UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALEXANDER E. STEWART,

Plaintiff,

v. Civil Action No. 15-576(GK)

RAY MABUS,

Defendant.

MEMORANDUM OPINION

This is a sad case. A distinguished, award-winning doctor who

has served the Navy for more than 24 years, whose undergraduate

education, medical studies, and advanced medical education were

paid for by the United States Government, and who received regular

salary increases in exchange for agreeing to remain in the military

for a specific number of years, is suing the Government because it

miscalculated the years he was required to serve. Because of that

miscalculation, which the Government does not deny, the doctor

signed agreements to remain with the Navy until 2015. The

Government now claims that he must remain on active duty until

2018 -- a difference of three years.

**** Plaintiff Captain Alexander E. Stewart ("Plaintiff" or

"Stewart") brings this action against Secretary of the Navy Ray

Mabus ("Defendant," "the Government," or "the Navy") seeking review of certain determinations by the Board for Correction of

Naval Records ("the Board") regarding the period of Stewart's

obligation to remain on active duty in the Navy in exchange for

substantial educational and financial benefits. See generally

Compl. [Dkt. No. 1].

In exchange for Special Pay offered to naval physicians,

Stewart executed several contracts, which, by their written terms,

extended his active duty obligation to the Navy to at least 2015.

When the Navy discovered that the service obligation dates

specified in the contracts had been miscalculated and failed to

account for pre-existing service obligations, it amended its

records and the contracts with Stewart to reflect a later service

obligation date of 2018. Stewart petitioned the Board to reverse

these amendments, and the Board denied Stewart's request. Stewart

then appealed the Board's decision to this Court.

This matter is currently before the Court on the Government's

Motion to Dismiss or, in the Alternative, Motion for Summary

Judgment [Dkt. No. 12] and Plaintiff's Cross Motion for Summary

Judgment [Dkt. No. 16] . For the reasons that follow, the

Government's Motion to Dismiss shall be denied, the Government's

Motion for Summary Judgment shall be granted, and Plaintiff's Cross

Motion for Summary Judgment shall be denied.

-2- I . BACKGROUND

A. Factual Background1

1. Stewart's Early Career

Captain Stewart has had a long and distinguished career in

the United States Navy. He has served for over twenty-four years

in the Navy's Medical Corps as a physician and has received

numerous awards for his academic, research, and professional

accomplishments. See e.g., AR 117.

Stewart's career with the Navy began in 1987 when he

matriculated at the United States Naval Academy ("USNA"). Stewart

graduated from the USNA in 1991 and, in exchange for his studies,

incurred an obligation to serve in the Navy for five years.

(a); AR 6; Compl. ~ 8.

From 1991 to 1995, Stewart attended medical school at the

Uniformed Services University of Health Sciences ( "USUHS") .

Because Stewart remained in school, he did not accrue credit toward

his initial five-year service obligation while at USUHS. When

1 Because this matter is an appeal from final agency action, see

, the Court relies upon the facts in the Administrative Record ("AR") [ Dkt. No. 32] before the Board when it reached its decision,

. IMS, P.C. v. Alvarez,

(D.C. Cir. 1997) ("If a court is to review an agency's action fairly, it should have before it neither more nor less information than did the agency when it made its decision.").

-3- Stewart graduated from USUHS in May of 1995, he incurred an

additional seven-year service obligation to the Navy to be served

consecutively with his existing five-year obligation.

(c); AR 10; Fontana v. White,

(D.C. Cir.

2003).

Thus, upon receipt of his medical degree in 1995, Stewart had

a 12-year service obligation, requiring that he engage in

qualifying service in the Navy until at least May of 2007. In other

words, May 2007 constituted Stewart's approximate obligated

service date ("OSD"), which is the time at which a service member

may leave active duty in the Navy without having to complete

additional required service or pay back money or other benefits

received from the Government. See e.g.,

(f) ("An

officer who does not complete the period for which the payment was

made under [relevant subsections] shall be subject to the repayment

provisions of section 303a(e) of [title 37] .").

From 1995 to 1996, Stewart completed a one-year medical

internship, during which time his 12-year service obligation was

stayed.

(d). Accordingly, when Stewart completed

his medical internship in 1996, his twelve-year obligation

-4- remained, committing him to remain in the Navy -- and extending

his OSD -- until at least 2008. 2

From 1996 to 1999, Stewart served as a flight surgeon, which

satisfied three years of his 12-year active duty service

obligation. Upon completion of his tour of duty in 1999, Stewart

owed nine years of service, and his OSD remained at 2008.

