Kennedy v. United States, 13-165C
| Decision Date | 24 October 2018 |
| Docket Number | No. 13-165C,13-165C |
| Parties | JASON CARL KENNEDY, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Military Pay; NROTC Scholarship Benefits; Quantum; Administrative Record; Supplementation; Effective Judicial Review
Jason C. Kennedy, Aurora, CO, pro se.
William J. Grimaldi, United States Department of Justice, Washington, DC, for defendant.
In this military pay case, plaintiff Jason Carl Kennedy, a licensed attorney proceeding pro se, contends that the United States Navy ("Navy") improperly disenrolled him from the Naval Reserve Officers Training Corps ("NROTC") program at The George Washington University ("GW") during his senior year of undergraduate studies, depriving him of scholarship benefits to which he was legally entitled. Mr. Kennedy seeks to recover the balance of his scholarship benefits and reimbursement for the interest he has incurred on the student loans that funded his undergraduate education after the Navy terminated his scholarship.
The Board for Correction of Naval Records ("BCNR") ultimately determined that the Navy improperly disenrolled Mr. Kennedy from the NROTC program at GW. Accordingly, the BCNR concluded that Mr. Kennedy is not required to repay the scholarship funds that the Navy expended on his behalf and is entitled to monetary compensation in an amount equal to the balance of the scholarship benefits he would have received had he completed the NROTC program. Mr. Kennedy now argues that the Defense Finance and Accounting Service ("DFAS"), based on a deficient calculation performed by the Naval Service Training Command ("NSTC"), failed to provide him full relief, including consequential damages.
Two motions pertaining to the scope of the administrative record on review are currently pending before the court: (1) defendant's motion to reopen the remand period for the limited purpose of compiling Volume III of the administrative record and (2) Mr. Kennedy's motion to strike Volume III of the administrative record, to supplement the administrative record through discovery, and for an evidentiary hearing on damages. As explained below, the proper way to resolve the merits of this case is through cross-motions for judgment on the administrative record. Further, Volume III is properly a part of that record and is sufficient for the court to conduct effective judicial review of the Navy's actions. Accordingly, the court denies Mr. Kennedy's motion on its merits and denies defendant's motion as moot.
Mr. Kennedy enrolled at GW in the Fall 2003 semester to begin his undergraduate studies. In the Spring 2005 semester, i.e., the second semester of his sophomore year, the Navy awarded him a three-year NROTC scholarship. Mr. Kennedy funded his education with student loans and a University and Alumni Award each semester when he was not receiving NROTC scholarship benefits. The terms of the scholarship mandated, as relevant here, that he earn a bachelor's degree, complete the NROTC curriculum, and fulfill various military requirements (including acceptance of an appointment as a commissioned officer in the United States Marine Corps Reserve upon completing the NROTC program). If Mr. Kennedy failed to meet these requirements, the Navy could, at its option, order him to either serve on active duty or reimburse the Navy for educational costs expended on his behalf.
One of the military requirements was to successfully complete the six-week United States Marine Corps Officer Candidate School ("OCS"), a prerequisite to becoming a commissioned officer. Mr. Kennedy entered OCS in late May 2006, i.e., at the beginning of the break between his junior and senior years at GW. He failed to complete OCS and was not recommended to reapply, which resulted in a Performance Review Board at GW recommending his disenrollment from the NROTC program. By that time, the Navy had spent $50,675.00 on Mr. Kennedy's behalf for tuition, fees, and books for the Spring 2005, Fall 2005, and Spring 2006 semesters. The Navy did not provide full scholarship benefits for Mr. Kennedy's senior year, i.e., the Fall 2006 and Spring 2007 semesters. The Navy officially disenrolled Mr. Kennedy in March 2007 and ordered recoupment of the scholarship funds previously expended. After graduating from GW on May 20, 2007, Mr. Kennedy made twenty-six payments to DFAS totaling $15,880.04 between August 2007 and January 2013. In the meantime, he attended law school and was admitted to the Colorado bar in October 2012.
