Qualls v. Rumsfeld

• Decision Date: 07 February 2005
• Docket Number: No. CIV.A.04-2113(RCL).,CIV.A.04-2113(RCL).
• Citation: 357 F.Supp.2d 274
• Parties: David W. QUALLS, et al., Plaintiffs, v. Donald RUMSFELD, et al., Defendants.
• Court: U.S. District Court — District of Columbia

357 F.Supp.2d 274

David W. QUALLS, et al., Plaintiffs, v. Donald RUMSFELD, et al., Defendants.

No. CIV.A.04-2113(RCL).

United States District Court, District of Columbia.

February 7, 2005.

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James Klimaski, Klimaski & Associates, PC, Washington, DC, for Plaintiffs.

Matthew Lepore, U.S. Department of Justice Civil Division, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

LAMBERTH, District Judge.

Now before the court is plaintiff David W. Quall's Motion [5] for Preliminary Injunction. For the reasons stated herein, the court denies this motion.

I. BACKGROUND

Plaintiff David W. Qualls, affiliated with the United States Army from 1986-1994, reenlisted in the Army National Guard's Try One program on July 7, 2003 for a term of service lasting one year, zero months, and zero days. Soon thereafter, in mid-October of 2003, the Army called Qualls to active duty and extended his term of service, changing his Expiration of Term of Service ("ETS") date from July 6, 2004 to December 24, 2031. The Army form that informed Qualls about his involuntary extension asserts that the extension was legally authorized by 10 U.S.C § 12305, the so-called "stop-loss" statute.

On December 6, 2004, Qualls and seven other servicemen subject to involuntary extensions filed suit in this court against the Secretary of Defense, the Secretary of the Army and the Assistant Secretary of the Army for Manpower and Reserve Affairs ("Army"). Qualls, then on leave in the United States, requested a temporary restraining order directing the Army to allow him to remain in the United States. The court denied this request at a hearing on December 8, 2004. Qualls also moved the court for a preliminary injunction ordering the immediate release of Qualls from active military service. That is the motion now before the court.

II. LEGAL STANDARD

A preliminary injunction is an "extraordinary" remedy. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). The plaintiff must, by a clear showing, carry the burden of persuasion. Id.; Cobell v. Norton, 391 F.3d 251, 258 (D.C.Cir.2004). In a motion for preliminary injunction, the plaintiff must demonstrate: 1) a substantial likelihood of success on the merits, 2) that the plaintiff would suffer irreparable injury if an injunction is not granted, 3) that an injunction would not substantially injure another interested party, and 4) that an injunction would favor the public interest. Cobell, 391 F.3d at 258. The court will then "balance the strengths of the [plaintiff's] arguments in each of the four required areas" to determine whether to issue an injunction. CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C.Cir.1995). In cases such as this, where it is uncontested that the injunction sought would alter, rather than preserve, the status quo, the moving party must show a clear entitlement to relief or show that extreme or very serious damage will result if the injunction does not issue. Nat'l Conf. On Ministry To Armed Forces v. James, 278 F.Supp.2d 37, 42 (D.D.C.2003).

III. ANALYSIS

A. Likelihood of Success

1. Exhaustion of Remedies and Justiciability

As an initial matter, the Army argues that Qualls is unlikely to succeed on the merits of his case because this court should not reach the merits. The Army suggests that Qualls has failed to exhaust the Army's administrative remedies before initiating this action is federal district court. This Circuit does not require exhaustion if pursuit of an administrative remedy would be futile or if the plaintiff can show irreparable harm. Bois v. Marsh, 801 F.2d 462, 468 (D.C.Cir.1986). The administrative remedy cited by the Army is set forth in MILPER Message 03-040, which allows "[s]oldiers who have compelling or compassionate reasons" to apply for an exception to the Army's involuntary extension policy. Qualls is not seeking an exception for these reasons, rather he brings a legal challenge to the involuntary extension policy and its application to him in the first instance. The exhaustion the Army demands would be futile. Moreover, as determined in Part III.B of this Memorandum Opinion, Qualls does face irreparable harm. Therefore, the exhaustion requirement does not apply to Qualls.

As to justiciability, the court notes that it would be likely to find Qualls' claim justiciable. Recruiting activities, "by their very nature, involve a crucial intersection of the military and the general public that cannot be left to the sole discretion of the military." Brown v. Dunleavy, 722 F.Supp. 1343, 1349 (E.D.Va.1989). Further, "this case... involves a dispute over the formation and interpretation of a contract, an area that clearly falls within the expertise of the judiciary." Id. (citing Santos v. Franklin, 493 F.Supp. 847 (E.D.Pa.1980)). "There are few instances that would invite judicial intervention in military affairs to a greater degree than matters relating to enlistment contracts." Irby v. United States, 245 F.Supp.2d 792, 799 (E.D.Va.2003).

