MICHAEL S. SORGEN (SBN 43107)
JOSHUA N. SONDHEIMER (SBN 152000)
LAW OFFICES OF MICHAEL S. SORGEN
240 Stockton Street, 9th Floor
San Francisco, California 94108
(415) 956-1360

Attorneys for Petitioner                         



UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA


JOHN DOE,

          Petitioner,

     vs.

DONALD RUMSFELD, et al.

          Defendants.
Case No.     S-04-2080 FCD KJM

PETITIONER’S REPLY BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Date:          November 5, 2004
Time:          10:00 a.m.
Judge:          Hon. Frank C. Damrell, Jr.
Courtroom:     7

TABLE OF CONTENTS
TABLE OF AUTHORITIES    
I.     INTRODUCTION   
II.     AN UNLAWFUL ORDER TO ACTIVE DUTY AND THE RISK
        OF DEATH OR INJURY CONSTITUTE IRREPARABLE HARM     
     A.     Ordinary Standards for Preliminary Relief Apply    
     B.     Failing to Grant Preliminary Relief Subjects Doe to
              Irreparable Harm Regardless of When His Contractual
              Enlistment Date Expires    
III.     THE BALANCE OF HARDSHIPS AND PUBLIC INTEREST
          FAVOR DOE  

IV.     DOE RAISES SERIOUS QUESTIONS OF LAW AND IS LIKELY TO PREVAIL     
         A.     THE ACTIVE DUTY PROVISION OF DOE’S ENLISTMENT
                  CONTRACT DOES NOT AUTHORIZE INVOLUNTARILY
                  EXTENDING HIS ENLISTMENT    
         B.     10 U.S.C. 12407(a) AND OTHER STATUTES APPLICABLE
                  TO THE RESERVES AND NATIONAL GUARD BAR
                  THE EXTENSION OF DOE’S ENLISTMENT    
                   1.     Section 12407(a) Bars Doe’s Active Service
                            Beyond the Termination of his Enlistment    
                   2.     Applicable Statutes Bar the Involuntary Extension
                           of Doe’s Enlistment Unless Congress Declares
                           War or a National Emergency  
          C.     SECTION 12305 DOES NOT AUTHORIZE DOE’S   
                   INVOLUNTARYEXTENSION    
          D.     SECTION 12305 VIOLATES DUE PROCESS IF READ
                   TO PERMIT INVOLUNTARY SERVICE AT THE WHIM
                    OF THE EXECUTIVE    
V.     DOE’S CLAIMS ARE JUSTICIABLE    
          A.      COURTS PROPERLY REVIEW MILITARY DECISIONS
                    ON THE MERITS    

          B.     THE POLITICAL QUESTION DOCTRINE IS NOT
                    IMPLICATED  

VI.     CONCLUSION     
TABLE OF AUTHORITIES
CASES
American Federation of Government Employees, Local 1533 v. Cheney, 754 F. Supp. 1409 (N.D. Cal. 1990)     2
American Power & Light Co. v. Sec. & Exch. Comm’n, 329 U.S. 90 (1946)     18
Amidon v. Lehman, 677 F.2d 17 (4th Cir. 1982)     24
Ange v. Bush, 752 F. Supp. 509 (D.D.C. 1990)     24
Baker v. Carr, 369 U.S. 186 (1962)     27
Barber v. Widnall, 78 F.3d 1419 (9th Cir. 1995)     23, 24
Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977)     3
Chappell v. Wallace, 462 U.S. 296 (1983)     22
Christofferson v. Washington State Air National Guard, 855 F.2d 1437 (9th Cir. 1988)     21, 22
Commonwealth of Massachusetts v. Laird, 451 F.2d 26 (1st Cir. 1971)     24
Cooney v. Dalton, 877 F.Supp. 508 (D. Haw. 1995)     3, 9
DKT Memorial Fund, Ltd. v. Agency for International Development (“USAID”), 801 F.2d 1236 (D.C. Cir. 1987)      26
Gilligan v. Morgan  413 U.S. 1 (1973)     27
Goss v. Lopez, 419 U.S. 565 (1975)     11
Guerra v. Scruggs, 942 F.2d 270 (4th Cir. 1991)     3
Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004)     20, 26
Hartikka v. United States, 754 F.2d 1516 (9th Cir. 1985)     3, 9
Holmes v. California Army Nat’l Guard, 124 F.3d 1126 (9th Cir. 1997)     21
Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398 (1934)     20
Irby v. United States 245 F. Supp. 2d 792 (E.D. Va. 2003)     3, 23, 24
Itek Corp. v. First National Bank of Boston, 704 F.2d 1 (1st Cir. 1983)     25
Koohi v. United States, 976 F.2d 1328 (9th Cir. 1992)     28
Korematsu v. United States, 323 U.S. 214 (1944)     20, 26
Kudley v. Hollo, 431 F. Supp. 470 (N.D. Ohio 1972)     7
Lee v. Madigan, 358 U.S. 228 (1958)     14
Makua v. Rumsfeld, 163 F. Supp. 2d 1202 (D. Hawai’i 2001)     2
Meyers v. Parkinson, 298 F.Supp. 727 (E.D. Wis. 1975)     24
Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971)     21, 22, 23, 24
Morton v. Mancari, 417 U.S. 535 (1974)     16
Muhammad v. Secretary of the Army, 770 F.2d 1494 (9th Cir. 1985)     21
Natural Resources Defense Council, Inc. v. Evans, 232 F. Supp. 2d 1003 (N.D. Cal. 2002)     2
Parrish v. Brownlee, 335 F. Supp. 2d 661 (E.D. N.C. 2004)     3
Patton v. Dole, 806 F.2d 24 (2d. Cir. 1986)     5, 6, 7
Philips v. Perry, 106 F.3d 1420 (9th Cir.1997)     11
Poole v. Rourke, 779 F. Supp. 1546 (E.D. Cal. 1991)     3
Population Institute v. McPherson, 797 F.2d 1062 (D.C. Cir. 1986)     26
Pruitt v. Cheney, 963 F.2d 1160 (9th Cir.1991)     21, 25
Ramirez de Arellano v. Weinberger 745 F.2d 1500 (D.C.Cir.1984) (en banc), vacated on
other grounds, 471 U.S. 1113 (1985)     28
Sampson v. Murray, 415 U.S. 61 (1974)     3
Scaggs v. United States, 396 U.S. 1206 (Douglas, Circuit Justice 1969)     4
Sebra v. Neville, 801 F.2d 1135 (9th Cir. 1986)     3, 21
Sherman v. United States, 755 F. Supp. 386 (M.D. Ga. 1991)     16, 17
Stillman v. Department of Defense, 209 F. Supp. 2d 185 (D.D.C. 2002), rev’d on other grounds, 319 F.3d 546 (D.C. Cir. 2003)     27
Tyler v. United States, 929 F.2d 451 (9th Cir. 1991)     17
United States v. Bazarov, 974 F.2d 1037 (9th Cir. 1992)     19
United States v. Robel, 389 U.S. 258 (1967)     18, 19
United States v. Yoshida, 526 F.2d 560 (Ct. Customs. App. 1975)     25
Wallace v. Chappell   661 F.2d 729 (9th Cir. 1981)     22
Walsh v. Local Bd. No. 10, 305 F. Supp. 1274 (S.D.N.Y. 1969)     7
Watkins v. United States Army, 875 F.2d 699 (9th Cir. 1989)     21
Wilkins v. United States, 279 F.3d 782 (9th Cir. 2002)     21
Wright v. U.S. Army, 307 F. Supp. 2d 1065 (D. Ariz. 2004)     2
Zaputil v. Cowgil, 335 F.3d 885 (9th Cir. 2003)     7
Zinermon v. Burch, 494 U.S. 113 (1990)     11


