CHARLES F. LETTOW, Judge.
In this military pay case, plaintiff Robert M. Laughlin challenges the determination by the United States Navy ("Navy" or "government") and the Board for Correction of Naval Records ("Navy Board") of his active duty service obligation to the Navy following his military-funded medical training. Commander Laughlin received extensive training in dental medicine and related surgical specialties for a continuous period from August 1998 to June 2007. As a condition of receiving military-funded training, Navy medical and dental officers such as plaintiff are required to serve in an active duty status for a certain number of years, as defined by statute and regulations of the Department of Defense.
Commander Laughlin contends that in the summer of 2003, after the first year of his medical residency, he was told he was being transferred to a military funding program that would allow him to fulfill his active duty service obligation concurrently with both his continued training and other service obligations incurred as a result of such training. By plaintiff's calculations, his service obligation to the Navy extended only to July 1, 2011. Conversely, the Navy asserts that plaintiff's active duty obligation was to be served consecutively to the completion of his training programs, and that consequently plaintiff's training-related service obligation will not end until July 1, 2017. Commander Laughlin seeks this court's review of a decision by the Navy Board affirming the Navy's calculation of plaintiff's obligated service date.
Commander Laughlin also asserts that because of the Navy's miscalculation of his obligated service date, he is entitled to additional multiyear retention bonuses and incentive special pay available to officers in the Navy's Dental Corps. In 2013, plaintiff agreed to extend his service obligation for three years-from July 1, 2017 to July 1, 2020-in return for a Dental Officer Multiyear Retention Bonus and the associated Multiyear Incentive Special Pay. Plaintiff contends that if the Navy had accurately concluded that his training-related service obligation ended on July 1, 2011, he would have been able to apply for two separate four-year extensions of his service obligation-bringing his obligated service date to 2019-which would in turn have entitled him to additional special pay.
The government has moved to dismiss Commander Laughlin's complaint under Rule 12(b)(1) of the Rules of the United States Court of Federal Claims ("RCFC") for lack of subject matter jurisdiction. Def.'s Mot. to Dismiss or, Alternatively, for Judgment upon the Administrative Record ("Def.'s Mot."), ECF No. 22.
Commander Laughlin entered the Navy through the Health Professions Scholarship Program ("HPSP") on May 8, 1998. AR 434-40;
Following completion of his training at the University of Pittsburgh, Commander Laughlin began an oral and maxillofacial surgery residency at Louisiana State University's New Orleans Charity Hospital through the Navy's Financial Assistance Program ("FAP"). Am. Compl. ¶ 8; Def.'s Mot. at 7. Under the provisions of the FAP, plaintiff incurred an additional five years of obligated active duty service-one year for each of his four years of residency, plus one additional year. Am. Compl. ¶ 8; see also AR 111-12 (plaintiff's statement to the Navy Board, quoting Department of Defense Instruction ("DoDI") 6000.13, § 6.4.9: "The [active duty service obligation] for a FAP participant shall be . . . the actual number of years of FAP sponsorship, plus one year."). Like the HPSP, the regulations for the FAP state that "[n]o portion of an [active duty service obligation] may be satisfied . . . [c]oncurrently with any other [active duty service obligation] or with an obligation incurred for DoD-subsidized pre-professional (undergraduate) education or training, or prior long-term health or health-related education or training, unless otherwise specified in this Instruction." DoDI 6000.13, § 6.6.2.
On July 1, 2003, after completing the first year of his residency, Commander Laughlin transferred from the FAP to the Navy's Duty Under Instruction ("DUINS") program. AR 203-212; Am. Compl. ¶ 11; Def.'s Mot. at 7. This transfer did not substantively change plaintiff's residency; rather, it shifted the funding for his residency from one graduate dental education program to another. Am. Compl. ¶ 11; Pl.'s Cross-Mot. at 2-3 (stating that plaintiff was transferred because "there was an extra line of accounting" for the DUINS program). The FAP and DUINS programs have the same requirements for obligated active duty service, including the same prohibition on satisfying an active duty service obligation incurred through the program concurrently with any other training-related service obligation. See AR 522-23 (letter to plaintiff's counsel from the Assistant General Counsel, Navy Office of the Assistant Secretary (Manpower and Reserve Affairs), discussing active duty service obligations for all "long-term health or health-related education or training" under DoDI 6000.13, including HPSP, FAP, and DUINS).
