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Kennedy v. United States

United States Court of Appeals, Federal Circuit

January 17, 2017

JASON CARL KENNEDY, Plaintiff-Appellant
UNITED STATES, Defendant-Appellee

         Appeal from the United States Court of Federal Claims in No. l:13-cv-00165-MMS, Judge Margaret M. Sweeney.

          Jason Carl Kennedy, Denver, CO, argued pro se.

          William James Grimaldi, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Reginald T. Blades, Jr., Robert E. KiRSCHMAN, Jr., Benjamin C. Mizer.

          Before NEWMAN, CLEVENGER, and Dyk, Circuit Judges.


          CLEVENGER Circuit Judge.

         Jason Carl Kennedy was disenrolled from the Navy Reserve Officer Training Corps (NROTC) program at George Washington University (GWU) in Washington, DC, after he failed to complete the required course at the Officer Candidate School (OCS) in Quantico, VA. Mr. Kennedy challenged his disenrollment by suit in the United States Court of Federal Claims. As Mr. Kennedy's claim for monetary relief involved a challenge to his Navy records, the Court of Federal Claims directed the case to the Board for Correction of Naval Records (BCNR), a civilian body that exists to make necessary corrections in Naval Records. The BCNR concluded, with affirmation from the Secretary of the Navy, that Mr. Kennedy's disenrollment must stand. Upon return from the BCNR, the Court of Federal Claims held that Mr. Kennedy's disenrollment was lawful and that Mr. Kennedy's claims for monetary relief thus lacked merit. Kennedy v. United States, 124 Fed. CI. 309 (Nov. 30, 2015). Mr. Kennedy timely appealed to this court. For the reasons set forth below, we reverse.


         Mr. Kennedy enrolled as an undergraduate at GWU in August of 2003. He applied for an NROTC scholarship (which would cover his tuition and other education related costs) in February of 2004, during the spring term of his freshman year. On March 16, 2005, in the spring term of his sophomore year, he was awarded a three year NROTC scholarship. Pursuant to the scholarship, Mr. Kennedy agreed to complete satisfactorily his college education and any educational requirements imposed on him by the Navy and the Marine Corps. Among such requirements was successful completion of a six week term at the OCS in Quantico, VA, a requirement which is not waivable. The scholarship provided that if Mr. Kennedy failed to complete the educational requirements, including the military requirements, he could be disenrolled and become liable to reimburse the United States for the educational costs expended on his behalf.

         Beginning in May of 2005, Mr. Kennedy suffered emotional, physical and sexual abuse by a family member, and as a result he began to act abnormally. In November of 2005, in the fall of his junior year, he was required to go to the GWU Center Clinic for observation, after having been expelled from campus housing following a physical altercation with his roommate and an attempt to throw himself out of a dormitory room window. The GWU Hospital diagnosed Mr. Kennedy with Adjustment Disorder, and he attended six therapy sessions thereafter.

         At the end of May in the spring term of his junior year in college, Mr. Kennedy went to Quantico to attend OCS. On two occasions at Quantico, Mr. Kennedy lost control of his emotions, and sought counsel from the chaplain on numerous occasions. In the third week at Quantico, his platoon commander recommended that Mr. Kennedy be disenrolled from OCS as emotionally unstable. His company commander noted that Mr. Kennedy "breaks down in tears when faced with stress or responsibility." Kennedy, 124 Fed. CI. at 315; J.A. 1138. Mr. Kennedy's company and battalion commanders recommended disenrollment without opportunity to reapply, due to their concerns about Mr. Kennedy's ability to handle himself in front of Marines and in combat. A Commanding Officer's Board was convened on June 22, 2006, and it disenrolled Mr. Kennedy from OCS without opportunity to return.

         On August 7, 2006, the commanding officer of the GWU NROTC unit informed Mr. Kennedy that a Performance Review Board (PRB) would be convened on August 17, 2016, to evaluate his suitability for continuing in the NROTC program. The commanding officer told Mr. Kennedy of his right to appear before the PRB and advised him to do so, explaining that the PRB could recommend his disenrollment from the NROTC Program, based on his disenrollment from OCS without opportunity to return.

         Mr. Kennedy's NROTC advisor, Captain Ward, sent a memorandum to the PRB, recommending Mr. Kennedy's disenrollment from the NROTC program, but without the additional penalty of reimbursement of the sums the government had already expended for Mr. Kennedy's education at GWU. On August 8, 2006, Captain Ward sent Mr. Kennedy an email message about the upcoming PRB, in which he commented as follows: "Although the paper work says there will be a formal board, we won't have one due to the CO [Commanding Officer], OCS not allowing your return. Your case is open and shut - nothing disputable about it. You will see where I am recommending you not be responsible for reimbursement." J.A. 1144.

