Gengler v. U.S. ex rel. Dept. of Defense and Navy, 1:06CV00362 OWWLJO.

• Citation: 463 F.Supp.2d 1085
• Decision Date: 03 November 2006
• Docket Number: No. 1:06CV00362 OWWLJO.,1:06CV00362 OWWLJO.
• Parties: Lt. Cmdr. Richard T. GENGLER and Lt. Cmdr. Daniel S. McSeveney, Petitioners, v. UNITED STATES of America through its DEPARTMENT OF DEFENSE AND NAVY; and Secretary Donald C. Winter, Respondents.
• Court: U.S. District Court — Eastern District of California

463 F.Supp.2d 1085

Lt. Cmdr. Richard T. GENGLER and Lt. Cmdr. Daniel S. McSeveney, Petitioners, v. UNITED STATES of America through its DEPARTMENT OF DEFENSE AND NAVY; and Secretary Donald C. Winter, Respondents.

No. 1:06CV00362 OWWLJO.

United States District Court, E.D. California.

November 3, 2006.

Timothy Ross Lord, Lewis Brisbois Bisgaard & Smith LLP, San Francisco, CA, Jeffrey Bruce Stoltz, Lewis Brisbois Bisgaard and Smith, Los Angeles, CA, Charles D. Weisselberg, University of California, School of Law, Berkeley, CA, for Petitioners.

Kimberly Anne Gaab, CV, Kristi Culver Kapetan, CV, United States Attorneys, Fresno, CA, for Respondents.

MEMORANDUM DECISION AND ORDER DENYING UNITED STATES' MOTION TO DISMISS (DOC. 78), ADDRESSING VARIOUS PROCEDURAL MOTIONS (DOCS. 53 & 54), AND SETTING FURTHER SCHEDULING CONFERENCE

WANGER, District Judge.

I. INTRODUCTION

Before the court for decision are numerous motions in this habeas case concerning the military service obligations of Petitioners, Lieutenant Commander Richard T. Gengler and Lieutenant Commander Daniel S. McSeveney. Petitioners filed first amended petitions for habeas corpus on September 15, 2006, alleging (1) that the Navy's decision to deny their requests for discharge violates the seven-year active duty term of their service agreements and (2) that the Navy should be equitably estoppel from arguing that an eight year statutory active service requirement trumps the written terms of their service agreements. (Does. 51 & 52.)¹

The United States moves to dismiss the petitions, arguing, (1) that military officers have no contract rights and cannot unilaterally terminate their terms of active service; and (2) that Petitioners have failed to properly plead equitable estoppel. (Doc. 78.) Petitioners oppose dismissal (Doc. 85), request that the district court enter an order requiring the United States to answer their petitions and participate in discovery (Does. 53 & 54), and request that the district court set an evidentiary hearing (id.). The government does not oppose being ordered to answer, but requests a minimum of 30 days within which to do so. (Doc. 79.) The United States does oppose the scope and nature of the Petitioners' proposed discovery as well as Petitioners' request that discovery take place on an expedited schedule. (Id.) Finally, the government maintains that the request for an evidentiary hearing is premature. (Id.)

In addition, on October 13, 2006, Lt. Cmdr. Gengler filed a separate motion concerning his current leave status. He requested that the district court either (1) order the Navy to allow him to remain in Chicago until December 8, 2006 (or pending a decision on the merits of this case); or (2) release him on habeas corpus bail. (See Doc. 90 at 2.) Gengler's request for bail is addressed in a separately filed findings of fact and conclusions of law. (Doc. 100.)

II. BACKGROUND

Petitioners Lt. Cmdr. Richard T. Gengler and Lt. Cmdr. Daniel S. McSeveney are Naval Officers and Aviators who are currently stationed with the Operational Test Evaluation Squadron Nine (VX-9) in China Lake, California. At least until recently, both had been physically assigned as Operational Test Directors for the F/A-18C-F weapons system programs and currently are on "detachment" in Key West, Florida, performing operational tests on a radar system. (Doc. 16 at 1; Gengler and McSeveney Decls. at ¶ 7; Gunter Decl. at 3.) Lt. Cmdr Gengler's current situation has changed, however. He was initially granted a 60 day leave to begin studying at the University of Chicago Graduate Business School, but the Navy recently refused to extend his leave past November 4, 2006. This subject is discussed in greater detail in a separately filed findings of fact and conclusions of law. (Doc. 100.)

Petitioners both entered the Navy in April 1996, after signing separate "Aviation Officer Candidate Program Service Agreements" (the "Service Agreements"). The Service Agreements, which were drafted by the Navy and signed on the Navy's behalf by another Naval Officer, provide in pertinent part:

1. Having volunteered for Aviation Officer Candidate training under the Aviation Officer Candidate Program, I hereby acknowledge:

a. If entering the program from civilian life

(1) that I will be required to enlist in the Naval Reserve; and

(2) that I will receive orders to active duty for the Aviation Officer Candidate Program and .I hereby consent to serve on active duty in an enlisted status for such period of indoctrination in the program as may be prescribed; and

(3) that, in the event I fail to complete satisfactorily the requirements for appointment to commissioned grade or request disenrollment from the Aviation Officer Candidate Program prior to acceptance of a commission, I will be discharged from my enlisted status.

