StopLoss2- page 2

<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> <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>           Plaintiff,</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>           Defendants.</div> <bR> </tD> <tD VALIGN=TOP WIDTH="310"><div> Case No. </div> <bR> <div> <B>MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER</B></div> <bR> <bR> <div> Date:     </div> <div> Time:     </div> <div> Room:     </div> <bR> </tD> </tR> </TABLE></div> <bR> <bR> <DIV ALIGN="LEFT"></DIV> <div> <B>TABLE OF CONTENTS</B></div> <bR> <div> <TABLE BORDER="0" CELLPADDING="1" CELLSPACING="1" WIDTH="626" BORDERCOLORLIGHT="#C0C0C0" BORDERCOLORDARK="#808080" FRAME="VOID" RULES="NONE" ALIGN="BOTTOM" HSPACE="0" VSPACE="0" > <tR> <tD VALIGN=TOP HEIGHT= 20 WIDTH="622"><div> <B>STATEMENT OF FACTS</B>     </div> </tD> </tR> <tR> <tD VALIGN=TOP HEIGHT= 20 WIDTH="622"><div> <B>ARGUMENT</B>     </div> </tD> </tR> <tR> <tD VALIGN=TOP HEIGHT= 20 ><NOBR><div> <B>I.     STANDARD FOR OBTAINING A TEMPORARY RESTRAINING ORDER</B>     </div> </NOBR></tD> </tR> <tR> <tD VALIGN=TOP HEIGHT= 39 ><NOBR><div> <B>II.     THE BALANCE OF THE HARDSHIP TIPS SHARPLY IN JOHN DOE’S</B></div> <div> <B>FAVOR</B>     </div> </NOBR></tD> </tR> <tR> <tD VALIGN=TOP HEIGHT= 39 WIDTH="622"><div> <B>III.     THIS CASE PRESENTS SERIOUS QUESTIONS, ON WHICH DOE IS LIKELY TO PREVAIL</B>     </div> </tD> </tR> <tR> <tD VALIGN=TOP HEIGHT= 39 ><NOBR><div> <B>          A.     DOE WILL ESTABLISH THAT THE EXTENSION OF HIS </B></div> <div> <B>ENLISTMENT IS UNAUTHORIZED</B>     </div> </NOBR></tD> </tR> <tR> <tD VALIGN=TOP HEIGHT= 39 ><NOBR><div> <B>          B.     DOE WILL ESTABLISH THAT THE EXTENSION OF HIS SERVICE </B></div> <div> <B>IS ARBITRARY AND VIOLATES DUE PROCESS</B>     </div> </NOBR></tD> </tR> <tR> <tD VALIGN=TOP HEIGHT= 39 WIDTH="622"><div> <B>          C.     DOE WILL ESTABLISH THAT THE EXTENSION OF HIS SERVICE VIOLATES HIS ENLISTMENT CONTRACT</B>     </div> </tD> </tR> <tR> <tD VALIGN=TOP HEIGHT= 39 ><NOBR><div> <B>           D.     DOE WILL ESTABLISH THAT THE EXTENSION OF HIS </B></div> <div> <B>ENLISTMENT IS BARRED BY LAW</B>     </div> </NOBR></tD> </tR> <tR> <tD VALIGN=TOP HEIGHT= 20 ><NOBR><div> <B>                    1.     Doe Cannot be Kept in Federal Service Beyond His Enlistment</B>     </div> </NOBR></tD> </tR> <tR> <tD VALIGN=TOP HEIGHT= 39 ><NOBR><div> <B>                    2.</B>     <B>Doe’s Enlistment Cannot be Extended Unless Congress Declares </B></div> <div> <B>War or a National Emergency</B> </div> </NOBR></tD> </tR> <tR> <tD VALIGN=TOP HEIGHT= 20 WIDTH="622"><div> <B>                             a.  The Selective Service Act of 1948</B>     </div> </tD> </tR> <tR> <tD VALIGN=TOP HEIGHT= 20 ><NOBR><div> <B>                             b.   Uniform Military Training and Service Act Amendments of 1951</B>     </div> </NOBR></tD> </tR> <tR> <tD VALIGN=TOP HEIGHT= 39 ><NOBR><div> <B>                             c.  Limiting Stop Loss to Declared Wars – The Armed Services Act </B></div> <div> <B>                                  of 1968</B>     </div> </NOBR></tD> </tR> <tR> <tD VALIGN=TOP HEIGHT= 20 WIDTH="622"><div> <B>CONCLUSION</B>     </div> </tD> </tR> <tR> <tD VALIGN=TOP HEIGHT= 20 WIDTH="622"><IMG BORDER="0" SRC="1x1.gif" HEIGHT="20" ALIGN="bottom" WIDTH="622" HSPACE="0" VSPACE="0"></tD> </tR> <tR> <tD VALIGN=TOP HEIGHT= 20 WIDTH="622"><IMG BORDER="0" SRC="1x1.gif" HEIGHT="20" ALIGN="bottom" WIDTH="622" HSPACE="0" VSPACE="0"></tD> </tR> <tR> <tD VALIGN=TOP HEIGHT= 20 WIDTH="622"><IMG BORDER="0" SRC="1x1.gif" HEIGHT="20" ALIGN="bottom" WIDTH="622" HSPACE="0" VSPACE="0"></tD> </tR> </TABLE></div> <bR> <bR> <bR> <DIV ALIGN="LEFT"></DIV> <div>      <B>STATEMENT OF FACTS</B></div> <bR> <div>      On or about May 1, 2003, Petitioner John Doe enlisted for a one-year term in the California Army National Guard under the Guard’s “Try One” enlistment program.  (See Exhibit 1 to Declaration of Joshua Sondheimer in Support of Application for Temporary Restraining Order (“Sondheimer Decl.”).  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.  