfied to
obtain preliminary injunctive relief. Henderson v. Bluefield Hosp. Co., 902 F.3d 432, 439 (4th Cir.
2018). Consequently, if the party seeking the injunction fails to make a clear showing of any one
of the four factors, the Court need not consider the remaining factors and must deny the preliminary
injunction. See id. at 438-39.
When a case involves “complex, subtle, and professional decisions as to the composition,
training, equipping, and control of a military force,” the Court gives “great deference to the
professional judgment of military authorities concerning the relative importance of a particular
military interest.” Roe v. United States DOD, 947 F.3d 207, 219 (4th Cir. 2020) (quoting Winter,
555 U.S. at 24).
ARGUMENT
The Court must dismiss Plaintiff’s Complaint for lack of subject matter jurisdiction
because Defendants are entitled to sovereign immunity, Plaintiff’s claims are premature, and
Plaintiff’s claims raise a nonjusticiable military controversy. Each of these grounds is

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independently sufficient to require jurisdictional dismissal. Even if the Court did possess
jurisdiction over Plaintiff’s claims, Plaintiff cannot clearly establish any of the four elements
required to permit the Court to grant preliminary relief and, therefore, his motion for preliminary
injunction must be denied. If granted, such injunctive relief would result in a chilling effect on
command decisions if Sailors can preempt processing of separation actions by skipping the entire
chain of command and administrative processes, enacted through authority ultimately vested by
the legislature, and severely constrain the Secretary of the Navy’s responsibility to man, train, and
equip the Navy and the Marine Corps through accessions control, including from the USNA. See
10 U.S.C. § 8013(b). Allowing midshipmen to “bypass[. . .] the hierarchy of the armed services
seeking injunctions to overturn personnel decisions of their superiors in civilian courts could
substantially alter and interfere with the ‘peculiar and special relationship of the soldier to his
superiors.’” Dibble v. Fenimore, 339 F.3d 120, 128 (2d Cir. 2003) (quoting United States v. Brown,
348 U.S. 110, 112 (1954)).
I.

The Court lacks subject matter jurisdiction to consider Plaintiff’s claims.
A.

Defendants enjoy sovereign immunity to Plaintiff’s claims.

It is axiomatic that the United States and its agencies and officers are immune from suit
unless they have consented to suit. Fed. Deposit Ins. Co. v. Meyer, 510 U.S. 471, 475 (1994);
United States v. Mitchell, 445 U.S. 535, 538 (1980). Such consent can be effected only by an
express and unequivocal waiver of sovereign immunity by Congress, and cannot be implied. Lane
v. Pena, 518 U.S. 187, 192 (1996); Mitchell, 445 U.S. at 538; Beneficial Consumer Disc. Co. v.
Poltonowicz, 47 F.3d 91, 93-94 (3d Cir. 1995); see also Kokotis v. United States Postal Serv., 223
F.3d 275, 278 (4th Cir. 2000) (“Sovereign immunity can be waived only by the sovereign: the
circumstances of its waiver must be scrupulously observed and not expanded by the courts.”);

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Presidential Gardens Assocs. v. United States ex rel. Sec’y of Hous. & Urban Dev., 175 F.3d 132,
140 (2d Cir. 1999) (“[T]he federal government’s sovereign immunity may only be waived by
Congressional enactment.”).
A waiver of sovereign immunity must be “strictly construed, in terms of its scope, in favor
of the sovereign.” Lane, 518 U.S. at 192; see United States v. Nordic Vill., Inc., 503 U.S. 30, 34
(1992); Beneficial Consumer Disc., 47 F.3d at 94. “Sovereign immunity is jurisdictional in
nature[;] . . . the ‘terms of the United States’ consent to be sued in any court define that court’s
jurisdiction to entertain the suit.’” Meyer, 510 U.S. at 475 (quoting United States v. Sherwood, 312
U.S. 584, 586 (1941)). An action is presumed to lie outside of a district court’s limited jurisdiction,
and the burden of establishing the contrary rests upon the party asserting jurisdiction. Kokkonen v.
Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Therefore, the plaintiff bears the burden of
establishing a sovereign immunity waiver for a claim against the United States, Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000); Cato v. United States, 70 F.3d 1103, 1107 (9th
Cir. 1995), and must establish a waiver for each individual claim and each form of relief. See
generally 14 Fed. Prac. & Proc. § 3654 (3d ed. 1998). Plaintiff’s claims must be dismissed because
Plaintiff has failed to identify an express waiver of sovereign immunity as to any of his claims and
any of the relief he seeks.
First, the Declaratory Judgment Act, 28 U.S.C. §§ 2201, et seq., “plainly does not operate
as an express waiver of sovereign immunity . . . because it neither provides nor denies a
jurisdictional basis for actions under federal law, but merely defines the scope of available
declaratory relief.” Worsham v. U.S. Dep’t of the Treasury, Civ. No.: ELH-12-2635, 2013 WL
5274358, at *7 (D. Md. Sept. 17, 2013) (quoting Muirhead v. Meacham, 427 F.3d 14, 17 n.1 (1st
Cir. 2005)) (quotation marks omitted); see also Balistrieri v. United States, 303 F.2d 617, 619 (7th

