Midshipman reopens lawsuit against Naval Academy superintendent, former Navy secretary after decision to expel him
By HEATHER MONGILIO | The Capital | Published: January 24, 2021
In one of former Navy Secretary Kenneth Braithwaite's last actions before leaving office last week, he determined a Naval Academy midshipman should be separated for tweets he sent, which opened the door for a lawsuit against him and the academy superintendent to be reopened.
A federal judge reinstated Midshipman First Class Chase Standage's lawsuit Thursday while also ordering that the Naval Academy, once again, cannot temporarily remove Standage.
U.S. District Judge Ellen Hollander ruled that there are legal issues in Standage's case, including his First Amendment claims, that may prevail, which allowed her to grant a temporary restraining order to bar Standage's separation and reopen the case.
Standage is suing Superintendent Vice Adm. Sean Buck and Braithwaite over their decision to separate him from the academy due to approximately 40 inappropriate tweets from over the summer.
Among the tweets were ones that called for military use of force against antifa, the umbrella term for groups that fight facism, white supremacy and neo-Nazism sometimes through violent measures. Standage, through the complaints, argued these tweets were not inappropriate because former President Donald Trump declared antifa a domestic terrorist organization.
Other tweets were deemed racially insensitive by the academy. They included comments about Black Americans and welfare and saying Breonna Taylor, who was killed by Louisville police, "received justice" when she died.
Standage finished his Naval Academy coursework in December and is currently in the Volunteer Graduate Education Program, allowing him to start graduate school at the University of Maryland in the spring semester.
If he were to be separated, the Naval Academy term for expelled, he would not receive his diploma, be discharged from the Navy, be required to reimburse the Navy for his tuition costs and no longer be able to attend graduate school.
Hollander previously dismissed Standage's case because the Navy secretary hadn't formally made the decision to separate him when the lawsuit was filed and he had not exhausted every opportunity to appeal the case. She dismissed it without prejudice, which meant Standage, through his Grasonville, Maryland, attorney Jeffrey McFadden could reopen the case.
On Dec. 30, an attorney for the assistant secretary called McFadden to inform him Standage would be retained, McFadden wrote in an email to friends and supporters of Standage.
On Jan. 15, Braithwaite determined based on Buck's recommendation that Standage should be expelled from the Naval Academy. That action constituted final action in Standage's case, which allowed McFadden to ask for another temporary restraining order preventing Standage's expulsion and reopen the case.
McFadden, in the complaint — the third in the case — and supporting documents, wrote that Braithwaite's decision was a reversal of the assistant secretary of the Navy, who had decided to retain Standage. In his opinion, the reversal had to do with the insurrection at the Capitol on Jan. 6 and a reader-submitted opinion editorial in The Capital.
John Schofield, a former communications director for the Naval Academy, wrote a Jan. 10 opinion editorial where he called for the academy to remove Standage due to the midshipman's tweets. Schofield also called for the removal of Sean Spicer from the Naval Academy Board of Visitors.
According to McFadden's argument, Schofield's piece was an ad hominem attack that linked Standage's tweets over the summer to Trump's tweets that allegedly incited a violent mob to attack the Capitol while congressmen certified the election.
"Distilled to its essence, the piece argued that, because the President is a liar, anyone who supports the President or any of the President's views must be muzzled, punished, and gotten rid of," according to a motion McFadden filed.
In the complaint, McFadden wrote that the opinion editorial was "planted" in The Capital after claiming someone at the academy leaked the news that the assistant secretary recommended retaining Standage to Schofield, and the person "conspired with Schofield and the publishers of the Capital Gazette to pressure the Assistant Secretary (or the Secretary) to abruptly reverse course."
Guest columns, or opinion editorials, from Anne Arundel County residents are accepted at The Capital, according to the newspaper's website. People can submit them using an online form or send them to editor Rick Hutzell.
No one from the Naval Academy leaked any information to Schofield nor did he conspire with The Capital to reverse the assistant secretary's decision, Schofield said, calling it a "ridiculous assertion."
The idea that he conspired with The Capital publishers to influence the assistant secretary or Navy secretary is disrespectful to The Capital, he said. He stands by his op-ed and the calls for Standage to be removed.
The assertions "shows how frivolous and ridiculous their lawsuit is," Schofield said.
McFadden, in the complaint, supporting documents and email, questions if the academy's decision to punish Standage for his tweets is due to fear of negative media attention. McFadden did not respond to calls for comment in time of publication.
"Now more than ever, as a new tsunami of cancellation and censorship rolls across the Country, the courage of Chase Standage to stand up to it is all the more commendable, and the principles for which he and his case stand are all the more important," according to McFadden's email. "I don't think I am overstating when I say that the case represents a bellwether for our Country's and our military's future."
The third amended complaint, which McFadden filed to reopen the case, continues to argue that the former secretary of the Navy and the superintendent violated Standage's First Amendment rights by disciplining him for speech they did not agree with, and his Fifth Amendment rights by failing to give Standage due process during the administrative proceedings.
The two arguments have not changed since McFadden filed the first complaint on behalf of Standage.
The academy leaders, in recommending separation, have said it is how Standage wrote his tweets, not their content. In an October hearing, Hollander said it was a thin and unclear argument.
The third complaint does not reference Trump's executive order and the Office of Management and Budget directive that prevented federal organizations from teaching critical race theory. In earlier versions of the complaint, McFadden asked Hollander to rule that the Naval Academy violated the executive order.
Hollander previously questioned McFadden's inclusion of the executive order, asking during a hearing why the attorney did not want additional training to be an option for his client.
However, academy leadership, including Buck, determined that additional training would not help Standage, due to Standage already having three years of academy training, according to Buck's recommendation for separation.
The U.S. attorneys, who represent Buck and Braithwaite, have until Wednesday to respond to the complaint.
The court will hold a hearing for Standage's case on Feb. 12.