StopLoss 2 page 1

<body topmargin=0 leftmargin=0 marginheight=0 marginwidth=0> <table cellpadding=0 cellspacing=0 border=0><tr> <td valign="top" colspan=2 height=100 BGCOLOR="#006699" TEXT="#080000" bgproperties="fixed" background="08478783.jpg"> <div> LAW OFFICES OF MICHAEL S. SORGEN<FONT SIZE="5" COLOR="#660000" FACE="Korinna BT" >   </FONT>   </div> <div> 240 Stockton Street, 9th Floor, San Francisco, CA  94108</div> <div> Tel: (415) 956-1360    Fax: (415) 956-6342    Email: msorgen@sorgen.net</div> <bR> <bR> <div> </div> </td> </tr><tr> <td valign="top" width=20% BGCOLOR="#FFCC66" TEXT="#080000" background="08478783.jpg"> <div> Home</div> <div> Practice Areas</div> <div> Attorneys</div> <div> Representative</div> <div> Cases</div> <bR> <div> Prospective Client</div> <div> Questionnnaire</div> <div> Links</div> <bR> <div> Employment</div> <div> Contact Us   </div> <bR> </td> <td valign="top" height=380 BGCOLOR="#FFFFFF" TEXT="#080000" bgproperties="fixed" background="08982823.jpg"> <div> MICHAEL S. SORGEN (SBN 43107)</div> <div> JOSHUA N. SONDHEIMER (SBN 152000)</div> <div> LAW OFFICES OF MICHAEL S. SORGEN</div> <div> 240 Stockton Street, 9<FONT SIZE="1" COLOR="#000000" FACE="Arial" >th</FONT> Floor</div> <div> San Francisco, California 94108</div> <div> (415) 956-1360</div> <bR> <div> Attorneys for Petitioner</div> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <DIV ALIGN="LEFT"></DIV> <div> UNITED STATES DISTRICT COURT</div> <bR> <div> EASTERN DISTRICT OF CALIFORNIA</div> <bR> <bR> <div> <TABLE BORDER="2" CELLPADDING="1" CELLSPACING="1" WIDTH="629" BORDERCOLORLIGHT="#C0C0C0" BORDERCOLORDARK="#808080" FRAME="BELOW" RULES="ALL" ALIGN="BOTTOM" HSPACE="0" VSPACE="0" > <tR> <tD VALIGN=TOP HEIGHT= 321 WIDTH="310"><div> JOHN DOE, </div> <bR> <div>           Petitioner,</div> <bR> <div>      vs.</div> <bR> <div> DONALD RUMSFELD, Secretary of Defense; LES BROWNLEE, Secretary of the United States Department of the Army (Acting); REGINALD L. BROWN, Assistant Secretary of the Army for Manpower and Reserve Affairs; CAPTAIN TORREY E. HUBRED, Company Commander, and Does 1-10, inclusive,</div> <bR> <div>           Respondents.</div> <bR> </tD> <tD VALIGN=TOP WIDTH="310"><div> Case No. </div> <bR> <div> <B>VERIFIED PETITION FOR WRIT OF HABEAS CORPUS, FOR MANDAMUS, AND FOR DECLARATORY RELIEF</B></div> <bR> <bR> <bR> <bR> <bR> <bR> </tD> </tR> </TABLE></div> <bR> <DIV ALIGN="LEFT"></DIV> <div> <B><U>INTRODUCTION</U></B></div> <bR> <div>      1.     Petitioner John Doe (“Doe”) brings this action for a writ of habeas corpus and/or mandamus to release him from application of the Army’s “stop loss” policy that involuntarily and arbitrarily extends the term of his reserve enlistment in the California Army National Guard in connection with the mobilization and deployment of his unit to Iraq.  The involuntary extension of Doe’s enlistment constitutes an unauthorized “backdoor draft” and is contrary to law, violates his right to due process, and breaches the terms of his enlistment contract.</div> <bR> <DIV ALIGN="LEFT"></DIV> <div> <B><U>JURISDICTION</U></B></div> <bR> <div>      2.     This action arises under the due process clause of the Fifth Amendment to the United States Constitution and other provisions of the U.S. Constitution, the laws of the United States, Presidential Executive Orders, and directives of the United States Department of the Army.  Doe is in the custody of the military in this judicial district, and his immediate commander is located in this judicial district.  Accordingly, this Court has jurisdiction under 28 U.S.C. §§ 2241, 2242, 1331, 1346, and 1361.</div> <bR> <DIV ALIGN="LEFT"></DIV> <div> <B><U>VENUE</U></B></div> <bR> <div>      3.     Defendants are officials and employees of the United States.  The events giving rise to Doe’s claims relate to his enlistment in the California Army National Guard, and Doe is assigned to a unit based in this judicial district.  Pursuant to 28 U.S.C. sections 1391(e)(2) and (e)(3), venue is proper in this district.</div> <bR> <DIV ALIGN="LEFT"></DIV> <div> <B><U>PARTIES</U></B></div> <bR> <div>      4.     