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Cir. 1962) (“It is axiomatic that a suit cannot be maintained against the United States without its
consent. The passage of the Declaratory Judgment Act did not give such consent.” (citations
omitted)); Johnson v. Sessions, Civ. No. RDB-15-3317, 2017 WL 1207537, at *6 (D. Md. Apr. 3,
2017) (slip copy) (“[I]t is apparent that the United States has not waived sovereign immunity as to
the plaintiffs’ declaratory judgment claims.”). Therefore, Plaintiff’s claims under the Declaratory
Judgment Act and for declaratory relief are barred by sovereign immunity and must be dismissed.
Similarly, the First and Fifth Amendments do not operate as waivers of sovereign
immunity. Hopes v. Roche, Civ. No. RDB-04-2963, 2005 WL 1812820, at *7 (D. Md. Aug. 2,
2005) (quoting Garcia v. United States, 666 F.2d 960, 966 (5th Cir. 1982)) (“The Constitution
does not waive the Government’s sovereign immunity in a suit for damages.”) Rather, a waiver of
sovereign immunity, “if it exists at all, must be found in [a] statute giving rise to the cause of
action.” Id. (quoting Garcia, 666 F.2d at 715-18); Lim v. United States, Civ. No. DKC-10-2574,
2011 WL 2650889, at *8 (D. Md. July 5, 2011) (“Federal courts have no jurisdiction over claims
against the United States asserting general violations of the Constitution not authorized by specific
statute.”). Congress has not waived the sovereign immunity of federal agencies for alleged
violations of the Free Speech Clause of the First Amendment or the Due Process Clause of the
Fifth Amendment. See Meyer, 510 U.S. 484-86; see also Hopes, 2005 WL 1812820, at *7; cf.
Weiss v. Price, Civ. No. ELH-17-1127, 2018 WL 1156770, at *4 (D. Md. Mar. 2018), aff’d sub
nom, Weiss v. Azar, Civ. No. ELH-17-1127, 2018 WL 6478025 (D. Md. Dec. 7, 2018), appeal
dismissed, No. 19-1147, 2019 WL 8301806 (4th Cir. May 8, 2019) (“In the absence of any
Congressional manifestation of consent to be sued for alleged constitutional violations, subject
matter jurisdiction is lacking for [Plaintiff’s] Fifth Amendment takings claim.”); Ronquest v.
Newton, Civ. No. 5:15-CT-3179-FL, 2017 WL 177624, at *2 (E.D.N.C. Jan. 17, 2017) (citing

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Loeffler v. Frank, 486 U.S. 549 (1988); Global Mail Ltd. v. U.S. Postal Svc., 142 F.3d 208, 210
(4th Cir. 1998)) (dismissing claim for violation of the First Amendment against a federal agency
on the grounds that the “federal government and its agencies are not subject to suit absent a waiver
of sovereign immunity”). Therefore, Plaintiff’s First Amendment free speech claim and Fifth
Amendment due process claim are barred by the government’s immunity to suit.
Lastly, the federal question statute, 28 U.S.C. § 1331, unequivocally “is not a general
waiver of sovereign immunity.” Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996) (citation
omitted). Rather, it “merely establishes a subject matter that is within the competence of federal
courts to entertain.” Id. (citation omitted); see also Radin v. United States, 699 F.2d 681, 685 n.9
(4th Cir. 1983) (noting that 28 U.S.C. § 1331 is “merely a jurisdictional grant that in no way affects
the sovereign immunity of the United States”); Humphreys v. United States, 62 F.3d 667 (5th Cir.
1995) (holding that 28 U.S.C. § 1331, by granting district courts jurisdiction over constitutional
claims, does not thereby waive sovereign immunity).
Accordingly, because Plaintiff cannot identify a waiver of the government’s sovereign
immunity to his claims, this action must be dismissed for lack of subject matter jurisdiction. 3
Meyer, 510 U.S. at 475.
B.

