                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_____________________________
                               )
ALAN MATTHEW SPADONE,         )
                               )
          Plaintiff,           )
                               )
          v.                   )    Civil Action No. 11-1601 (RWR)
                               )
JOHN M. MCHUGH,               )
                               )
          Defendant.           )
_____________________________ )

                     MEMORANDUM OPINION AND ORDER

     Plaintiff Alan Spadone filed this complaint against

Secretary of the Army John McHugh, alleging that the Secretary’s

actions, including his order disenrolling Spadone from the United

States Military Academy (“West Point”) and directing Spadone to

serve as an enlisted solider in the Army, violated the

Administrative Procedures Act (“APA”), 5 U.S.C. § 702 et seq.,

the Due Process Clause of the Fifth Amendment, and the

Establishment Clause of the First Amendment, and unjustly

enriched the Army.    The Secretary has moved to dismiss the

complaint or for summary judgment.    Because the Secretary is

entitled to judgment on Spadone’s APA and due process claims

since Spadone received the process that was due and the Secretary

did not violate the APA, and the Secretary is entitled to

dismissal of the unjust enrichment claim since the United States

has not waived its sovereign immunity for a claim of unjust

enrichment that seeks equitable relief, the Secretary’s motion
                                  -2-

will be granted in part.   However, because the Secretary has not

justified dismissing the Establishment Clause claim and disputed

material facts bar summary judgment on that claim, the

Secretary’s motion will be denied in part.

                              BACKGROUND

     The background of this case is discussed more fully in

Spadone v. McHugh, Civil Action No. 11-1601 (RWR), 2012 WL

393056, at * 1-3 (D.D.C. Feb. 8, 2012).      Briefly, in July 2007,

Spadone enrolled at West Point.    (Compl. ¶ 13.)    In

February 2009, Spadone asked West Point’s Dean to allow him to

enroll in a study-abroad program.       The Dean denied Spadone’s

request in September 2009, and denied reconsidering that decision

in October 2009, after Spadone had started his third year of

study at West Point.   (Id. ¶¶ 23-24, 26.)      A cadet who starts a

third year of study incurs an active duty service obligation.

One who leaves before then does not incur an active duty service

obligation.   (Id. ¶¶ 22-23.)

     In November 2009, Spadone admitted that he violated West

Point’s honor code by committing plagiarism in writing an

October 2009 essay.    (Def.’s Mot. to Dis., Def.’s Stmt. of Facts

(“Def.’s Stmt.”) ¶¶ 8, 13.)     Spadone submitted another assignment

in November that his course’s professor, Dr. Terri Sabatos,

suspected involved dishonorable documentation.      Spadone told her

he had been merely careless, and he later signed two statements
                                 -3-

denying that the second essay violated the honor code.    (Def.’s

Stmt. ¶¶ 15-16, 20; A.R. 403-404.)     In February 2010, West

Point’s Commandant for Honor Matters referred Spadone to an Honor

Investigative Hearing for three charges of violating the honor

code: one charge of plagiarizing in the October paper, one charge

of plagiarizing in the November paper, and one charge of lying to

his professor about the November paper.    (Def.’s Stmt. ¶ 25.)

       Spadone pled guilty to plagiarizing in the October essay at

an Honors Investigative Board hearing held on March 8, 2010.      The

Honors Investigative Board also determined that the allegations

of plagiarizing in the November essay were supported by a

preponderance of the evidence but the allegation of lying was

not.   (Compl. ¶¶ 42, 44; Def.’s Stmt. ¶¶ 31-32.)

       In April 2010, Spadone was questioned about his honor code

violations by a panel composed of the Commandant of Cadets, a

Command Sergeant Major, five cadets from the Cadet Honor

Committee, and Spadone’s Tactical Officer.    (Compl. ¶ 46.)

According to Spadone, the Commandant of Cadets indicated during

the hearing that Spadone had not properly shown contrition or

accepted responsibility for the honor code violations, and

ordered Spadone to stand with his body rigid in a military

posture and to read aloud the “Cadet’s Prayer.”     (Id. ¶¶ 47-48.)

The prayer says in part, “O God, our Father, Thou Searcher of

human hearts, help us to draw near to Thee in sincerity and
                                   -4-

truth.   May our religion be filled with gladness and may our

worship of Thee be natural. . . .        Help us . . . in doing our

duty to Thee[.]”   (Id. ¶ 47.)