From 1999 to 2004, Stewart completed a medical residency in

otolaryngology. This period of further training again stayed his

service obligation to the Navy.

(d). Upon

completion of the residency in 2004, Stewart still owed nine years

of service, and his OSD was moved up to 2013. 3

2 The sources in the Administrative Record and the Parties' briefs are generally not precise with respect to the exact date of Stewart's OSD. They often state that the OSD falls in a particular month in a particular year or simply state the year of the OSD. Because resolution of this case does not require any more precision than reference to a particular year, the Court follows the Record and the Parties' practice. 3 Stewart did incur an additional service obligation by entering the residency program; however, Department of Defense regulations allow service members to fulfill obligations generated by medical residencies conducted in military facilities concurrently with obligations incurred by undergraduate studies and medical school. Magnusson Deel. at <_![ 7 [ Dkt. No. 12-3] (citing DODI 6000. 13 <_![ 6.6.3.1). Accordingly, while Stewart's otolaryngology residency stayed completion of the years of service he owed, it did not extend his OSD. -5- 2. MSP Agreements

In July of 2004, Stewart applied for his first "Multi-Year

Special Pay" ( "MSP") agreement with the Navy. AR 4 5-4 6. MSP

agreements provide Navy Medical Corps officers with annual

lump-sum payments in addition to their normal pay in exchange for

the commitment to remain on active duty in the Navy for a specified

period of time. See

. Section 302 provides that

"[a] n officer may not be paid additional special pay . or

incentive special pay . . . for any twelve-month period unless the

officer first executes a written agreement under which the officer

agrees to remain on active duty for a period of not less than one

year beginning on the date the officer accepts the award of such

special pay."

(c) (1).

Stewart's first MSP request was for a two-year MSP agreement

effective July 27, 2004 ("the first MSP Agreement"). AR 45. In the

formal request that he executed, Stewart stated, "If my application

for MSP is approved, I agree to not tender a resignation or request

release from active duty that would be affected during this MSP

service obligation. This obligation will be for a period of two

years beyond any existing active military service obligation for

education or training." AR 45 (emphasis in original). As described

above, as of July 2004, Stewart was already obligated to remain on

-6- active duty for at least nine more years in exchange for the

extensive education and training he had received. Since Stewart's

OSD was set at 2013 before he requested the first MSP agreement,

an additional two-year obligation in exchange for Special Pay would

have increased his OSD to 2015.

Unfortunately, when Stewart requested the first MSP

agreement, the Navy made a significant mistake in calculating his

OSD. That error was not discovered until nearly seven years later.

When the Navy calculated Stewart's OSD in response to the first

MSP request, it neglected to include Stewart's five-year service

obligation incurred by his attendance at the USNA. AR 42. Thus,

the Navy's OSD calculation worksheet mistakenly set Stewart's pre-

MSP OSD at July 2008; two additional years yielded a post-MSP OSD

of July 31, 2010.

This error was included in the first MSP agreement itself,

which states, "Pursuant to [cited authority], [Stewart's first MSP

request] is approved for Otolaryngology, for two years, at $12,000

per year, effective 27 July 2004. [Stewart's] new obligated service

date, as computed on enclosure (2) [the OSD calculation worksheet]

is July 2010." AR 40.

After having received one annual payment of $12,000 under the

first MSP agreement, Stewart decided to request a new MSP

-7- agreement. In a request dated November 8, 2004, Stewart requested

that his first MSP agreement be terminated in favor of a longer,

four-year MSP agreement ("the second MSP agreement") with more

attractive annual payments of $25, 000. In ·his request, Stewart

acknowledged that the "obligation [under the new MSP agreement]

shall be for a period of 4 years beyond any existing active

military service obligation for education or training." AR 54.

Stewart also acknowledged that he would "repay the unearned portion

of [the July 2004] MSP contract[.]"

Stewart's second MSP agreement was approved on December 10,

2004. AR 51. The second MSP agreement had a retroactive effective

date of October 1, 2004 and served to terminate Stewart's first

MSP agreement as of September 30, 2004.

