Taylor v. U.S.

• Decision Date: 21 July 1983
• Docket Number: No. 82-1452,82-1452
• Citation: 711 F.2d 1199
• Parties: Orville TAYLOR v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1199

711 F.2d 1199

Orville TAYLOR v. UNITED STATES of America, Appellant.

No. 82-1452.

United States Court of Appeals Third Circuit.

Argued May 31, 1983.

Decided June 21, 1983.

Rehearing and Rehearing In Banc Denied

July 21, 1983.

Carter Phillips, Washington, D.C. (argued), Peter F. Vaira, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Dawn MacPhee, Asst. U.S. Atty., Philadelphia, Pa., for appellant; Donal M. Hill, Commander, JAGC, U.S. Navy, Alexandria, Va., of counsel.

Stanley M. Shingles, Philadelphia, Pa., for appellee.

Before GIBBONS and BECKER, Circuit Judges, and WEBER, District Judge. ^*

OPINION OF THE COURT

GIBBONS, Circuit Judge.

The United States appeals from a judgment of the district court ordering the release of Orville Taylor from military custody and restraining the government from surrendering him to the government of Spain for service of a sentence. We affirm.

I.

Mr. Taylor began a four year enlistment in the United States Navy in December 1973. He later executed a two-year voluntary extension of enlistment. Thus his term of voluntary enlistment was scheduled to terminate on December 30, 1979. In October of 1977, while Taylor was assigned to the naval base at Rota, Spain, he was involved in an off-base automobile accident which resulted in the death of a Spanish citizen. Pursuant to Policy Directive 110.5, Joint U.S. Military Group--Military Assistance Advisory Group, which implements the Agreement of Friendship and Cooperation between the United States and Spain of August 6, 1970, Mr. Taylor was immediately placed on legal hold status pending a decision as to whether he would be subject to the jurisdiction of the Spanish authorities. In that status, notice of which he acknowledged in writing on October 18, 1977, Taylor would not be transferred from or permitted to leave Spain without prior approval of the Commander, U.S. Naval Activities, Spain. The United States requested Spain to waive its right to exercise jurisdiction in favor of the United States, but Spain declined. Thus no military charges were pressed against Taylor. On August 7, 1978 he was criminally indicted by the Spanish authorities for involuntary manslaughter. Pursuant to Article XVIII of the January 24, 1976 Agreement in Implementation of the Treaty of Friendship and Cooperation, 27 U.S.T. 3095, 3116, T.I.A.S. No. 8361, the United States Naval authorities requested and were granted responsibility for Taylor's custody pending disposition of this charge. On July 16, 1979 Taylor was found guilty. Thereafter he was sentenced to eighteen months in prison and assessed civil damages of $15,500.00. Taylor appealed, but a Spanish appellate court affirmed his sentence. Upon affirmance of the conviction on November 6, 1980 the Spanish authorities requested the United States Naval authorities to deliver Taylor on November 7, 1980 for service of his sentence. Meanwhile, however, the term of Taylor's extended voluntary enlistment had expired. He remained at the naval base at Rota and continued to receive military pay and benefits. There is a factual dispute over whether or not he requested a formal discharge, but it is undisputed that he was never formally discharged. Instead, the Navy authorized a voluntary extension of Taylor's term of enlistment, and, on January 22, 1980, he refused to execute it. Thereafter, the Navy purported, unilaterally, to extend the term of his enlistment involuntarily. That action was taken pursuant to Article 3840260(5)(h) of the Bureau of Naval Personnel Manual (BUPERSMAN) which reads:

5. Under certain conditions members may legally be retained beyond the date of expiration of enlistment or other period of obligated service, either voluntarily or involuntarily until discharge, release to inactive duty, or transfer to the Naval Reserve and release to inactive duty, is accomplished. When a member is retained in service beyond expiration of enlistment, or other period of obligated service, entry as to the reason and authority for the retention shall be made on the appropriate page of the member's service record and signed in accordance with this Manual. Enlisted members may be held beyond expiration of their enlistment or other period of obligated service for any of the following reasons:

* * *

* * *

h. As a result of apprehension, arrest, confinement, investigation, or filing of charges that may result in a trial by court-martial, and continues for all purposes of trial by court-martial and the execution of any sentence thereof. Further, it continues by reason of any of the aforementioned actions that are taken by civil authorities, that may result in trial, because of any offense committed within the criminal jurisdiction of the civil authority concerned, by a member, prior to a legal discharge or separation, although the term of enlistment or obligated service may have expired. In those circumstances, the member may be retained in the service for trial and punishment by civil authorities after the member's period of obligated service would otherwise have expired....