     In May 2010, West Point’s Superintendent disenrolled Spadone

from West Point for the summer of 2010, delayed his graduation by

one year, placed Spadone in a “suspended separation status” until

graduation, and enrolled Spadone in the Honor Mentorship Program

(“HMP”) under specific conditions.       (Compl. ¶ 51; Def.’s Stmt.

¶ 41.)   Spadone was told to begin the HMP process before leaving

West Point for the summer, but Spadone did not do so.         After

returning in the fall, he did not engage in the HMP for over a

month until an officer directed him to do so, and he refused to

wear an HMP brass insignia as ordered.       (See A.R. 21.)

     In October 2010, the Special Assistant to the Commandant for

Honor Matters recommended vacating the suspension of Spadone’s

separation from West Point because Spadone had not submitted

journal entries that met the requirements of the HMP.         (Compl.

¶ 65; A.R. 23.)    In December 2010, the West Point Superintendent

suspended Spadone and placed him on an authorized leave of

absence without pay pending the Army’s final decision on his

disenrollment.    (Compl. ¶ 75.)   In August 2011, Spadone learned

that the Secretary signed orders disenrolling Spadone from West

Point and ordering Spadone to report in October 2011 for two

years on active duty as an enlisted soldier.       (Id. ¶¶ 82, 86.)
                                  -5-

     Spadone filed his complaint for injunctive relief in this

action in September 2011 challenging the Secretary’s actions as

arbitrary, capricious and in violation of due process.   He also

alleged that ordering him to read aloud the Cadet’s Prayer

violated the Establishment Clause of the First Amendment, and

that the delay in denying his study abroad enrollment unjustly

enriched the Army by triggering his active duty military service

obligation.   In addition to back pay, his complaint seeks full

reinstatement at West Point and expungement of all records of his

HMP failure, or, in the alternative, an order requiring the

Secretary to discharge Spadone from West Point without requiring

a period of enlisted military service.    He also seeks any other

relief that is just and proper.    (Compl. ¶ 150.)1

     The Secretary has now moved to dismiss or for summary

judgment on all counts of Spadone’s complaint.    Spadone opposes.

                            DISCUSSION

     “‘Summary judgment may be appropriately granted when the

moving party demonstrates that there is no genuine issue as to

any material fact and that moving party is entitled to judgment

as a matter of law.’”   Pueschel v. Nat’l Air Traffic Controllers

Ass’n, 772 F. Supp. 2d 181, 183 (D.D.C. 2011) (quoting Bonaccorsy

v. Dist. of Columbia, 685 F. Supp. 2d 18, 22 (D.D.C. 2010)


     1
       The Secretary has changed Spadone’s reporting date from
October 10, 2011 to July 23, 2012. (See Notice of Pl.’s
Reporting Status at 2.)
                                  -6-

(citing Fed. R. Civ. P. 56(c)).    “‘In considering a motion for

summary judgment, [a court is to draw] all ‘justifiable

inferences’ from the evidence . . . in favor of the nonmovant.’”

Pueschel, 772 F. Supp. 2d at 183 (quoting Cruz-Packer v. Dist. of

Columbia, 539 F. Supp. 2d 181, 189 (D.D.C. 2008) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986));

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986)).   “The relevant inquiry ‘is the threshold inquiry of

determining whether there is a need for a trial - - whether, in

other words, there are any genuine factual issues that properly

can be resolved only by a finder of fact because they may

reasonably be resolved in favor of either party.’”   Single Stick,

Inc. v. Johanns, 601 F. Supp. 2d 307, 312 (D.D.C. 2009) (quoting

Anderson, 477 U.S. at 250) (overruled on other grounds by Prime

Time Int’l Co. v. Vilsack, 599 F.3d 678 (D.C. Cir. 2010)).      A

genuine issue is present in a case where the “evidence is such

that a reasonable jury could return a verdict for the non-moving

party,” a situation wholly distinct from a case where the

evidence is “so one-sided that one party must prevail as a matter

of law.”   Anderson, 477 U.S. at 248, 252.

     “In general, courts tread ‘lightly on the military domain,

with scrupulous regard for the power and authority of the

military establishment to govern its own affairs within the broad

confines of constitutional due process.’”    Spadone, 2012 WL
                                  -7-

393056, at *3 (quoting Friedberg v. Resor, 453 F.2d 935, 937 (2d

Cir. 1971)).

