Doe v. Rumsfeld, 05-15680.

• Decision Date: 12 January 2006
• Docket Number: No. 05-15680.,05-15680.
• Citation: 435 F.3d 980
• Parties: John DOE, Petitioner-Appellant, v. Donald RUMSFELD, Secretary of Defense; Les Brownlee, Secretary of the United States Department of Army (Acting); Reginald L. Brown, Assistant Secretary of the Army for Manpower and Reserve Affairs; E. Hubred Torrey, Company Commander, and Does 1-10, inclusive, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

435 F.3d 980

John DOE, Petitioner-Appellant, v. Donald RUMSFELD, Secretary of Defense; Les Brownlee, Secretary of the United States Department of Army (Acting); Reginald L. Brown, Assistant Secretary of the Army for Manpower and Reserve Affairs; E. Hubred Torrey, Company Commander, and Does 1-10, inclusive, Respondents-Appellees.

No. 05-15680.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 21, 2005.

Filed January 12, 2006.

COPYRIGHT MATERIAL OMITTED

Michael S. Sorgen, San Francisco, CA, for the petitioner-appellant.

H. Thomas Byron III, United States Department of Justice, Washington, D.C., for the respondents-appellees.

Appeal from the United States District Court for the Eastern District of California; Frank C. Damrell, District Judge, Presiding. D.C. No. CV-04-02080-FCD/KJM.

Before: WALLACE, TROTT, and RYMER, Circuit Judges.

TROTT, Circuit Judge.

Appellant, Doe, a soldier in both the Army Reserve National Guard of the United States and the California State National Guard, challenges the President's "stop-loss" authority ordering Doe to active duty for a period longer than his enlistment.

Doe's challenges fall into three general arguments. First, Doe argues the government did not satisfy the procedures required by 10 U.S.C. § 12305 in extending his service. Second, Doe asserts that § 12305 is unconstitutional. Third, Doe contends the "stop-loss" order extending his enlistment conflicts with other laws regulating members of the reserve military.

The government contends as a threshold issue that we need not address the merits of this challenge because Doe has received new orders, rendering his challenges moot.

We have jurisdiction pursuant to 28 U.S.C. § 1291. Although we conclude that this case is not moot, we disagree with Doe's substantive arguments and affirm the district court's denial of Doe's petition for writs of habeas corpus and mandamus.

BACKGROUND

On May 1, 2003, Doe, an eight-year veteran of the Army, enlisted for a one-year term in the California State National Guard and the Army Reserve National Guard of the United States. The enlistment agreement, referred to in non-binding recruiting material as "Try One," allowed active duty veterans to enlist for a one-year term before making a further service commitment. The enlistment agreement, signed by Doe, stated that subsequently enacted laws and regulations could affect the terms of his contract. The enlistment agreement provided also that "[i]n time of national emergency declared by the President of the United States, I[Doe] may be ordered to active duty" and that "my [Doe's] enlistment may be extended. . . ." Enlistment Doc. § C(10)(1) & (2). See also Statement of Understanding of Reserve Obligations and Responsibilities, § 11.

Following his enlistment and initial training, Doe was assigned to the 2668th Transportation Company based in Sacramento, California. In February of 2004, Doe reenlisted for a second one-year term, extending his contract through May 1, 2005. On July 23, 2004, Doe's unit received orders to active-duty in support of Operation Iraqi Freedom. Doe was notified that he would be required to serve on active duty until March 31, 2006, approximately eleven months longer than the term of service specified in his enlistment agreement. Pursuant to these orders, Doe's unit was deployed to Fort Lewis, Washington, for approximately forty-five days of training before being sent to Iraq.

Doe, however, was never sent to Iraq. On January 27, 2005, in response to a medical condition, Doe received new orders retaining him on active duty under 10 U.S.C. § 12301(d). On January 31, 2005, Doe received his present assignment to the California Medical Community Based Health Care Organization in Sacramento, California, where he was to receive health care evaluations and treatment, which may result eventually in his discharge from active duty.

PROCEDURAL HISTORY

On October 1, 2004, Doe filed a petition for writs of habeas corpus and mandamus, and for declaratory and injunctive relief ordering his release from any further obligation of military service under his existing enlistment contract. In addition to these claims, Doe argued that the involuntary extension of his enlistment was contrary to constitutional and statutory law. On the same day, Doe sought a temporary restraining order, which was denied on October 5, 2004. On November 5, 2004, the district court denied Doe's motion for a preliminary injunction. Following this denial, Doe brought an interlocutory appeal to the Ninth Circuit and moved the court for emergency injunctive relief. On January 18, 2005, we issued an order denying the motion for injunctive relief and affirming the district court's denial of Doe's request for a preliminary injunction. On March 15, 2005, the district court rendered a decision on the merits, denying Doe's remaining claims. On April 8, 2005, Doe timely filed his Notice of Appeal.

