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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 ca-
reers 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 intern-
ships, residencies, and fellowships. Each appellant accepted,
in his most recent such agreement, the Army’s current calcu-
lation 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 obli-
gation 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 judg-
ment 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 regard-
less 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 Acade-
my. 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 commis-
sioned 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 commis-
sioned officer of that component before that anniversa-
ry.
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 gradua-
tion 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 anniver-
sary 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 in-
curred 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 addi-
tional 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 provi-
sion 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 Secre-
tary 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 assis-
tance to be provided, the period specified in the agree-
ment 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 obli-
gations 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 agree-
ments.
Fontana and Murphy contend, however, that the Secre-
tary’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 ex-
change 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 lan-
guage 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 assis-
tance ‘‘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 regula-
tions 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 impor-
tant 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 thereaf-
ter’’). Second, just as § 2005 generally authorizes the Secre-
tary 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 in-
curred 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 Uni-
versity 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 medi-
cal 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 obli-
gation to run during (and somewhat beyond) the four years of
medical school, with the seven-year USUHS obligation com-
mencing thereafter, the sentence structure suggests a con-
trary 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 edu-
cation 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 lan-
guage could not be clearer, and plainly bars any portion of
Fontana’s or Murphy’s West Point obligation (a ‘‘prior obli-
gation 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 Like-
wise, § F(2) of the directive confirms the conclusion that the
West Point and USUHS obligations may not be served con-
currently:
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 provi-
sion 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 relation-
ship 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 lan-
guage 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 ‘‘Applica-
bility,’’ 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 provi-
sions 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 other-
wise, 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 appel-
lants spent immersed in their medical books did not count
against their West Point obligations. Similarly, the regula-
tion 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 obli-
gations in exchange for post-graduate training including in-
ternships, 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 disput-
ing 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 ser-
vice 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 volun-
tarily 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 obli-
gation that began running immediately. The Army, in contrast,
argues that attendance at USUHS simply put the appellants’ five-
year Regular Army obligation on hold until their USUHS gradua-
tion, 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: en-
suring ‘‘a reasonable return to the Army following the expen-
diture 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 obli-
gations 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 government-
funded 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 obli-
gations, against which the time they spent in medical school
did not count and that were further extended by their post-
graduate 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 re-
lease dates. Accordingly, the district court’s grant of sum-
mary judgment in favor of the appellee is
Affirmed.