In February 2004, Doe voluntarily extended that enlistment for an additional one-year term.  (Affidavit of John Doe in Support of the Existence of An Irreparable Injury, (“Doe Aff.”), ¶ 4).  His enlistment is currently scheduled to expire on May 1, 2005.  (Id.)</div> <bR> <div>      On or after September 4, 2004, Doe was advised by his commanding officer that he was being mobilized to active duty for 545 days in support of Operation Iraqi Freedom.  His unit is scheduled to deploy initially to Ft. Lewis, Washington on October 6, 2004, for an estimated 45 days, and then overseas from there.  (Doe Aff., ¶ 4).</div> <bR> <div>      At the time he was advised of the mobilization order, Doe and his unit were told that any members of the unit who did not agree in upcoming interviews with Army retention officers to voluntarily extend their enlistments would be placed under the Army’s “stop loss” policy.  They were advised that under this policy, their enlistments would be involuntarily extended for the duration of their overseas deployment and for 90 additional days after returning to the United States.  The retention officers have yet to conduct any interviews.  Doe believed that he would not be placed under the stop loss policy until his interview, and did not understand that he could challenge the involuntary extension of his enlistment until he contacted his present attorneys to inquire about his rights.  (Doe Aff., ¶ 5).</div> <bR> <div>      Compliance with Doe’s mobilization order would require the involuntary extension of Doe’s enlistment.  Additionally, pursuant to Army directives, all National Guard units ordered to active duty in support of Operation Iraqi Freedom are subject to the Army’s “stop loss” program.  (Sondheimer Decl., ¶ 2, and Exhibit 2 thereto).  Thus, Doe is presently subject to “stop loss.”  If Doe is deployed with his unit, Doe will be required to remain on duty until April of 2006, resulting in his being forced to serve nearly an additional year on what was marketed as a one-year enlistment.</div> <bR> <div>      Doe is married and the father of two young children.  He is closely involved in his children’s education and extracurricular activities.  Doe’s family is presently facing significant financial hardship, and his civilian income is essential to their family budget.  (Doe Aff., ¶ 2).</div> <bR> <DIV ALIGN="LEFT"></DIV> <div> <B>ARGUMENT</B></div> <bR> <div> <B>STANDARD FOR OBTAINING A TEMPORARY RESTRAINING ORDER</B></div> <bR> <div>      In the Ninth Circuit, a temporary restraining order “is granted on grounds similar to that governing the issuance of a preliminary injunction.” <I>City of Tenakee Springs v. Block</I>, 778 F.2d 1402, 1407 (9<FONT SIZE="1" COLOR="#000000" FACE="Arial" >th</FONT> Cir. 1985); Fed. R. Civ. Proc. 65(b).  The court considers several equitable factors including, (1) whether the moving party will suffer irreparable injury if the injunctive relief is not granted; (2) whether there is a likelihood that the moving party will succeed on the merits; (3) whether, in balancing the equities, the nonmoving party will not be harmed more than the moving party is helped; and (4) whether granting injunctive relief is in the public interest.  In order to obtain temporary injunctive relief, the moving party must show “either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips in its favor.” <I>United States v. Odessa Union Warehouse Coop</I>, 833 F.2d 172, 174 (9th Cir. 1987); <I>Miller v. California Pacific Medical Center,</I> 19 F.3d 449, 456 (9th Cir. 1994).  These two tests are not separate; they are the outer reaches of a single continuum. <I>City of Tenakee Springs, supra, </I>778 F.2d at 1407<I>. </I> “The relative hardship to the parties is the critical element in deciding at which point along the continuum” an injunction is justified.  <I>Lopez v. Heckler,</I> 713 F.2d 1432, 1435 (9th Cir. 1983), <I>rev'd on other grounds</I>, 463 U.S. 1328 (1983).  The more the balance of hardship tips in the movant’s favor the less the burden on the movant of proving, at such an early stage of the proceedings, that success is likely. <I>Id.