Following the completion of his residency in July 2006, Commander Laughlin attended a one-year head and neck surgery and microvascular fellowship at the University of Michigan. Am. Compl. ¶ 17. The Navy accepted plaintiff's application for funding of this program. AR 213-235. In his funding application, plaintiff stated "[m]y commitment thus far to the Navy is nine years. I fully understand that if accepted to proceed with a fellowship in head and neck trauma and reconstruction this will increase my overall commitment." AR 215. The training agreement included with plaintiff's notification of acceptance for the fellowship indicated that he would incur one additional year of obligated active duty service. AR 234.
On July 9, 2007, Commander Laughlin reported for duty at the Naval Medical Center in San Diego. AR 479-80; Am. Compl. ¶ 18; Def.'s Mot. at 8. Plaintiff continued to serve at this same duty station for the next few years. AR 481-94. He was promoted to his current rank of Commander and selected to lead the San Diego Naval Medical Center's dental department in 2014. AR 495-96.
According to Commander Laughlin, personnel at the Navy Bureau of Medicine's Special Pay Office informed him on two occasions, once in 2007 and again in 2008, that he would complete his active duty service obligation on July 1, 2011. Am. Compl. ¶¶ 18-19.
Over a year later, on July 21, 2010, Commander Laughlin contacted Captain Peters to request that his active duty obligated service date be changed to June 2011. AR 409-10. Plaintiff asserted that he never signed a service agreement for his one-year fellowship at the University of Michigan, and therefore should not have incurred a service obligation for this time period. Id.
Captain Peters responded to plaintiff on September 3, 2010 after doing additional research on Commander Laughlin's active duty service obligation. AR 383-85. Am. Compl. ¶ 26. Captain Peters informed plaintiff that the database maintained by the Navy Medicine's Special Pay Office contained an error, and that plaintiff's obligated service date was in fact July 2016 (calculated based on plaintiff's nine years of military-funded training ending in July 2007). AR 383; Am. Compl. ¶ 26; Def.'s Mot. at 9. On September 8, 2010, the Navy further corrected plaintiff's obligated service date to July 2017 because the Navy Bureau of Medicine had failed to account for the additional year of obligation that plaintiff incurred during the first year of his residency in the FAP. AR 381-82; see also AR 111-12 (plaintiff's statement to the Navy Board, quoting the provision in DoDI 6000.13, § 6.4.9 requiring an additional one-year service obligation for FAP-sponsored training). The following day, Captain Ed Reeg, deputy chief of the Navy Dental Corps, discussed the revised obligated service date with plaintiff and advised him that if plaintiff disagreed with the revision, he should appeal to the Navy Board. AR 320-22; Am. Compl. ¶ 30.
Instead of seeking review by the Navy Board, plaintiff, through counsel, sent a letter to Captain Elaine Wagner, chief of the Navy Dental Corps, on November 3, 2010 contesting the Navy Bureau of Medicine's calculation of his obligated service date. AR 129-30; Am. Compl. ¶ 36. Captain Wagner reiterated that the correct obligated service date was July 2017, based on the statutory requirements of 10 U.S.C. § 2123 and the regulations in DoDI 6000.13. AR 129. Captain Wagner also advised plaintiff that the best way to contest this determination was to appeal to the Navy Board. Id.
On December 21, 2010, Commander Laughlin, through counsel, submitted an application to the Navy Board, requesting that his active duty obligated service date be changed to July 2011 "or at the maximum July[] 2012 should the Board interpret that there was mutual consent regarding an additional year of [service obligation] pursuant to the [University of Michigan] fellowship." AR 109. Plaintiff indicated that the revised obligated service date of July 2017 had a "direct impact on [his] ability to separate from the service," and therefore he requested an "expedited review." AR 109-10.
On November 16, 2011, while his request for relief was pending with the Navy Board, plaintiff submitted an Unqualified Resignation Request from Active Duty. AR 22-24. Plaintiff indicated he would complete his active duty obligation on September 30, 2012 because he had accepted the Navy's incentive special pay for fiscal year 2012, and thereby agreed to remain on active duty until that date. AR 24. Plaintiff stated that his "training obligation payback is currently with the [Navy Board] for review," but that his calculation of his active duty obligated service date was based on the "Special Pays Office original documented calculation of 30 JUN 2011." Id.
