Laughlin v. United States

In the United States Court of Federal Claims

No. 14-1158C

(Filed: December 15, 2015)

) Military pay dispute; claim by dental

ROBERT M. LAUGHLIN, ) surgeon for monetary relief stemming

) from the Navy’s alleged miscalculation of

Plaintiff, ) his obligated service period; retention

) bonus; 37 U.S.C. § 301e; incentive special

v. ) pay; 37 U.S.C. § 302b

)

UNITED STATES, )

)

Defendant. )

)

Eric S. Montalvo, The Federal Practice Group, Washington, D.C. for plaintiff.

Devin A. Wolak, Trial Attorney, Commercial Litigation Branch, Civil Division, United

States Department of Justice, Washington, D.C. for defendant. With him on the briefs were

Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Robert E.

Kirschman, Jr., Director, and Deborah A. Bynum, Assistant Director, Commercial Litigation

Branch, Civil Division, United States Department of Justice, Washington, D.C.

OPINION AND ORDER

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. 1 Alternatively, the government has moved

for judgment on the administrative record under RCFC 52.1(c), to which Commander Laughlin

has responded by submitting a cross-motion for judgment on the administrative record. Def.’s

Mot. at 13-16; Pl.’s Opp’n to Def.’s Mot. . . . and Pl.’s Cross-Mot. for Judgment on the

Administrative Record and Pl.’s Mot. to Supplement the Administrative Record (“Pl.’s Cross-

Mot.”), ECF No. 26. These motions have been fully briefed and are ready for disposition. The

court has concluded that the government’s motion to dismiss should be denied, but that the

government is entitled to judgment in its favor on the administrative record.

FACTS 2

A. Plaintiff’s Medical Training and Active Duty Service Obligation

Commander Laughlin entered the Navy through the Health Professions Scholarship

Program (“HPSP”) on May 8, 1998. AR 434-40; 3 Am. Compl. ¶ 7, ECF No. 21; Def.’s Mot. at

1

The government’s motion refers only to RCFC 12(b). However, from the substance of

the motion, the court understands it to be a motion to dismiss for lack of subject matter

jurisdiction under RCFC 12(b)(1). See Def.’s Mot. at 12-13 (addressing this court’s subject

matter jurisdiction under the Tucker Act).

2

The recitations that follow constitute the court’s findings of fact based on the

administrative record filed pursuant to RCFC 52.1(a). See Bannum, Inc. v. United States, 404

F.3d 1346, 1355-57 (Fed. Cir. 2005); Santiago v. United States, 75 Fed. Cl. 649, 653 (2007) (“In

accord with RCFC 52.1, the court ‘is required to make factual findings . . . from the record as if

it were conducting a trial on the record.’” (quoting Acevedo v. United States, 216 Fed. Appx.

977, 979 (Fed. Cir. 2007)).

3

Plaintiff was a member of the United States Air Force and United States Air Force

Reserve from November 1990 to May 1998. AR 161, 215, 217.

2

7. As part of this program, plaintiff signed a service agreement that stated, in relevant part, “I

understand that in return for . . . 4 year[s] of scholarship in the [HPSP], I shall serve 4 years . . .

on extended active duty.” AR 437-40. The agreement also stated that “I 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). After being accepted to the

HPSP, plaintiff attended the University of Pittsburgh’s School of Dental Medicine from August

1998 to May 2002. Am. Compl. ¶ 7; Def.’s Mot. at 7.

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. 4

The instruction also states that “[t]ime spent in military internship or residency training shall not

be creditable in satisfying the [active duty service obligation].” DoDI 6000.13, § 6.4.9.

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). 5

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.

Plaintiff’s statement to the Navy Board quoted this regulation in part but omitted the first

4

clause (“[n]o portion . . . may be satisfied”); as a result, his statement suggested that the FAP

obligation could be served concurrently with other service obligations.

