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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 6, 2002 Decided July 11, 2003

No. 01-5383

JOHN L. FONTANA, LIEUTENANT COLONEL, AND

KEVIN P. MURPHY, LIEUTENANT COLONEL,

APPELLANTS

v.

THOMAS E. WHITE, SECRETARY OF THE ARMY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 00cv01732)

Charles W. Gittins argued the cause for appellants. With

him on the briefs was Louise Bouscaren McKnew.

Paul A. Mussenden, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Roscoe C.

Howard, Jr., U.S. Attorney, R. Craig Lawrence, Assistant

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

U.S. Attorney, and Tara Osborn and Steven D. Bryant,

Counsel, Office of the Judge Advocate General.

Before: EDWARDS, ROGERS, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Appellants John L. Fontana and

Kevin P. Murphy are lieutenant colonels currently serving on

active duty as Army physicians at Walter Reed Medical

Center in Washington, D.C. They began their military careers at the United States Military Academy at West Point in

1979, at which time each signed an agreement to complete a

military service obligation in return for a free undergraduate

education. After graduating from West Point in 1983, each

appellant signed another agreement by which he incurred an

additional service obligation in exchange for a free medical

school education at the Uniformed Services University of the

Health Sciences (USUHS). Both appellants subsequently

signed further agreements prior to entering into additional

government-subsidized medical training, including internships, residencies, and fellowships. Each appellant accepted,

in his most recent such agreement, the Army’s current calculation of the date on which his service obligation would end:

for Fontana, April 1, 2005; for Murphy, March 29, 2006.

In May 1999, however, Fontana and Murphy submitted

their resignations, contending that they had completed their

respective service obligations. The Army disagreed, and

refused to accept the resignations. The appellants then filed

applications with the Army Board for the Correction of

Military Records (ABCMR), requesting that their personnel

records be amended to reflect their own calculations of their

release dates. In separate decisions, the Board rejected the

appellants’ applications on the ground that the Army had

correctly calculated their service obligations in accordance

with the applicable statutes, regulations, and agreements. In

particular, the Board held that each officer had committed

himself to a twelve-year total obligation in return for his

undergraduate and medical school education, against which

his time in medical school did not count: a five-year obligation for West Point, to run consecutively with a seven-year
3

obligation for USUHS. Fontana and Murphy appealed the

decisions of the ABCMR to the United States District Court

for the District of Columbia, which granted summary judgment in favor of the Secretary of the Army.

The appellants now appeal to this court, offering two

theories in support of the contention that they have already

completed their service obligations: (1) that their West Point

obligations ran concurrently with their seven-year USUHS

obligations; and/or (2) that their four years in medical school

counted against their West Point obligations. We reject both

theories and affirm the judgment of the district court.

I

On review of a district court’s grant of summary judgment

in connection with the appeal of a decision of the ABCMR,

‘‘we review the ABCMR’s decision de novo, applying the same

standards as the district court.’’ Frizelle v. Slater, 111 F.3d

172, 176 (D.C. Cir. 1997). The district court applied the

deferential review standard of Chevron U.S.A. Inc. v. Natural

Res. Def. Council, 467 U.S. 837 (1984), and the government

contends that we should do the same. The appellants, by

contrast, contend that we should show no deference to the

Board. We need not resolve this dispute, however, because

we conclude that the Board’s decisions were correct regardless of the standard of review.

A

We begin our analysis with the statutes that govern the

appellants’ service obligations. The first of these is 10 U.S.C.

§ 4348, which sets forth the obligation that cadets incur in

exchange for admission to the United States Military Academy. The relevant portion of the version of the statute that

was in effect when the appellants entered West Point in 1979

reads as follows:

(a) Each cadet TTT shall sign an agreement that, unless

sooner separated, he will —

(1) complete the course of instruction at the Academy;

(2) accept an appointment and serve as a commissioned officer of the Regular Army or the Regular Air
4

Force for at least the five years immediately after

graduation; and

(3) accept an appointment as a commissioned officer as

a Reserve for service in the Army Reserve or the Air

Force Reserve and remain therein until the sixth

anniversary of his graduation, if an appointment in the

regular component of that armed force is not tendered

to him, or if he is permitted to resign as a commissioned officer of that component before that anniversary.