The Navy Board concluded on November 28, 2011 that there was insufficient evidence "to establish the existence of probable material error or injustice" in the Navy's calculation of Commander Laughlin's active duty obligated service date as July 1, 2017. AR 43; Am. Compl. ¶ 46; Def.'s Mot. at 10. In coming to this conclusion, the Navy Board reviewed an advisory opinion submitted by Captain Wagner on February 14, 2011 and her revised opinion submitted on September 14, 2011. AR 47-48, 51-55. It also considered an advisory opinion by Captain Peters submitted on June 30, 2011. AR 49-50. The Navy Board found that even if plaintiff had received erroneous information that his active duty obligation would be satisfied concurrently once he transferred to the DUINS program, "such erroneous information should not serve as a basis to change the obligated service requirements provided by law and regulation." AR 44. The Navy Board also pointed to plaintiff's fellowship application in 2005, in which he stated "[m]y commitment thus far to the Navy is nine years," as evidence that plaintiff not only knew his obligation extended beyond 2011, but also knew he was incurring an additional obligation by pursuing the fellowship. AR 45, 215.
On May 25, 2012, Commander Laughlin, through counsel, asked Robert Woods, Assistant General Counsel, Navy Office of the Assistant Secretary (Manpower and Reserve Affairs), to review "the circumstances surrounding the [Navy Board's] decision." AR 9; Am. Compl. ¶ 50; Def.'s Mot. at 11. Mr. Woods replied on September 13, 2012, concluding that the Navy Board did not handle plaintiff's case "in an erroneous or fraudulent manner or in bad faith." AR 9. Mr. Woods also stated that after reviewing the relevant statutes and regulations, he agreed with the Navy Board's calculation of plaintiff's active duty obligated service date as July 1, 2017. AR 10-12.
In the interim, Commander Laughlin's request for resignation was addressed by various officials within the Navy's Personnel Command. AR 26-32. In light of the Navy Board's decision and the Navy Bureau of Medicine's calculation of plaintiff's active duty obligated service date as July 1, 2017, the officials recommended disapproval of plaintiff's request because a waiver of plaintiff's remaining service requirement would be excessive. Id. The Chief of Naval Personnel disapproved plaintiff's resignation request in March 2013. AR 34.
In November 2012, while his request for resignation was still pending, Commander Laughlin applied for dental incentive special pay for fiscal year 2013. AR 7; Am. Compl. ¶ 58 & n.15; Def.'s Mot. at 11. This request was approved, and plaintiff received $30,000 in exchange for his agreement to remain on continuous active duty for one year, or until September 30, 2013. AR 7-8.
On May 7, 2013, after his request for resignation was denied, Commander Laughlin applied for a three-year Dental Officer Multiyear Retention Bonus and accompanying Multiyear Incentive Special Pay. AR 1-2; Am. Compl. ¶ 64; Def.'s Mot. at 11. In his request, plaintiff stated that "[t]his obligation shall be for a period of 3 years beyond any existing active military service obligation for education or training." AR 1. Plaintiff also indicated that his obligated service date for education or training was July 1, 2017. AR 2. Plaintiff's application was approved and he was authorized to receive $38,000 per year for the retention bonus and $50,000 per year for the incentive special pay, and his obligated service date was adjusted to July 1, 2020. AR 4; Am. Compl. ¶ 65; Def.'s Mot. at 11.
Commander Laughlin filed his complaint on December 1, 2014, asking the court to set aside the Navy Board's findings from November 2011, declare that plaintiff's active duty obligated service date should be amended to July 1, 2011, and award plaintiff certain retention bonus amounts and incentive special pay to which he allegedly would be entitled but for the Navy's miscalculation of his service obligation. Compl. ¶ 1. His amended complaint was filed on July 28, 2015. Am. Compl. On August 14, 2015, the government moved to dismiss the amended complaint for lack of subject matter jurisdiction, or alternatively, for judgment on the administrative record. Def.'s Mot. at 1. Plaintiff's cross-motion for judgment on the administrative record and motion to supplement the administrative record were filed on September 21, 2015. Pl.'s Cross-Mot. at 1.