STATUTES

U.S. Const., Art. I, sec. 8, cl. 12     18
10 U.S.C. § 101(c)(2)     12
10 U.S.C. § 506     13, 14, 17
10 U.S.C. § 10101     13
10 U.S.C. § 12103(a)     14, 16
10 U.S.C. §§ 12302     passim
10 U.S.C. §§ 12304     passim
10 U.S.C. §§ 12305     passim
10 U.S.C. § 12401     12
10 U.S.C. § 12403     13
10 U.S.C. § 12407(a)     passim
32 U.S.C. § 101(4)     12
32 U.S.C. § 302     passim
32 U.S.C. § 303(c)     passim
50 App. U.S.C. § 454(c)(1)     17
OTHER AUTHORITIES
Executive Order No. 12728, 55 Fed. Reg. 35029 (1990)     15
Madison, James, “Political Observations,” April 20, 1795, in 4 Letters and Other Writings of James Madison 491 (Philip R. Fendall, ed.) (1865)     18
S. Rep. No. 98-174, (1983), reprinted in 1983 U.S.C.C.A.N. 1081, 1098     10


I.     INTRODUCTION

     If Doe is deployed to Iraq before his claim is decided on the merits, he will suffer immediate and irreparable harm since the orders mobilizing Doe and his unit for active duty in Iraq unlawfully and involuntarily extend his enlistment.  A ruling that the orders that subject him to “stop loss” and require his duty in Iraq are unlawful would be of little value if Doe is killed or maimed before such a ruling is issued.  Doe is likely to prevail on the merits; so a preliminary injunction should be granted.

     Doe is scheduled to deploy to Iraq on or about November 20, 2004.  (Memorandum for All Deployable Soldiers, Exhibit 1 to Declaration of Joshua Sondheimer in Support of Petitioner’s Reply Brief (“Reply Decl.”)), submitted herewith.

     Doe’s National Guard unit has been mobilized for an “Initial 545 days” in support of Operation Iraqi Freedom, effective October 6, 2004.  (Permanent Orders 235-27, Exhibit 2 to Reply Decl., at 1).  On October 4, 2004, three days after filing his petition with this Court and applying for a temporary restraining order, Doe received a written order to active duty in connection with his unit’s mobilization.  The order places Doe on active duty for 545 days beginning October 6, 2004, unless sooner released or extended.  (Orders 259-530, Exhibit 3 to Reply Decl., at 1).  The order thus requires Doe to remain on active duty until at least April 1, 2006.

     Doe’s enlistment in the California Army National Guard was set to expire on April 30, 2005.  (Exhibit 3 to Reply Decl., at Part 8(d)).  Doe’s mobilization orders, in addition to calling him to active duty, thus extend his enlistment involuntarily and require him to remain on active duty some eleven months beyond the expiration of his enlistment.

     Unless this Court intervenes, Doe’s involuntary enlistment could be extended indefinitely.  An Army directive implementing the stop loss program in the Army National Guard extends the actual period of Doe’s enlistment until December 24, 2031:

Enlisted soldiers projected to separate due to ETS [Expiration of Term of Service], but who are being involuntarily retained under stop loss because their unit has received alert orders, will have their ETS date changed to 24 December 2031.

(MILPER Message Number 03-040, RC [Reserve Component] Unit Stop Loss Procedures for the Army National Guard (“MILPER 03-040"), Exhibit 2 to Declaration of Joshua Sondheimer accompanying Memorandum in Support of Motion for Temporary Restraining Order, (“Sondheimer Decl.”) at 4, § 6(C)(2)).

     For the reasons below and in Doe’s Memorandum supporting his Motion for Temporary Restraining Order and supporting Memorandum, Doe is entitled to a preliminary injunction to prevent immediate and irreparable harm until the merits of his claims can be decided.

II.     AN UNLAWFUL ORDER TO ACTIVE DUTY AND THE RISK OF DEATH OR INJURY CONSTITUTE IRREPARABLE HARM

     A.     Ordinary Standards for Preliminary Relief Apply
     Respondents’ claim for a heightened showing of irreparable harm is without merit or support.  Courts in this Circuit have applied the standard analysis for preliminary injunctive relief in numerous cases directly affecting military operations.  See, e.g., Wright v. U.S. Army, 307 F. Supp. 2d 1065 (D. Ariz. 2004) (preliminarily enjoining Army from revoking security clearance); Makua v. Rumsfeld, 163 F. Supp. 2d 1202 (D. Hawai’i 2001) (granting preliminary injunction against the military from conducting training at a military reservation); Natural Resources Defense Council, Inc. v. Evans, 232 F. Supp. 2d 1003 (N.D. Cal. 2002) (granting preliminary injunction against Navy’s use of sonar techniques harmful to wildlife); American Federation of Government Employees, Local 1533 v. Cheney, 754 F. Supp. 1409 (N.D. Cal. 1990) (granting preliminary injunction against military drug testing of civilian employees).

     Respondents rely on Hartikka v. United States, 754 F.2d 1516 (9th Cir. 1985), which derived from the federal employment case Sampson v. Murray, 415 U.S. 61 (1974). Hartikka has only been applied in this Circuit to a narrow class of cases involving the character of a military discharge or other internal personnel decisions.  This is not surprising, as a principal rationale for the standard was “the traditional unwillingness of courts of equity to enforce contracts for personal service either at the behest of the employer or of the employee.” Sampson, 415 U.S. at 83.