* * * * * *

d. That upon satisfactory completion of all requirements, I will accept an appointment to commissioned grade as a Reserve Officer in the United States Navy, if such a commission is tendered to me, and upon acceptance, will be discharged from my enlisted status;

e. That:

(1) a commission as a[ ] Reserve Officer in the United States Navy is held at the pleasure of the President.

(2) upon acceptance of a commission, I will be required to serve at least eight years as a Reserve Officer in the United States Navy from the date of appointment to commissioned grade; and

(3) any portion of this eight-year period not served on active duty will be served on inactive duty; and

(4) a resignation of my commission as a Reserve Officer submitted prior to completion of this eightyear period will normally be rejected and, after this period, may be accepted or rejected by the President, as the needs of the service may then require.

f. That section 671a and 671b of Title 10, United States Code, currently provides as follows:

671a. Members: Service extension during war.

Unless terminated at an earlier date by the Secretary concerned, the period of active service of any member of an armed force is extended for the duration of any war in which the United States may be engaged and for six months thereafter.

671b. Members: Service extension when Congress is not in session.

(a) Notwithstanding any other provision of law when the President determines that the national interest so requires, he may, if Congress is not in session having adjourned sine die [without assigning a day for a further meeting or hearing,] authorize the Secretary of Defense to extend for not more than six months, enlistments, appointments, periods of active duty for training, periods of obligated service of other military status, in any other component of the Armed forces of the United States, that expire before the thirteenth day after Congress next convenes [or] reconvenes.

(b) An extension under this section continues until the sixtieth day after Congress next convenes or reconvenes or until expiration of the period of extension specified by the Secretary of Defense, whichever occurs earlier, unless sooner terminated by law or Executive order.

g. That Federal statutes and pertinent regulations applicable to personnel in the United States Navy may change without notice and that such changes may affect my status as a[n] Aviation Officer Candidate or a commissioned officer and obligations to serve as such.

2. I consent to serve on active duty as a commissioned officer for a period of seven years from date of designation as a Naval Aviator (unless sooner released to inactive duty or discharged by the Chief of Naval Personnel[) ].

* * * * * *

(Gengler Decl., Doc. 17, & McSeveney Decl., Doc. 19, filed July 25, 2006, Ex. A at 1-3.)

A few months after signing their Service Agreements, on September 23, 1996, Petitioners received Orders to report to Naval Aviation Schools Command, Pensacola, Florida. Those orders reiterated that they were "obligated to serve the number of years indicated on [his Service Agreement] following date of completion of training within the Naval Air Training Command." (GFAP at ¶ 76; MFAP at ¶ 75.)

Petitioners successfully completed their flight training and were designated as Naval Aviators on February 2, 1999 (McSeveney) and April 2, 1999 (Gengler), respectively. The Navy asserts that Petitioners confirmed their eight year term of duty when Petitioners were given their "winging orders," a document both Petitioners received in 1999. (Gunter Decl. at ¶ 2.) Petitioners assert, however, that the seven year commitment term contained in their Service Agreements was confirmed orally by a "Student Control Officer" in April 1999. (Gengler's First Amended Petition ("GFAP") at ¶ 82; McSeveney's First Amended Petition ("MFAP") at ¶ 81.) Also in April 1999 (to McSeveney) and May 1999 (to Gengler), an unidentified "Training Officer" allegedly confirmed the seven year contractual active service term applied, rather than the eight-year statutory active service term. (GFAP at ¶ 82; MFAP at ¶ 81.)

It is undisputed that Plaintiffs have served with distinction since 1999 and have been commissioned officers in the Naval Reserve continuously since 1996. Each logged more than 150 hours in combat situations and each received numerous medals for valor during combat. (Doc. 16 at 4.)

When the end of their respective contractual seven-year term of active service approached, both Plaintiffs timely notified their Commanding Officer ("CO") that they would be requesting release from active duty ("RAD"). (Pltfs' Decls. at ¶ 8.) The Navy denied Plaintiffs' requests. (Id.) Plaintiffs appealed the denials to (a) their CO, (b) the Naval Personnel Department, (c) the Board for Correction of Naval Records ("BCNR"), and (c) the Secretary of the Navy. (Id. at ¶¶ 9-13 & Ex. I-S.) All these appeals were rejected, and the Navy informed Plaintiffs that their administrative remedies had been exhausted. (Id. at Ex. E.)

Petitioners both were commissioned as Navy Reserve Officers in 1996 and intended to...