10 U.S.C. § 4348 (1976).1

 Thus, pursuant to § 4348(a)(2), the

appellants were required to agree that they would complete

five years’ service in the Regular Army in exchange for their

West Point education. Each appellant signed an agreement

that mirrored this statutory requirement. See, e.g., Service

Agreement, United States Military Academy (July 2, 1979),

J.A. at 111 (Fontana).

In July 1983, the appellants resigned from the Regular

Army and accepted appointments as active-duty officers in

the Army Reserve, as required for entry into USUHS. See

Appellee’s Br. at App. 1, 5 (letters of resignation); see also

Service Agreement, Uniformed Services University of the

Health Services, J.A. at 109 (Murphy); id. at 110 (Fontana).2

1 Both parties, and as a consequence the district court, cite a

subsequent version of § 4348 that was not enacted until 1985 and

hence is not relevant to the matter before us. See 10 U.S.C.A.

§ 4348 (West 1998) (providing the history of revisions to the

statute). Some of the statutory language that the parties discuss in

their briefs — most notably, the distinction between ‘‘active duty’’

and ‘‘commissioned’’ service obligations — did not exist in the

earlier version, and we therefore do not address it in this opinion.

See United States Nat’l Bank of Oregon v. Indep. Ins. Agents of

Am., Inc., 508 U.S. 439, 445–48 (1993) (holding that a court of

appeals has authority to take into account changes in the law that

have escaped the notice of the parties and the district court). In

any event, the difference in language would not yield a different

result in this case.

2 The appellants returned to the Regular Army upon graduation from medical school, as required by ¶ 3 of their USUHS service

agreements. J.A. at 109, 110.
5

According to the appellants’ reading of § 4348(a)(3), their

resignations relieved them of their obligation to serve five

years in the Regular Army, imposing instead a requirement

that they remain in the Army Reserve until the sixth anniversary of their West Point graduations. And nothing in the

statute, the appellants maintain, precludes counting their time

at USUHS toward the satisfaction of that obligation.

This argument might have merit if § 4348 and the West

Point agreement were viewed in isolation, as though the

appellants had entered into no further agreements and incurred no further obligations after graduating from West

Point. But while § 4348 sets forth the minimum contractual

terms to which each cadet must agree before entering West

Point, it does not bar a graduate from agreeing to extend the

service obligation that § 4348 requires in exchange for additional free education — as Fontana and Murphy did here. To

the contrary, such subsequent agreements are authorized by

at least two other statutes, to which we now turn.

The statute that generally governs the Secretary of the

Army’s authority to enter into contracts concerning the provision of ‘‘advanced education assistance’’ is 10 U.S.C. § 2005.

That section states, in relevant part:

(a) The Secretary concerned may require, as a condition

to the Secretary providing advanced education assistance

to any person, that such person enter into a written

agreement with the Secretary concerned under the terms

of which such person shall agree —

(1) to complete the educational requirements specified

in the agreement and to serve on active duty for a

period specified in the agreement;

TTT and

(4) to such other terms and conditions as the Secretary concerned may prescribe to protect the interest of

the United States.

(b) The Secretary concerned shall determine the period

of active duty to be served by any person for advanced

education assistance to be provided such person by an

armed force, except that if the period of active duty

required to be served is specified under another provi-
6

sion of law with respect to the advanced education assistance to be provided, the period specified in the agreement referred to in subsection (a) shall be the same as

the period specified in such other provision of law.

10 U.S.C. § 2005 (1982).

Section 2005(a) clearly authorizes the Secretary of the

Army to require that a student, as a condition of receiving

advanced education assistance, agree to such terms as the

Secretary may prescribe to protect the interest of the United

States. And § 2005(b) specifically authorizes the Secretary

to determine the period of active duty to be served by the

student in exchange for such advanced education assistance.

These grants of authority are broad enough to permit the

Secretary to require, as terms of the agreement, that time in

medical school not count toward preexisting service obligations like those incurred by the appellants at West Point,

and that such preexisting obligations be served consecutively

with the additional obligations incurred in return for medical

education. As we discuss in Part I.B, the Secretary did in

fact include those terms in the appellants’ USUHS agreements.