     Cases from the Fourth Circuit are instructive.  That circuit adopted the Hartikka standard for discharge cases in Guerra v. Scruggs, 942 F.2d 270, 274 (4th Cir. 1991).  Yet, two subsequent district court decisions which both cite to Guerra on other issues, including one cited by respondents, did not require showings of “extraordinary” hardship in cases challenging involuntary mobilizations and activations. Parrish v. Brownlee, 335 F. Supp. 2d 661 (E.D. N.C. 2004); Irby v. United States 245 F. Supp. 2d 792, 796-77 (E.D. Va. 2003).  Instead, both applied the Fourth Circuit’s standard four-part balancing test as laid out in Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977).

     Doe here seeks to enjoin his unlawful and involuntary induction for extended military service.  His claims do not involve any other matter that could be fairly described merely as an internal personnel issue.  The Ninth Circuit’s standard framework for examining a request for preliminary injunctive relief applies.

B.     Failing to Grant Preliminary Relief Subjects Doe to Irreparable Harm Regardless of When His Contractual Enlistment Date Expires

     Doe’s orders to active duty, in conjunction with the stop loss policy, involuntarily extend his enlistment.  They are unlawful and therefore presently subject Doe to irreparable injury.

     Respondents make much of the fact that Doe’s contractual enlistment period has not yet expired.  However, Doe has now been mobilized and is subject to imminent deployment overseas under orders whose lawfulness he has called into serious question.  The orders placing Doe on active duty and simultaneously extending his enlistment constitute present injury that is irreparable unless preliminarily enjoined.  Whether Doe’s enlistment expires in five days, five weeks, or five months is immaterial.

     Respondents are incorrect when they state that petitioner challenges only a “future, potential,” extension of his enlistment.  (Defendant’s Opposition to Plaintiff’s Motion for Preliminary Injunction (“Opp.”) at 10).  Rather, what Doe challenges are the orders that he has been issued that require his service under an involuntarily-extended enlistment.  This is apparent from the relief Doe requests in his proposed Order to Show Cause Re Preliminary Injunction.  Doe asked the Court to order respondents to show cause why they should not be enjoined “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 involuntarily extending [his] enlistment.”

     Respondents argue that Doe will not suffer irreparable harm if preliminary relief is denied because he could have been ordered to active duty until the end of his contractual enlistment period.  However, that is not what the Army has done here, and no such order is before this Court.  The Army has ordered Doe to duty under orders that simultaneously and involuntarily extend the period of his enlistment, and those orders must stand or fall as written.  This Court must decide the case based on the facts as they exist, not as they might have been.

     Doe’s entitlement to preliminary relief is demonstrated by a case closely on point, Scaggs v. United States, 396 U.S. 1206 (Douglas, Circuit Justice 1969), in which the Supreme Court stayed an activation order that involuntarily extended the soldier’s enlistment before the soldier’s contractual enlistment had expired.  Petitioner Scaggs was ordered in January 1969 to active duty in the Army Reserves “for a period of approximately 17 months beyond the term of his enlistment contract.”  Id. at 1206 (emphasis added).  Scaggs’ enlistment was not scheduled to expire until September 1969.  Id.  Scaggs asserted that he was entitled to notice and a hearing before being involuntarily ordered to active duty, and that the order violated the terms of his enlistment contract.  The district court denied Scaggs’ petition for habeas corpus, and Scaggs appealed.  Scaggs than moved before the Supreme Court for “release from military custody pending [the Court of Appeals’] review” – a request for a stay or effectively a preliminary injunction.  Id. at 1206-07.

     The Court granted Scaggs’ request for release from his order to active duty on August 5, 1969, still one month before his contractual enlistment obligation expired.  Referring to Scaggs’ procedural due process claim, the Court noted that the Constitution required a hearing for aliens facing deportation, and that “[T]he requirement that a man serve beyond his enlistment contract may be as severe in nature as expulsion from these shores.”  Id. at 1209.  In light of the irreparable injury faced by Scaggs, the Court accordingly ordered Scaggs released from any requirement that he report for active duty “until a determination of the cause on the merits.”  Id.

     Patton v. Dole, 806 F.2d 24 (2d. Cir. 1986) also demonstrates the appropriate analysis of irreparable harm in related circumstances.  In Patton, a midshipman in the Merchant Marine Academy resigned from the Academy under the belief that because he had not completed two academic years, he was not subject to being called for active duty under the terms of his enlistment agreement.  His enlistment agreement allowed the Navy to order to active duty any midshipman who resigned after completing two or more “years” at the Academy.  Though Patton had not completed his sophomore year, he had been required to repeat a semester and so had completed more than two calendar years at the Academy.  The Navy ordered Patton to involuntary active duty, construing the term “year” to mean a calendar year rather than an academic year.  Patton challenged the involuntary order to active duty and sought a preliminary injunction.  Id. at 26-27.

     The district court denied Patton’s request for preliminary relief and dismissed his complaint.  Id. at 27.   The parties agreed to stay Patton’s induction pending disposition of his appeal.  Id.  The Second Circuit, applying a routine standard for obtaining a preliminary injunction, concluded that the district court’s denial of preliminary relief and dismissal constituted “clear abuses of discretion.”  Id. at 28.  The Second Circuit held that irreparable injury was evident because Patton would have no adequate remedy for the loss of his liberty if his order to active duty were found unlawful:

The prospect of irreparable harm is clear on the undisputed facts of this case.  Without injunctive relief Patton would begin his 24 months of active naval service immediately, and if his involuntary induction were ultimately found improper, he most likely would have no claim for damages.  See 28 U.S.C. § 2680(a) (1982) (excluding from general waiver of sovereign immunity “[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation.”); see also Daleheit v. United States, 346 U.S. 15, 26-27 [parallel citations] (1953).  Even assuming arguendo that such a claim might lie, monetary damages for the resultant loss of liberty would not only be difficult to ascertain, but would, in any event, constitute inadequate recompense.

Id.

     Doe’s case for irreparable injury is even stronger than in Patton.  First, while Patton had not yet begun his service under the order at issue, Doe already has begun active duty under an order whose legality he has called into substantial doubt.  For the reasons cited in Patton, and under other authority barring claims for damages incident to military service, Doe has no adequate remedy for the involuntary loss of his liberty under an order that may “ultimately [be] found improper.”  Patton, 806 F.2d at 28.

     The Kudley and Walsh decisions, also cited in Doe’s Motion for TRO, also grant preliminary relief after finding that denying relief from a challenged involuntary order to active duty would cause irreparable harm.  Kudley v. Hollo, 431 F. Supp. 470 (N.D. Ohio 1972); Walsh v. Local Bd. No. 10, 305 F. Supp. 1274 (S.D.N.Y. 1969).  

     Respondents’ attempt to distinguish Walsh on the ground that the court granted permanent relief is misleading.  (Opp. at 11, n.11).  In Walsh, the court reviewed a request for preliminary injunction from an involuntary order to active duty.  The court, after a careful analysis, held that petitioner was entitled to a preliminary injunction.  305 F. Supp. at 1279.  The court noted that “ordinarily, our consideration would end here.”  Id.  However, as there were no genuine issues of fact to be resolved, the court, “mindful that it is not usually our function on a motion for a preliminary injunction to determine the final rights of the parties,” granted relief on the merits.  Id.