</I></div> <bR> <div> <B>THE BALANCE OF THE HARDSHIP TIPS SHARPLY IN JOHN DOE’S FAVOR</B></div> <bR> <div>      In addressing the balance of hardships, the court should weigh the hardship imposed upon Doe if the temporary restraining order is not granted, the adequacy of Doe’s remedies if injunctive relief is denied and yet is ultimately successful on the merits, and the burden placed on the Army if the order is granted.  <I>See Lopez, supra,</I> 713 F.2d at 1436-38.</div> <bR> <div>      As demonstrated in Doe’s affidavit of irreparable injury, if Doe is forced into service under orders that are unlawful and contrary to the terms of his enlistment contract, the harm to him will be irreparable.  If a temporary restraining order is not issued, Doe will be placed on full-time active duty on October 3, 2004, and deployed outside of this judicial district.  Doe’s ability to pursue his legal claim will be substantially impaired.  Being placed on full-time active duty under an unlawful order will constitute a substantial and irreparable restriction on his liberty.  Fort Lewis, where Doe immediately be deployed, is a closed military base.  (Doe Aff. ¶ 7).  He will have little or no personal time, and limited access to means of communication.  It will be extremely difficult to communicate with his attorneys concerning this matter, and impossible for him to appear at any hearing.  (Id.)</div> <bR> <div>      If a temporary restraining order is not issued, Doe will become subject to mobilization and stop loss orders that unlawfully and involuntarily extend his enlistment.  Doe would be required to deploy to Iraq, where he would be faced with a significant risk of injury or death far beyond the period for which he agreed to be subject to active duty.  Doe’s unit is involved in conducting and providing security for military transportation, and transportation convoys are among the most frequent targets of attacks by Iraqi insurgents.  (Doe Aff., ¶ 9).</div> <bR> <div>      Without injunctive relief, Doe will be without adequate legal remedy if successful in this action.  Courts have commonly found that soldiers challenging activation orders face irreparable injury and are entitled to preliminary relief to preserve the status quo. <I> </I>See <I>Patton v. Dole</I>, 806 F.2d 24, 28 (2d Cir. 1986) (midshipman who had resigned from Merchant Marine Academy faced irreparable injury from imminent activation because he would be unable to adequately recover for his loss of liberty); <I>Walsh v. Local Bd. No. 10, Mount Vernon, N. Y.</I>, 305 F.Supp. 1274, 1277 (S.D.N.Y. 1969) (irreparable harm was established where, if preliminary injunction was not granted, petitioner would be immediately inducted into armed forces, rendering futile his petition for declaratory judgment and permanent injunctive relief), <I>disapproved on other grounds by</I> <I>United States v. Cook</I>, 505 F.2d 1124 (2nd Cir 1974); <I>Kudley v. Hollo</I>, 431 F.Supp. 470, 472 (N.D. Ohio 1976) (finding petitioner would suffer irreparable injury if required to comply with involuntary order to active duty where petitioner alleged that the Army failed to follow its own regulations).</div> <bR> <div>      On the other hand, the harm posed to Respondents is negligible.  Permitting Doe’s claim to be heard before he is required to join his unit on active duty, if at all, will be least disruptive to the military.  Doe is one of over one hundred men in his unit.  Doe is not in a leadership position in his unit.  The unit’s operational capacity will suffer no impairment from such a short delay.</div> <bR> <div>      The balance of hardships tips heavily in Doe’s favor in this case.  The potential harm to him is great, and he has no remedy absent the restraining order.  On the other hand, the only burden on the Army is a brief delay in Doe’s deployment to Fort Lewis.</div> <bR> <div> <B>THIS CASE PRESENTS SERIOUS QUESTIONS, ON WHICH DOE IS LIKELY TO PREVAIL </B></div> <bR> <div> <B>A.     