Fontana and Murphy contend, however, that the Secretary’s authority to specify such terms is restricted by the

‘‘except’’ clause of § 2005(b): the Secretary is permitted to

determine the period of active service to be served in exchange for advanced education assistance to be provided to

the individual ‘‘except TTT if the period of active duty required

to be served is specified under another provision of law with

respect to the advanced education assistance to be provided.’’

Id. (emphasis added). The appellants argue that because the

period of active duty required of West Point graduates was

specified ‘‘under another provision of law,’’ namely § 4348(a),

the Secretary was without authority to alter or extend it.

But this argument ignores the balance of the relevant language of § 2005(b). Section 4348(a) is indeed a ‘‘provision of

law’’ that specifies the period of active service required for

the education assistance that was provided appellants under

their West Point agreements. But it plainly does not specify
7

the period of required active duty service ‘‘with respect to the

advanced education assistance’’ that was ‘‘to be provided’’ to

the appellants under their subsequent USUHS agreements.

When the parties entered the USUHS agreements, the assistance ‘‘to be provided’’ was the appellants’ medical school

education; their West Point education had already been

provided.

The statute that sets forth the obligations of USUHS

students is 10 U.S.C. § 2114, which states in relevant part:

Students who graduate [from USUHS] shall be required

TTT to serve thereafter on active duty under such regulations as the Secretary of Defense TTT may prescribe for

not less than seven years, unless sooner released.

10 U.S.C. § 2114(b). This language establishes two important points. First, as the appellants concede, it imposes a

minimum seven-year service obligation that does not begin to

run until after graduation from USUHS (‘‘to serve thereafter’’). Second, just as § 2005 generally authorizes the Secretary of the Army to prescribe the terms of the service

agreements required of those who accept advanced education

assistance, § 2114(b) specifically authorizes the Secretary of

Defense to prescribe regulations to govern the active duty

service requirements of those who graduate from USUHS.

It is to those agreements and regulations that we now turn.

B

In July 1983, Fontana and Murphy each entered into an

agreement with the Army as a condition of their enrollment

in medical school at USUHS. Paragraph 3 of that contract

required the appellants to accept Regular Army commissions

upon graduation. Paragraph 4 set forth the relationship

between the appellants’ seven-year USUHS obligations and

their unfulfilled West Point obligations:

I understand that my unfulfilled service obligation incurred as a result of my participation in TTT USMA [the

U.S. Military Academy] TTT will be served consecutively

with the service obligation incurred by my participation
8

in the medical program of the Uniformed Services University of the Health Sciences. This obligation will be

served in addition to internship and residency training in

accordance with the policy of the military service in

which I am appointed. I acknowledge that my remaining

service obligation incurred prior to entry into the medical

program is 24 May 88, and that this service obligation

will extend the service obligation incurred as a result of

my participation in the medical program.

J.A. at 109, 110 (emphasis added). The language of this

agreement clearly disposes of the first of the appellants’ two

theories: that the two service obligations could be served

concurrently, rather than consecutively. As the language

expressly states, the parties agreed that the two obligations

would be ‘‘served consecutively.’’

The wording of the USUHS agreement also undercuts the

appellants’ other theory: that a student’s four years of medical school count against his West Point obligation. Although

it would not be impossible to construe the phrase ‘‘will be

served consecutively with’’ to permit the West Point obligation to run during (and somewhat beyond) the four years of

medical school, with the seven-year USUHS obligation commencing thereafter, the sentence structure suggests a contrary reading. The more likely meaning of the locution ‘‘X is

consecutive with Y’’ is that X comes after Y — in this case,

that the West Point obligation only begins to run after the

seven-year USUHS obligation is completed. This reading is

also supported by the last sentence quoted above, which

states that the West Point obligation will ‘‘extend’’ the

USUHS obligation.