     With respect to the question of irreparable harm, Walsh held that petitioner had “clearly established immediate and irreparable harm if the preliminary injunction is not granted, since he will be inducted forthwith into the United States armed forces, rendering futile his petition for declaratory judgment and permanent injunctive relief.”  Id. at 1277.  Doe is further down the path than Walsh, since he has already reported for duty under the order he challenges as unlawful.

     Kudley, which respondents do not even attempt to distinguish, similarly found that a temporary restraining order was warranted since petitioner had alleged that the Army failed to follow its own regulations when it involuntarily activated him, and that “he will suffer irreparable injury before the merits of his claim can be determined.”  Kudley, 431 F. Supp. at 472.

     In addition to suffering irreparable harm for the loss of his liberty, Doe ultimately faces the gravest form of irreparable injury, the risk of bodily injury or death, if preliminary relief is not granted.  The newspapers are a daily reminder of the substantial risk of physical harm Doe will suffer if preliminary relief is not granted before the merits of his claims can be heard.  Failure to grant preliminary relief raises the real possibility that Doe could be killed or injured before his claims can be heard – claims on which he is likely to prevail.

III.     THE BALANCE OF HARDSHIPS AND PUBLIC INTEREST FAVOR DOE

     Respondents’ dire warning that grant of a preliminary injunction may open a “floodgate” of litigation is hypothetical and greatly overstated.  First, a preliminary ruling in Doe’s favor could at most give hope to those enlisted soldiers whose periods of enlistment also have been involuntarily extended in connection with a deployment.  Whatever the numbers of those soldiers are, to date, Doe is aware of no other soldiers who have sought to challenge the stop loss policy since August of this year, when there was widespread coverage in the news media and military press of a case that this firm filed for a soldier in the Northern District of California challenging the involuntary extension of his enlistment.

     Respondents’ only other assertion of harm is that preliminary relief will interfere with unit cohesion, a rationale underlying the stop loss program.  However, granting relief now does less harm to the Army than granting relief later upon deciding in Doe’s favor on the merits.  The latter course of action would require Doe’s removal from his unit mid-tour.  Indeed, it would be improper for the Court to deny preliminary relief on the theory that if Doe succeeds on the merits, the court could order Doe returned from his overseas deployment by the end of his contractual enlistment.  While courts have authority to adjudicate the legality of military orders or regulations, courts should not assert “blue pencil” authority to rewrite them.

     The unit cohesion rationale militates in Doe’s favor.  Doe has been mobilized as a member of his unit, and his unit’s orders make clear that the mobilized personnel are to be mobilized “as a unit.”  (Ex. 2, Reply Decl., at Parts (c) and (d)).  His orders require his mobilization for 545 days.  Rewriting the terms of Doe’s mobilization order would contradict the unit cohesion rationale and would smack of meddling in military operations.  The orders extending Doe’s enlistment must be adjudicated on their own terms.

     None of the asserted harm to the Army balances against the present and potentially grave irreparable harm Doe faces if preliminary relief is denied.

     The “public interest” weighs strongly in favor of granting an injunction.  In Cooney, supra, 877 F.Supp. 508, the court, applying the Hartikka standard, granted a preliminary injunction staying a sailor’s “less than honorable” discharge.  In considering the public interest, the court noted that “the public has a strong interest in having a military that conducts itself fairly and according to its stated regulations and policies.  If the military misapplies its own rules .  . . without giving him the constitutional consideration he is due, this erodes trust in the military.”  Id. at 515.   The same public interest considerations support granting preliminary relief here.

IV.     DOE RAISES SERIOUS QUESTIONS OF LAW AND IS LIKELY TO PREVAIL

     A.     THE ACTIVE DUTY PROVISION OF DOE’S ENLISTMENT CONTRACT DOES NOT AUTHORIZE INVOLUNTARILY EXTENDING HIS ENLISTMENT

     Respondents acknowledge that the only sections of Doe’s enlistment contract that specifically address involuntary extensions of his enlistment do not apply.  (Opp. at 24).  However, they assert that a provision permitting reservists to be called to active duty, which nowhere even mentions involuntary extensions, provides the contractual authority for involuntarily extending Doe’s military service.  Respondents are wrong.

     The court need look no further than the contract itself.  (See Ex. I, Sondheimer Decl.).  The active duty provision respondents cite, Part 10(d)(1), allows soldiers to be called to active duty for “not more than 24 consecutive months” upon a Presidential declaration of emergency.  However, the section must be read together with the three provisions of the contract that explicitly authorize involuntary extensions of an enlistment only during a Congressionally-declared war or emergency in Parts 9(c), 10(b), and 10(d)(2).  Taking the contract as a whole, the only reasonable interpretation is that a soldier can be called to active duty based solely on a Presidential declaration of emergency for as long as two years so long as his enlistment does not expire during that period.  If the enlistment would otherwise expire during a two-year period, the period of active duty would have to be limited to the remaining duration of the enlistment.

     This is evident from the contrast between the active duty provision (Part 10(d)(1)), which does not provide for involuntary extensions to allow for the completion of a two-year tour of active duty, and the very next subpart, Part 10(d)(2), which does.  Part 10(d)(2) allows enlistees to be called to active duty for “24 months” if the enlistee is not assigned to or participating satisfactorily in a Ready Reserve unit, has not completed his Reserve obligation, and has not already served on active duty for a total of 24 months.  However, the section specifically provides that the soldier’s enlistment “may be extended so I can complete 24 months of active duty” if ordered to active duty under those provisions.  Part 10(d)(2) (emphasis added).  The active duty provision on which respondents rely,  Part 10(d)(1), contains no such provision authorizing an extension for completion of a 24-month active duty period.

     As demonstrated by these provisions, the authority to call reservists to active duty is separate and distinct from the authority to involuntarily extend their enlistments. This is evident in the legislative history of 10 U.S.C. § 12305, cited by respondents as the authority for stop loss.  In its report on the legislation that incorporated this provision, the Senate Armed Services Committee recognized that the authority to call reservists to active duty did not authorize the involuntary extension of their service:

The effectiveness of the President’s call-up authority is weakened further by the normal separation or retirement of regular and reserve personnel.  At the very time that he has augmented the active forces to respond to a crisis, the President lacks the authority to prevent the loss of regular and reserve personnel who become eligible to separate or retire from the military services.

S. Rep. No. 98-174, (1983), reprinted in 1983 U.S.C.C.A.N. 1081, 1098 (emphasis added).

     Contrary to respondents’ assertions, the active duty provision of Doe’s enlistment contract therefore does not authorize the involuntary extension of his service based on the President’s declaration of a national emergency.