Plaintiff’s claims are premature.

Article III of the Constitution limits the jurisdiction of federal courts to actual “cases and
controversies.” Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006) (quoting U.S. Const. art. III, §
2). A case is fit for judicial decision when the issues are purely legal and when the action in
controversy is final and not dependent on future uncertainties. Charter Fed. Sav. Bank v. Office of

3

Although the Administrative Procedure Act (APA) waives the government’s sovereign immunity
for “final agency action,” 5 U.S.C. § 702, Plaintiff has not pleaded a cause of action under the
APA. Moreover, even if he did, he has not alleged and cannot show any final agency action.
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Thrift Supervision, 976 F.2d 203, 208 (4th Cir. 1992). “To determine whether the case is ripe, we
balance the fitness of the issues for judicial decision with the hardship to the parties of withholding
court consideration. A case is fit for judicial decision when the issues are purely legal and when
the action in controversy is final and not dependent on future uncertainties.” Miller, 462 F.3d at
319 (citations omitted).
Discharge from the Naval Academy and naval service only becomes final upon Secretarial
action. See 10 U.S.C. § 8462(b). At the time of pleadings, the parties and the Court can only
speculate what action the ASN (M&RA) might take on behalf of the Secretary of the Navy.
Therefore, because the issues in this case are not purely legal but are, instead, heavily fact
dependent, and the ultimate action is not final but is dependent on future uncertainties, this case is
precisely the type unfit for judicial decision. See Miller, 462 F.3d at 319; Charter Fed. Sav. Bank,
976 F.2d at 208.
Even if Plaintiff’s claims were ripe, this Court should dismiss them for Plaintiff’s failure
to exhaust available intraservice corrective measures. “[A] court should not review internal
military affairs ‘in the absence of (a) an allegation of the deprivation of a constitutional right, or
an allegation that the military has acted in violation of applicable statutes or its own regulations,
and (b) exhaustion of available intraservice corrective measures.’” Williams v. Wilson, 762 F.2d
327, 359 (4th Cir. 1985) (quoting Mindes v. Seaman, 453 F.2d 197, 201 (5th Cir. 1971)); see also
Roe, 947 F.3d at 217-18 (holding in 2020 that Mindes continues to be the law of the Fourth Circuit).
Failure to exhaust all available intraservice remedies may render any federal court claim (and any
request for immediate injunctive relief sought along with that claim) “a nonjusticiable military
controversy,” requiring a district court to dismiss the claim “without prejudice as premature.”
Williams, 762 F.2d at 359-60; see also Guerra v. Scruggs, 942 F.2d 270, 276-77 (4th Cir. 1991).

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Plaintiff seeks to not only bypass the well-established intraservice remedies available to him, but
to preclude the ASN (M&RA) from making any decision on his case at all by obtaining premature
review in federal court. The Superintendent and ASN (M&RA) have authority to consider the very
arguments that Plaintiff presents here, and thereafter make a decision; moreover, the BCNR has
the authority to review Plaintiff’s arguments upon timely petition and alter any discharge, order
back pay and allowances, and recommend reinstatement into the Navy. See 10 U.S.C. § 1552.
Allowing the administrative process to proceed, up to and including possible BCNR review,
“might completely obviate the need for judicial review” or, at the very least, provide the Court
with “a definitive interpretation of the [applicable] regulation and an explication of the relevant
facts from the highest administrative body in the [service’s] own appellate system.” Navas v. Vales,
752 F.2d 765, 770-71 (1st Cir. 1985) (quoting Hodges v. Callaway, 499 F.2d 417, 422 (5th Cir.
1974)). Further, under a “consistent and unambiguous line of cases,” the Fourth Circuit has
“reject[ed] the contention that constitutional claims should be exempt from exhaustion
requirements.” Nationsbank Corp. v. Herman, 174 F.3d 424, 429 (4th Cir. 1999). Plaintiff is
entitled to present all of his arguments to the ASN (M&RA) and BCNR. There is no reason for
this Court to weigh in on the proper application of those regulations to Plaintiff before the Navy
itself has had an opportunity to make a decision in this case. Indeed, Plaintiff could ultimately
prevail in the administrative proceedings. In any event, this action is premature and must be
dismissed as such.
C.