Any lingering ambiguity in the language of the agreement

is dispelled by the governing regulation. See Cole v. Burns

Int’l Sec. Servs., 105 F.3d 1465, 1485–86 (D.C. Cir. 1997)

(holding that courts should prefer an interpretation that

makes a contract lawful). Department of Defense (DoD)

Directive 6000.2, issued on March 19, 1981 and applicable to

all military departments, sets forth policies pertaining to the
9

service obligations of persons receiving health-related education from the military. Section F(1) of the directive states:

1. Payback of a Prior Obligation. No portion of a prior

obligation arising out of the expenditure of government

funds for education or training purposes may be satisfied

during any period of long-term health or health-related

education or training.

DoD Directive 6000.2, at § F(1) (Mar. 19, 1981). This language could not be clearer, and plainly bars any portion of

Fontana’s or Murphy’s West Point obligation (a ‘‘prior obligation arising out of the expenditure of government funds for

education’’) from being satisfied during his medical school

years (‘‘any period of TTT health-related education’’).3

 Likewise, § F(2) of the directive confirms the conclusion that the

West Point and USUHS obligations may not be served concurrently:

2. Payback of an ADO [active duty obligation] incurred

under the Provisions of this Directive. No portion of an

ADO may be satisfied TTT [c]oncurrently with any other

ADO or with an obligation incurred for DoD-subsidized

preprofessional (undergraduate) educationTTTT

Id. § F(2).

In response, the appellants rely on Army Regulation (AR)

350-100, which, they contend, conflicts with the directive by

requiring that their obligations run concurrently and that

3 Although the appellants do not dispute the clarity of this

language, they point to what they regard as a contradictory provision of the same section: ‘‘Nothing in this Directive shall be used to

change an ADO [active duty obligation] or an active duty agreement

entered into in writing by a health services officer before the date

of the implementation of this Directive.’’ DoD Directive 6000.2, at

§ F. That provision has no relevance here, however, because the

appellants were not ‘‘health services officer[s]’’ when they entered

into their West Point agreements. In any event, § F(1)’s bar

against satisfying prior obligations during health-related training

does not ‘‘change’’ those obligations; it simply specifies the relationship between the prior obligations and those subsequently incurred.
10

their medical school time count against their West Point

obligation. See AR 350-100, at ¶¶ 3-3, 3-4.4

 We need not

determine whether the appellants’ interpretation of the language of AR 350-100 is correct as applied to the service

obligations of other Army officers, however, because it does

not govern the obligations of physicians like Fontana and

Murphy. Paragraph 1-7(b) of AR 350-100, headed ‘‘Applicability,’’ states: ‘‘Specific policies on service obligations for

Army Medical Department (AMEDD) officers are in AR 351-

3.’’ AR 350-100, at ¶ 1-7(b). Accordingly, at least to the

extent that the two regulations conflict, the duties of Army

Medical Department officers like the appellants are specified

not by AR 350-100, but rather by AR 351-3, paragraph 7-1 of

which confirms that it is the regulation that ‘‘prescribes the

policies governing active duty obligations TTT incurred for

participation in TTT health related education and training

programs.’’ AR 351-3, at ¶ 7-1 (Appellee’s Br. at App. 18).

The relevant provisions of the latter regulation are ¶¶ 7-3(B)

and (C), which repeat the language of §§ F(1) and (2) of DoD

Directive 6000.2 almost verbatim. And because the provisions of AR 351-3 are identical to those of the directive, they

provide no support for the appellants’ claims and instead

support the Army’s position.5

4 Because the text of older versions of this regulation is difficult

to locate, we use the text provided by the parties, which is dated

April 1994. We assume, because the parties do not suggest otherwise, that the 1994 version of the regulation is not materially

different from the regulation that was in effect when the appellants

entered medical school in 1983.

5 The appellants argue that AR 351-3 was not considered by the

ABCMR, and that a court therefore cannot consider it in support of

the Board’s decisions. See Securities Exch. Comm’n v. Chenery

Corp., 332 U.S. 194, 196 (1947). We are not certain that the factual

premise of this argument is correct, as the Board stated that it had

considered all ‘‘applicable law and regulations.’’ J.A. at 70, 88. But

even if the Board did not consider AR 351-3 specifically, it did

expressly rely on Directive 6000.2. And since the two provisions

are identically worded, there is no reason for a remand because

there is no ‘‘significant chance that TTT the agency might have
11

In sum, the relevant Army regulation is consistent with the

DoD Directive, and both make clear that the time the appellants spent immersed in their medical books did not count

against their West Point obligations. Similarly, the regulation and directive bar the West Point and medical school

service obligations from being served concurrently. The

governing regulations thus support the ABCMR’s reading of

the USUHS contract.