In calculating

Stewart's new OSD pursuant to the second MSP agreement, the Navy

again included its previous error. AR 56. Failing to account for

Stewart's five-year USNA obligation, the Navy set Stewart's

pre-MSP OSD in July 2008, added two months for the period that the

first MSP agreement was in force, and added an additional four

years to account for the second MSP agreement.

4 Accordingly,

4 The typed portion of the calculation table at AR 56 purports to add three months for the period the first MSP agreement was in force; however, the agreement appears to have been in force only from July 27, 2004 to September 30, 2004 (i.e., just over two months). AR 56. That apparent arithmetic error appears to have -8- the second MSP agreement reflects a new OSD of "September 2012."

AR 51.

On October 20, 2005, Stewart requested a third MSP agreement

("the third MSP agreement") with even more favorable terms than

the last: $33,000 per year in lump-sum payments for four years. AR

63. In his request, Stewart stated that he would undertake an

additional service obligation "of 4 years beyond any existing

active military service obligation for education or training."

AR 63. As before, this third MSP agreement would terminate and

replace the then-existing second MSP agreement.

On November 9, 2005, Stewart's third MSP agreement request

was approved, establishing the third MSP agreement. AR 62. The

third MSP agreement had a retroactive effective date of October 1,

2005 and terminated the second MSP agreement effective September

30, 2005. AR 62.

Again, the Navy included its initial failure to account for

Stewart's five-year USNA service obligation. It set Stewart's OSD

prior to the second MSP agreement at September 30, 2008. 5 AR 69.

been corrected by hand and is not reflected in the MSP agreement itself. AR 51, 56.

5 This OSD already included two months governed by the very first MSP agreement executed in July of 2004.

-9- The Navy then added one year to the OSD for the payment received

under the second MSP agreement and four years for the anticipated

payments under the newly executed third MSP agreement.

This

calculation yielded an OSD of September 2013, AR 69, which is

reflected in the third and final MSP agreement, AR 62. 6

3. Rhinology Fellowship

From July 2009 to July 2010, Stewart participated in a

graduate medical education ("GME") rhinology fellowship. By

participating in the program, Stewart incurred an additional one-

year service obligation. This obligation was to be served

consecutively with Stewart's -0bligations incurred by the Navy's

6 The Administrative Record shows that Stewart made efforts to understand the implications of entering into each of the three MSP agreements and posed several clarifying questions to Karen M. Gaston, Assistant Program Director for Navy Medical Special Pays, and Bill Marin, Director of Navy Medical Special Pays. AR 84-96. Several e-mails suggest Stewart's desire to not incur any service obligations that would require him to stay in the Navy beyond 2015, see AR 88, 94, 103, and on at least one occasion, Stewart noted that he "went to the Naval Academy and then to the Uniformed Services University[,]" AR 103. Although on several occasions, Ms. Gaston and Mr. Marin confirmed the incorrect OSDs reflected in the MSP agreements, "no one person or officer within the Navy Medicine [was] responsible for ensuring the accuracy of DOW physicians' overall OSD. ." AR 89, 92, 101.

None of Stewart's e-mails caused the Navy to recognize its mistake. However, there is no evidence in the Administrative Record that Stewart kept his own tally of the obligations he incurred nor that he ever challenged the Navy's calculation of his OSD before entering into any of the three MSP agreements. -10- sponsorship of his undergraduate and medical education, AR 77-78,

but could be served concurrently with obligations incurred through

MSP agreements, AR 86.

In order to formalize Stewart's participation in the

rhinology fellowship, the Navy prepared a GME agreement, which

stated that upon completion of his fellowship, Stewart would owe

a five-year obligation to the Navy. AR 78 ("When I complete this

GME, my total [active duty service obligation] will be: 5 years").

Ironically, the worksheet used to calculate this obligation

actually includes Stewart's five-year obligation incurred by his

attendance at the USNA, but omits any reference to service

obligations incurred through Stewart's multiple MSP agreements.

AR 75.

The worksheet notes that as of July 2004, Stewart still had

an obligation to serve nine additional years to account for his

remaining USNA and USUHS obligations.

It accounts for five

years of creditable service performed between July 2004 and July

2009.

The worksheet then notes the stay of Stewart's

obligations during the fellowship, and adds a year of additional

service for the fellowship, arriving at an OSD of July 2015.

This OSD could not have been correct given the lack of any

reference to obligations incurred under the MSP agreements.