         Whether the three member PRB physically met on August 17 is unclear, but the PRB members did sign a report under that date recommending disenrollment without the additional penalty of reimbursement. The report indicated that Mr. Kennedy was "not present." J.A. 1145. The PRB recommendation went to the commanding officer of the GWU NROTC Unit, who recommended disenrollment, but with recoupment of costs already expended by the government. That recommendation went further up the Marine Corps chain of command to the Recruiting Command and finally to the Secretary of the Navy's authorized representative (the Assistant Secretary of the Navy for Manpower and Reserve Affairs). All along the chain of command, the reason for the recommendation of disenrollment and recoupment of costs was the failure to complete OCS. On February 16, 2007, the Assistant Secretary approved the recommendation of disenrollment with recoupment of $50, 675 of educational assistance Mr. Kennedy had received. Shortly thereafter, on March 16, 2007, the Commanding General of the Marine Corps Recruiting Command executed a letter to the GWU NROTC Unit ordering that Mr. Kennedy be disenrolled from the Unit and separated from the Marine Corps.

         After graduation from GWU in May of 2007, Mr. Kennedy attended and graduated from law school and was admitted to the bar of the State of Colorado.

         Thereafter, Mr. Kennedy brought suit in the United States Court of Federal Claims, as noted above. His amended complaint set forth several causes of action, in which he sought relief from the recoupment obligation that he was fulfilling, and sought compensation for the costs of his GWU education that were not paid by the government. First, the government had not paid the tuition for the first semester of his sophomore year (the semester before the award of his scholarship). Second, it had not paid for his senior year (Fall 2006 and Spring 2007), due to his disenrollment by then from OCS, thus breaching his obligation under the scholarship agreement. Mr. Kennedy stopped receiving scholarship benefit payments in August of 2006. His complaint alleged breach of contract and also violations of law and regulations in connection with his disenrollment from the NROTC program.

         The United States filed a motion on December 20, 2013, to send the case to the BCNR to enable the BCNR to consider Mr. Kennedy's complaint and requests for relief, and to correct his Navy records if necessary. Mr. Kennedy opposed the motion, but the court held that it had discretion to hear the claims in the first instance or to send the case to the BCNR, and thought it prudent to afford Mr. Kennedy the opportunity to be heard first by the BCNR. Accordingly, the court sent the case to the BCNR on January 23, 2014, ordering the BCNR to let Mr. Kennedy respond to the Navy's disenrollment decision and to consider whether reimbursement of scholarship tuition is appropriate if disenrollment is sustained.

         In due course, Mr. Kennedy filed a thirteen-count statement, accompanied by his court complaint, at the BCNR. Mr. Kennedy sought correction of his Naval record in several specific regards. His fundamental claim was that he was improperly disenrolled from the NROTC program. To correct that asserted error, he asked that his record be corrected to delete all references to his disenrollment and to show that he could reapply to OCS. Further, he sought a corrected record showing that he was retained in the NROTC program up to his graduation day, that he was entitled to scholarship benefits for three years, and that he should be relieved of any obligation to reimburse the government for educational benefits received.

         The BNCR forwarded Mr. Kennedy's request for correction to the Naval Service Training Command for an advisory opinion. On July 7, 2014, the advisory opinion concluded that Mr. Kennedy's disenrollment was proper and that the obligation to repay his scholarship monies was not unreasonable. On October 15, 2014, the BCNR issued its decision. The BCNR agreed with the advisory opinion in all regards but one: the BCNR concluded that Mr. Kennedy had been denied the opportunity to appear before the August 17, 2006 PRB, and that this violation of his rights warranted some relief for Mr. Kennedy, namely that he be relieved from reimbursing the government for the three semesters worth of financial aid that he had received and be repaid for the amount the government had already recouped. The BCNR thus ordered the correction of Mr. Kennedy's Navy records to show that the $50, 567.00 of benefits paid should not be recouped and that he should be repaid the sums he had already returned. The Assistant Secretary of the Navy for Man- power and Reserve Affairs reviewed and approved the BCNR decision.

         Upon return to the Court of Federal Claims, the court entertained joint motions for judgment on the administrative record, and the government's motion to dismiss the case. Mr. Kennedy's amended complaint pitched five counts, all seeking money damages. His first three contract-based claims are for "full benefits under the NROTC Scholarship Service Agreement, " arguably entitling him to all funds that he had paid back, and to funds he did not receive for his first sophomore semester and his two senior year ...

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