Even if Plaintiff had properly exhausted his available intraservice remedies,
his claims raise a nonjusticiable military controversy.

Even if Plaintiff’s claims satisfied the threshold requirements of the Williams/Mindes
analysis, the Court would be required to balance four factors to determine if it could properly
consider the case:
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(1) the nature and strength of the plaintiff’s challenge to the military
determination;
(2) the potential injury to the plaintiff if review is refused;
(3) the type and degree of anticipated interference with the military
function; and
(4) the extent to which the exercise of military expertise or
discretion is involved.
Williams, 762 F.2d at 359 (quoting Mindes, 453 F.2d at 201-02). In this case, none of these factors
weigh in favor of this Court taking jurisdiction over Plaintiff’s claims. The question is ultimately
whether his conduct is unsatisfactory considering his violations of Article 133, UCMJ, and the
USNA’s political activities instruction.
First, Plaintiff’s First Amendment challenge has no likelihood of success. As fully
discussed below, Plaintiff’s free speech claim fails under the Supreme Court guidance in Parker
v. Levy, 417 U.S. 733 (1974) and the Article 133, UCMJ, private speech test from United States v.
Hartwig, 39 M.J. 125, 128 (C.A.A.F. 1994).
The due process claim in the complaint also fails. The decision that the conduct of a
midshipman is unsatisfactory belongs to the Superintendent, and the decision to discharge belongs
to the Secretary. 10 U.S.C. § 8462(a)(1). Plaintiff’s assertion that the Superintendent improperly
influenced lower-level proceedings through command climate fails to acknowledge that the
decisions in section 8462(a)(1) ultimately belong to the Superintendent and a higher ranking
military authority.
Second, the potential injury to the Plaintiff in this case is limited. As fully discussed below,
Plaintiff cannot successfully demonstrate a First Amendment harm. Plaintiff will have ample
recourse for his military status, including the opportunity to submit a statement for a decision by
the ASN M&RA, as well the ability to appeal to the BCNR. Significantly, Plaintiff has no
guarantee or right to either graduation from the Academy or commission as an officer.

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Third, the anticipated interference with military function is significant. 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
States’ ability to maintain a ready and lethal fighting force. Allowing midshipmen to “bypass[. . .]
the hierarchy of the armed services seeking injunctions to overturn personnel decisions of their
superiors in civilian courts could substantially alter and interfere with the ‘peculiar and special
relationship of the soldier to his superiors.’” Dibble, 339 F.3d at 128 (quoting Brown, 348 U.S. at
112).
Fourth, the determination of fitness for a midshipmen is an inherently military decision.
Congress authorized the Superintendent to initiate disenrollment proceedings “whenever the
Superintendent determines that the conduct of a midshipman is unsatisfactory.” 10 U.S.C. §
8462(a)(1). Congress even limited the Secretary’s review. The Secretary reviews only whether, on
the basis of the Superintendent’s report and midshipman’s statement, the determination is
“reasonable and well founded.” Id. § 8462(b). Because Congress limited even the Secretary’s
review, there is no indication that it intended a full scope of judicial review.
None of the four Williams/Mindes factors weigh in favor of considering Plaintiff’s claims.
Significantly, Plaintiff’s free speech claim is particularly weak on the merits and completely
intertwined with military discretion. In order for this Court to evaluate an officer’s private speech
under Article 133, UCMJ, the test is whether the officer’s speech “poses a clear and present danger
that the speech will, in dishonoring or disgracing the officer personally, seriously compromise[]
the person’s standing as an officer.” United States v. Hartwig, 39 M.J. 125, 128 (C.A.A.F. 1994)
(quotations omitted). Review of that fact-specific determination in Plaintiff’s case is
nonjusticiable.

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II.

