A federal appeals court will now rule whether a midshipman can stay at the Naval Academy while he fights his expulsion for what academy leadership criticized as inappropriate and, in some cases, racist speech.
U.S. District Court Judge Ellen Hollander denied a preliminary injunction Friday for Midshipman First Class Chase Standage, which would have barred the Navy from separating him while his lawsuit is heard.
However, she granted a stay Saturday after Standage, through attorney Jeffrey McFadden, appealed to the U.S. Court of Appeals for the Fourth Circuit.
Standage sought the injunction, claiming the separation would violate his First and Fifth Amendment rights. Standage, argued his tweets, which included tweets saying Breonna Taylor received justice when she was killed by police in Louisville, Kentucky, and advocated for a drone strike against antifa, were protected speech.
In her ruling, Hollander found that former Secretary of the Navy Kenneth Braithwaite violated Navy procedures when he signed the order separating Standage. Navy rules delegated the authority to the assistant Navy secretary for Manpower and Reserve Affairs.
Hollander also found the decision was "arbitrary and capricious," especially considering academy Superintendent Sean Buck did not consider other steps. And, she found that the midshipman from Los Angeles was not granted an attorney during the administrative hearings.
However, Hollander did not find that Standage would succeed on his constitutional claims, which centered on the First Amendment, or he would suffer irreparable harm from being expelled.
To stop the expulsion, Hollander wrote that Standage needed to prove that he would succeed on all four grounds.
'To be sure, that does not foreclose the possibility that plaintiff might ultimately so prevail," Hollander wrote in her order. "And, evidence pertinent to those claims might surface in discovery."
If Hollander had not granted the stay Saturday, the Naval Academy could have immediately removed Standage. A temporary order preventing his removal expired Friday.
"His outstanding class rank, resulting in a lineal number that render him highly competitive for promotion and the assignments of his choice among his officer peers will be permanently and irreparably be eliminated," McFadden wrote in the emergency motion for a stay. "He will forever lose his place and his standing in the Class of 2021."
While Standage would suffer if he is removed, the academy would not suffer if he is retained, McFadden wrote. If he is removed, the lawyer argued, there will be a "chilling" effect on midshipmen speech.
That effect is what McFadden argued is the harm needed to grant a preliminary injunction.
Hollander wrote in her denial that because she did not think the First Amendment case would prevail, the harm of chilling speech would not exist.
The stay order does not have an expiration date on it. U.S. attorneys, who now represent acting Secretary of the Navy Thomas W. Harker and Buck, have until March 1 to respond to the motion for the stay. McFadden will then have a chance to reply, with his response due March 5.
Harker replaced Braithwaite after the former secretary stepped down during the administration turnover, according to Hollander's order.
Standage will remain a part of the academy at least until the appeals court decides whether to hear the appeal, allowing him to continue graduate classes at the University of Maryland.
This article is written by Heather Mongilio from The Capital, Annapolis, Md. and was legally licensed via the Tribune Content Agency through the Industry Dive publisher network. Please direct all licensing questions to email@example.com.