     To show that interference into the personnel decisions
     of the Superintendent is warranted, Spadone must make a
     very compelling case that he was denied process
     explicitly given to him by statute, or that the Army’s
     decision was arbitrary or capricious. “The Court's
     deference to the military is at its highest ‘when the
     military, pursuant to its own regulations, effects
     personnel changes through the promotion or discharge
     process.’” Housman v. Baratz, 916 F. Supp. 23, 28
     (D.D.C. 1996) (quoting Dilley v. Alexander, 603 F.2d
     914, 920 (D.C. Cir. 1979)). Judicial review of
     personnel decisions of the armed forces is limited to a
     determination of whether they were arbitrary,
     capricious or contrary to the Constitution, statutes,
     or governing regulations. Housman, 916 F. Supp. at 28
     (citing Blevins v. Orr, 721 F.2d 1419, 1421 (D.C. Cir.
     1983)).

Spadone, 2012 WL 393056, at *5.

I.   COUNTS 1-6: APA AND DUE PROCESS

     The APA “requires courts to ‘hold unlawful and set aside

agency action, findings, and conclusions’ that are ‘arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.’”   Wilhelmus v. Geren, 796 F. Supp. 2d 157,

160 (D.D.C. 2011) (quoting 5 U.S.C. § 706(2)(A)).   A decision is

arbitrary or capricious under the APA if an agency failed to

provide a reasoned explanation, failed to address reasonable

arguments, or failed to consider an important aspect of the case.

See Pettiford v. Sec’y of the Navy, 774 F. Supp. 2d 173, 181-82

(D.D.C. 2011).   “‘[T]he scope of review under the arbitrary and

capricious standard is narrow and a court is not to substitute
                                   -8-

its judgment for that of the agency.’”    Pettiford, 774 F. Supp.

2d at 182 (quoting Motor Vehicle Mfrs. Ass’n v. State Farm, 463

U.S. 29, 43 (1983).2

     Count 1 of Spadone’s complaint alleges that the Secretary’s

decision to disenroll Spadone for failing to follow the

requirements of the HMP violated the APA because it was

arbitrary, capricious, and an abuse of discretion.    Specifically,

Spadone argues that the Secretary relied on undefined, nebulous

concepts that were not present in West Point’s regulations, such

as journal entries “denying the intent” of West Point’s

guidelines.   (Pl.’s Mem. at 8.)    Spadone also asserts that the

HMP regulations do not provide an ascertainable standard to

determine whether a cadet violates the HMP, and that the


     2
       Spadone may have waived the claims found in Counts 2
through 6 of the complaint. As was mentioned in the previous
opinion,

     [a] review of the record reveals that most of the
     claims in the complaint that could have been raised
     below were not raised below. “Generally . . . issues
     and arguments not made before the relevant military
     correction board or administrative agency are deemed
     waived and could not be raised in a judicial tribunal.”
     Christian v. United States, 46 Fed. Cl. 794, 802
     (2000). Spadone does not refute that he raised during
     the administrative proceedings just one of the claims
     presented in his complaint, namely, a challenge to the
     standards used for finding that Spadone failed the HMP
     program. (Def.’s Opp’n at 19; Def.’s Mem. in Supp. of
     Mot. for Summ. J. at 5, 8.)

Spadone, 2012 WL 393056, at *5. However, even if Spadone has not
waived the claims in Counts 2 through 6, judgment will be entered
against him for the reasons discussed below.
                                -9-

Secretary abused his discretion by failing to provide Spadone

with the opportunity to write extra journal entries for weeks

when he was unable to write the sufficient amount.   (Compl.

¶¶ 97-106.)

     However, the Secretary provided a reasoned explanation that

offered fair grounds for his decision.3   See Chamness v. McHugh,

814 F. Supp. 2d 7, 14 (D.D.C. 2011) (finding that a decision of

the Army Board for Correction of Military Records was not

arbitrary or capricious since it “minimally contain[ed] a

rational connection between the facts and the choice made”).