-11- The Government ·asserts that the GME agreement worksheet was

not meant to account for MSP obligations and that "anyone familiar

with the acronyms MSP and MISP [Multi-year Incentive Special Pay]

should have known that these obligations were not included in the

OSD calculation of 2015." Gov't's Reply at 3.

4. Recapitulation

For the sake of clarity, the Court will sum up what would

have happened if Stewart had made each of the same three MSP

requests and the Navy had correctly calculated his OSD in each MSP

agreement. As of July 2004, Stewart still owed nine years of

service in exchange for his education at the USNA and USUHS, and

thus, had an OSD of July 2013. He entered a two-year MSP agreement

(the first MSP agreement), which would have moved his OSD to July

2015. However, that first MSP agreement was terminated after just

two months in favor of a four-year MSP agreement (the second MSP

agreement). Under the second MSP agreement, Stewart's OSD would

have been September 2017 (a date which takes account of the two

months under the first MSP agreement and four years under the

second). Finally, after just a year under the second agreement,

Stewart signed a third MSP agreement, terminating the second MSP

agreement. Thus, Stewart's OSD should have been adjusted again to

September 2018 (beginning at July 2013, adding two months for the

-12- first MSP agreement, one year for the second MSP agreement, and

four years for the third and final MSP agreement).

The one-year obligation incurred as a result of Stewart's

rhinology fellowship could be served concurrently with any

obligation incurred under an MSP agreement. Because any MSP

agreement necessarily increased Stewart's OSD by at least a year,

37 U.S. C. § 302 ( c) (1) , participation in the fellowship program

would not have affected Stewart's OSD.

If the Navy had never made its initial error, and Stewart had

entered into MSP agreements of the same duration, his OSD clearly

would be in September of 2018, not September of 2013 as the third

MSP agreement states, AR 62, nor July 2015 as the GME worksheet

states, AR 75.

4. Error Correction Letters

In 2010, the Chief of Naval Personnel became concerned that

many contracts with Navy medical officers contained incorrectly

calculated OSDs and requested that the Naval Audit Service perform

a review. See Pl.'s Ex. 1 [Dkt. No. 16-2]. The auditors identified

eight Navy physicians affected by OSD computation errors,

including Stewart. Pl.'s Ex. l; Compl. ~ 29.

On February 9, 2011, the Navy notified Stewart that it had

discovered that his MSP contracts failed to account for his five-

-13- year USNA service obligation. AR 80. The letter notes the

inaccurate pre-MSP OSD of July 2008, id., which had been the

baseline for the calculation of Stewart's OSD in his very first

MSP agreement, AR 42, and states that his OSD had been adjusted to

August 2013, AR 80. The letter goes on to warn that "[a]s a result

of this OSD adjustment, it is possible any Multiyear Special Pay

(MSP) agreement you entered into may be affected." Id.

A second letter arrived two days later on February 11, 2011.

That letter again noted the original OSD calculation error, and

correctly identified its source as Stewart's "initial MSP

agreement executed July 27, 2004." AR 82. In order to correct the

error, the Navy stated that it would amend the OSD contained in

Stewart's third and final MSP agreement from September 2013 to

October 2018. AR 82. 7

7 Given that the third MSP agreement lists an OSD of "September 2013," AR 62, and the Navy's correction letters of February 9 and 11, 2011 purport to add Stewart's five~year USNA service obligation to his OSD, AR 80 & 82, it is not immediately clear why Stewart's amended OSD should be October 2018 rather than September 2018. However, the worksheet appended to the third MSP agreement shows an OSD of "2013/09/30," AR 69, so any difference may just be a matter of a single day. Moreover, the Parties' briefs and the Administrative Record do not consistently track shifts in Stewart's OSD by days. Instead, they generally measure changes to his OSD in months or even just years. Finally, Plaintiff has not raised this issue, so the Court will treat the difference between a September 2018 and an October 2018 OSD as de minimis and will not address it further. -14- Both letters advised Stewart that he could "submit a request

to the Board for Correction of Naval Records (BCNR) to dispute

[the] decision." AR 82; accord AR 80.

B. Procedural Backg~ound

Nearly three years later, on January 12, 2014, Stewart did

petition the Board to overturn the amendments referred to in the

two letters of February 9 and 11, 2011. Compl. ~ 36. Specifically,

he requested that the Navy reinstate his pre-MSP OSD as July 2008

and recognize as binding the OSD of July 27, 2015 reflected in the

worksheet accompanying the GME agreement Stewart executed before

beginning his rhinology fellowship. AR 18-19.