C

Finally, we note that additional support for the ABCMR’s

determination of the service obligations of the appellants is

provided by several subsequent agreements, pursuant to

which Fontana and Murphy further extended their obligations in exchange for post-graduate training including internships, residencies, and fellowships. Murphy entered into

his last such agreement in March 1994, prior to beginning a

fellowship in reconstructive surgery. Murphy’s training

agreement provided as follows:

6. I understand that my current ADO [active duty

obligation] expires on April 29, 2004. By acceptance of

this GPE [graduate professional education] training, I

agree that my ADO, upon successful completion of this

training, will terminate on March 29, 2006TTTT

Appellee’s Br. at App. 4 (emphasis added). Fontana signed

an agreement with identical language, albeit with a different

release date (April 1, 2005), when he entered subspecialty

training in pediatric anesthesiology in 1991. Id. at App. 7.

Although both appellants apparently attached letters disputing the specified release dates,6

 they nonetheless signed the

reached a different result’’ had it considered the former as well as

the latter. National Mining Ass’n v. Dep’t of Interior, 251 F.3d

1007, 1014 (D.C. Cir. 2001) (quoting Henry J. Friendly, Chenery

Revisited: Reflections on Reversal and Remand of Administrative

Orders, 1969 DUKE L.J. 199, 211).

6 None of the parties included the letters in the Joint Appendix

submitted on appeal; the briefs describe them in only the most

general terms.
12

agreements and ultimately accepted the government-funded

training notwithstanding the Army’s failure to acknowledge

their letters.

Fontana and Murphy now contend that the release dates

included in their training agreements were unlawful, and that

they in fact completed their service obligations in May 1999.

The appellants agree that their post-medical-school training

did not count toward the fulfillment of their prior obligations,

and do not dispute the Army’s calculation of the amount by

which that training extended those prior obligations. Their

disagreement with the release dates is based solely on their

rejection of a twelve-year combined West Point/USUHS service obligation, which provided the starting point for the

Army’s calculations. By entering into these agreements,

however, the appellants accepted those calculations. Nothing

compelled or coerced the appellants to sign the agreements;

having done so and received the benefit of their bargains, the

appellants cannot now dispute the terms to which they voluntarily agreed.

Nor was there anything unfair about the bargains the

appellants struck. If we were to accept the appellants’

argument that they satisfied their West Point obligations

during their four years of medical school, they would each

owe only one more year of service7

 than their medical school

classmates who did not attend West Point and who received

four fewer years of government-funded education. And if we

7 As discussed in Part I.A., the appellants, citing 10 U.S.C.

§ 4348(a)(3), contend that when they resigned their commissions to

enter medical school, they were relieved of the five-year Regular

Army service obligation they had incurred upon graduation from

West Point, and instead incurred a six-year Army Reserve obligation that began running immediately. The Army, in contrast,

argues that attendance at USUHS simply put the appellants’ fiveyear Regular Army obligation on hold until their USUHS graduation, whereupon their consecutive five- and seven-year obligations

began to run. Both parties agree, however, that if we reject the

appellants’ theory that the West Point obligation was satisfied

during medical school, that component of their total obligation

should be regarded as five and not six years.
13

were to accept their alternative argument that the two service

obligations were served concurrently, they would owe no

additional service for their free undergraduate education.

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 ¶ 7(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’’). It is hardly unfair for the

Army to insist that the appellants complete separate service

obligations in exchange for each stage of their governmentfunded education.

II

We conclude that the agreements entered into by the

appellants in return for their undergraduate and medical

school educations bound them to twelve-year service obligations, against which the time they spent in medical school

did not count and that were further extended by their postgraduate training. We therefore find that the Army Board

for the Correction of Military Records correctly resolved the

appellants’ challenges to the Army’s calculation of their release dates. Accordingly, the district court’s grant of summary judgment in favor of the appellee is

Affirmed.