5

In his letter, the Assistant General Counsel noted that DoDI 6000.13, § 6.6.3.1 contains

an exception stating that active duty service obligations incurred for residencies or fellowships in

3

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. 6 The agreement also

stated: “Time spent in any [graduate professional education] program does not fulfill previously

incurred [active duty service] obligation. [The active duty service obligation] incurred from this

agreement and any other [active duty service obligation] will be satisfied concurrently for

training in a [m]ilitary [f]acility and consecutively for training in a [c]ivilian [f]acility at the

conclusion of the training program.” Id. (emphasis in original).

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.

B. Plaintiff’s Dispute Over His Active Duty Obligated Service Date and Subsequent Request for

Resignation

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. 7 Plaintiff

a military facility “may be served concurrently with other [active duty obligations] or with

obligations incurred for DoD-sponsored . . . training or prior long-term health or health-related

education or training.” See AR 522-23. This exception did not apply to plaintiff because all of

his dental training was in civilian facilities. See Am. Compl. ¶¶ 8, 17 (reciting plaintiff’s training

at Louisiana State University and the University of Michigan); Pl.’s Cross-Mot. at 3.

6

The copy of the notification letter in the administrative record includes two enclosures:

an active duty obligation agreement and a declination of training. Neither copy of the enclosures

is signed by plaintiff.

7

Plaintiff asserts that an obligated service date of July 2011 is consistent with what he

was told by Captain Barton Welbourn (Ret.), former deputy chief of the Navy Dental Corps,

when plaintiff entered the DUINS program in 2003. Am. Compl. ¶¶ 11, 20. According to

plaintiff, he was told he would begin satisfying his four-year HPSP obligation on July 1, 2003

when he entered the DUINS program. Am. Compl. ¶ 20; Pl.’s Cross-Mot. at 4. He also asserts

that he incurred a two-year obligation based on his one year of residency funded through the

FAP, which he would begin serving on July 1, 2007 (after fulfilling his HPSP obligation) and

would complete on June 30, 2009. Am. Compl. ¶ 20; Pl.’s Cross-Mot. at 4; see also supra, at 3

(noting the additional one-year obligation associated with FAP sponsorship). Finally, plaintiff

4

also claims he was informed by the Special Pay Office in 2009 that his obligated service date

was in fact July 1, 2012. Am. Compl. ¶ 20. On March 3, 2009, plaintiff contacted Captain

Andrew Peters in the Navy Medicine Manpower, Personnel, Training & Education Command for

clarification on this date. Am. Compl. ¶ 21; see also AR 406 (e-mail from plaintiff to Captain

Peters stating “I spoke with special pays HM2 Haney and he has my HPSP payback done on July

31, 2007, and my residency and fellowship payback completed on July 31, 2012 which sounds

great.”). Plaintiff also asked Captain Peters for a copy of his service agreement for his one-year

fellowship at the University of Michigan because, according to plaintiff, “[t]his was done during

Hurricane Katrina and a lot of [plaintiff’s personal] records were ruined.” AR 406. Captain

Peters responded that he had a copy of the agreement in plaintiff’s file, but it was not signed; he

sent plaintiff the unsigned copy and recommended that plaintiff sign it for his records. Am.

Compl. ¶ 22; AR 406. Plaintiff did not sign this copy of the agreement. Am. Compl. ¶ 22.

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. 8 Plaintiff stated that changing the date of his active duty obligation would “allow

[him] the option to explore signing a multi-year [retention] bonus a year earlier.” AR 410; Am.

Compl. ¶ 23.

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.

asserts that he had a three-year “DUINS residency” obligation and a one-year fellowship

obligation (for a total of four years), which he also began satisfying on July 1, 2007 and

completed on June 30, 2011. Am. Compl. ¶ 20; Pl.’s Cross-Mot. at 4; see also AR 324-25

(plaintiff’s summary of his calculations regarding his obligated service).

8

Plaintiff appears now to concede that he incurred a service obligation for his one-year

fellowship, but asserts that his obligated service date should nevertheless be July 1, 2011. Am.

Compl. ¶ 20; Pl.’s Cross-Mot. at 4.

5

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. 9

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.