On July 16, 2014, in response to Stewart's petition, the Board

requested an advisory opinion from the Navy Medicine Professional

Development Center, AR 27, and on September 15, 2014, the Navy's

Bureau of Medicine and Surgery responded, recommending disapproval

of Stewart's petition, AR 24. On November 7, 2014, the Board denied

Stewart's petition. AR 3-4.

On April 16, 2015, Stewart filed his Complaint [Dkt. No. 1]

challenging the Board's denial of his petition. The Complaint

asserts three causes of action, all under the Administrative

Procedure Act,

, 706(2) (A). Compl. ~~ 40-79.

-15- Stewart's first claim alleges that it was contrary to law for

the Navy to amend I his OSD to a date different from the date

contained in his third and final MSP agreement. Compl. ~~ 40-53.

Stewart's second claim alleges that it was contrary to law for the

Navy to amend Stewart's OSD to a date different from the date

contained in the GME agreement executed before he began his

rhinology fellowship. Compl. ~~ 54-67. Finally, Stewart's third

claim alleges that the Navy's amendments of Stewart's OSD were

arbitrary, capricious, and an abuse of discretion. Compl. ~~ 68-

7 9.

On August 3, 2015, the Government filed its Motion to Dismiss

or, in the Alternative, Motion for Summary Judgment [Dkt. No. 12].

On August 31, 2015, Plaintiff filed his combined Memorandum in

Opposition and Cross Motion for Summary Judgment [Dkt. No. 16]. On

October 13, 2015, the Government filed its combined Reply to

Plaintiff's Opposition and Memorandum in Opposition to Plaintiff's

Cross Mot.ion for Summary Judgment [Dkt. No. 23]. On November 3,

2015, Plaintiff filed his Reply to the Government's Opposition

[Dkt. No. 26] .s

8 Plaintiff also filed a Motion for Leave to File a Surreply in Opposition to Defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment ("Pl.'s Mot. for Leave") [Dkt. No. 27]. On November 19, 2016, the Government filed its Opposition to Plaintiff's Motion for Leave [Dkt. No. 28]. The Court denied -16- II. STANDARD OF REVIEW

A. Motion to Dismiss for Lack of Jurisdiction

Under Fed. R. Civ. P. 12(b) (1), "[t]he plaintiff bears the

burden of invoking the court's subject matter jurisdiction" to

hear his or her claims. Arpaio v. Obama,

(D.C.

Cir. 2015). In deciding whether to grant a motion to dismiss for

lack of jurisdiction, the Court must "accept all of the factual

allegations in [the] [C]omplaint as true[.]" Jerome Stevens

Pharm., Inc. v. Food & Drug Admin.,

(D.C. Cir.

2005) (quoting United States v. Gaubert,

(1991))

(internal quotation marks omitted). However, "[w]here necessary to

resolve a jurisdictional challenge under Rule 12(b) (1), the court

may consider the complaint supplemented by undisputed facts

evidenced in the record, or the complaint supplemented by

undisputed facts plus the court's resolution of disputed facts."

Banneker Ventures, LLC v. Graham,

(D.C. Cir.

2015) (internal citation and quotation marks omitted).

B. Summary Judgment

Summary judgment may be granted only if the moving party has

shown that there is no genuine dispute of material fact and that

Plaintiff's Motion for Leave on February 2, 2016. Memorandum Order of Feb. 2, 2016 [Dkt. No. 35].

-17- the moving party is entitled to judgment as a matter of law. See

Fed .. R. Civ. P. 56(a); Celotex Corp. v. Catrett,

(1986); Waterhouse v. Dist. of Columbia,

(D.C.

Cir. 2002).

Plaintiff's challenge arises under the APA, 5 u. s.c. § 706 (a) (2), which provides that reviewing courts "shall

hold unlawful and set aside agency action, findings, and

conclusions found to be . . arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law[.]" Courts in

this Circuit routinely apply the APA's standards to the Board's

decisions. See Piersall v. Winter,

( D. C. Cir.

2006) ("These are not uncharted waters. We have many times reviewed

the decisions of boards for correction of military records in light

of familiar principles of administrative law." (internal quotation

marks omitted)).

