Santiago v. Rumsfeld

• Decision Date: 28 September 2005
• Docket Number: No. 05-35005.,05-35005.
• Citation: 425 F.3d 549
• Parties: Emiliano SANTIAGO, Petitioner-Appellant, v. Donald H. RUMSFELD, Secretary of Defense; Les Brownlee, Secretary of the United States Department of the Army (Acting); Raymond Byrne, Acting Adjutant General of the Oregon National Guard; David Doran, Captain, Detachment One, Company D, 113 Aviation Unit Commander, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 549

425 F.3d 549

Emiliano SANTIAGO, Petitioner-Appellant, v. Donald H. RUMSFELD, Secretary of Defense; Les Brownlee, Secretary of the United States Department of the Army (Acting); Raymond Byrne, Acting Adjutant General of the Oregon National Guard; David Doran, Captain, Detachment One, Company D, 113 Aviation Unit Commander, Respondents-Appellees.

No. 05-35005.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 2005.

Filed May 13, 2005.

Amended September 28, 2005.

Steven Goldberg, Goldberg, Mechanic, Stuart & Gibson, LLP, Portland, OR, for the petitioner-appellant.

H. Thomas Byron, III, Attorney, Appellate Staff Civil Division, Department of Justice, Washington, D.C., for the respondents-appellees.

Appeal from the United States District Court for the District of Oregon; Owen M. Panner, Senior Judge, Presiding. D.C. No. CV-04-01747-OMP.

Before CANBY, TALLMAN, and RAWLINSON, Circuit Judges.

ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC AND AMENDED OPINION

CANBY, Circuit Judge.

ORDER

The opinion filed in this case on May 13, 2005, and reported at 407 F.3d 1018, is amended as follows:

At page 1022, right column, first new paragraph: modify the first full sentence so that it states: "It is inappropriate, however, to imply an intent to exclude when the contract itself specifies that many laws, only partially listed, affect the enlistment and that unlisted contingencies may cause an alteration in the contract's agreed-upon terms."

At page 1022, right column, first new paragraph, to page 1023: delete the material following the citation to Crane and accompanying parenthetical (deletion to begin with "Santiago's enlistment contract states . . .") to the end of the paragraph on page 1023 (deletion to end with . . . quoted clause of the enlistment contract.).

At page 1023, left column, first new paragraph: At the beginning of the paragraph, delete "In any event" and capitalize the following word "the."

At page 1023, left column, first new paragraph: modify the second sentence of the paragraph before the block quotation so that it states: "The contract contains a section with the general heading `PARTIAL STATEMENT OF EXISTING UNITED STATES LAWS' and is introduced by a passage stating:".

At page 1023, right column, after the paragraph carried over from the left column (the paragraph ending . . . trumped the contrary terms of an enlistment contract), add the following new paragraphs:

The statute that authorized the stop-loss order, 10 U.S.C. § 12305, was enacted in 1983. It therefore was one of the federal laws to which Santiago's enlistment contract was subject when he entered it. As more fully discussed in the next section of this opinion, section 12305(a) authorized the President to suspend the laws relating to separation of any member of the armed forces under specified conditions of national emergency. This presidential power 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. The order was disseminated to personnel on November 21, 2002. See MILPER MESSAGE No: 03-040, TAPC-PDT-PM (hereinafter "MILPER 03-040"). It was therefore the congressionally-authorized implementation of § 12305, a statute that was in effect at the time Santiago signed his enlistment contract, that caused his term of enlistment to be extended. The contract recognized that federal statutes would apply to the enlistment.

It is true that, at the time of Santiago's enlistment, the emergency conditions specified by Congress in section 12305 for suspension of the separation laws did not yet exist. Those emergency conditions have since come to pass, however, and their existence is not contested on this appeal. That being the case, Congress by section 12305 has authorized the suspension of separation laws. This application of pre-existing federal law does not violate the terms of Santiago's enlistment contract.

Santiago's enlistment contract contains an even more explicit warning:

"`Laws and regulations that govern military personnel may change without notice to me. Such changes may affect my status, pay, allowances, benefits, and responsibilities as a member of the Armed Forces REGARDLESS of the provisions of this enlistment/reenlistment document.'"