9

This statement about separating from the Navy suggests that as of December 2010,

plaintiff was no longer interested in “explor[ing] signing a multi-year bonus” (which would

require an additional service obligation), as he had indicated to Captain Peters in July 2010.

See AR 410; Am. Compl. ¶ 23.

6

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.

C. Plaintiff’s Application for a Dental Officer Multiyear Retention Bonus and Multiyear

Incentive Special Pay

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

7

September 21, 2015. Pl.’s Cross-Mot. at 1. 10

STANDARDS FOR DECISION

A. Subject Matter Jurisdiction

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).

B. Judgment on the Administrative Record

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

10

In a motion to supplement the administrative record, plaintiff offered three exhibits

containing e-mails not previously included in his appeal to the Navy Board to “provide necessary

context for this [c]ourt’s review.” The exhibits provide additional threads to e-mails and

documents already included in the administrative record. Plaintiff’s motion is GRANTED

because these exhibits serve to complete documents contained in partial form in the

administrative record, but the additional exhibits do not affect the court’s findings regarding the

relevant facts in the case.

8

act.’” Volk, 111 Fed. Cl. at 325 (quoting Dodson v. United States, 988 F.2d 1199, 1204 (Fed.

Cir. 1993) (internal quotation marks omitted)).

ANALYSIS

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

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.

1. Declaratory relief to adjust plaintiff’s active duty obligated service date.

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

9

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.

2. Monetary damages for “earned” multiyear retention bonuses and incentive special

pay.

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))).

10

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). 11

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). 12 A

comparative statutory analysis illuminates an assessment of the third factor. Although the statute

does not explicitly “compel payment” of the retention bonus once a dental officer has met the

specified requirements, it does state that dental officers who meet specified requirements are

“automatically eligible” for the bonus, as contrasted to other officers who may receive a similar

bonus at the Secretary’s discretion. Compare 37 U.S.C. § 301e(b) (describing officers who are

automatically eligible), with 37 U.S.C. § 301e(c) (giving the Secretary discretion to extend the

bonus to other dental officers). 13 Therefore, the provisions of 37 U.S.C. § 301e are sufficient to

11

In its reply in support of its motion to dismiss, the government “acknowledges that,

under the Hale analysis, [its] motion to dismiss should be denied. However, because Hale is not

binding upon this [c]ourt, [the government] respectfully take[s] the position that this [c]ourt

should not follow it.” Def.’s Reply in Support of Def.’s Mot. & Resp. to Pl.’s Cross-Mot.

(“Def.’s Reply”) at 3, ECF No. 27. The court rejects this position, adopts the analysis in Hale,

and agrees that it is dispositive of the precise issue raised in the present case.

12

Of note, 37 U.S.C. § 308, which was the subject of Larionoff, also only specifies a

maximum bonus amount. See 37 U.S.C. § 308(a)(2).

13

Subsection 301e(b) sets out five particular requirements that must be met for

dental officers to be “automatically eligible” for a multiyear retention bonus. See 37 U.S.C.

§ 301e(b)(1)-(5). Although plaintiff does not specifically address this third Doe factor in his

response to the government’s motion, his complaint inferentially alleges that he falls within the

category of dental officers who would be “automatically eligible” for the retention bonus. See

Am. Compl. ¶¶ 8, 77 (identifying plaintiff as an “Oral and Maxillofacial Surgery Dental

Officer,” which is the key distinction between officers who are automatically eligible for the

bonus and those who are not). A closer question would arise respecting whether 37 U.S.C.

11

overcome the presumption that the use of the word “may” renders the statute discretionary and

not mandatory.

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. 14 The statute provides that an active duty dental officer “who is an oral or

maxillofacial surgeon may be paid incentive special pay at the same rates, and subject to the

same terms and conditions, as incentive special pay available for medical officers under

[Sub]section 302(b) of this title.” 37 U.S.C. § 302b(a)(6) (emphasis added). 15 Subsection

302(b) in turn provides that an active duty medical officer who signs a one-year active duty

service agreement “may be paid incentive special pay for any twelve-month period during which

the officer is not undergoing medical internship or initial residency training.” 37 U.S.C. §

302(b)(1) (emphasis added); see also § 302(a) (stating the active duty requirement), § 302(c)

§ 301e would be considered “money-mandating” for officers not within this “automatically

eligible” category.