Mr. Kennedy filed suit in this court on March 5, 2013, and amended his complaint on July 1, 2013. The crux of the amended complaint—in which he asserted three counts alleging breach of contract and two counts alleging statutory violations—is that he was improperly disenrolled from the GW NROTC program. With respect to the alleged breaches of contract, Mr. Kennedy asserted that the Navy (1) improperly directed recoupment of the scholarship funds expended on his behalf, (2) failed to provide three full years of scholarship benefits, and (3) violated the duty of good faith and fair dealing by denying him the opportunity to demonstrate his suitability for a commission and violating laws and regulations. Mr. Kennedy also alleged that he was statutorily entitled to both the scholarship benefits and subsistence allowances that he would have received had he not been improperly disenrolled from the NROTC program. He sought a waiver of the recoupment requirement, $71,290.04 in damages,prejudgment and postjudgment interest, attorney fees and costs, and reimbursement for the interest paid on his student loans.1
The court remanded the matter to the BCNR, which concluded that although the Navy violated Mr. Kennedy's due process rights with respect to a Performance Review Board, his disenrollment from the GW NROTC program was not improper because he had failed to complete OCS. The BCNR recommended that the Navy waive Mr. Kennedy's recoupment requirement, refund his payments already made, and provide no further relief. The Secretary of the Navy's designee approved the BCNR's recommendation on November 10, 2014.2 Mr. Kennedy then informed the court that he would proceed with his claims here because the BCNR did not afford complete relief, and asked that defendant file an administrative record of the BCNR proceedings. After the record was filed, the parties briefed cross-motions for judgment on the administrative record and defendant's motion to dismiss. The case was reassigned to the undersigned during that briefing.
In a November 30, 2015 opinion, the court held that it lacked jurisdiction over Mr. Kennedy's breach-of-contract claims because his "entitlement to the NROTC scholarship was governed by statute, not contract," but possessed jurisdiction to entertain Mr. Kennedy's statutory claims because they were "based on money-mandating statutes." Kennedy v. United States, 124 Fed. Cl. 309, 325-26 (2015), rev'd in part, 845 F.3d 1376 (Fed. Cir. 2017). The court further concluded that Mr. Kennedy's claim for scholarship benefits for the Fall 2004 semester was unrelated to his disenrollment from the NROTC and accrued in March 2005, when he executed his enlistment agreement without having received benefits for the prior semester, and thus fell outside of the six-year statute of limitations applicable in the United States Court of Federal Claims ("Court of Federal Claims"). Id. at 326-27. Mr. Kennedy's claim for waiver of the recoupment requirement and return of payments previously made were dismissed as moot since that relief had already been provided. Id. at 328. However, the court observed that Mr. Kennedy's claims that he would have received the full scholarship benefits and subsistence allowance for his senior year, i.e., the Fall 2006 and Spring 2007 semesters, absent the alleged improper disenrollment remained viable. Id. at 327. The court explained that although "the determination of a service member's fitness to serve is within the province of the military and is entitled to deference," courts are nonetheless "permitted to review whether a fitness determination was made in violation of statute, regulation, or procedure." Id. at 328-29. After all, process matters.
In considering the parties' cross-motions for judgment on the administrative record, the court rejected Mr. Kennedy's arguments that a medical exam was required prior to his disenrollment and that a Performance Review Board was not convened. Id. at 333. The court found that a Performance Review Board was convened and that although Mr. Kennedy was indeed denied his right to appear before it, that denial was a harmless error because, as a result of his failure to complete OCS, Mr. Kennedy's "disenrollment from the NROTC was mandatory—a fact that [was] reflected in many of the disenrollment-related documents contained in the administrative record." Id. at 333-34. Accordingly, the court granted defendant's cross-motion for judgment on the administrative record with respect to Mr. Kennedy's remaining claims. Id.
On appeal, the United States Court of Appeals for the Federal Circuit ("Federal Circuit") noted that it "need not consider" the undersigned's ruling that the Court of Federal Claims lacked jurisdiction over Mr. Kennedy's breach-of-contract claims because Mr. Kennedy "[did] not appeal that ruling." Kennedy v. United States, 845 F.3d 1376, 1381 (Fed. Cir. 2017). The Federal Circuit also agreed with the undersigned's (1) conclusion that Mr. Kennedy's claim for scholarship benefits for the Fall 2004 semester was time-barred, (2) dismissal of Mr. Kennedy's claim for waiver of recoupment and reimbursement for payments previously made, (3) finding that Mr. Kennedy's claim for scholarship benefits for the Fall 2006 and Spring 2007 semesters was viable, and (4) holding that the merits of the Navy's decision to disenroll Mr. Kennedy from the NROTC program was not justiciable but that the court could nevertheless...
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