DOE WILL ESTABLISH THAT THE EXTENSION OF HIS ENLISTMENT IS UNAUTHORIZED</B></div> <bR> <div>      The Army asserts that it has authority for its stop loss program under authority delegated to the Secretary of Defense in Executive Order No. 13223 of September 14, 2001.  However, Executive Order 13223 does not provide authority for involuntarily extending Doe’s enlistment for nation-building service in Iraq.</div> <bR> <div>      Executive Order No. 13223, issued days after the terrorist attacks against the Pentagon and the World Trade Center on September 14, 2001, authorizes the Secretary of Defense to order the Ready Reserve of the armed forces to active duty “to respond to the continuing and immediate threat of further terrorist attacks on the United States.”  66 Fed. Reg. 48201 (2001).  The order was issued “in furtherance” of the President’s proclamation, on the same day, that “a national emergency exists by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States.”  Proclamation No. 7463, 66 Fed. Reg. 48199 (2001).</div> <bR> <div>      First, the Order nowhere provides for involuntary extensions of regular enlistees such as John Doe.  The Order authorizes the Secretary of Defense to suspend laws relating to promotion, involuntary retirement, and separation of “commissioned officers,” but does not cite any similar authority pertaining to regular enlisted personnel.  Executive Order No. 13223, 66 Fed. Reg. at 48201, § 2.</div> <bR> <div>      Second, President Bush issued Executive Order No. 13223 to respond to the threat of future terrorist attacks on the United States.  However, Iraq no longer poses any threat of terrorism against the United States, if it ever did.  In March of 2003, the United States led an invasion of Iraq that removed Saddam Hussein and his regime from power.  Since the fall of Saddam’s regime, Iraq cannot be considered to pose a threat of terrorist attacks upon the United States, and the United States has made no such assertion.  Iraq has a new interim government put in place with U.S. assistance, and Iraq is again considered a “sovereign” nation.</div> <bR> <div>      It is axiomatic that agency action taken pursuant to an Executive order must be “consistent with the Executive Order that authorizes its promulgation.”  <I>Itek Corp. v. First Nat’l Bank of Boston</I>, 704 F.2d 1, 7 (1<FONT SIZE="1" COLOR="#000000" FACE="Arial" >st</FONT> Cir. 1983); see <I>Peters v. Hobby</I>, 349 U.S. 331 (1955) (declaring invalid a regulation that authorized federal board powers in excess of those granted in Executive Order).  As the court noted in <I>University of Southern California v. Cost of Living Council</I>, broad powers delegated by Executive order must be exercised “only when so doing manifests a reasonable interpretation of the Executive Order.”  472 F.2d 1065, 1070-71 (Temp. Emerg. Ct. App. 1973).</div> <bR> <div>      In <I>United States v. Yoshida</I>, the court explained:</div> <bR> <div> A standard inherently applicable to the exercise of delegated emergency powers is the extent to which the action taken bears a <I>reasonable relation </I>to the power delegated and <I>to the emergency giving rise to the action</I>.  The nature of the power determines what may be done and <I>the nature of the emergency restricts the how of its doing, i.e., the means of execution</I>.  Though courts will not normally review the essentially political questions surrounding the declaration or continuance of a national emergency, they will not hesitate to review the action taken in response thereto or in reliance thereon.</div> <bR> <div> <I>Yoshida</I>, 526 F.2d 560, 578-79 (Ct. Customs App. 1975) (emphasis added) (upholding imposition of surcharge on imports under declared trade emergency).</div> <bR> <div>      The involuntary extension of Doe’s enlistment to support the U.S. military presence in Iraq bears no “reasonable relationship” to the threat of terrorist attacks against the United States.  The stop loss order affecting Doe exceeds the scope and purpose of Executive Order No. 13223, and must, therefore, be declared invalid.</div> <bR> <div> <B>     B.     