14

Section 302b and the associated Section 302 do not use the term “multiyear incentive

special pay.” Rather, the Navy, through regulation, has used these statutory provisions to

distinguish between “incentive special pay” for medical officers who sign a one-year service

agreement and “multiyear incentive special pay” for those who sign longer-term agreements.

See OPNAV Instruction 7220.17, Enclosure 1 at 2-9 to 2-18 (discussing separate requirements

for the incentive special pay and multiyear incentive special pay programs); see also Navy

Bureau of Medicine and Surgery, Fiscal Year 2015 Dental Corps Officer Special Pay

Implementation Guidance, http://www.med.navy.mil/bumed/Special_Pay/ (specifying that in the

2015 fiscal year, the incentive special pay for a one-year service agreement was $30,000, but the

multiyear incentive special pay for longer-term contracts was $50,000 per year).

15

Section 302b of Title 37 applies specifically to special pay for dental officers of the

armed forces. Section 302 of the same title applies more generally to special pay for medical

officers of the armed forces. The purpose of Paragraph 302b(a)(6) is to specify that oral or

maxillofacial surgeons are considered “medical officers” as contrasted to “dental officers” for the

purposes of this incentive special pay, and thus the applicable pay rates for medical officers and

dental surgeons are the same.

12

(stating the active-duty-agreement requirement). 16 Because the incentive special pay is tied to

the execution of a one-year active duty service agreement, it is equivalent to the reenlistment and

retention bonuses provided in Sections 301e and 308 of Title 37. Like those sections, Sections

302 and 302b also provide “clear standards” to be eligible to receive such payments, and

although these statutes do not dictate a precise amount of payment, they do provide an annual

payment maximum. See 37 U.S.C. §§ 302(a)-(c), 302b(a)(6). Therefore, the statutes governing

incentive special pay for medical officers and dental surgeons are also money mandating for

purposes of this court’s subject matter jurisdiction.

Accordingly, this court has subject matter jurisdiction over both of plaintiff’s causes of

action, and the government’s motion to dismiss is DENIED.

B. Judgment on the Administrative Record

Plaintiff and the government have submitted cross-motions for judgment on the

administrative record under RCFC 52.1(c).

1. Review of the Navy Board’s determination of plaintiff’s active duty obligated service

date.

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

16

The Federal Circuit has ruled that the provision in 37 U.S.C. § 302(a) for “additional

special pay” is money-mandating. Voge v. United States, 844 F.2d 776, 778-79 (Fed. Cir. 1988)

(“There is no dispute that the Claims Court had jurisdiction under the Tucker Act . . . to entertain

this suit because the [additional special pay] statute, 37 U.S.C. § 302, requires the payment of

money to military medical officers.”). And, additional special pay is similar to incentive special

pay in that both are available to medical officers who are on active duty, are not undergoing

medical internship or initial residency training, and execute a one-year active duty service

agreement. Compare 37 U.S.C. § 302(a)(4) (provisions for additional special pay), with § 302(b)

(provisions for incentive special pay). However, Paragraph 302(a)(4) states that an officer “is

entitled to additional special pay,” as contrasted to Subsection 302(b) which states that the

officer “may be paid incentive special pay.” Id. (emphasis added). Consequently, the rationale

in Voge is not necessarily dispositive of the present case.

13

(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

14

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.

2. Monetary damages for multiyear retention bonuses and incentive special pay.

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.

15

CONCLUSION

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. 17 The clerk is directed to issue final judgment in accord with this disposition.

No costs.

It is so ORDERED.

s/ Charles F. Lettow

Charles F. Lettow

Judge

17

Plaintiff’s motion to supplement the administrative record is GRANTED for the reasons

stated supra, at 8 n.10.

16