     For the same reason, the contract does not put him on notice that the Army could exercise stop loss authority based on a Presidential declaration of emergency, as respondents claim.  (Opp. at 24).  As noted in the Motion, the contract permits the involuntary extension of Doe’s enlistment only: 1) “in the event of a [declared] war; 2) if he was or became a member of a Reserve Component “at the beginning of a period of war or national emergency declared by Congress (Part 10(b) and (c)); or 3) as discussed above, to allow for the completion of 24 months  of active duty if Doe was “not assigned to, or participating satisfactorily in, a unit of the Ready Reserve,” had not met his Reserve obligation, and had not served on active duty for 24 months.  Part 10(d)(2).  The involuntary extension of Doe’s enlistment, therefore, even if it were authorized by law, violates Doe’s enlistment contract.

     For the same reasons, the involuntary extension of Doe’s enlistment also violates his fundamental right to notice of the circumstances under which he could be deprived of his liberty and, potentially, his life.  “At minimum, due process requires 'some kind of notice'” before a constitutional deprivation takes place. See, e.g., Zinermon v. Burch, 494 U.S. 113, 127 (1990) (quoting Goss v. Lopez, 419 U.S. 565, 579 (1975)) (emphasis in original) (holding that individual "voluntarily" admitted to state psychiatric facility when he was incompetent to give informed consent to his admission stated due process claim).

     B.   10 U.S.C. 12407(a) AND OTHER STATUTES APPLICABLE TO THE RESERVES AND NATIONAL GUARD BAR THE EXTENSION OF DOE’S ENLISTMENT

          1.     Section 12407(a) Bars Doe’s Active Service Beyond the Termination of his Enlistment

     10 U.S.C. § 12407(a) explicitly bars keeping a National Guard soldier in Federal service beyond the term of his enlistment.  Respondents contend that the bar pertains only to members of the Guard when they are called into Federal service in their capacity as members of the National Guard in its capacity as a state militia.  (Opp. at 25).  Respondents’ constrained technical argument is contrary to the terms of the statute and illogical.

     Section 12407(a) states without limitation or qualification that: “no member of the National Guard may be kept in Federal service beyond the term of his commission or enlistment.”  10 U.S.C. § 12407(a).  The emphasis of this sentence plainly is on the individual (“member”) who is a member of the Guard, rather than whether the individual is in Federal service as a member of the Army National Guard or the Army National Guard of the United States.

     Even Guard members in their capacity as members of the Army National Guard of the United States are not considered to be in Federal service until called to active duty.  10 U.S.C. § 12401 provides that: “Members of the Army National Guard of the United States and the Air National Guard of the United States are not in active Federal service except when ordered thereto under law.”  (Emphasis added).  Thus, regardless of whether a Guard member is called into Federal service in his denominated capacity as a member of the Army National Guard or the Army National Guard of the United States, the relevant provision guarantees that such member may not kept in Federal Service beyond the term of his enlistment.

     The fact that the first sentence of section 12407 addresses certain Presidential authority when he calls up of the National Guard of a State as an entity is immaterial.  The last sentence of section 12407(a) does not limit its applicability to members of the “National Guard of a State,” but rather refers to the “members of the National Guard” generally.  

     The Army itself fails to observe the fine linguistic distinctions respondents assert here.  MILPER 03-040, the Army’s directive for implementing stop loss in the National Guard, is entitled “RC [Reserve Component] Unit Stop Loss Procedures for the Army National Guard.”  The “Army National Guard,” technically speaking, is the National Guard of the States.  In fact, MILPER 03-040 is specifically designed to provide guidance for implementation of the “Reserve Component Unit Stop Loss Policy.”  As the document notes, the policy pertains to units and individuals mobilized under 10 U.S.C. §§ 12302 or 12304, which, as respondents note, pertain to mobilization of the National Guard of the United States.  See MILPER 03-040, Exhibit 2 to Sondheimer Decl., at 1.  There is no reason for the Court to permit a soldier’s fundamental liberties to be abridged based on fine distinctions of language that the Army itself fails to observe.

     Respondents’ narrow interpretation also makes no sense.  Under respondents’ view, a member of the Guard could not be kept on duty beyond the end of his enlistment when called to duty under 10 U.S.C. § 12406 to help defend the United States from gravest of domestic threats, including an actual or threatened “invasion by a foreign nation,” or a “rebellion or danger of rebellion” against the United States government.  At the same time, the Guard member could be kept on duty beyond his enlistment when called up in his capacity as a member of the Reserves in support of “any operational mission” under 10 U.S.C. § 12304.  Congress cannot have intended such an illogical result.

2.     Applicable Statutes Bar the Involuntary Extension of Doe’s Enlistment Unless Congress Declares War or a National Emergency

     Respondents correctly point out that 10 U.S.C. §§ 454(c)(1) and 506, cited by Doe in his Motion for TRO, apply only to the “regular” Army.  But other statutes specifically pertaining to the Guard and Reserves contain the very same specific prohibitions on involuntary extensions without a declaration of war or emergency by Congress.

     Section 12103(a) of Title 10, pertaining to “Reserve components,” provides, similarly to 10 U.S.C. § 506 that:

[E]nlistments as Reserves are for terms prescribed by the Secretary concerned.  However, an enlistment that is in effect at the beginning of a war or of a national emergency declared by Congress, or entered into during such a war or emergency, and that would otherwise expire, continues in effect until the expiration of six months after the end of that war or emergency.

10 U.S.C. § 12103(a).

     Like 10 U.S.C. § 506, this provision bars the involuntary extension of an enlistment absent a declaration of war or emergency by Congress.  Section 12103, therefore, prohibits the orders involuntarily extending Doe’s service based only on a Presidential declaration of emergency.

     Sections 302 of Title 32, pertaining to the National Guard, also authorizes an involuntary extension of Doe’s Guard service only when Congress declares an emergency.  That section provides:

Enlistments or reenlistments in the National Guard may be extended -
(1) [Voluntarily, for six months or more]
(2) by proclamation of the President, if Congress declares an emergency, until six months after termination of that emergency.

32 U.S.C. § 302.

     Section 303(c) of Title 32 bars Doe’s involuntary extension absent a Congressional declaration of war.  That section provides:

In time of peace, no enlisted member may be required to serve for a period longer than that for which he enlisted in the active or inactive National Guard.