DOE WILL ESTABLISH THAT THE EXTENSION OF HIS</B></div> <div> <B>             SERVICE IS ARBITRARY AND VIOLATES DUE PROCESS</B></div> <bR> <div>      Because the stop loss order requiring Doe’s involuntary service in Iraq bears no relation to the threat of terrorism against the United States, the order is arbitrary and in violation of violates Doe’s right to due process under the Fifth Amendment.  For the same reasons, the Court should set aside the order as unlawful under the Administrative Procedures Act (“APA”).</div> <bR> <div>      It is well established that persons involuntarily retained in military service are under the “custody” of the government.  See <I>Scaggs</I> <I>v. Larsen</I>, 396 U.S. 1206, 1209 (1969) (Douglas, Circuit Justice) (holding habeas corpus available to a reservist to challenge call-up order involuntarily extending his enlistment term).</div> <bR> <div>      Soldiers are protected by the Fifth Amendment from the arbitrary imposition of involuntary military service:  “Liberty under the Due Process Clause includes protection against unlawful or arbitrary personal restraint.”  <I>Zadvydas v. Davis</I>, 533 U.S. 678, 718 (2001) (holding that statute authorizing potentially indefinite detention of removable alien would raise a “serious constitutional problem,” and is limited by implicit reasonable time limitation of six months) (Kennedy, J., dissenting); see <I>Poe v. Ullman</I>, 367 U.S. 497, 543 (1967) (liberty protected by Fourteenth Amendment includes freedom from “all substantial arbitrary impositions”).</div> <bR> <div>      The APA also requires agency action to be set aside and declared unlawful if it is “arbitrary and capricious.”  5 U.S.C. § 706.  See, e.g., <I>Lipsman v. Secretary of Army</I>, 257 F. Supp. 2d 3 (D.D.C. 2003) (holding veterans group could challenge amendment to Army regulations under APA).</div> <bR> <div>      The protection against arbitrariness requires that there be a “reasonable relation” between the nature of the infringement on liberty and the purpose of the infringement.  <I>Foucha v. Louisiana</I>, 504 U.S. 71, 79 (1992) (invalidating Louisiana civil commitment statute); <I>Korematsu v. United States, </I>323 U.S. 214, 234 (1944) (“The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so 'immediate, imminent, and impending' as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger.”) (Murphy, J., dissenting).</div> <bR> <div>      The restraint on Doe’s liberty that would be imposed by application of the stop loss order is substantial.  At the most fundamental level, enforcement of the order, would deprive Doe of the liberty he legitimately believed he had upon the expiration of his one-year enlistment.  Deployment under the stop loss policy will place him at risk of life and limb in Iraq well beyond the period of time for which he enlisted.  Such a grave restraint on liberty is arbitrary and capricious when there is no rational connection between the restraint and the purpose of the legal authority under which the restraint is being imposed.</div> <bR> <div>      In <I>Korematsu v. United States</I>, the district court vacated Fred Korematsu’s 40-year old conviction for violating a WWII internment order after matters of historical record cast substantial doubt on whether the discriminatory internment policies were justified by military necessity.  <I>Korematsu</I>, 584 F. Supp. 1406, 1420 (N.D. Cal. 1984).  Petitioner will establish here that there similarly is no evidence that the significant restraint the military seeks to impose upon Doe’s liberty is a necessary means to respond to the threat of terrorist attacks against the United States.</div> <bR> <div> <B>C.     DOE WILL ESTABLISH THAT THE EXTENSION OF HIS SERVICE VIOLATES HIS ENLISTMENT CONTRACT</B></div> <bR> <div>      Doe’s current reserve enlistment in the California Army National Guard is established and governed by a standard armed forces enlistment contract.  A true and correct copy (redacted) of Doe’s enlistment document is attached as an Exhibit to the Declaration of Joshua Sondheimer.  