Doe is an enlisted soldier in the California Army National Guard, assigned to a company headquartered in this judicial district.  Doe resides with his wife and two children in California.</div> <bR> <div>      5.     Defendant Donald Rumsfeld is Secretary of Defense of the United States, and as such has control over Doe’s status as a member of the National Guard and Army Reserve and the orders purporting to authorize Doe’s involuntary retention in the armed forces.</div> <bR> <div>      6.     Defendant Les Brownlee is Secretary (Acting) of the United States Army, and as such has control over Doe’s status as a member of the National Guard and Army Reserve and the orders purporting to authorize Doe’s involuntary retention in the armed forces.</div> <bR> <div>      7.     Defendant Reginald L. Brown is Assistant Secretary for Manpower & Reserve Affairs of the United States Army, and as such has control over Doe’s status as a member of the National Guard and Army Reserve and the orders purporting to authorize Doe’s involuntary retention in the armed forces.</div> <bR> <div>      8.     Defendant Captain Torrey E. Hubred is the Commander of Doe’s California Army National Guard unit, and as such is Doe’s immediate custodian with respect to his service in the California Army National Guard.  The unit is headquartered within this judicial district.</div> <bR> <DIV ALIGN="LEFT"></DIV> <div> <B><U>FACTS REGARDING DOE</U></B></div> <bR> <div>      9.     Doe is a decorated combat veteran who, after having previously served in the armed forces, enlisted in May 2003 for a one-year term in the California National Guard under the Guard’s “Try One” program.  Under this program, active duty veterans such as Doe may enlist for just one year in the Guard before determining whether to make any further service commitment.  Doe’s enlistment in the Guard requires him participate in weekend training assemblies and a two-week training, and makes him a part of the Army Ready Reserve.  In February of this year, Doe extended his enlistment for another one-year term.  Doe’s enlistment was scheduled to expire on May 2, 2005.</div> <bR> <div>      10.     Doe is married and the father of two young children, and is very involved in the lives and education of his children.</div> <bR> <div>      11.     On or after September 4, 2004, Doe received formal notice through his chain of command that he, along with other members of his unit, were being mobilized for service in Iraq for a period of 545 days, beginning October 3, 2004.  Doe was advised that if he did not “voluntarily” re-enlist in a forthcoming interview with a military retention officer, then he would be placed under a “stop loss” order, preventing Doe from separating from the Guard when his enlistment expires.</div> <bR> <div>      12.     However, compliance with Doe’s mobilization order would require the extension of his enlistment by almost one year, and Doe is presently subject to the Army’s stop loss policy because his unit has been alerted for mobilization.  Under Army directives, all reserve units alerted for mobilization are subject to the stop loss policy.  Doe’s unit is scheduled for deployment to Fort Lewis, Washington, for an estimated 45 days, and then for deployment to Iraq immediately thereafter.  Unless relieved from the stop loss policy and the related mobilization order, Doe’s enlistment is involuntarily extended for the duration of his unit’s mobilization to Iraq and 90 days after returning to the United States.  This period will involuntarily extend his enlistment far beyond its May 2005 expiration.</div> <bR> <DIV ALIGN="LEFT"></DIV> <div> <B><U>LEGAL CLAIMS</U></B></div> <bR> <div> <B>     </B>13.     The Army asserts that its stop loss policy has been promulgated pursuant to an Executive Order, issued September 14, 2001, that delegated to the Department of Defense authority to activate the Ready Reserve to respond to the threat of future terrorist attacks against the United States.  