Plaintiff cannot demonstrate entitlement to preliminary injunctive relief.
A preliminary injunction is an “extraordinary and drastic remedy.” Mazurek v. Armstrong,

520 U.S. 968, 972 (1997). Plaintiff has not met his burden to make a clear showing that he is
entitled to preliminary relief. To succeed on his motion, Plaintiff must clearly demonstrate each of
four elements: (1) he is “likely to suffer irreparable harm in the absence of preliminary relief”; (2)
he is “likely to succeed on the merits”; (3) “that the balance of equities tips in his favor;” and (4)
“that an injunction is in the public interest.” Winter, 555 U.S. at 20. “Winter ma[kes] clear that
each of these four factors must be satisfied to obtain preliminary injunctive relief.” Henderson,
902 F.3d 439. Consequently, if Plaintiff fails to make a clear showing of any one of the four factors,
the Court need not consider the remaining factors and must deny the preliminary injunction. See
id. at 438-39. Plaintiff has not established any of these elements, let alone all four of them.
Accordingly, his motion must be denied.
A.

Plaintiff has no likelihood of success on the merits.
1.

Plaintiff’s claims are nonjusticiable.

Fourth Circuit precedent is clear that, in a case that cannot be heard because the court lacks
subject matter jurisdiction, the plaintiff has “no likelihood of success on the merits.” Guerra, 942
F.2d at 277. As explained above, see supra Part I, review is unavailable here for several reasons,
including sovereign immunity, ripeness, and Plaintiff’s failure to exhaust his intraservice remedies.
Id. at 276-77; see also Williams, 762 F.2d at 359. Plaintiff therefore must obtain review of any
potential, future separation decisions through the BCNR before coming to court. See Williams, 762
F.2d at 360 (“The [Army Board for Correction of Military Records (ABCMR)] is better equipped
than the courts. . . . The ABCMR has far greater experience that this court in deciphering the
content and effect of military regulations and should be permitted to exercise its expertise.” (citing

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Navas, 752 F.2d at 769-70)). For this reason alone, Plaintiff cannot demonstrate that he is likely
to succeed on the merits.
2.

Even if Plaintiff’s claims were justiciable, his constitutional claim fails.

The Supreme Court has “long recognized that the military is, by necessity, a specialized
society separate from civilian society.” Parker v. Levy, 417 U.S. 733, 743 (1974). “Speech that is
protected in the civil population may nonetheless undermine the effectiveness of response to
command. If it does, it is constitutionally unprotected.” Id. at 759 (upholding a conviction under
Article 133, UCMJ, based on statements criticizing the Vietnam War).
For civilian speech, the Supreme Court has applied the concept of viewpoint
discrimination to the First Amendment. Sorrell v. IMS Health Inc., 564 U.S. 552, 571 (2011). No
court has applied the doctrine to military speech, and the military-specific holding in Parker
prevents the application of the civilian viewpoint discrimination standard within the military. The
anti-war statements at issue in Parker reflected a content-specific viewpoint, which formed the
basis of a court-martial conviction under Article 133 ultimately upheld by the Supreme Court. See
Parker, 417 U.S. at 736-38. As the Supreme Court looked to military cases to determine the scope
of protected speech under Article 133 in Parker, see id. at 758-59, so too should this Court.
Article 133 provides: “Any commissioned officer, cadet, or midshipman who is convicted
of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may
direct.” 10 U.S.C. § 933. Conduct unbecoming under Article 133, UCMJ, is a military offense
that “reflect[s] a high level of congressional concern” for officer—and future officer, i.e.,
midshipmen and cadet— conduct. United States v. Voorhees, 79 M.J. 5, 16 (C.A.A.F. 2019)
(citing United States v. Haverty, 76 M.J. 199, 205 n.10 (C.A.A.F. 2017)). “Because officer
behavior is so important, ‘criminal liability for [conduct unbecoming] does not depend on whether