When a district court reviews an administrative action,

"[t] he entire case on review is a question of law." Am. Bioscience,

Inc. v. Thompson,

(D.C. Cir. 2001) (internal

quotation marks omitted). "Summary judgment thus serves as the

mechanism for deciding, as a matter of law, whether the agency

action is supported by the administrative record and otherwise

consistent with the APA standard of review." Sierra Club v.

-18- Mainella,

(D.D.C. 2006) (citing Richards v.

INS,

, 1177 & n.28 (D.C. Cir. 1977)). Finally, the

Court's review on summary judgment is limited to the Administrative

Record. Holy Land Found. for Relief and Dev. v. Ashcroft,

(D.C. Cir. 2003) (citing Camp v. Pitts,

(1973)); Fund for Animals v. Babbitt,

(D.D.C.

1995) amended,

(D.D.C. 1997) ("Summary judgment is

an appropriate procedure for resolving a challenge to a federal

agency's administrative decision when review is based upon the

administrative record.").

III. ANALYSIS

A. Jurisdiction

"Federal courts have limited jurisdiction and may not presume

the existence of jurisdiction in order to decide a case on other

grounds." Morrison v. Sec'y of Def.,

(D.D.C.

2011) (citing Tuck v. Pan Am. Health Org.,

(D.C.

Cir. 1981)). On its face, Plaintiff's Complaint seeks review of

the Board's failure to correct his OSD to follow his third MSP and

GME agreements as originally written, see Compl. <J[<J[ 53, 67, 7 9,

rather than to enforce those agreements directly. Although this

distinction is subtle, it is critical to this Court's jurisdiction.

-19- Sovereign immunity ordinarily protects the federal government

from suit without its consent. See Trans-Bay Engineers & Builders,

Inc. v. Hills,

(D.C. Cir. 1976). In this case,

Plaintiff invokes § 702 of the APA, which partially waives

sovereign immunity for "action[s] seeking relief other than

money damages[.]"

.

As already noted, judicial review of the Board's

determinations under the APA is well established. Piersall,

. However, our Court of Appeals has also held that "the

waiver of sovereign immunity in the Administrative Procedure Act

does not run to actions seeking declaratory relief or specific

performance in contract cases[.]" Sharp v. Weinberger,

(D.C. Cir. 1986). The holding in Sharp rests on two

bases. First, "[the APA's] waiver [of sovereign immunity] is by

its terms inapplicable if 'any other statute that grants consent

to suit expressly or impliedly forbids the relief which is

sought[.]'"

(quoting

). Second, "the Tucker Act

and Little Tucker Act" provide the exclusive remedies for any

alleged breach of contract by the federal government and thereby

"impliedly forbid" the federal courts' jurisdiction to grant

declaratory relief or specific performance in contract cases.

-20- The Government contends that Plaintiff's case is effectively

one for breach of contract because he seeks to enforce the original

terms of his MSP and GME agreements. However, in construing Sharp,

our Court of Appeals has stated "that a federal district court may

accept jurisdiction over a statutory or constitutional claim for

injunctive relief even where the relief sought is an order forcing

the government to obey the terms of a contract--that is, specific

performance. The Sharp Court ruled that § 7 02 waived sovereign

immunity for [the plaintiff's] prayer for an injunction against

his transfer, an order, in other words, compelling the Defense

Department to abide by the terms of its agreement with [the

plaintiff]." Transohio Sav. Bank v. Dir., Office of Thrift

Supervision,

(D.C. Cir. 1992).

Plaintiff's Complaint follows the outline described in

Transohio. Stewart is not bringing a free-standing breach of

contract claim. Instead, he challenges the Board's failure to

correct the Navy's unilateral amendment of the OSD reflected in

his MSP and GME agreements. If Plaintiff were to prevail, the Navy

might be required to abide by the terms of the agreements as

written, but even so, that result would not transform Plaintiff's

case from one seeking administrative review into a breach of

contract claim.

("The mere fact that a

-21- court may have to rule on a contract issue does not, by

triggering some mystical metamorphosis, automatically transform an

action based on trespass or conversion into one on the contract

and deprive the court of jurisdiction it might otherwise have.u

(internal brackets, citation, and quotation marks omitted)); see

also Spectrum Leasing Corp. v. United States,

( D. C. Cir. 198 5) ("A court will not find that a particular claim

is one contractually based merely because resolution of that claim

requires some reference to a contract.u (emphasis in original)).

