US v. McCrackin, Civ. A. No. 4:88-3125-15.
| Decision Date | 13 April 1990 |
| Docket Number | Civ. A. No. 4:88-3125-15. |
| Parties | UNITED STATES of America, Plaintiff, v. James F. McCRACKIN, Defendant. |
| Court | U.S. District Court — District of South Carolina |
Henry D. Knight, Jr., Asst. U.S. Atty., Columbia, S.C., for plaintiff.
E. Windell McCrackin, McCrackin, Barnett & Richardson, Myrtle Beach, S.C., for defendant.
The United States of America (government) seeks reimbursement of the educational cost required to enroll James F. McCrackin (McCrackin) at the United States Air Force Academy (Academy) for three years because of the administrative determination that McCrackin was ineligible to fulfill his active duty service commitment (ADSC) upon his resignation from the Academy on May 16, 1985. The matter is before the court upon cross-motions for summary judgment. Rule 56, Fed.R.Civ. Proc. The court has concluded that the government's motion for summary judgment should be granted.
The instant action arises out of McCrackin's appointment to the Academy in 1982. As a prerequisite to admission to the Academy, McCrackin signed a "Statement of Understanding," which provided:
Defendant's Motion for Summary Judgment (Defendant's Motion), Exhibit 2. Under the terms of the Statement of Understanding, if a cadet voluntarily or because of misconduct failed to complete his or her ADSC, the Air Force could require reimbursement of education costs incurred by that cadet.
On May 9, 1985, McCrackin received a letter from Brigadier General Marcus A. Anderson, the Commandant of Cadets at the Academy. In this letter, General Anderson accused McCrackin of using marijuana, maintaining under oath that he had not used marijuana, and failing to report a fellow cadet's use of marijuana as required by the Academy Honor Code. McCrackin was also informed that action would be instituted against him "with a view of affecting his separation from cadet status." Defendant's Motion, Exhibit 11.
Rather than contest disenrollment under Section E, Air Force Regulation (AFR) 53-3, McCrackin tendered his resignation from appointment to the Academy on May 16, 1985, after consultation with appointed counsel, Captain Scott W. Singer. McCrackin tendered his resignation with the "understanding that a recommendation will be made to the Secretary of the Air Force that his active-duty service commitment be waived." Defendant's Motion, Exhibit 4. McCrackin executed a second "Statement of Understanding" on May 21, 1985, in which he requested a delay in his call to active duty to permit completion of undergraduate degree requirements at a civilian college or university. Defendant's Motion, Exhibit 5. McCrackin was also granted testimonial immunity to secure his truthful testimony in a military justice action involving Cadet Third Class Andrew F. Smith. Defendant's Motion, Exhibit 17. Apparently, McCrackin was also promised an honorable discharge in exchange for his cooperation.
On May 23, 1985, Lieutenant General Winfield W. Scott, Jr., Academy Superintendent, recommended to the Secretary of the Air Force (Secretary) that Cadet McCrackin be discharged under honorable conditions and that his ADSC be waived. Because McCrackin did not meet the standards for enlisted status, according to General Scott, he also recommended that McCrackin be required to reimburse the government for the cost of his three years at the Academy. Defendant's Motion, Exhibit 12. The Secretary accepted McCrackin's resignation in July 1985. He also directed that McCrackin "reimburse educational costs in accordance with Title 10, United States Code, Section 2005 and the Statement of Understanding McCrackin signed on April 15, 1982." Defendant's Motion, Exhibit 13. On October 4, 1985, McCrackin's indebtedness for three years at the Academy was calculated at $41,064.50. The Air Force subsequently deducted $807.85 from McCrackin's final pay and credited this amount against the government's claim for reimbursement of educational costs.
The government brings the present action seeking reimbursement for $41,064.50. McCrackin has counterclaimed for the amount deducted from his pay, $807.85. The parties have filed cross-motions for summary judgment. In his motion for summary judgment, McCrackin alleges that the terms of his appointment contract require the Secretary to order him to active duty prior to requiring reimbursement. McCrackin also contends the Secretary has waived the defendant's ADSC. He also argues that the Secretary should be estopped from collecting educational costs, allegedly because of advice by counsel which caused him to take action to his detriment. Specifically, McCrackin alleges that counsel did not advise him of the consequences of waiving his ADSC, and, in addition, that Captain Singer should not have been appointed as his attorney.1 McCrackin also contends that reimbursement should not be required because he was eligible for enlistment at the time of the Secretary's determination. Finally, McCrackin urges the court to exclude the Declarations of Lieutenant Colonel George J. Guyer (Guyer), November 30, 1989, and Captain Scott W. Singer (Singer), December 7, 1989, because they are not "sworn to" as allegedly required by Rule 56(e), Fed.R.Civ.Proc., and also contends that a letter of May 16, 1985, produced by the government, should be excluded on grounds that it is not properly authenticated.
In support of its cross-motion for summary judgment, the government asserts that both the controlling statute, 10 U.S.C. § 2005(a)(3), and the Statement of Understanding signed by McCrackin on April 15, 1982, require reimbursement of education costs. The government also contends that considerable deference should be accorded to the Secretary's policy to require reimbursement only where a cadet fails to complete his or her ADSC voluntarily or because of misconduct. The Secretary's policy to require reimbursement when he determines that cadets are not qualified for active duty, according to the government, is also consistent with the intent of Congress when § 2005 was added to Title 10 in 1980. The government also maintains that equitable estoppel is not applicable under the present facts and circumstances, noting that the Secretary would have ultimately determined McCrackin was ineligible to fulfill his ADSC, and thus required reimbursement, even if McCrackin had not resigned but rather had been separated from cadet status under Section E, AFR 53-3. Additionally, the government argues that a government agency is not equitably estopped absent a showing of "affirmative misconduct."
As a threshold matter, the court must address McCrackin's contentions under Rule 56(e), Fed.R.Civ.Proc. That provision requires that "supporting and opposing affidavits be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein." The following paragraph is contained in both declarations:
I declare under the penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Declaration of Lieutenant Colonel George J. Guyer, para. 10, November 30, 1989; Declaration of Scott W. Singer, para. 5, December 7, 1989. The court concludes that the form of these declarations complies with both the letter and spirit of Rule 56(e). See 28 U.S.C. § 1746. Addressing the issue of the May 16, 1985, letter, it suffices to say that McCrackin has produced the identical letter as an exhibit to his motion. In any event, the declarations of Guyer and Singer, as well as the contested letter, are not material to the court's determination in this matter.
The statutory authority for the Secretary's decision to require reimbursement from McCrackin is found in 10 U.S.C. § 2005, which provides:
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