The plaintiff must establish this court's jurisdiction over the subject matter of his claim before the court can proceed to the merits of the claim. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88-89 (1998); Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002); Anderson v. United States, 59 Fed. Cl. 451, 454-55 (2004). In this instance, the court's subject matter jurisdiction is defined by the Tucker Act, 28 U.S.C. § 1491, which grants jurisdiction over claims "against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(1). Because the Tucker Act "does not confer any substantive rights upon a plaintiff," the plaintiff also "must establish an independent substantive right to money damages from the United States — that is, a money-mandating source within a contract, regulation, statute or constitutional provision — in order for the case to proceed." Volk v. United States, 111 Fed. Cl. 313, 323 (2013) (citing United States v. Testan, 424 U.S. 392, 398 (1976); Jan's Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1306 (Fed. Cir. 2008)).
In considering a motion to dismiss for lack of subject matter jurisdiction under RCFC 12(b)(1), the court must construe the allegations of the complaint in the light most favorable to the non-moving party. Anderson, 59 Fed. Cl. at 455 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Vanalco, Inc. v. United States, 48 Fed. Cl. 68, 73 (2000)). If the court determines that it does not have jurisdiction over a claim, it must dismiss the claim. See RCFC 12(h)(3).
RCFC 52.1 governs motions for judgment on the administrative record. When, in a motion under RCFC 52.1(c), this court is called upon to address a decision of a military correction board, to obtain relief, the plaintiff must show that the board's decision was "arbitrary, capricious, unsupported by substantial evidence, or contrary to law." Anderson, 59 Fed. Cl. at 455 (quoting Porter v. United States, 163 F.3d 1304, 1312 (Fed. Cir. 1998)); see also Volk, 111 Fed. Cl. at 325 (citing Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986)). "Thus, correction board decisions `may be reviewed for failure to correct plain legal error committed by the military,' including `the military's violation of statute, or regulation, or published mandatory procedure, or unauthorized act.'" Volk, 111 Fed. Cl. at 325 (quoting Dodson v. United States, 988 F.2d 1199, 1204 (Fed. Cir. 1993) (internal quotation marks omitted)).
In its motion to dismiss, the government asserts that this court does not have subject matter jurisdiction over Commander Laughlin's complaint because the relevant statues governing military bonuses and incentive special pay for dentists and dental surgeons (37 U.S.C. §§ 301e and 302b) are not "money-mandating." Def.'s Mot. at 12-13 (citing Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (requiring plaintiffs seeking relief in this court under the Tucker Act to identify a separate source of substantive law that creates a right to money damages)). Plaintiff's complaint includes two causes of action: (1) that the government incorrectly calculated his active duty service obligation, and (2) that he is owed additional multiyear retention bonuses and incentive special pay because of this miscalculation. Am. Compl. ¶¶ 66-78. Plaintiff is seeking both declaratory relief and money damages. Am. Compl. at 19-20.
In his first cause of action, plaintiff claims that the government's calculation of his active duty obligation was "arbitrary, capricious, unsupported by evidence, and contrary to law." Am. Compl. ¶ 6. As relief, plaintiff is seeking a declaratory judgment that his training-related active duty obligation terminated on July 1, 2011. Am. Compl. at 19.
Under the Tucker Act, the court has authority to award equitable relief in the form of a declaratory judgment "only when such an award would be ancillary to an affirmative obligation of the federal government to pay money damages." Anderson, 59 Fed. Cl. at 456 (citing James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998) ("[E]quitable relief [in Tucker Act suits] must be `an incident of and collateral to' a money judgment." (quoting 28 U.S.C. § 1491(a)(2)))). For government employees, including members of the military, the Tucker Act gives this court jurisdiction to "issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records," but only when such an order would "provide an entire remedy and . . . complete the relief afforded by the judgment [on a claim for monetary damages under the Act]." 28 U.S.C. § 1491(a)(2); see also Mercier v. United States, 114 Fed. Cl. 795, 800 (2014) (discussing the requirement under the Tucker Act for declaratory judgments to be attendant to an award of a money damages), rev'd in part on other grounds, 786 F.3d 971 (Fed. Cir. 2015). Accordingly, the court has jurisdiction over cases where the plaintiff is claiming a monetary entitlement as a result of a correction board's failure to correct legal and factual errors in a service member's records. See, e.g., Richey v. United States, 322 F.3d 1317, 1323 (Fed. Cir. 2003) ("If an officer elects to pursue a remedy before the Corrections Board, after the Board renders a final decision, the officer may effectively obtain review of that decision in the Court of Federal Claims by filing suit under the Tucker Act."); Laningham v. United States, 30 Fed. Cl. 296, 304 (1994) ("[I]t is a well-settled principle of law that the [Court of Federal Claims] has jurisdiction over military pay cases involving parties who allege that they are due back pay because a military [c]orrection [b]oard . . . fail[ed] to correct legal and factual errors in the record.").