Accordingly, the Court holds that it has jurisdiction to hear

Plaintiff's claims and shall deny the Government's Motion to

Dismiss for lack of jurisdiction.

B. Merits

As described above, Stewart entered into a series of

agreements with the Navy entitling him to Special Pay in exchange

for promises to extend his term of active duty service. Those

agreements contained specific dates indicating when he would be

permitted to resign from naval service. By its own admission, the

Navy miscalculated the dates contained in its agreements with

Stewart, and upon ?iscovery of its error, took steps to

unilaterally alter Stewart's OSD. Stewart argues that his OSD

should be reset to conform to the written terms of his agreements

-22- with the Navy because the Navy's unilateral amendments are

arbitrary, capricious, and contrary to law.

Plaintiff contends that the Court should employ the common

law of contracts to hold that the Navy's amendments to his OSD and

MSP agreements were contrary to law. The relief he seeks amounts

to reinstatement of the MSP and GME agreements 9 as initially

drafted. See Compl. pp. 17-18 (requesting, inter alia, that the

Court "[e]nforce the parties' November 9, 2005 [third] MSP

Agreement; [d] eclare [] Stewart's MSP OSD is November 1, 2015;

. . [p]ermanently enjoin the [Navy] . . from enforcing, applying,

or implementing . . . any obligation dates other than July 1, 2015

(GME) and November 1, 2015 (MSP) "). Thus, Plaintiff seeks to retain

the Special Pay and benefits he received from the admittedly

inaccurate OSD reflected in his fin al MSP agreement and GME

agreement.

The Supreme Court has held that "[a] soldier's entitlement to

pay is depentjent upon statutory right." See Bell v. United States,

(1961). "The rights of service members

must be determined by reference to the statutes and regulations

9 The Navy's letters of February 9 and 11, 2011 do not purport to amend Stewart's GME agreement. AR 6, 7. Rather, they amend his OSD itself, and the OSD as listed in his third and final MSP agreement.

-23- governing the [particular benefit], rather than to ordinary

contract principles." United States v. Larionoff, 4

(1997); see also Combs v. U.S.,

(Fed. Cl.

2001) (rejecting plaintiff's argument that he should be paid at

E-6 pay rate when Air Force forms so indicated because statute

made clear that plaintiff was entitled to only E-1 pay rate).

Plaintiff contends that the Court can resolve this dispute

with reference only to ordinary contract law because "[t]o

determine whether the military has breached an enlistment contract

or whether an enlistment contract is invalid, courts apply general,

common law principles of contract law." Qualls v. Rumsfeld,

(D.D.C. 2005). It is true that "[m]any cases

hold that civilian courts may· apply traditional contract

principles in construing the rights and obligations arising under

enlistment contracts and, by analogy, active duty agreements."

Cinciarelli v. Carter,

(D.C. Cir. 1981). However,

Qualls acknowledges that cases "concern[ing] soldiers' entitlement

to pay" must be resolved according to statutory and regulatory

provisions, rather than ordinary contract law. Qualls,

n.1.

This case unquestionably contains elements of pay

entitlements and service obligations; however, the relief

-24- Plaintiff requests depends upon the validity of his MSP and GME

agreements, and the validity of those agreements, in turn, depends

upon the statutory and regulatory provisions authorizing Special

Pay. Cf. United States v. Larionoff,

(1997)

(holding that plaintiffs' entitlement to "Variable Re-enlistment

Bonus" payments "must be determined by reference to the statutes

and regulations governing the [Bonuses], rather than to ordinary

contract principles.") . Thus, before the Court may consider

whether to enforce Stewart's agreements as written, it must first

consider whether the agreements comport with the statutes and

regulations that authorize their creation. Therefore, Plaintiff's

entitlement to the Special Pay he received and the validity of the

agreements he executed is governed by the statutory and regulatory

provisions underlying Special Pay agreements.

Section 302 ( c) ( 1) permits the payment of Special Pay or

Incentive Special Pay only when an "officer first executes a

written agreement in which the officer agrees to remain on active

duty for a period of not less than one year beginning on the date

the officer accepts the award of such special pay." 37 U.S. C.

§ 302 (c) (1).