Nowhere does the enlistment contract authorize Doe’s involuntarily retention in military service under the present circumstances.</div> <bR> <div>      As the involuntary extension of Doe’s enlistment, accordingly, would violate the terms of Doe’s enlistment contract, Doe must be released from the mobilization and stop loss orders.  <I>Scaggs</I>, 396 U.S. at 1209; <I>Patton</I>, <I>supra</I>, 806 F.2d at 30 (2d Cir. 1986) (ordering district court to enjoin enforcement of service obligation agreement pending hearing on interpretation of contract term, and suggesting permanent injunction may be appropriate after hearing).</div> <bR> <div>      Doe’s standard enlistment contract, in a section intended to summarize relevant “existing United States Laws,” indicates that involuntary extensions of service are permitted only under the following conditions: 1) during a period of declared war; 2) during a war or national emergency declared by Congress; or 3) where a servicemember is not assigned to, or participating satisfactorily in, a unit of the Ready Reserve and has been ordered to active duty.  None of these conditions apply.</div> <bR> <div>      The first of these provisions, Part 9(c) of the standard enlistment contract, states that “In the event of war, my enlistment in the Armed Forces continues until six (6) months after the war ends, unless my enlistment is ended sooner by the President of the United States.”  This provision parallels, and clearly is based on, the statutory authority of 10 U.S.C. § 506, which provides that an enlistment in the armed forces “in effect at the beginning of a war, or entered into during a war, unless sooner terminated by the President, continues in effect until six months after the termination of that war.”  The term “war” in this section means a “declared war.”  See S. Rep. No. 931, 9<FONT SIZE="1" COLOR="#000000" FACE="Arial" >th</FONT> Cong., 1<FONT SIZE="1" COLOR="#000000" FACE="Arial" >st</FONT> Sess. 1967, <I>reprinted in </I>1967 U.S.C.C.A.N. 2635, 2636 (section intended to extend “to all Secretaries of the military departments” provision limiting involuntarily extensions to periods of declared war that previously applied only to Army and Air Force); see Section IV, <I>infra</I>.  As Congress has not declared a war in Iraq or elsewhere, Part (9)(c) of the contract does not authorize the involuntary extension of Doe’s enlistment.</div> <bR> <div>      Parts 10(b) and 10(c) of the standard contract provisions recite that involuntary extensions may be imposed upon enlistees who are or who become members of the reserves during a “period of war or national emergency declared by Congress.”  However, Congress has not declared either a war or a national emergency.  Thus, these provisions do not authorize the involuntary extension of Doe’s enlistment.</div> <bR> <div>      Finally, under Part 10(d)(2), a reservist not assigned to or participating satisfactorily in a unit of the Ready Reserve may, upon being ordered to active duty, have his or her enlistment extended to allow for the completion of a 24-month assignment to active duty.  However, Doe is both a member of, and participating satisfactorily in, the Ready Reserve.  Accordingly, this provision is inapplicable.</div> <bR> <div>      None of the circumstances identified by Doe’s enlistment document as authorizing an involuntary extension of his enlistment apply.  Accordingly, enforcement of the stop loss order would be in breach of his enlistment agreement and must be prohibited.</div> <bR> <div> <B>     D.     DOE WILL ESTABLISH THAT THE EXTENSION OF HIS ENLISTMENT IS BARRED BY LAW</B></div> <bR> <div> <B>     1.     Doe Cannot be Kept in Federal Service Beyond His Enlistment</B></div> <bR> <div> <B>     </B>10 U.S.C. § 12407(a), provides in pertinent part that:</div> <bR> <div> [N]o member of the National Guard may be kept in Federal service beyond the term of his commission or enlistment.</div> <bR> <div> The order mobilizing Doe and his National Guard unit for active duty in support of Operation Iraqi Freedom unquestionably places Doe in Federal service.  