Mary Ann Phillips v. John O. Marsh, Jr.

OAKES, Circuit Judge:

This is an appeal from an order of the United States District Court for the Southern District of New York, Robert J. Ward, Judge, which granted plaintiff Mary Ann Phillips’ motion for a preliminary injunction ordering her reinstated as a cadet at the United States Military Academy at West Point (Academy) pending the outcome of her lawsuit against the defendants-appellants. The preliminary injunction, as apparently subsequently interpreted by Judge Ward, also required the Academy to award Phillips a degree and commission her as an officer in the United States Army.

Phillips was expelled from the Academy on January 18, 1982 following her third award of 25 or more demerits under the Cadet Disciplinary System. The last demerit award stemmed from events occurring on the evening of July 21, 1981, when Phillips was found unconscious in a car that had been in an accident. While being treated in a hospital she admitted to two military policemen that she had been drinking at a tavern within 20 kilometers of the Academy, conduct which is prohibited by an Academy regulation. Plaintiff-appellee claims that this statement was taken from her when she was inebriated and injured and had expressed a desire not to answer questions. She brought suit against the defendants asserting that the statement was elicited in violation of her right against self-incrimination and was improperly relied upon in the proceedings which culminated in her separation from the Academy.

Since she was in her final semester at the Academy when notified of her dismissal, Phillips applied for a preliminary injunction to enable her to complete her schoolwork while her case was being prepared for trial. Judge Ward held an evidentiary hearing and, finding that the standards for issuing a preliminary injunction had been met, ordered Phillips reinstated. While this order was before us on appeal plaintiff completed her courses. She returned to the district *622court which, at her request, made comments in open court indicating that its interpretation of its original injunction included the requirement that the Academy permit her to graduate and award her a diploma. On motion of the Government we stayed the subsequent order, thereby holding the issue of Phillips’ graduation in abeyance pending resolution of this appeal.

This appeal did not come before us until April 23, 1982, approximately one month before Phillips was to complete her last exams. During the time required to determine the issues involved and prepare to draft an expression of our views, plaintiff’s final semester has ended. The question whether she should be permitted to complete the semester is therefore moot, since there is no actual controversy on this issue extant at this stage of review, see Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975). The preliminary injunction is now before us only to the extent that it requires the Academy to graduate Phillips and award her a diploma, an interpretation of the injunction with which we do not necessarily agree.

The grant of a preliminary injunction requires a showing of irreparable harm and either a likelihood of success on the merits or sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the moving party. Jack Kahn Music Co. v. Baldwin Piano & Organ Co., 604 F.2d 755, 758 (2d Cir. 1979). We do not now determine the likelihood of plaintiff’s success on the merits or the seriousness of the questions going to the merits, for we find that Phillips has not made the necessary threshold showing of irreparable harm.

It may well have been true, as Judge Ward concluded, that interruption of Phillips’s academic work would have created irreparable harm, because “[t]he loss of time, military seniority, education and status involved in a dismissal from the Academy cannot be adequately compensated at law.” See Doe v. New York University, 666 F.2d 761 at 773 (2d Cir. 1981). But this does not equally hold true with respect to a delay in Phillips’s graduation. We can conceive of no irreparable harm that would accrue to her in allowing her graduation to await the outcome of the trial on the merits; any damages to her from deferring her career as a military officer in that period of time would surely be compensable by monetary damages. See Jackson Dairy, Inc. v. H. P. Hood & Sons, Inc., 596 F.2d 70 (2d Cir. 1979).

We therefore reverse the grant of the preliminary injunction insofar as it required the -Academy to graduate and commission Phillips. We express no view with respect to the remainder of the preliminary injunction, which is now unreviewable because of mootness. We urge the court below to continue its efforts to bring this case to trial and final judgment as expeditiously as possible.