Although Spadone argues that the HMP lacked measurable standards

for components such as journal entries, the Secretary explained

that Spadone failed to comply with even unambiguous requirements

of the HMP.   Spadone was told to begin the HMP process before


     3
       That is not always the case with agency decisions.
Cf. Wilhelmus, 796 F. Supp. 2d at 163-164 (holding that the Army
Board for the Correction of Military Records acted arbitrarily
and capriciously when it affirmed a decision to recoup $137,630
from a cadet who was disenrolled for unintentionally failing the
Cadet Physical Fitness Test because the Board ignored precedent
that disallowed recoupment for failing that test); El Rio Santa
Cruz Neighborhood Health Ctr., Inc. v. Dep’t of Health and Human
Serv., 300 F. Supp. 2d 32, 42-43 (D.D.C. 2004) (holding that the
Secretary of Health and Human Services acted arbitrarily and
capriciously when it denied malpractice insurance coverage to
physicians who were situated similarly to other physicians who
were granted malpractice insurance coverage); Wagner v. Geren,
614 F. Supp. 2d 12, 18-20 (D.D.C. 2009) (holding that the Army
Board for Correction of Military Records arbitrarily and
capriciously denied the plaintiff a 20-year service retirement
because when it calculated the plaintiff’s service time, it
relied on a document that it could not produce or otherwise prove
existed).
                               -10-

leaving West Point for the 2010 summer but he did not, he failed

to engage in the HMP for over a month after returning in the fall

of 2010 until an officer directed him to do so, and he refused to

wear a brass insignia as ordered.     It was not arbitrary or

capricious for the military to sanction such misbehavior, and

second-guessing the sanction’s severity is not within the limited

purview of judicial review of the military’s personnel decisions.

     Count 2 alleges that the Secretary violated Spadone’s Fifth

Amendment right to due process by not providing Spadone with a

hearing or an opportunity to present a defense after he was

deemed to have failed the HMP and before the Secretary

disenrolled him.   (Compl. ¶¶ 107-110.)   In Count 3, Spadone

alleges that the Secretary violated his Fifth Amendment right to

due process and the APA by failing to complete the cadet honor

proceedings within 40 days in violation of West Point’s own

internal procedures.   The procedure he cites explains that

“standard processing time for honor cases, under normal

circumstances, is 40 days from inception through a finalized

decision by the Superintendent.”    (Id. ¶ 95, citing USCC PAM 15-1

¶ 204.)   In Count 4, Spadone asserts that the Secretary violated

Spadone’s Fifth Amendment right to due process and the APA by

failing to separate him immediately after he failed the HMP

program, and the delay deprived Spadone of his chance to enroll
                                -11-

in a different college or secure other employment.     (Compl.

¶¶ 122-27.)

     In general, a procedural due process violation consists of a

(1) deprivation by the government, (2) of life, liberty, or

property, (3) without due process of law.     Lightfoot v. Dist. of

Columbia, 273 F.R.D. 314, 319 (D.D.C. 2011) (citing Propert v.

Dist. of Columbia, 948 F.2d 1327, 1331 (D.C. Cir. 1991)).

     Spadone has shown neither that the Secretary deprived him of

a liberty or property interest, nor that the process he received

was inadequate.    See Kentucky Dep’t of Corr. v. Thompson, 490

U.S. 454, 460 (1989).    “[T]here is no protected property interest

in continued military service.”    Wilhelm v. Caldera, 90 F. Supp.

2d 3, 8 (D.D.C. 2000); see also Hanson v. Wyatt, 552 F.3d 1148,

1158 (10th Cir. 2008).    In addition, the record shows that

Spadone received notice in October 2010 that he was deemed to

have failed the HMP4 (A.R. 21-22), and that Spadone used his

opportunity to present a defense before he was disenrolled.      His

attorney submitted to the West Point Superintendent in

December 2010 a letter (A.R. 12-15)5 challenging Spadone’s

proposed separation based upon his alleged failure to complete

the HMP as “arbitrary and capricious, an abuse of discretion, and



     4
         The complaint concedes as much.   (Compl. ¶ 109.)
     5
       The letter sought relief but did not request a hearing.
(A.R. 12 ¶ 2.)
                                -12-

not in accordance with the law.”     (Id. at 12.)   The Secretary’s

disenrollment decision was amply explained to Spadone.     Aside

from the fact that Spadone did not raise this challenge below, he

cites no authority for a court to override an amply explained

military disenrollment decision that was announced beyond the

“standard processing time . . . under normal circumstances.”

Nor can it be true that according Spadone due process after he

failed the HMP program, rather than immediately separating him

without it, violates due process or the APA.