10 U.S.C. § 12403 (“Army and Air National Guard of the United States: members; status in which ordered into Federal service:  Members of the Army National Guard ordered to active duty shall be ordered to duty as reserves of the Army.”).  Pursuant to 10 U.S.C. § 12407(a), Doe therefore may not be kept in Federal service beyond the expiration of his enlistment term.</div> <bR> <div>      <B>2.</B>     <B>Doe’s Enlistment Cannot be Extended Unless Congress Declares War or a National Emergency</B></div> <bR> <div>      In several different enactments on which the above standard terms of the enlistment contract are based, Congress has explicitly and unambiguously provided that a soldier’s period of enlistment may not be extended without his or her consent except during a period of war or national emergency declared by Congress itself.  The statutes and their history demonstrate Congress’ intention both to maintain control over the “trigger” for stop loss authority, and to allow involuntary service extensions only in extraordinary circumstances which might justify the heavy burdens imposed.  At no time since Doe enlisted has Congress declared war or a national emergency.  The stop loss order to Doe, accordingly, is contrary to law.</div> <bR> <div> <B>          a.  The Selective Service Act of 1948</B></div> <bR> <div>      In provisions of the Selective Service Act of 1948 (now the Uniform Military Training and Service Act, or “UMTSA”) left unchanged to the present day, Congress provided that upon completing the active and reserve duty terms of an enlistment, servicemembers are relieved from any further obligation of military duty “except in time of war or national emergency declared by Congress.”  50 App. U.S.C. § 454(d)(1) and (d)(2).</div> <bR> <div> <B>          b.  Uniform Military Training and Service Act Amendments of 1951</B></div> <bR> <div>      In amendments to the UMTSA in 1951, Congress added a similar proviso to the statute authorizing voluntary enlistments.  In these amendments, Congress lowered the minimum age for voluntary enlistment under 50 App. U.S.C. § 454(c)(1) from age 19 to 18 years and six months.  At the same time, however, Congress added a proviso, parallel to those in subsections 454(d)(1) and (d)(2), specifying that any person who voluntarily enlists shall not have their enlistment involuntarily extended absent a declaration of war or emergency by Congress.  The proviso states that it shall control over any contrary provisions of law:</div> <bR> <div> <I>notwithstanding the provisions of this or any other Act,</I> any person so enlisting shall not have his enlistment extended without his consent until after a <I>declaration of war or national emergency by the Congress </I>after the date of enactment of the 1951 Amendments to the Universal Military Training and Service Act.</div> <bR> <div> 50 App. U.S.C. § 454(c)(1) (emphases added).</div> <bR> <div>      Congress lowered the draft and enlistment age in these amendments in response to the demands made upon the armed forces during the conflict in Korea.  Congress recognized that meeting manpower requirements would require either preventing the release of existing reservists, “most of whom are veterans of WWII,” or increasing the pool of available men.  H.R. Rep. No. 271, 82nd Cong., 1st Sess. 1951, <I>reprinted in</I> 1951 U.S.C.C.A.N. 1472, 1477.  In choosing the latter option, Congress heeded the words of Secretary of Defense George C. Marshall, which it reprinted in the House Report on the legislation:</div> <bR> <div> It would also be possible to ask congressional authorization to recall veterans, but no one could seriously argue that it was fair and democratic to recall those who have already given so much to the service of their country while these younger men remained immune from duty.</div> <bR> <div> Letter of George C. Marshall to Hon. Carl Vinson (January 17, 1951) (<I>reprinted in </I>H.R. Rep. No. 271, 82nd Cong., 1st Sess. 1951, <I>reprinted at </I>1951 U.S.C.C.A.N. 1472, 1507).