Kevin M. Rustad v. United States Air Force, the Secretary of the Air Force Superintendent, United States Air Force Academy, and the Academy Board

718 F.2d 348, 1983 U.S. App. LEXIS 16485

Opinions

McWILLIAMS, Circuit Judge.

The issue is whether the Due Process Clause of the Fifth Amendment precludes the Air Force from denying a First Class (Senior) cadet representation by retained counsel at disenrollment hearings before a Hearing Officer and an Academy Board. The district court held that the Due Process Clause did not preclude such denial. We agree, and affirm.

Kevin M. Rustad was a First Class (Senior) cadet at the United States Air Force Academy when he was charged on February 12, 1982, with a number of conduct violations. The Vice-Commandant of Cadets notified Rustad by letter that an action was being brought under the provisions of Air Force Regulation (AFR) 53-3 to disenroll Rustad from cadet status. AFR 53-3 is entitled “Disenrollment of United States Air Force Cadets” and sets forth the administrative procedure governing disenrollment.

Footnotes

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Rustad was charged with being absent from required duty, maintaining a residence off the Academy, having an unauthorized guest in his room and other violations, including theft and the use of marijuana. Rustad exercised his right to present his case to a Hearing Officer and to have advice of counsel prior to the hearing. However, Rustad’s request that he be permitted to have retained counsel present during the proceedings before the Hearing Officer was denied.

Hearings were held before the Hearing Officer from March 9 to March 31, 1982. Rustad was present at these hearings, but without counsel. The report of the Hearing Officer was sent to the Academy Board on April 12,1982. The report stated that Rustad had not committed any theft, nor had he used marijuana. However, he was found to have committed various infractions of Academy rules and regulations.

Rustad then asked that he be allowed to appear with retained counsel before the Academy Board on April 28, 1982, the date when the Board was to consider Rustad’s case and determine its recommendation concerning disenrollment, which recommendation would be forwarded to the Secretary of the Air Force. Rustad’s request was denied. On April 29, 1982, the Academy Board decided that Rustad did not remain qualified as a candidate for graduation, and that he should no longer be allowed to attend classes or otherwise participate in Academy activities and training.

Rustad then filed a proceeding in the United States District Court for the District of Colorado seeking to enjoin enforcement of the Board’s order and to bar disenrollment. The district court denied a preliminary injunction, and Rustad appeals. 28 U.S.C. § 1291. We affirm.

The appellees contend that by the passage of time the dispute is now moot. It is true that the immediate relief sought by Rustad was to be placed back in the classroom in May, 1982, and to be allowed to take final exams, and that such is no longer possible. However, that is not necessarily the only relief which could be fashioned by this Court should Rustad prevail on the merits. It is conceivable that the appellees could be ordered to reinstate Rustad and allow him to somehow take up his academic work where he involuntarily left off in May, 1982. Such might be difficult, but still possible. In any event, we decline to dismiss on the grounds of mootness.

The district court did not err in denying the injunctive relief sought by Rustad. Under the circumstances described above, Rustad, under the Due Process Clause, did not have a constitutional right to be represented by retained counsel at either the proceeding before the Hearing Officer or at the deliberations of the Academy Board. In support of our holding, see Hagopian v. Knowlton, 470 F.2d 201 (2d Cir.1972) and Wasson v. Trowbridge, 382 F.2d 807 (2d Cir.1967).

Counsel would distinguish the above cited cases on the ground that in the present case Rustad was initially charged, though subsequently cleared, of criminal charges, and that Hagopian and Wasson indicated that a different result might be reached, where criminal acts were involved, as opposed to the typical disenrollment procedure based on non-criminal derelictions. Such distinction, in our view, does not have present pertinency. This was purely a disenrollment proceeding from the start, with the ultimate recommendation by the Board for disenrollment being based solely on military misdeeds, not criminal acts. Rustad’s due process rights were not violated.

Judgment affirmed.

Such procedure does not permit either the cadet or the government to be represented by counsel at the hearing. However, a cadet may have counsel “standing by,” available for consultation at any recess of the hearing. Rustad was so advised.