Here, plaintiff's active duty obligated service date is not directly tied to monetary damages. In other words, Commander Laughlin would not automatically be entitled to additional military pay if his obligated service date was changed. Nonetheless, the court must assume for the sake of the government's motion to dismiss on jurisdictional grounds that plaintiff has stated a valid claim in his second cause of action—namely, that the Navy precluded plaintiff from applying for and receiving additional multiyear retention bonuses and incentive special pay because of the incorrect calculation of his obligated service date. To restate the matter, the court has to address the Navy Board's alleged failure to correct plaintiff's military records in the court's consideration of plaintiff's second cause of action claiming monetary damages. Therefore, under 28 U.S.C. § 1491(a)(2), the court has subject matter jurisdiction over plaintiff's first cause of action so long as a money-mandating source of law is involved respecting the second cause of action.
The salient question regarding plaintiff's second cause of action is whether the statute governing the Dental Officer Multiyear Retention Bonus, 37 U.S.C. § 301e, and that pertaining to the Multiyear Incentive Special Pay, 37 U.S.C. § 302b, are money-mandating.
The statute governing the Dental Officer Multiyear Retention Bonus states that "[a] dental officer . . . who executes a written agreement to remain on active duty for two, three, or four years after completion of any other active-duty service commitment may, upon acceptance of the written agreement by the Secretary of the military department concerned, be paid a retention bonus." 37 U.S.C. § 301e(a)(1) (emphasis added). The government argues that because this statute uses the permissive term "may" and the relevant Navy regulation, OPNAVINST 7220.17, describes this as a "discretionary bonus," there is not an entitlement to military pay sufficient to invoke this court's jurisdiction under the Tucker Act. Def.'s Mot. at 13 (citing Adair v. United States, 648 F.2d 1318, 1322 (Ct. Cl. 1981) ("[A] statute providing for solely discretionary payment of money does not give rise to a `right to recover money damages from the United States.'" (quoting United States v. Testan, 424 U.S. 392, 396 (1976)))).
The use of the permissive "may" ordinarily creates the presumption that a statute is discretionary and not mandatory. See, e.g., Doe v. United States, 463 F.3d 1314, 1324 (Fed. Cir. 2006) ("There is a presumption that the use of the word `may' in a statute creates discretion."). However, the court in Doe also noted that this presumption may be overcome "when an analysis of congressional intent or the structure and purpose of the statute reveal one of the following: (1) the statute has `clear standards for paying' money to recipients, (2) the statute specifies `precise amounts' to be paid, or (3) the statute compels payment once certain conditions precedent are met." Id. (quoting Samish Indian Nation v. United States, 419 F.3d 1355, 1364-65 (Fed. Cir. 2005) (in turn citing Perri v. United States, 340 F.3d 1337, 1342-43 (Fed. Cir. 2003))).
The court also must take into account the Supreme Court's ruling that statutes involving military reenlistment bonuses are money-mandating because of their long history and the attendant expectation that the bonus will be paid if the service member otherwise meets the applicable requirements. See United States v. Larionoff, 431 U.S. 864, 865 n.1, 868-73 (1977) (concluding that the statute providing a reenlistment bonus for active duty soldiers, 37 U.S.C. § 308, was money-mandating, noting that "[t]he Court of Appeals opinion traces the history of this [reenlistment bonus] policy from 1795"); see also Hale v. United States, 107 Fed. Cl. 339, 345-46 (2012) (finding that Chapter 5 of Title 37, 37 U.S.C. §§ 301-374, titled "Special and Incentive Pays" includes a number of statutes using the word "may" that are nevertheless money-mandating under the rationale in Larionoff).
Section 301e of Title 37 satisfies the first factor identified in Doe (originating in Perri and Samish Indian Nation) to overcome the presumption that a statute using the word "may" is discretionary. The Section provides "clear standards" that must be met by dental officers to receive the retention bonus. See 37 U.S.C. § 301e(b) (identifying five requirements for dental officers to be "automatically eligible" for the bonus). The second factor is also met. The statute does not provide a precise amount of bonus to be paid, but it does set a maximum amount per year covered by a four-year service agreement, and directs that the yearly retention bonus amount "shall be reduced" for two-year and three-year agreements. 37 U.S.C. § 301e(a)(2).