32 U.S.C. § 303(c).  The phrase “In time of peace,” is properly construed to mean any time when war has not been declared, or after hostilities have ceased while a declaration of war remains in effect.  Lee v. Madigan, 358 U.S. 228, 233-36 (1958) (construing statute barring court-martial for murder or rape committed within the United States “in time of peace” to bar court-martial for offense committed in 1949, after surrender of Japan and Germany and after the President declared the end of hostilities, but before the President proclaimed the termination of the war with Japan on April 28, 1952, the effective date of the Japanese Peace Treaty).  As the Court stated in Lee, “Statutory language is construed to conform as near as may be to traditional guarantees that protect the rights of the citizen.”  Id. at 235.

     For the reasons above, federal law, accurately reflected in Doe’s enlistment contract, bars the involuntary extension of his military service unless Congress declares a war or national emergency.  Congress has done neither.  Hence, Doe’s orders to active duty beyond the expiration of his enlistment are contrary to law.

     C.     SECTION 12305 DOES NOT AUTHORIZE DOE’S INVOLUNTARY EXTENSION

     Respondents rely for stop loss exclusively on 10 U.S.C. § 12305, which provides that during any period members of a reserve component are serving on active duty, “the President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States.”  The President’s authority under this section was delegated in 1990 by President George H.W. Bush to the Secretary of Defense.  Executive Order No. 12728, 55 Fed. Reg. 35029 (1990).

     Section 12305 may be invoked at any time “members of a reserve component are serving on active duty.”  The President has unfettered authority to order members of the reserves to active duty at any time he determines it “necessary to augment the active forces for any operational mission,” or upon declaring a national emergency.  See 10 U.S.C. §§ 12302, 12304.  Thus, to read Section 12305 to allow involuntary extensions of military service without action by Congress would permit the President to trigger his own stop loss authority at any time, bypassing the role Congress repeatedly has preserved for itself.

     The relevant documents involved in the extension of Doe’s enlistment are Doe’s enlistment contract, his individual order to active duty, his unit’s mobilization orders, the Army military personnel policy implementing stop loss in the Army National Guard, Executive Order 13223 authorizing the call-up of the Ready Reserve, and Proclamation 7463 declaring a national emergency regarding the threat of future terrorist attacks against the United States.  Yet, none of them refer to, rely on, or quote relevant language from 10 U.S.C. § 1230, the statute that respondents now assert authorizes the involuntary extension of Doe’s enlistment.

     The prohibition discussed above in 10 U.S.C. § 12407(a) on keeping members of the Guard in Federal service beyond the expiration of their enlistments establishes limits on the period of time members of the Guard may be kept under orders to active duty.  However, the provision does not relate to the separation of Guard members from military service.  Because this provision is not a law “relating to . . . separation” from the military, section 12407 is immune from any suspension under section 12305.  Moreover, section 12407 was enacted in 1993, some 10 years after section 12305.  It may be presumed that Congress was “well aware” of the existence of section 12305 and “so took the older statute into consideration,” when it enacted section 12407.  Sherman v. United States, 755 F. Supp. 386, 387 (M.D. Ga. 1991).  Even if considered a statute relating to separation from military service, section 12407 therefore would be considered a specific exception to the President’s authority under section 12305.

     If read to permit involuntary extensions of military service without a declaration of war or national emergency by Congress, section 12305 also would stand in direct conflict with 10 U.S.C. § 12103(a), and 32 U.S.C. § 302 and 303(c) (“sections 12103, 302 and 303"), discussed above.  It is a “cardinal rule . . . that repeals by implication are disfavored.”  Morton v. Mancari, 417 U.S. 535, 549 (1974) (internal quotations and citations omitted).  Sections 12103, 302, and 303 remain on the books, and must be given effect.

     Indeed, Section 12305 appears irreconcilable with the requirements of sections 12103, 302, and 303 that Congress trigger the circumstances permitting involuntary extensions by declaring a war or emergency.  However, “when two statutes are capable of coexistence, it is the duty of the courts . . . to regard each as effective.”  Morton, 417 U.S. at 551.  Section 12305 can be read in harmony with sections 12103, 302, and 303: Section 12305 may allow the involuntary extension of an enlistment after reservists have been activated, but only when there has been a declaration of war or emergency by Congress.

     Other principles of statutory construction mandate the same result.  A newer general statute cannot impliedly repeal an earlier-enacted statute that specifically addresses the subject in dispute.  See, e.g., Tyler v. United States, 929 F.2d 451, 456 (9th Cir. 1991) (faced with “apparent conflict,” later general parole statute did not impliedly repeal earlier specific provision).  Section 12305 broadly authorizes the suspension of “any” laws relating to military promotion, retirement and separation, regardless of whether the suspension would cause an involuntary extension of service.  Nowhere does the statute address involuntary extensions specifically.  By contrast, sections 12103, 302, and 303 explicitly address the circumstances under which an involuntary extension of enlistment is, or is not, authorized.  Section 12305, therefore, cannot be construed to impliedly repeal sections 12103, 302, and 303.

     In Sherman, 755 F. Supp. 385, a Georgia district court considered a challenge to a stop loss order issued by the military during the first Gulf War.  Sherman argued that 50 App. U.S.C. § 454(c)(1) barred the involuntary extension of his enlistment.  The district court, without citation to any decisional law, concluded that former 10 U.S.C. § 673c, now codified as section 12305, constituted an “exception” to the limitation in 50 App. U.S.C. § 454(c)(1) on involuntary extensions of enlistment.  Id. at 387.

     However, the district court in Sherman did not consider other pertinent statutes, such as 10 U.S.C. § 506 and its legislative history.  Resolution of Doe’s statutory arguments here requires evaluating other statutes including, sections 12407, and 12103, 302, and 303, not at issue in Sherman.  The result-driven decision in Sherman is, therefore, inapposite, incomplete and of little weight.  Sherman is the only reported decision construing former section 673c, and there are no reported decisions under the statute since its recodification as section 12305.

     In light of the settled canons of statutory construction noted above, this Court must give effect to the several laws that bar involuntary extensions of military service except during a war or national emergency declared by Congress.  It is through these laws that Congress has retained its constitutional authority over the raising of armies, and has sought to ensure that involuntary extensions of military service remain fair and democratic.

     D.     SECTION 12305 VIOLATES DUE PROCESS IF READ TO PERMIT INVOLUNTARY SERVICE AT THE WHIM OF THE EXECUTIVE

     If read to permit involuntary extensions of military service without a declaration of war by Congress, section 12305 would allow the President to keep soldiers in military service at his exclusive discretion, and for an indefinite period.  Such a reading would violate due process and cannot be condoned by this Court.

     The Constitution’s grant of power to the Congress to “raise and support Armies” is among the most fundamental features of the Constitutional framework envisioned by the Founding Fathers.  U.S. Const., Art. I, sec. 8, cl. 12.  The Founders would have found antithetical to the Constitution and to individual liberty any statute that would place citizens under obligation of continued military service at the whim of the Executive.  As James Madison presciently wrote in his “Political Observations”:

The Constitution expressly and exclusively vests in the Legislature the power of . . . raising armies. . . .  A delegation of such powers [to the President] would have struck, not only at the fabric of our Constitution, but at the foundation of all well organized and well checked governments.
* * *
The separation of the power of raising armies from the power of commanding them, is intended to prevent the raising of armies for the sake of commanding them.