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conduct actually effects a harm upon [a] victim,’ but rather on whether the officer possessed the
general intent to act indecorously, dishonestly, or indecently.” Id. (quoting United States v.
Caldwell, 75 M.J. 276, 282 (2016)). “The gravamen of [Article 133, UCMJ] is that the officer’s
conduct disgraces him personally or brings dishonor to the military profession such as to affect
his fitness to command . . . so as to successfully complete the military mission.” United States v.
Schweitzer, 68 M.J. 133, 137 (C.A.A.F. 2009) (internal quotation marks omitted). Plaintiff’s
reliance on case law for Article 134, UCMJ, 10 U.S.C. § 934, which—unlike Article 133, applies
to both officers and enlisted personnel, and requires conduct that is service-discrediting or
prejudicial to good order and discipline—is thus misplaced.
“When an alleged violation of Article 133 is based on an officer’s private speech, the test
is whether the officer’s speech poses a ‘clear and present danger’ that the speech will, ‘in
dishonoring or disgracing the officer personally, seriously compromise[] the person’s standing as
an officer.’” United States v. Hartwig, 39 M.J. 125, 128 (C.A.A.F. 1994) (quoting para. 59c(2),
Part IV, Manual for Courts-Martial, United States, 1984). “That Article 133 affronts no
constitutional concept has seemingly never been in doubt.” Id. (quoting United States v. Howe,
37 CMR 429, 440 (C.M.A. 1967)).
While this Court may articulate and uphold the constitutional standard, it must not
substitute its judgment for that of military authorities. See Goldman v. Weinberger, 475 U.S. 503,
507 (1986). When evaluating whether military needs justify a particular restriction on otherwise
protected conduct, “courts must give great deference to the professional judgment of military
authorities concerning the relative importance of a particular military interest.” Id. (citing
Chappell v. Wallace, 462 U.S. 296, 305 (1983)). In this case, a military commander is better
situated to evaluate whether comments that advocate for the use of airstrikes against civilians

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dishonor or disgrace an aspiring naval aviator and compromise his standing as an officer.
Military authorities considered Plaintiff’s social media statements and determined that he
violated Article 133, Conduct Unbecoming. 4 Plaintiff advocated the use of lethal military force
against civilians and indicated that Breonna Taylor received justice when she died in a no-knock
police raid. Exs. C and D. As articulated by the Chief of Staff: “Midshipman First Class Standage
has lost my confidence in his ability to make sound decisions and to uphold the core values
expected from an officer in the Navy.” Ex. I. Because Plaintiff’s speech poses a clear and present
danger that his speech will, in dishonoring or disgracing him personally, seriously compromise
his standing as an officer, the Article 133 violation easily passes constitutional scrutiny. See
Hartwig, 39 M.J. at 128. Plaintiff has absolutely no likelihood of success on the merits, and this
Court must deny the preliminary injunction.
B.

Plaintiff cannot show irreparable harm.

Plaintiff’s motion for a preliminary injunction must be denied because he cannot make a
“clear showing” of likely irreparable harm. See Winter, 555 U.S. at 22. Plaintiff’s reliance on First
Amendment harm case law is misplaced because, as shown above, there is no First Amendment
violation.
In cases involving military personnel decisions, courts require the moving party to make a
much stronger showing of irreparable harm than the ordinary standard for injunctive relief. See
Guerra, 942 F.2d at 274; see also Hartikka v. United States, 754 F.2d 1516, 1518 (9th Cir. 1985).
The Supreme Court has recognized that where federal civilian employees seek immediate