Navy regulations further clarify that "[t] he active duty

service obligation for [Multi-year Special Pay and Multi-year

-25- Incentive Special Pay] begins after any preexisting obligation for

medical education and training or previous MSP agreement is

served." OPNAVINST 7220.17 at 250(2)(a). 10 The same regulation at

251(1) requires the medical officer applying for Special Pay to

"execute[] a written agreement to remain on active duty for 2, 3,

or 4 years beyond any existing active duty service obligation for

medical education and training or a previous MSP agreement." Id.

at 251(1). Plaintiff acknowledges that these regulations are

binding. Pl.'s Reply at 2 ("USNA and USUHS obligations are required

to be served prior to any MSP obligations. See OPNAVINST 7220.17")

(emphasis added).

As initially drafted, the third and final MSP agreement would

have obligated Stewart to remain on active duty until only

September 2013, despite the fact that he was already obligated to

remain on active duty until his UNSA and USUHS· obligations were

met in July 2013. Thus, it is clear that the MSP agreement

conflicts with the requirements that officers receiving Special

Pay must agree to remain on active duty service for at least one

year,

(c) (1), and that active duty obligations

incurred through MSP agreements must follow the completion of

·10Available at http://www.med.navy.mil/bumed/Special Pay/Documents/HomeLinks/Re ferences/OPNAVINST%207220.17.pdf (last visited Feb. 12, 2016). -26- pre-existing service commitments, OPNAVINST 7220 .17 250 (2) (a) .

Given that Stewart's written agreements with the Navy would permit

him to keep five years' worth of Special Pay distributions and

leave military duty before completing five years of service beyond

his pre-existing obligations, those agreements are invalid. See

Larionoff,

.

If enforced as written, Plaintiff's third and final MSP

agreement would violate the statutory and regulatory provisions

that authorize the creation of MSP agreements. By refusing to take

action that would violate those provisions, the Navy is obviously

not acting arbitrarily, capriciously, or contrary to law.

Next, the Court cannot enforce Stewart's GME agreement.

Plaintiff asks the Court to "[e]nforce the parties' December 12,

2008 GME agreement" and to "[d]eclare [that] Stewart's GME OSD is

July 1, 2015 [.]" Compl. p. 17. As an initial matter, Plaintiff's

GME agreement does not even contain the date July 1, 2015; that

date is contained only in the worksheet used to prepare the

agreement itself. AR 7 5. The agreement simply states "[w] hen I

complete this GME, my total ADO [active duty obligation] will be:

5 years[.]" AR 78. It is far from clear whether the "total ADO"

referred to in the GME agreement is intended to include active

duty oblig~tions incurred through MSP agreements or whether it is

-27- meant only to reflect the "total ADO" incurred through education

and training.

More importantly, however, enforcement of a July 1, 2015 OSD

would also conflict with

(c) and OPNAVINST 7220.17

at 250 (2) (a) because Plaintiff would retain five years' worth of

Special Pay distributions without providing the required five

additional years of active duty service beyond July 2013. Again,

the Navy's effort to comply with the applicable statu,te and

regulation cannot be deemed arbitrary, capricious or contrary to

law.

In short, Stewart's GME and MSP agreements, as initially

drafted, violated

(c) (1) and OPNAVINST 7220.17

250 (2) (a), and therefore could not be enforced as Plaintiff argues.

Finally, the practical reality is that Stewart wants to

terminate his service with the Navy which paid for his

undergraduate education, medical school, internship, medical

residency in the specialty of otolaryngology, and Special Pay of

annual lump-sum payments on top of his regular pay - without having

to pay for his end of the bargain - namely, provision of high

quality, specialized medical care to the Navy for the period of

time he agreed to. In sum, he would be unjustly enriched. As the

-28- Court said in Fontina v. White,

(D.C. Cir. 2003),

ruling in a similar situation,

Such a windfall would be inconsistent with one of the Army's primary purposes, as stated in the regulations, for requiring such obligations in exchange for educational assistance: ensuring "a reasonable return to the Army following the expenditure of public funds." AR 350-100, at P7 (a) (4); cf. Schaefer v. Cheney,

, (D.D.C. 1989) (stating that "one of the fundamental purposes of requiring" service obligations is to provide the Army with "a fair quid pro quo for [its] investmerit in personnel") .

IV. CONCLUSION

For the forgoing reasons, the Government's Motion to Dismiss

shall be denied, the Government's Motion for Summary Judgment shall

be granted, and Plaintiff's Cross Motion for Summary Judgment shall

be denied.

February 24, 2016 <-1~4/~ GladySKeSSir United States District Judge

Copies to: attorneys on record via ECF

-29-