James Madison, “Political Observations,” April 20, 1795, in 4 Letters and Other Writings of James Madison 491 (Philip R. Fendall, ed.) (1865).

     Even if the power to authorize the conscription of soldiers for extended involuntary service could be delegated by Congress, to pass Constitutional muster the delegation must “delineate[] the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.”  American Power & Light Co. v. Sec. & Exch. Comm’n, 329 U.S. 90, 105 (1946).  Congress must delegate with greater specificity where the law affects individual liberties.  See United States v. Robel, 389 U.S. 258, 275 (1967) (Brennan, J., concurring) (“The area of impermissible indefiniteness narrows . . . when the regulation . . . potentially affects fundamental rights.”); United States v. Bazarov, 974 F.2d 1037, 1043 (9th Cir. 1992) (“[B]road delegations might be more suspect in cases involving criminal sanctions.”).

     As Justice Brennan wrote in Robel, “the numerous deficiencies connected with vague legislative directives . . . are far more serious when liberty and the exercise of fundamental rights are at stake.”  Robel, 389 U.S. at 275.  Vague legislative directives fail to ensure that any infringement on protected rights is “warranted and necessary.”  Id. at 276.  Thus, the need for legislative guidance “is especially acute . . . when liberty and the exercise of fundamental freedoms are involved.”  Id.

     Section 12305 cannot properly be read to permit involuntary service extensions without a Congressional declaration of war or emergency because the statute would then provide no guidance and place no boundaries on stop loss.  Under 10 U.S.C. § 12302 and 12304, the President has unfettered discretion to call reservists to active duty, thereby triggering his authority under section 12305 (now delegated to the Secretary of Defense).  Section 12305, if read as respondents urge, would thus allow a soldier’s enlistment to be extended by the military involuntarily at any time and for any purpose.  A civilian considering enlisting in the military would have no notice as to when they could be subject to stop loss.

     By contrast, sections 12103, 302, and 303 protect enlistees from the arbitrary infringement of their liberty.  These provisions ensure that enlistments are involuntarily extended only when the nation’s representative body, charged with the power of conscription under the Constitution, has determined that a war or national emergency should be declared.  The statutes also appropriately limit the duration of such extensions to six months beyond the war or emergency.  American soldiers cannot constitutionally be required to serve involuntarily and indefinitely at the whim of the President or military authorities.


V.     DOE’S CLAIMS ARE JUSTICIABLE

        A.  COURTS PROPERLY REVIEW MILITARY DECISIONS
              ON THE MERITS

     Respondents’ argument that this Court has no legitimate role in reviewing Doe’s claims demonstrates a fundamental misunderstanding of and disrespect for the proper role of the courts in protecting constitutional rights and reviewing constitutional, statutory, and contractual claims involving the military.  Only months ago, the Supreme Court rejected arguments that the President’s decision to deny citizens basic due process rights by classifying them as “enemy combatants” was beyond judicial review:

[A] state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. [Citation omitted].  Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. [Citations omitted].  Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions.

Hamdi v. Rumsfeld, 124 S.Ct. 2633, 2650 (2004) (emphasis added).
     Supporting its view, the Hamdi Court quoted approvingly Justice Murphy’s dissent from the now-discredited majority opinion in Korematsu v. United States, 323 U.S. 214 (1944):

“[L]ike other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled.”

Hamdi, 124 S.Ct. at 2650 (citing Korematsu, 323 U.S. at 233-34).  The Supreme Court previously has made clear that “even the war power does not remove constitutional limitations safeguarding essential liberties.” Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 426 (1934).

     Contrary to respondents’ claim of immunity from judicial review, “The Ninth Circuit has consistently entertained servicemembers’ constitutional challenges to military policies on the merits.”  Wilkins v. United States, 279 F.3d 782, 788 (9th Cir. 2002) (holding that constitutional challenge to Navy policy and practice in administering chaplaincy was reviewable).  The Court noted in Wilkins that “the Supreme Court has reviewed constitutional challenges to military regulations; . . . it has never questioned these servicemembers’ ability to bring the various suits.”  Id. at 787.

     Respondents rely heavily on the justiciability analysis of Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971).  But many Ninth Circuit cases decided since its adoption of the Mindes test in 1981 have entertained constitutional challenges to military personnel policies and decisions without even addressing Mindes or raising a question as to justiciability.  See Holmes v. California Army Nat’l Guard, 124 F.3d 1126 (9th Cir. 1997) (reviewing constitutional challenge to “Don’t Ask/Don’t Tell” policy); Philips v. Perry, 106 F.3d 1420 (9th Cir.1997) (same), Pruitt v. Cheney, 963 F.2d 1160 (9th Cir.1991) (reviewing and upholding constitutional challenge to military regulations pertaining to homosexuality); see also, Muhammad v. Secretary of the Army, 770 F.2d 1494, 1495 (9th Cir. 1985) (holding that, “Military discharge decisions are subject to judicial review”).  In Watkins v. United States Army, 875 F.2d 699 (9th Cir. 1989), the Court held Mindes inapplicable to a claim that the Army was barred by equitable estoppel from enforcing its policy requiring discharge of homosexuals.

     Respondents’ assertion that the Mindes analysis applies to determine the justiciability of Doe’s claims is unfounded and contrary even to authorities they cite.  Mindes has been applied only to discretionary “internal” military decisions and affairs.  See, e.g., Sebra, supra, 801 F.2d at 1141-42 (noting that “some military decisions are justiciable,” but finding decision to transfer National Guard soldier to another base a nonjusticiable internal decision involving “the military’s broad discretionary authority”).  Doe’s claims here do not attack the exercise of military discretion concerning an “internal” military matter.

     The Ninth Circuit’s decision in Christofferson v. Washington State Air National Guard, 855 F.2d 1437 (9th Cir. 1988), demonstrates the limited applicability of Mindes.  In Christofferson, four officers of the Washington Air National Guard challenged the Guard’s decision not to retain them in Guard service, purportedly under a “Vitalization Program” designed to inhibit stagnation in the senior officers grades.  The officers brought two categories of challenges: 1) to the Guard’s nonretention decisions, on the ground that the decisions were in retaliation for the exercise of their First Amendment rights and deprived them of a protected employment interest without due process; and 2) to the regulations implementing the Vitalization Program, on grounds that the regulations were unauthorized, were contrary to law, and denied them due process and equal protection.  Id. at 1438-40; 1445.  The Court applied the Mindes analysis only to the first category of claims – the officers’ challenges to the Guard’s individual nonretention decisions, but freely considered their claims concerning the constitutionality and lawfulness of the Vitalization Program.  Id. at 1440-46.  Mindes ,likewise, is inapplicable to Doe’s challenges to the lawfulness of the stop loss policy and to the order extending his enlistment pursuant to the policy.