</div> <bR> <div>      By specifying in section 454(c)(1) that a soldier’s enlistment could be involuntarily extended only during a period of war or national emergency declared by Congress, Congress ensured that imposition of the extraordinary measure of extended involuntary military service would occur only in circumstances that are “fair and democratic.”</div> <bR> <div>      <B>c.  Limiting Stop Loss to Declared Wars – The Armed Services Act of 1968</B></div> <bR> <div>      In the Armed Services Act of 1968, Congress moved to limit authority being asserted by certain branches of the armed services to involuntarily extend enlistments during periods of national emergency.  In the 1968 Act, Congress added a new section 506 to Title 10 of the U.S. Code, limiting the authority of the armed services to impose involuntary extensions to periods of declared war.  Section 506 provides in full:</div> <bR> <div> An enlistment in the Regular Army, Regular Navy, Regular Air Force, Regular Marine Corps, or Regular Coast Guard in effect at the beginning of a war, or entered into during a war, unless sooner terminated by the President, continues in effect until six months after the termination of that war.</div> <bR> <div> 10 U.S.C. § 506.</div> <bR> <div>      The background and legislative history of this provision make evident that Congress intended Section 506 to remove authority that had previously permitted the Navy and Marine Corps to extend enlistments during a national emergency.  The legislative history also makes evident that Congress intended the term “war” in section 506 to mean a war declared by Congress.</div> <bR> <div>      Prior to the enactment of Section 506, the Secretary of the Navy had discretionary authority to extend enlistments “in time of war or national emergency” for such periods as he considered necessary. <I> </I>S. Rep. No. 931, 9<FONT SIZE="1" COLOR="#000000" FACE="Arial" >th</FONT> Cong., 1<FONT SIZE="1" COLOR="#000000" FACE="Arial" >st</FONT> Sess. 1967, <I>reprinted in </I>1967 U.S.C.C.A.N. 2635, 2636. <I> </I>The Navy and Marine Corps had used this authority to extend certain enlistments during the Vietnam war but claiming authority based on the Korean emergency that President Truman had declared 18 years earlier.  The Army and Air Force, however, were barred from imposing involuntary extensions except during a period of “declared war.”  <I>Id.  </I>The Department of Defense “urged Congress to remove” this limitation.  <I>Taylor v. United States</I>, 711 F.2d 1199, 1203 (3d Cir. 1983) (recounting legislative history of section 506); S. Rep. No. 931, 1967 U.S.C.C.A.N. at 2636.  “Instead, Congress chose to <I>restrict</I> the authority of all the Secretaries by permitting involuntary extensions of enlistments <I>only </I>in periods of war.” <I>Taylor</I>, 711 F.2d at 1203<I>; </I>S. Rep. No. 931, 1967 U.S.C.C.A.N. at 2636 (emphases added).</div> <bR> <div>      Further demonstrating that the term “war” in section 506 was intended to mean a “declared war,” the Senate explained that the provision “would merely restate present law applicable to the Army and Air Force [which as noted above permitted extensions only during periods of “declared war”] and extend the provisions to the Navy and Marine Corps.”  S. Rep. No. 931, 1967 U.S.C.C.A.N. at 2652.</div> <bR> <div> <B>     </B>In light of the above, the involuntary extension of Doe’s enlistment is barred by law and must be enjoined.</div> <bR> <DIV ALIGN="LEFT"></DIV> <div> <B><U>CONCLUSION</U></B></div> <bR> <div>      For the foregoing reasons, Doe respectfully requests that the Court grant his application for temporary restraining order, and order Respondents to show cause why a preliminary injunction should not issue.</div> <bR> <div> Dated:     October 1, 2004               Respectfully submitted,</div> <bR> <div>                               LAW OFFICES OF MICHAEL S. SORGEN</div> <bR> <div>                               By: ___________________________</div> <div>                                    Michael S. Sorgen</div> <div>                                    Attorney for John Doe</div> <bR> </td> </tr></table></body>