Furthermore, the language of the provisions for the Dental Officer Multiyear Retention Bonus in 37 U.S.C. § 301e parallels that of other statutes for reenlistment bonuses in Chapter 5 of Title 37. Compare 37 U.S.C. § 308(a)(1) ("The Secretary concerned may pay a bonus . . . to a member of a uniformed service who . . . reenlists or voluntarily extends the member's enlistment for a period of at least three years") (emphasis added), with 37 U.S.C. § 301e(a)(1) ("A dental officer . . . who executes a written agreement to remain on active duty for two, three, or four years . . . may, upon acceptance of the written agreement by the Secretary of the military department concerned, be paid a retention bonus.") (emphasis added). Therefore, under the rationale of Larionoff and Hale, 37 U.S.C. § 301e is a money-mandating statute for the purposes of this court's jurisdiction because of the long-standing tradition associated with providing bonuses to military members who voluntarily agree to extend their service obligations, coupled with application of the Doe, Samish Indian Nation, and Perri criteria.
The same rationale applies to the provisions for the Multiyear Incentive Special Pay in 37 U.S.C. § 302b.
Accordingly, this court has subject matter jurisdiction over both of plaintiff's causes of action, and the government's motion to dismiss is DENIED.
Plaintiff and the government have submitted cross-motions for judgment on the administrative record under RCFC 52.1(c).
The court has the power to correct military records where the agency has violated its own regulations or procedures. See Voge, 844 F.2d at 779. However, the military's determination of a factual matter is given great deference, and the court will only overturn such a determination when it is "arbitrary, capricious, unsupported by substantial evidence, or contrary to law." Anderson, 59 Fed. Cl. at 455 (quoting Porter, 163 F.3d at 1312); see also Voge, 844 F.2d at 779 ("Judicial deference must be at its apogee in matters pertaining to the military and national defense." (citing Rostiker v. Goldberg, 453 U.S. 57, 70 (1981))).
In this instance, there is no evidence that the Navy's records are inaccurate to the point of injustice to Commander Laughlin, or that the Navy Board's determination of plaintiff's active duty obligation was arbitrary, capricious, or unsupported by substantial evidence. There is also no evidence that the Navy violated any applicable law, regulation, or procedure in calculating plaintiff's service obligation. To the contrary, the relevant Department of Defense Instruction (DoDI 6000.13) unequivocally states that active duty service obligations incurred through military-funded training programs cannot be satisfied concurrently with any other service obligation, except obligations incurred for residencies or fellowships conducted at a military facility. See AR 112 (quoting DoDI 6000.13, § 6.6.2.3); AR 522-23 (quoting DoDI 6000.13, § 6.6.3.1). The instruction also states that time spent in a residency "shall not be creditable in satisfying the [active duty service obligation]." Pl.'s Cross-Mot. at 23 (quoting DoDI 6000.13, § 6.4.9).
Despite his present allegations, Commander Laughlin had notice that he could not satisfy his active duty service obligation concurrently either with other service obligations or his medical residency and fellowship. When he was accepted to the HPSP at the University of Pittsburgh, he signed a service agreement acknowledging that he "may not serve all or any part of the [active duty service obligation] incurred by participation in this program concurrently with any other military obligation." AR 439 ¶ 17(b). In 2006, well after his medical training began, plaintiff also stated in the funding application for his fellowship that his "commitment thus far to the Navy is nine years" and that he "fully understand[s] that if accepted to proceed with a fellowship in head and neck trauma and reconstruction this will increase [his] overall commitment." AR 215. Therefore, plaintiff cannot plausibly claim there was no "mutual agreement" for his service obligation to extend beyond 2011. See Pl.'s Cross-Mot. at 23-24.
