Santiago v. Rumsfeld
| Decision Date | 13 May 2005 |
| Docket Number | No. 05-35005.,05-35005. |
| Citation | 407 F.3d 1018 |
| 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 |
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.
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
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 two weeks... this letter constitutes Sgt. Santiago's attempt to exhaust administrative remedies prior to filing suit to enforce his rights."
The Oregon Military Department replied by letter to Santiago's lawyer, stating that "[a]s a result of the unit alert, your client's ETS [estimated termination of service] date was changed to 24 December 2031 and it is scheduled to remain so until his unit is removed from alert status or until demobilization is completed."2 The letter also directed that "[r]equests for waivers/exceptions to reserve component unit stop loss should be forwarded through the chain of command." After learning about the waiver policy, Santiago concluded that it would be futile to seek a waiver or exception. Santiago testified by declaration that his civilian supervisor was "not willing to request an exception to my deployment based upon a `negative national security impact' on my employment." He also concluded that he could not make a claim of personal hardship beyond that which other members of his unit were forced to endure.
In January 2005, Santiago reported to Fort Sill to begin his six weeks of training in preparation for deployment to Afghanistan.
In November 2004, Santiago filed a petition for writs of habeas corpus and mandamus, and for declaratory relief, in the United States District Court for the District of Oregon. He moved for a temporary restraining order and preliminary injunction. The parties stipulated that the hearing on the preliminary injunction was to serve as a bench trial on the permanent injunction, to expedite appellate review. The district court dismissed the petition for writ of habeas corpus and entered judgment for the federal defendants denying all relief. Santiago promptly appealed.
The district court assumed for purposes of its decision that Santiago's claims met the requirements for reviewability of military decisions under Wenger v. Monroe, 282 F.3d 1068, 1072 (9th Cir.2002) (). The district court also assumed for purposes of decision that Santiago had sufficiently exhausted his administrative remedies. The government suggests that we make the same assumptions for purposes of this appeal, and we follow that suggestion. Wenger and Mindes set forth a prudential rule, not a limitation on our subject-matter jurisdiction. See Winck v. England, 327 F.3d 1296, 1299 (11th Cir.2003). Exhaustion of administrative remedies, when not made mandatory by statute, is similarly a prudential doctrine. See Acevedo-Carranza v. Ashcroft, 371 F.3d 539, 541 (9th Cir. 2004). We therefore proceed to the merits.
Enlistment contracts, with exceptions not relevant here, are enforceable under the traditional principles of contract law.4 See Jablon v. United States, 657 F.2d 1064, 1066 & n. 3 (9th Cir.1981) (); Johnson v. Chafee, 469 F.2d 1216, 1219-20 (9th Cir.1972) (); Taylor v. United States, 711 F.2d 1199, 1205 (3d Cir.1983) () (citation and alteration omitted).
Santiago relies on the provision of his contract specifying an eight-year term and contends that it requires his separation at the end of that period. He acknowledges that the contract spells out some instances in which his enlistment can be extended (for example, during a declared war), but insists that the extension under the present circumstances, in an alert during an emergency declared by the President, is not among them. He relies on the interpretive doctrine of expressio unius est exclusio alterius to support his view that the failure to include a provision for a particular contingency, after specifying others, implies a negative. See, e.g., Barnes v. Indep. Auto. Dealers Ass'n of Cal. Health & Welfare Benefit Plan, 64 F.3d 1389, 1393 (9th Cir.1995).
It is inappropriate, however, to imply an intent to exclude when the contract itself specifies that unlisted contingencies may cause an alteration in the agreed-upon terms. See United States v. Crane, 979 F.2d 687, 690 (9th Cir.1992) (). Santiago's enlistment contract states that rights and obligations may be affected by federal law, and the contract provides notice that changes in federal law — even if inconsistent with the written terms of the contract — would apply to Santiago once he enlisted:
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). This clause is broad enough to encompass the stop-loss order that Santiago challenges. Santiago argues that the statute under which the President acted, 10 U.S.C. § 12305(a), was in effect prior to his enlistment and therefore cannot qualify as a "change" in the law. The stop-loss regulation, however, was not promulgated until November 21, 2002, see MILPER MESSAGE NO: 03-040, TAPC-PDT-PM (hereinafter "...
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