UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

ALEXANDER E. STEWART, 

Plaintiff, 

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

RAY MABUS, 

Defendant. 

AMENDED 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. 

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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~, 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."). 

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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 

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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 <JI 7 [ Dkt. No. 12-3] (citing DODI 6000. 13 

<JI 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. 

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2. MSP Agreements 

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

Special Pay" ("MSP") agreement with the Navy. AR 45-46. 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 

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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 preMSP 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 

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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 

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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 ~ctober 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. 

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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 oneyear service obligation. This obligation was to be served 

consecutively with Stewart's -Obligations 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. 

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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. 

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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 

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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. 

5. 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. 1; Compl. ~ 29. 

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

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

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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. 

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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. 

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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 f ram 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 

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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]. 

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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. 

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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. ~~ 53, 67, 79, 

rather than to enforce those agreements directly. Although this 

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

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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. 

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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 § 702 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 

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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." 

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

also Spectrum Leasing Corp. v. United States, 764 F.2d 891, 893 

(D.C. Cir. 1985) ("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." (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 

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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 final 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. 

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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 

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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 

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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 

·10 Available at 

http://www.med.navy.mil/bumed/Special Pay/Documents/HomeLinks/Re 

ferences/OPNAVINST%207220.17.pdf (last visited Feb. 12, 2016). 

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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. 1 7. 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.ations incurred through MSP agreements or whether it is 

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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 statute 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 

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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] investment 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 GladySKeSSJ:r <Q~/~ United States District Judge 

Copies to: attorneys on record via ECF 

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