Commander Laughlin's case rests primarily on his allegation that he was told by Captain Welbourn in 2003 that by moving to the DUINS program, plaintiff could begin satisfying his active duty service obligation. See, e.g., Pl.'s Cross-Mot. at 25-26 (claiming there was an "implied-in-fact contract" between plaintiff and the Navy based on Captain Welbourn's alleged statements). Plaintiff asserts that "[t]he record is replete with written communication[s] corroborating the veracity of [plaintiff's] position that he entered into a mutual agreement [to satisfy his service obligation concurrently]." Id. at 26. The evidence to which plaintiff points merely shows that when plaintiff raised the dispute over his obligated service date in 2010-years after the alleged implied-in-fact contract was made-some Navy officers thought that plaintiff's claims might be credible. Id. at 26-27 (citing AR 322, 330 (in which Captain Reeg stated in 2010 that plaintiff might not have been "lying" about what he was told in 2003, but noting that plaintiff would normally be "expected to know the rules as a student no matter what he was told")); AR 47 (advisory opinion from Captain Wagner in 2011, postulating that a "claim of concurrent payback may have been the main driver" for plaintiff to have switched from the FAP to DUINS in 2003, "though there may be other reasons")). In particular, plaintiff points to an e-mail from September 2010, in which Commander Michael Carson summarized a conversation with (then-retired) Captain Welbourn, as conclusive evidence of an implied-in-fact contract for plaintiff to serve his obligation concurrently. Pl.'s Cross-Mot. at 26-27. However, this e-mail shows nothing of the sort. It states that Captain Welbourn remembered that plaintiff transferred to the DUINS program and that this process required "the approval of the ADM" (which according to plaintiff referred to Rear Admiral Dennis Woofter, the former chief of the Navy Dental Corps). AR 125; Pl.'s Cross-Mot. at 26-27. Commander Carson went on to state that Captain Welbourn "would like to see [plaintiff] not have to pay back more than 2012, but understands that the current instruction would have [plaintiff's] payback [until] 2016." AR 125. At most, the e-mail suggests that Captain Welbourn was supportive of plaintiff's continued medical training, but it does not establish that plaintiff was promised he could satisfy his active duty obligation during this training.
Most significantly, even if Captain Welbourn (or another Navy officer other than the Secretary) told plaintiff at some point that he could satisfy his active duty service obligation concurrently with his training or other obligations, plaintiff has provided no evidence that these officers had the authority to override the Navy's regulations or procedures in this regard. Plaintiff notes that 10 U.S.C. § 2005 (which governs advanced educational assistance by the military and related active duty agreements) and DoDI 6000.13 provide the Secretary of the Navy "latitude in altering [active duty service obligations] by mutual agreement." Pl.'s Cross-Mot. at 24. Even if these provisions applied in the present case, plaintiff has neither provided evidence that the Secretary of the Navy approved an exception allowing plaintiff to satisfy his service obligation concurrently with his training or other obligations, nor shown that the Secretary authorized any other officer to do so.
In short, based on the administrative record, the Navy's and the Navy Board's determination of plaintiff's active duty service obligation was not arbitrary, capricious, or unsupported by evidence, nor did it violate applicable statutes and regulations.
Because this court has found that the Navy and the Navy Board did not err in determining that plaintiff's training-related active duty obligated service date is July 1, 2017, it need not reach the issue raised in plaintiff's second cause of action regarding multiyear retention bonuses and incentive special pay allegedly due. Nonetheless, the court notes that, based on the administrative record, plaintiff is not entitled to monetary damages for bonuses or incentive pay for which he never applied, and for which he never intended to apply prior to 2013. In 2011, when plaintiff contends his service obligation should have ended, plaintiff was not applying for multiyear retention bonuses or incentive special pay; he was trying to resign from the Navy. See AR 22-24 (plaintiff's Unqualified Resignation Request from Active Duty); AR 26-34 (reflecting continued pendency of that request through March 2013). Remarkably, this effort did not prevent plaintiff from receiving the single-year incentive special pay for fiscal years 2012 and 2013. AR 7, 24. Only once plaintiff's resignation request was denied in March 2013 did he apply for a multiyear retention bonus and incentive special pay and sign an accompanying three-year service agreement. AR 1-2. The government concurs that plaintiff was eligible for a multiyear retention bonus and incentive special pay starting in July 2011, not because he had fulfilled his active duty obligation, but because he had completed the requisite years of creditable service. Def.'s Mot. at 15. To receive a multiyear bonus and incentive special pay, however, plaintiff would have had to apply for these benefits and agree to the accompanying multiyear service obligation. He did not.
Accordingly, based on the administrative record, plaintiff is not entitled to monetary damages for multiyear retention bonuses or incentive special pay.
For the reasons stated, defendant's motion to dismiss for lack of subject matter jurisdiction is DENIED, defendant's motion for judgment on the administrative record is GRANTED, and plaintiff's cross-motion for judgment on the administrative record is DENIED.
No costs.
It is so
Citations to the administrative record ("AR") refer to the record filed on July 7, 2015, ECF No. 19. That record is paginated sequentially. See AR 112.