     Count 5 claims that the Secretary violated Spadone’s

Fifth Amendment right to due process and the APA by wrongly

advising Spadone in August 2010 that he had already begun his

third year and incurred his active duty military service

obligation.   (Compl. ¶¶ 128-134.)     Count 6 asserts that the

Secretary violated Spadone’s Fifth Amendment right to due process

and the APA by failing to advise Spadone of his right to remain

silent before he was interviewed about his first honor code

violation.    (Id. ¶¶ 38-39, 135-138.)

     The record shows that the Secretary is entitled to judgment

on Counts 5 and 6.   The advice that Spadone complains of in

Count 5 was not objectively wrong, as Spadone had begun his third

year even before he committed his first honor code violation in

October 2009.   Similarly, Spadone has failed to rebut the record

evidence that the interview in which he was not initially
                                -13-

informed of his right to remain silent was not one that required

a prior advice of rights.6    The professor to whom Spadone

submitted the plagiarized essay conducted an “approach for

clarification . . . to determine if there [was] a reasonable

explanation for the situation. . . .    There is no requirement to

provide a rights warning during an approach for clarification.”

(Def.’s Stmt. ¶¶ 11-12.)7    Therefore, judgment will be entered

for the Secretary on Counts 1 through 6.

II.   COUNT 7: ESTABLISHMENT CLAUSE

      Count 7 alleges that the Secretary violated Spadone’s rights

under the Establishment Clause when, during the April 2010



      6
       The caption of Count 6 and paragraph 138 within that Count
refer to questioning in connection with a single honor code
violation, not multiple alleged violations. Paragraph 38 of the
complaint, which Count 6 incorporates by reference (Compl.¶ 135),
specifies that the questioning occurred during the interview
conducted by Major Anthony George, Dr. Terri Sabatos, and Cadet
Adam J. Bishop.   Sworn statements by Dr. Sabatos, Cadet Bishop
and Major George reflect that the contact occurred on November 6,
2009 and was “an approach for clarification” about the
October essay. (A.R. at 575, 580, 601.) The three met in
advance to review the proper way to conduct an approach for
clarification to assure that it was not an accusatory session
(id. at 580, 601), and Major George told Spadone during the
interview that this was not an accusation, but a chance to
clarify the similarities between his paper and a journal article.
(Id. at 575, 581.)
      7
       Even if Dr. Sabatos’ interview regarding the November
essay were at issue, the Secretary’s dismissal decision was based
upon a full record that included careful examination and
assessment of this interview as an approach for clarification
that required no prior advice of rights. (See A.R. 70-106,
196-98.) Spadone has provided no basis for substituting a
judicial assessment for the Secretary’s.
                               -14-

hearing, the Commandant of Cadets forced Spadone to recite a

religious prayer.   (Compl. ¶¶ 139-144.)   The Establishment Clause

provides that “Congress shall make no law respecting an

establishment of religion.”   U.S. Const. amend. I.    The Supreme

Court has explained that “the purpose of the Establishment and

Free Exercise Clauses of the First Amendment is ‘to prevent, as

far as possible, the intrusion of either [the church or the

state] into the precincts of the other.’”   Lynch v. Donnelly, 465

U.S. 668, 672 (1984) (citing Lemon v. Kurtzman, 403 U.S. 602, 614

(1971)).   “For decades, the Supreme Court has tested the

constitutionality of state action under the Establishment Clause

pursuant to a standard first articulated in Lemon. . . .”      Newdow

v. Bush, 355 F. Supp. 2d 265, 283 (D.D.C. 2005).      The Lemon test

upholds a government’s action only if it has a “secular . . .

purpose” and its “principal or primary effect . . . neither

advances nor inhibits religion.”   Lemon, 403 U.S. at 612-13.    And

the Constitution guarantees that government must not coerce

anyone to support or participate in religion or its exercise.

Lee v. Weisman, 505 U.S. 577, 587 (1992).    For example, military

service academies violate the Establishment Clause when they

force their students to attend religious services.     See Anderson

v. Laird, 466 F.2d 283, 290 (D.C. Cir. 1972).

     The Secretary does not argue that a compelled monotheistic

prayer has a secular purpose or that it does not advance
                               -15-

religion.   Instead, the Secretary argues that Spadone lacks

standing to assert an Establishment Clause claim.

