                        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.

10 U.S.C.    §     6959(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
5 U.S.C.   § 704,  the Court relies upon the         facts   in the
Administrative Record ("AR") [ Dkt. No. 32] before the Board when
it reached its decision, 5 U.S.C. § 706. IMS, P.C. v. Alvarez, 129
F.3d 618, 623 (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.                                        10 U.S.C.

§   2114 (c); AR 10;            Fontana v.         White,    334 F.3d 80,          86    (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.,       37 U.S.C.       §    302 (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. 10 U.S.C.           §    2114(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.    10   U.S.C.   §   2114(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 37 U.S.C.         §    302.   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." 37 U.S.C.           §   302(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. Id.

        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[.]" Id.

        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.   Id.     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.                     Id. 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. Id.

        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.                             Id.   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.                    Id.    It accounts for five

years of creditable service performed between July 2004 and July

2009.    Id.    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. Id.

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, 5 U.S.C.      §§   702, 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,   797 F.3d 11,       19   (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., 402 F.3d 1249, 1253 (D.C. Cir.

2005)    (quoting United States v. Gaubert, 499 U.S. 315, 327 (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, 798 F.3d 1119, 1129 (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, 477 U.S. 317, 325

(1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989,                          991    (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,             435 F. 3d 319,       321   ( 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, 269 F.3d 1077, 1083-84 (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, 459 F. Supp. 2d 76, 90 (D.D.C. 2006)             (citing Richards v.

INS,    554 F.2d 1173,   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, 333 F.3d

156, 160 (D.C. Cir. 2003)       (citing Camp v. Pitts, 411 U.S. 138, 142

(1973)); Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C.

1995) amended, 967 F. Supp. 6 (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., 760 F. Supp. 2d 15, 17 (D.D.C.

2011)    (citing Tuck v. Pan Am. Health Org., 668 F.2d 547, 549 (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, 551 F.2d 370, 376 (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[.]" 5 U.S.C.               §    702.

        As     already       noted,          judicial         review        of   the    Board's

determinations under the APA is well established.                                Piersall,     435

F.3d at 321. 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,                                 798 F.2d

1521,    1523     (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[.]'" Id.           (quoting 5 U.S.C.           §    702). 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. Id.



                                               -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, 967 F.2d 598, 610 (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.          Id.,       967 F. 2d at 610-11           ("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,         764 F.2d 891,       893

( 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,

366 U.S.        393,    401    (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.
Id.

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

contract principles." United States v.                 Larionoff,       4 31 U.S.      8 64,

869 (1997); see also Combs v. U.S., 50 Fed. Cl. 592, 605 (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, 357 F.

Supp. 2d 274, 279-80 (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, 662 F.2d 73, 78 (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, 357 F. Supp.

2d at 280 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,         431 U.S.      864,    869     (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,     37    U.S.C.    §    302 (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, 431 U.S. at 869.

       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 37 U.S.C. § 302(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        37    U.S.C.    §    302(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, 334 F.3d 80, 87      (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, 725 F.
      Supp. 40 49, (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




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