The stop loss policy, however, has been issued in connection with an order deploying Doe and his unit to serve in the occupation of Iraq.  The former Iraqi regime has been removed from power, and Iraq cannot be considered to present any threat of terrorism against the United States, if it ever did.  The stop loss order, accordingly, is invalid because it is unauthorized by, unrelated to, and exceeds the scope and purpose of the Executive Order under which the stop loss policy has been promulgated.</div> <bR> <div>      14.     The involuntary extension of Doe’s military enlistment constitutes a serious infringement on his liberty protected by the Constitution.  Because there is no reasonable relationship between the purpose of the delegation of stop loss authority and the purpose of the stop loss policy affecting Doe, the involuntary extension of Doe’s enlistment is arbitrary and violates Doe’s due process rights.</div> <bR> <div>      15.     Doe’s enlistment contract allows for his enlistment to be extended without his consent only in three specific circumstances, none of which are applicable.  The involuntary extension of his enlistment, therefore, violates the terms of his enlistment agreement.</div> <bR> <div>      16.     Under federal law, a member of the National Guard may not be kept in Federal service beyond the period of his or her enlistment.  The mobilization of Doe’s National Guard unit places Doe under Federal service and would, in connection with the stop loss policy, require Doe to remain in Federal service beyond the term of his Guard enlistment.  The involuntary extension of Doe’s enlistment, therefore, is contrary to law.</div> <bR> <div>      17.     Several statutes adopted by Congress since World War II provide that a soldier’s enlistment may be extended only during a period of war or national emergency declared by Congress.  Congress has not declared war or a national emergency.  Accordingly, the stop loss policy and involuntary extension of Doe’s enlistment are contrary to law and invalid.</div> <bR> <DIV ALIGN="LEFT"></DIV> <div> <B>PRAYER FOR RELIEF</B></div> <bR> <div> <B>     </B>Wherefore, Doe prays for judgment against Respondents as follows:</div> <bR> <div>      a) For an immediate Temporary Restraining Order barring Respondents from mobilizing activating for duty, or deploying Doe under any order that would require or effectuate the involuntary extension of his enlistment, and from otherwise involuntary extending Doe’s enlistment;</div> <bR> <div>      b) For an Order to Show Cause why a preliminary injunction should not issue to prevent the illegal involuntary extension of Doe’s enlistment;</div> <bR> <div>      c) For an Order to Show Cause why Respondents should not be compelled to comply with the demands set forth in this Petition;</div> <bR> <div>      d) For a writ of habeas corpus ordering Respondents to release Doe from any obligation of military service under his existing enlistment contract beyond its expiration on May 1, 2005, and/or a writ of mandamus, ordering such release from any involuntary extension of Doe’s military service beyond that date;</div> <bR> <div>      e) For a declaratory judgment that the involuntary extension of Doe’s enlistment is contrary to law and in violation of Doe’s enlistment contract;</div> <bR> <div>      f) For injunctive relief barring application of the stop loss policy to Doe;</div> <bR> <div>      g) For reasonable attorney fees’ and costs of this action; and</div> <bR> <div>      h) For such other and further relief as the Court deems just and proper.</div> <bR> <div> DATED: October 1, 2004               Respectfully submitted,</div> <bR> <div>                               LAW OFFICES OF MICHAEL S. SORGEN</div> <div>                               </div> <div>                               By:<U>                                                                     </U></div> <div>                                    Michael S. Sorgen</div> <div>                                    Attorney for Petitioner</div> <bR> <div>                      [VERIFICATION SUBMITTED UNDER SEAL]</div> <bR> </td> </tr></table></body>