     “[A] showing of standing is an essential and unchanging
     predicate to any exercise of [a court’s] jurisdiction.”
     Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C.
     Cir. 1996) (internal quotation marks omitted). In
     order for a plaintiff to establish standing to bring a
     constitutional claim, Article III requires that the
     plaintiff demonstrate (1) that he has suffered "an
     injury in fact" that is “(a) concrete and
     particularized and (b) actual and imminent, not
     conjectural or hypothetical,” (2) that there exists
     “a causal connection between the injury and the conduct
     complained of,” that is, that the injury is “fairly
     traceable to the challenged action of the defendant,”
     and (3) that it is “likely, as opposed to merely
     speculative, that the injury will be redressed by a
     favorable decision.” Lujan v. Defenders of Wildlife,
     504 U.S. 555, 560–61 (1992) (internal quotation marks
     and citations omitted).

Urban Health Care Coalition v. Sebelius, Civil Action No. 06-2220

(RWR), 2012 WL 1035392, at *3 (D.D.C. March 29, 2012).

     “An alleged Establishment Clause injury is sufficiently

concrete and particularized when the plaintiff sees or hears a

government-sponsored religious display or speech that offends his

or her beliefs.”   Newdow v. Roberts, 603 F.3d 1002, 1014 (D.C.

Cir. 2010) (Kavanaugh, J., concurring) (citing In re Navy

Chaplaincy, 534 F.3d 756, 764 (D.C. Cir. 2008)).    Spadone, of

course, has alleged not that he merely witnessed offensive

government-sponsored religious speech, but that the government

coerced him into uttering the government-sponsored religious

speech.   He has sufficiently alleged an injury in fact.
                                -16-

     In claiming that Spadone has failed to establish that his

injury was fairly traceable to the Commandant’s order forcing

Spadone to recite the prayer, the Secretary misidentifies the

injury as Spadone’s dismissal (Def.’s Mem. in Supp. of Mot. for

Summ. J. (“Def’s Mem.”) at 39-40), a claimed due process and APA

injury.   It is beyond debate that Spadone’s claimed Establishment

Clause injury is fairly traceable to the Commandant’s challenged

order.    Likewise, in arguing that Spadone’s reinstatement will

not redress the Establishment Clause injury, even the Secretary

acknowledges that reinstatement is not the relevant relief.

(Def.’s Mem. at 41 (“the proper remedy is an injunction

precluding” action violating the Establishment Clause).)   Spadone

filed a complaint for injunctive relief that prays for relief

that is “just and proper.”   (Compl. ¶ 150(f).)   Any Establishment

Clause injury established here likely would be redressed by a

proper injunction barring forced religious prayer.   Thus, Spadone

has standing to challenge the Secretary’s alleged Establishment

Clause violation.

     The Secretary’s argument that Spadone waived his

Establishment Clause claim asserts that granting the relief of

setting aside the decision dismissing Spadone from West Point

would improperly inject the judiciary into discretionary

personnel and disciplinary decisions.   (Def.’s Mem. at 9-10.)

Here, too, the Secretary’s argument is misfocused upon relief
                                -17-

that would not flow from a proven Establishment Clause claim, and

his explanation presents no cogent reason for dismissing Count 7.

Finally, in seeking summary judgment on Count 7, the Secretary

suggests a dispute about a material fact that would bar summary

judgment.   While Spadone alleges that the Commandant forced

Spadone to recite a religious prayer, the Secretary asserts that

there is no indication in the administrative record that this

occurred.   (Def.’s Mem. at 40.)   The Secretary’s motion, then,

will be denied as to Count 7.

III. COUNT 8: UNJUST ENRICHMENT

     Count 8 alleges that the Secretary would be unjustly

enriched if he were allowed to force Spadone to serve as an

enlisted soldier.   (Compl. ¶¶ 145-149.)   The Secretary argues

that Count 8 should be dismissed for lack of jurisdiction because

the United States has not waived its sovereign immunity for

claims of unjust enrichment that seek equitable relief as opposed

to monetary damages.   (Id. at 23.)

     “In reviewing a motion to dismiss for lack of subject matter

jurisdiction, a court ‘accepts as true all of the factual

allegations contained in the complaint[.]’”   Teton Historic

Aviation Found. v. U.S. Dep’t of Def., 686 F. Supp. 2d 75, 78

(D.D.C. 2010) (quoting Peter B. v. CIA, 620 F. Supp. 2d 58, 67

(D.D.C. 2009)) (some internal quotations omitted).   “The

plaintiff bears the burden of establishing that the court has
                                -18-

jurisdiction over a claim.”   Teton Historic Aviation Foundation,

686 F. Supp. 2d at 78.

     “The Federal Government cannot be sued without its consent.”