Enlistment Doc. § C, ¶ 9(b). The congressionally-authorized suspension of the separation laws qualifies as a "change" in the law within the meaning of this clause. Without the suspension of those laws, Santiago would have been entitled to be separated in due course at the end of his term of enlistment. With the laws suspended, he could be held under alert and ordered to active duty beyond the term of his enlistment. We conclude that the suspension qualifies as one of the changes in law that Santiago's enlistment contract provided for in § C, ¶ 9(b). That provision permits the application of the suspension to Santiago regardless of the term of enlistment specified else-where in his contract.

At page 1023, right column, in the last sentence before heading of Section C change "stop-loss regulation" to "stop-loss order."

At page 1024, in the paragraph that continues immediately after the first block quotation and accompanying citation, delete the first full sentence and the first four words of the next sentence (beginning "Pursuant to this statutory authority. . ." and ending . . . The stop-loss policy provides) and substitute the following:

Pursuant to this statutory authority, properly delegated from the President, the Assistant Secretary of the Army for Manpower and Reserve Affairs, Reginald J. Brown, executed on November 4, 2002, the stop loss order suspending the laws governing separation for Army National Guard units. This stop-loss policy was implemented on November 21 in a directive stating:

With these amendments, the Clerk shall file the attached amended opinion.

The panel has unanimously voted to deny the petition for panel rehearing. Judges Tallman and Rawlinson have voted to deny the petition for rehearing en banc, and Judge Canby has so recommended.

The full court has been advised of the petition for en banc rehearing and the amendments to the opinion herein. No judge of the court has requested a vote on the petition for rehearing en banc. Fed. R.App. P. 35(b).

The petition for panel rehearing and the petition for rehearing en banc are denied. No further petitions for panel or en banc rehearing will be entertained.

OPINION

Emiliano Santiago, a sergeant in the Army National Guard facing immediate deployment to Afghanistan, appeals from the district court's denial of his petition for a writ of habeas corpus. Santiago's eight-year enlistment in the Guard was due to expire on June 27, 2004, but shortly before that date his enlistment was extended by a "stop-loss" order when his unit was alerted prior to being ordered to active service. Santiago challenges this application of the government's "stop-loss" policy on the ground that it violates his enlistment contract and is unauthorized by statute. He also asserts a due process claim. We affirm the district court's denial of the petition because we conclude that the stop-loss order was authorized by 10 U.S.C. § 12305(a), and that it neither violated Santiago's enlistment agreement nor his right to due process of law.¹

I. Factual Background

Santiago enlisted in the Army National Guard on June 28, 1996, when he was eighteen years old. He enlisted for a term of eight years. After his enlistment, Santiago completed basic training and advanced individual training, after which he was released from active duty. Since that time, Santiago has been participating in monthly weekend training activities as part of his commitment to the Army National Guard. Santiago currently serves as a sergeant in his Pendleton, Oregon, unit.

Santiago is an Aircraft Petroleum Specialist—a refueler. He tests petroleum products for safety and then refuels Army aviation equipment. On the civilian side, Santiago lives with his wife in Pasco, Washington, where he works as an electronic technician at Pacific Northwest National Laboratory (which is operated by Battelle Memorial Institute for the Department of Energy).

On April 17, 2004, the Oregon National Guard received a "mobilization alert order" from the Army National Guard. The order directed the unit stationed in Pendleton to "prepare for a mobilization into federal active service," but specified that "[t]his is an alert order only" and "[t]he official mobilization order may mobilize less than authorized strength." In May 2004, the commander of Santiago's company "announced to the soldiers that the unit was going to deploy, and that the entire unit was under stop loss."

In June 2004, when Santiago's eight-year term was due to expire, Santiago attended a weekend training session. Santiago "assumed that the weekend training that he attended . . . was his last weekend duty." On June 11, however, Santiago learned that his enlistment would not end on June 27—the original termination date of his contract—because he was subject to the stop-loss order.

In October 2004, Santiago's unit received an order to mobilize for active duty. Pursuant to the mobilization order, Santiago and his unit were instructed to mobilize on January 2, 2005, and depart for Fort Sill, Oklahoma, shortly thereafter for six weeks of training, followed by deployment to Afghanistan for one year in support of "Operation Enduring Freedom."

Santiago retained counsel to challenge the involuntary extension of his enlistment under the stop-loss policy. Santiago's attorney wrote a letter to Santiago's unit commander requesting that Santiago be released from further service on the ground that he had fulfilled his contractual obligations. Santiago's lawyer explained that if no "confirmation of Sgt. Santiago's discharge [is received] within...