Before the Navy could turn Taylor over to the Spanish authorities he fled the country. The Spanish authorities issued a fugitive warrant, ¹ and the Navy listed him as a deserter in violation of 10 U.S.C. § 885 (1976).

On May 24, 1982 the Richmond, Virginia police, checking Taylor's record after a traffic violation, discovered that he was sought as a deserter and turned him over to the Navy. He was transferred to the Navy Brig, Naval Station, Philadelphia, to await transfer to Rota and surrender to Spanish custody. On June 9, 1980 Taylor filed suit in the district court, alleging an unconstitutional detention and seeking injunctive and declaratory relief to prevent his return to Spain. The trial court issued a temporary restraining order, which was extended several times. On June 30 an evidentiary hearing was held, and on July 15, 1982 a final judgment was entered granting an injunction against Taylor's return to Spain and ordering his release. A panel of this court stayed the order for his release. Prior to the entry of the stay, however, Taylor posted bail and was released from physical custody by the Navy. A stipulation was subsequently executed by the parties and approved by the district court which provided that Taylor would remain free on bail in a leave without pay status from the Navy until a final ruling by this court.

II.

The United States has three objections to the district court order, one procedural and two substantive.

A. The Procedural Objection

The United States contends that the district court acted improperly when, following the June 30, 1982 hearing on Taylor's application for a preliminary injunction, the court proceeded to enter a final judgment. Although the trial court has authority to consolidate a hearing on an application for a preliminary injunction with the trial on the merits, Fed.R.Civ.P. 65(a)(2), it did not do so here and did not notify the parties in advance of its intention to render a final judgment. Here, however, the gist of the government's position is that it had legal authority to extend Taylor's enlistment involuntarily. It concedes that this issue is purely legal. Thus the trial court's procedure, while perhaps erroneous, was harmless and in no way prejudiced the government on that issue.

The government also contends, however, that it was prejudiced in presenting its factual claim that Taylor is estopped from challenging the Navy's authority to extend his enlistment involuntarily. The only disputed issue of fact the government has pointed to is the question of whether Taylor requested a formal discharge. Taylor says that he did, and that the Navy refused to process the request. The Navy denies that he made it. We conclude that this issue is not dispositive on any principle of estoppel.

It is undisputed that Taylor voluntarily refused to extend his enlistment and that the Navy acted unilaterally. The facts as to Taylor's conduct after the Navy acted unilaterally are undisputed. The Navy asserted its authority to detain him, and he drew pay during the period in which he submitted to that detention. When he lost his appeal, Taylor fled from Spain. These are the only facts relevant to the issue of involuntary extension, and they do not estop Taylor in this case.

Thus we can only set aside the trial court's actions in these respects if the United States can show that it was prejudiced thereby in the presentation of a complete case. E.g. Wohlfahrt v. Memorial Medical Center, 658 F.2d 416, 418 (5th Cir.1981). Since the government can demonstrate no prejudice with respect to the development of the material facts, we cannot hold that the trial court erred in deciding the case on the basis of the record made at the June 30, 1982 preliminary injunction hearing, and thus we proceed to the merits.

B. The Substantive Objections

1. The Involuntary Extension of Enlistment

The government contends that Taylor is still an enlistee in the Navy because its unilateral involuntary extension of enlistment was lawful. That contention requires consideration of the several sources of authority on which the government places reliance.

a. Title 10

Under article I, section 8, clause 14 of the Constitution, Congress is given the power to "make Rules for the Government and Regulation of the land and naval Forces." This power has been exercised in title 10 of the United States Code which contains the now uniform laws applying to the various segments of the armed forces. Title 10 expressly authorizes involuntary extensions of enlistment by the military only once; enlistments in effect or entered into during a time of war continue until six months after such war, unless terminated by the President. 10 U.S.C. §§ 506, 671a (1976). Prior to the enactment of section 506 as part of the Armed Services Act of 1968, the Secretary of the Navy had discretionary authority to extend...