United States v. Navajo Nation, 129 S. Ct. 1547, 1551 (2009).

The government’s consent to be sued cannot be inferred or

“‘implied but must be unequivocally expressed.’”     Franconia

Assocs. v. United States, 536 U.S. 129, 141 (2002) (quoting

United States v. King, 395 U.S. 1, 4 (1969)); Strong-Fisher v.

Lahood, 611 F. Supp. 2d 49, 53 (D.D.C. 2009).      “‘Jurisdiction

over any suit against the Government requires a clear statement

from the United States waiving sovereign immunity . . . together

with a claim falling within the terms of the waiver.’”

Cartwright Int’l Van Lines, Inc. v. Doan, 525 F. Supp. 2d 187,

194 (D.D.C. 2007) (quoting United States v. White Mountain Apache

Tribe, 537 U.S. 465, 472 (2003)).      Courts lack subject matter

jurisdiction to hear claims filed against the government that do

not fall within the scope of a waiver of sovereign immunity.        See

P&V Enterprises v. United States Army Corps of Eng’rs, 516 F.3d

1021, 1026-1027 (D.C. Cir. 2008); Ballard v. Holinka, 601 F.

Supp. 2d 110, 121 (D.D.C. 2009) (noting that sovereign immunity

is jurisdictional in nature).

     The Little Tucker Act, 28 U.S.C. § 1346(a)(2), provides

jurisdiction in federal district courts for claims seeking less

than $10,000 in monetary damages against the United States
                                -19-

founded upon express or implied contracts.   However, the Little

Tucker Act does not provide a waiver of sovereign immunity for

claims against the United States where a party seeks equitable

relief, as opposed to monetary relief, against the United States

for breach of a contract.   Wright v. Foreign Serv. Griev. Bd.,

503 F. Supp. 2d 163, 178 (D.D.C. 2007).   A plaintiff’s request

for back pay does not transform “what is ‘in essence’ a claim for

equitable relief into a claim for money damages.”   Wright, 503 F.

Supp. 2d at 179.

     Here, Spadone’s claim for unjust enrichment fails to allege

a viable waiver of sovereign immunity, or, frankly, any viable

jurisdictional basis.   Spadone’s complaint is, in essence, a

claim for equitable relief.   He seeks an order setting aside his

disenrollment and reinstating him as a student at West Point, or

an order requiring the Secretary to discharge Spadone from West

Point without requiring him to serve a period of enlisted

service.   While the complaint does ask for “monetary damages for

back pay no greater than $10,000” (Compl. ¶ 150(d)), Spadone has

abandoned that request.   His opposition asserts that he does not

seek monetary damages for Count 8; rather, he “is requesting

equitable relief to prevent Defendant from unjust enrichment in

the form of Cadet Spadone’s service as an enlisted soldier.”

(Pl.’s Opp’n at 25.)    In his opposition, Spadone invokes the

APA’s waiver of sovereign immunity, but Spadone does not provide
                                 -20-

any support for the proposition that an action that would

unjustly enrich the Secretary would be actionable as arbitrary or

capricious under the APA.

                              CONCLUSION

        Spadone has not established that his suspension and

disenrollment from West Point violated the APA or his right to

due process, and Spadone failed to demonstrate a waiver of

sovereign immunity for his claim of unjust enrichment.      However,

summary judgment is premature on Spadone’s Establishment Clause

claim, and the Secretary’s faulty reasoning does not warrant

dismissing that claim.    Therefore, it is hereby

        ORDERED that the defendant’s motion [14] to dismiss or for

summary judgment be, and hereby is, GRANTED in part and DENIED in

part.    Count 8 of Spadone’s complaint will be dismissed, and

judgment will be entered in favor of the Secretary on Counts 1

through 6.    The remainder of the motion will be denied.     It is

further

        ORDERED that the plaintiff’s motions [18] [21] for a hearing

be, and hereby are, DENIED as moot.

        SIGNED this 6th day of June, 2012.


                                        /s/
                                  RICHARD W. ROBERTS
                                  United States District Judge