STANDARD OF REVIEW

We review a district court's interpretation and construction of federal statutes de novo. S.E.C. v. McCarthy, 322 F.3d 650, 654 (9th Cir.2003). Similarly, we review challenges to the constitutionality of a federal statute or federal regulation de novo. See Artichoke Joe's Cal, Grand Casino v. Norton, 353 F.3d 712, 720 (9th Cir.2003) (statute); Gonzalez v. Metro. Transp. Auth., 174 F.3d 1016, 1018 (9th Cir.1999) (regulation).

DISCUSSION

A. Mootness

Fourteen days before oral argument, the government submitted a brief suggesting Doe's appeal is moot. The government says that Doe's January 31, 2005 activation orders assigning him to a medical retention center preclude him from being subject to the "stop-loss" authority of 10 U.S.C. § 12305; and that, after the completion of his medical assignment, Doe "well may be discharged from the service." Government's Oct. 7, 2005 Brief 4. At oral argument, we asked the government whether Doe, following his medical assignment, could be returned to active duty subject to § 12305's "stop-loss" status. The government represented that Doe would not be returned to active duty under § 12305 after the medical assignment is completed. Nevertheless, Doe's January 31, 2005 orders refer to a "temporary" assignment with instructions to return to his permanent station at the end of the assignment. Moreover, his current orders specify that he must remain on active duty until January 18, 2006, as reflected in his most recent earnings statement. Consequently, we conclude Doe continues to have a personal stake in the outcome of this case sufficient to avoid dismissal on the ground of mootness. See Lewis v. Cont'l Bank Corp., 494 U.S. 472, 478, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) ("[P]arties must continue to have a personal stake in the outcome of the lawsuit.") (internal citations omitted).

B. Section 12305

10 U.S.C. § 12305 maintains that "the President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States." Doe argues that an applicable provision of law was never properly suspended, and thus that the extension of his service was impermissible.

MILPER Message¹ No. 03-040 ("MILPER Message"), issued on November 21, 2002, operationalized the Stop Loss policy. Santiago v. Rumsfeld, 425 F.3d 549, 556 (9th Cir.2005) (as amended). In Paragraph 3, it states: "The provisions of regulations governing voluntary retirements, separations, and REFRADs² of officers and enlisted soldiers . . . are suspended. . . ." Thus, the MILPER Message served both as a suspension and an extension. Doe's extension was properly executed pursuant to the statute.

Doe's assertion is additionally foreclosed by our decision in Santiago, in which we held that the President's power under § 12305(a) "was properly delegated to the Assistant Secretary of the Army for Manpower and Reserve Affairs, who entered the stop-loss order suspending the separation laws on November 4, 2002" pursuant to MILPER Message No. 03-040. 425 F.3d at 557.

Doe argues also that the President should have first made a determination that his military service was essential to national security. But the statute does not require the President to determine each and every person who is essential, nor does it require that the President elucidate the reasons for his determination.

The President declared a national emergency on September 14, 2001. Presidential Proclamation 7463, 66 Fed.Reg. 48199 (Sept. 14, 2001); see also 69 Fed.Reg. 55313 (Sept. 10, 2004) (extending national emergency for one more year); 50 U.S.C. § 1621(a) (conferring authority upon President to declare national emergency); Santiago, 425 F.3d at 556. In the same proclamation, he invoked his power under 10 U.S.C. § 12302 to activate members of the Army National Guard of the United States. Id. On July 23, 2004, Doe's unit was activated. The activation of his unit during the state of national emergency was enough to satisfy the statutory requirements. Doe's contention fails.

C. Constitutional Arguments

Doe argues that 10 U.S.C. § 12305(a) is unconstitutional for three reasons. First, Doe contends that Section 12305 permits arbitrary infringement on his liberty. Second, Doe implicitly asserts that "stop-loss" authority is an impermissible delegation of power by Congress. Third, Doe argues that his extended enlistment violates his Fifth Amendment Due Process rights because the government failed to provide meaningful notice of its ability to extend his enlistment. For the reasons set forth below, each argument fails.

1. Arbitrariness

Doe contends that 10 U.S.C. § 12305 is unconstitutional because it fails to include boundaries on the President's "stop-loss" authority sufficient to safeguard Doe's Fifth Amendment liberty interest. Doe's argument ignores the language of Section 12305 as well as the limitations of activation imposed by 10 U.S.C....