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Plaintiff also violated COMDTMIDNNOTE 5720 on Political Activities of Midshipmen. The
order prohibits, inter alia, showing contempt for public officials, releasing sensitive information,
or posting unprofessional material that is prejudicial to good order and discipline under the UCMJ.
The government defends that result, but the Court need not consider it due to the plethora of legal
support on the Article 133 offense.
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injunctive relief from termination, the employee must make an extraordinary showing of
irreparable harm beyond the traditional evidence necessary to sustain preliminary injunctive relief.
Sampson v. Murray, 415 U.S. 61, 91-92 (1974).
Assuming for the purpose of discussion that respondent had made a
satisfactory showing of loss of income and had supported the claim
that her reputation would be damaged as a result of the challenged
agency action, we think the showing falls far short of the type of
irreparable injury which is a necessary predicate to the issuance of a
temporary injunction in this type of case.
Id.; see also id. at 84.
Here, Plaintiff’s claims arise in the military personnel context, where courts have provided
extraordinary deference. See, e.g., Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953); Hartikka, 754
F.2d at 1518; Chilcott v. Orr, 747 F.2d 29, 33 (1st Cir. 1984) (“[M]ilitary discharge proceedings
should be enjoined only in exceptional circumstances.”). The Fourth Circuit has held “that
Sampson’s higher requirement of irreparable injury should be applied in the military context given
the federal courts’ traditional reluctance to interfere with military matters.” Guerra, 942 F.2d at
274.
In Guerra, the Fourth Circuit applied this heightened standard to circumstances involving
pending military discharge proceedings—an enlisted National Guard soldier sought immediate
injunctive relief to preclude his forthcoming separation based on conclusory allegations of
reputational loss and pay—and held that the soldier simply could not demonstrate the necessary
irreparable harm. Id. at 274-75. Courts have not hesitated to reject claims of stigma or reputational
injury from service members discharges. See id. at 274 (holding that even a “general discharge
under honorable conditions is not an injury of sufficient magnitude to warrant an injunction.”);
Chilcott, 747 F.2d at 34; McBride v. West, 940 F. Supp. 893, 896 (E.D.N.C. 1996).
Even in the absence of this precedent, Plaintiff’s injuries are simply not irreparable.
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Plaintiffs can obtain review from the BCNR, which is empowered to “correct any military record
. . . when the Secretary considers it necessary to correct an error or remove an injustice,” 10 U.S.C.
§ 1552(a), and may (in conjunction with the Secretary of the Navy) order Plaintiff’s reinstatement
and backpay. In the event that—and not before—the BCNR denies his request for relief, Plaintiff
has an alternate course of recovery in either the Court of Federal Claims (which can “provide an
entire remedy”) under the Tucker Act, Mitchell v. United States, 930 F.2d 893, 896-97 (Fed. Cir.
1991)) or this Court (under the APA).
In sum, because Plaintiff cannot establish the necessary irreparable harm to justify
preliminary injunctive relief, this Court should deny his motion without addressing the other
Winter factors. See Henderson, 902 F.3d at 438-39.
C.

The remaining equitable factors do not favor preliminary injunctive
relief.

The remaining equitable factors—which merge when the government is a party, Nken v.
Holder, 556 U.S. 418, 435 (2009)—also do not favor preliminary injunctive relief. The Fourth
Circuit recognized the harm to the military from the entry of preliminary injunctive relief in
Guerra, noting that the harm “is greater than it first appears.” 942 F.2d at 275. This is so because
“injunctions would be routinely sought in . . . discharge cases” and “[t]he result would be judicial
second-guessing of a kind that courts have been reluctant to engage in.” Id.
The same is true here. If this Court were to grant preliminary relief, any cadet or
midshipman facing disenrollment could seek similar relief in the federal courts before the services
could evaluate the service member’s arguments for retention, issue a decision on separation, and
provide review from the services’ correction boards. A preliminary injunction would also entangle
the Court in “professional military judgments,”—“complex, subtle, and professional decisions as
to the composition, training, equipping, and control of a military force,” Winter, 555 U.S. at 24
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(citations omitted)—in a way that would interfere “with the subordinate decisions of military
authorities” and “frustrate[] the national security goals that the democratic branches have sought
to achieve,” Thomassen v. Perry, 80 F.3d 915, 926 (4th Cir. 1996).
The public interest also would not be served by ordering the Navy to stop processing
Plaintiff’s separation. See Guerra, 942 F.2d at 280 (holding that the public interest did not weigh
in favor of immediate injunctive relief to preclude military member’s discharge based on same
analysis as the balancing of harms). Indeed, in the context of personnel actions, it is in the public
interest to “allow[] the military, in an orderly fashion, to fully adjudicate claims on the part of its
own personnel, free of unnecessary interference by the federal courts.” McBride, 940 F. Supp. at
897. Permitting court involvement prior to the exhaustion of administrative remedies undermines
the trust placed in the military to regulate its own actions and results in judicial second guessing
of military actions prior to their completion.
Thus, the final two factors weigh in the government’s favor, not Plaintiff’s. For these
reasons, Plaintiff cannot clearly establish any of the preliminary injunction factors, let alone all
four of them. His motion, therefore, must be denied. See Henderson, 902 F.3d at 439.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that this Court dismiss Plaintiff’s
Complaint and deny Plaintiff’s Motion for a Preliminary Injunction.

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Respectfully submitted,
Robert K. Hur
United States Attorney

By: /s/ Kelly M. Marzullo
Kelly M. Marzullo (Bar No. 28036)
Assistant United States Attorney
36 South Charles Street, 4th Floor
Baltimore, Maryland 21201
(410) 209-4956 (direct)
(443) 762-5842 (mobile)
(410) 962-2310 (fax)
kelly.marzullo@usdoj.gov

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