2. Contract Claims

To determine whether the military has breached an enlistment contract or whether an enlistment contract is invalid, courts apply general, common law principles of contract law. Cinciarelli v. Carter, 662 F.2d 73, 78 (D.C.Cir.1981); Woodrick v. Hungerford, 800 F.2d 1413, 1416 (5th Cir.1986); Pence v. Brown, 627 F.2d 872, 874 (8th Cir.1980); Castle v. Caldera, 74 F.Supp.2d 4, 8-9 (D.D.C.1999) (citing numerous cases); Brown v. Dunleavy, 722 F.Supp. 1343, 1349 (E.D.Va.1989).¹ Qualls alleges that the Army's extension of his term of service constitutes a breach of contract. Qualls also alleges that the Army's failure to disclose the possibility of involuntary extension constitutes a misrepresentation that invalidates the contract.

(a) Terms of the Contract

The success of Qualls' contract claims hinges in large part on the terms of his enlistment contract. At this point in the litigation, Qualls and the Army apparently dispute what terms make up the enlistment contract. Qualls has proffered a copy of his enlistment contract that had been kept by his local Armory. (Pl. Mot. for Preliminary Injunction, Exh. 3.) According to the Army, this copy of Qualls' contract, unlike the typical contract executed by Try One enlistees, lacks a page titled "C. Partial Statement of Existing United States Laws." The Army insists that Qualls' original contract contains the missing page on the reverse side of the contract's first page. The Army was unable to produce Qualls' original contract before its opposition to the preliminary injunction was due. On the other hand, Qualls has never claimed, either in affidavit or through written argument of counsel, that the copy kept at the armory, which lacks the page, is identical to the original contract that he signed.

The court faces an odd situation. First, the plaintiff seeking relief from an allegedly breached and invalid contract has not provided a copy of that contract that the plaintiff affirms is a true and correct version. Second, the defendant accused of breach and misrepresentation which asserts the presence of certain terms in the original contract has not produced the original version, which it ought to have on file. Thankfully, this odd factual situation does not pose a complex legal problem. When moving the court for a preliminary injunction, plaintiffs bear the burdens of production and persuasion. See Cobell, 391 F.3d at 258. To meet these burdens, Qualls may rely on "evidence that is less complete than in a trial on the merits," Natural Res. Def. Council v. Pena, 147 F.3d 1012, 1022-23 (D.C.Cir.1998) (quoting Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981)); however, the evidence Qualls does offer must be credible evidence, Sampson v. Murray, 415 U.S. 61, 87, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974); Serv-Air, Inc. v. Seamans, 473 F.2d 158 (D.C.Cir.1972). See generally Societe Comptoir De L'Industrie Cotonniere, Etablissements Boussac v. Alexander's Dept. Stores, Inc., 190 F.Supp. 594, 601-02 (S.D.N.Y.1961) ("As support for a preliminary injunction the court can consider only facts presented by affidavit or testimony and cannot consider facts provable under the modern liberal interpretation of the complaint but which have not been proved. Indeed, proof to support a preliminary injunction must be strong and clear in view of the restraint put upon the defendant at a time before his liability has actually been adjudged."); Dunn v. Stewart, 235 F.Supp. 955, 964 (S.D.Miss.1964) ("Statements of counsel during arguments, unsupported by any record evidence, are not evidence and therefore cannot be proof for purposes of issuing temporary restraining order.").

In Sampson, the Court found a temporary injunction improper when the record "indicates that no witnesses were heard on the issue of irreparable injury, that respondent's complaint was not verified, and that the affidavit she submitted to the District Court did not touch in any way upon considerations relevant to irreparable injury." Id. The Court was "somewhat puzzled about the basis for the District Court's conclusion that respondent `may suffer immediate and irreparable injury.'" Id.

Here, as in Sampson, the court is puzzled by Qualls' failure to offer any statement by way of affidavit, testimony, motion papers for preliminary injunction, or even complaint that the contract featured as his Exhibit 3 is in fact his contract or that he never was presented with the Partial Summary of Existing United States Laws. Rather than present such important and simple claims on behalf of Qualls, Qualls' attorneys demand that this court take Exhibit 3 to be Qualls' contract because the Army has been unable to produce a different version of the contract within two weeks of getting notice of Qualls' preliminary injunction motion. (Pl. Reply Br. at 1.) There...