     Doe’s case is justiciable even under the Mindes standard.  Doe has alleged the deprivation of constitutional rights and violations of applicable statutes and there are no administrative remedies available to exhaust.

     In Wallace v. Chappell, in which the Ninth Circuit adopted the Mindes test, the Court emphasized that “a ruling barring judicial review . . . is an extreme measure. . . . So drastic a ruling could be justified only by policy concerns of extraordinary magnitude.”  661 F.2d 729, 737 (9th Cir. 1981) (emphasis added), rev’d on other grounds sub nom. Chappell v. Wallace, 462 U.S. 296 (1983).  

     Particularly in light of these admonitions, each of the four Mindes factors militate strongly in favor of justiciability.  As discussed in this Reply and in the Motion for TRO, Doe is likely to succeed on the merits of his claims and will be irreparably harmed if review is denied.

     Nor can respondents show that review of the legality of the stop loss policy will seriously impede the performance of any vital military function.  Under this factor, “interference per se is insufficient because there will always be some interference when review is granted.”  Mindes, 453 F.2d at 201.  The interference must “seriously impede the military in the performance of vital duties” to support a finding of nonjusticiability. Id. (emphasis added)

     Contrary to respondents’ assertion, the proper standard is the extent to which judicial review will interfere with vital military functions, not whether a decision in petitioner’s favor would so interfere.  See, e.g., Barber v. Widnall, 78 F.3d 1419, 1423 (9th Cir. 1995) (finding that “judicial review” of denial of request to correct military records would not interfere with military functions).  Even under a standard looking to whether a ruling in petitioner’s favor would interfere with military functions, a decision that the Army must act consistently with the constitution, federal law, and its own standard enlistment contracts cannot be considered to be any form of interference with vital military duties.

     Finally, Doe’s claims do not in any way require the Court to exercise special military expertise or discretion.  Respondents’ wild assertions that review would require this Court to substitute its judgment about “what levels of troops are needed, and the best way to maintain those levels” is totally baseless.  (Opp. at 18).  Doe’s claims, in part, ask the Court to require the military to demonstrate that a rational basis exists for the involuntary deprivation of Doe’s liberty.  As the Ninth Circuit stated in Barber, review of a military decision “for arbitrariness and support in the evidence does not require military expertise.”  Barber, 78 F.3d at 1423.  Reviewing whether military decisions violate statutory and contractual rights also does not, of course, require the court to exercise military expertise or discretion.  These are traditional functions of judicial review.

     As the court noted in Irby v. United States:

the Mindes analysis does not affect the large body of extant case law holding that actions concerning the obligations and rights contained in enlistment contracts and involuntary orders to active duty are, in general, properly reviewable by the judiciary.  [Citing cases].  There are few instances that would invite judicial intervention in military affairs to a greater degree than matters relating to enlistment contracts.  As this district court has noted, such contractual dealings present ‘a crucial intersection of the military and the general public that cannot be left to the sole discretion of the military.’ [Citation omitted].

Irby, supra, 245 F. Supp. 2d at 799 (citing cases) (emphasis added); Meyers v. Parkinson, 298 F.Supp. 727, 730 (E.D. Wis. 1975) (“Civilian courts are not barred from reviewing each party’s compliance with the terms of an enlistment contract.”).

     For the reasons above, Doe’s claims are justiciable.

     B.     THE POLITICAL QUESTION DOCTRINE IS NOT IMPLICATED  

   Respondents mischaracterize Doe’s claims to argue that the case presents nonjusticiable political questions.  Doe raises the issue of the connection between Doe’s involuntary extension for service in Iraq and the purposes of Executive Order 13223 solely within the context of the legal analysis required to determine whether Army has acted within the scope of its delegated authority or has violated Doe’s right to due process.  Doe has not asked the Court to make a policy choice committed by the Constitution to one or the other branches of government.  Cases cited by respondents are inapposite, as Doe does not challenge the legality or constitutionality of the decision to invade Iraq.

     Doe has not asked the Court to substitute its own judgment on matters of policy.  The Court need only determine whether respondents have shown that the involuntary restriction on Doe’s liberty has a rational foundation and is within the scope of authority delegated to the Army.  These are traditional functions of the courts.  As the Ninth Circuit stated in Barber, 78 F.3d at 1423, review of a military decision “for arbitrariness and support in the evidence does not require military expertise.”  See also, Amidon v. Lehman, 677 F.2d 17 (4th Cir. 1982) (holding that Navy manual providing for involuntary extension of enlistment for apprehension or investigation of criminal charges was unauthorized by Navy regulations).

     In Pruitt v. Cheney, the Ninth Circuit reversed the district court’s dismissal of a constitutional equal protection challenge to Army homosexuality regulations.  Pruitt, 963 F.2d 1160, 1166-67 (9th Cir. 1992).  While acknowledging statements in other cases that military decisions should not lightly be overruled, the Court stated that this admonition:

is best applied in the process of judging whether the reasons put forth on the record for the Army’s discrimination against Pruitt are rationally related to any of the Army’s permissible goals. * * *

If we now deferred, on this appeal, to affirming the dismissal of the action in the absence of any supporting factual record, we would come close to denying reviewability at all. * * * The Army does not ask us to deny review; it asks us to uphold its regulation without a record to support its rational basis.  This we decline to do.

Id.

     In Itek Corp. v. First National Bank of Boston, 704 F.2d 1, 7 (1st Cir. 1983), the Court reviewed the relationship between Iranian Asset Control Regulations issued by the Treasury Department and the Executive Order under which the regulations were promulgated.  Unquestionably, the subject matter touched upon issues constitutionally committed to the Executive and Legislative branches concerning foreign relations and the regulation of economic affairs.  However, the court held that:

To be lawful, the regulation must be within the scope of authority granted by Congress and must be reasonably related to the purpose for which that authority was granted. [Citation].  It also must be consistent with the Executive Order which authorizes its promulgation.

Id.

     Similarly, in United States v. Yoshida, 526 F.2d 560 (Ct. Customs. App. 1975), the court considered a direct challenge to the validity of a 1971 presidential proclamation imposing an import duty surcharge issued under emergency powers delegated by Congress.  The Court stated that:

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 actions taken in response thereto or in reliance thereon.

Id. at 579.

     Justice Murphy stated in Korematsu, in the same passage quoted approvingly by the Supreme Court in Hamdi, that:  “Individuals must not be left impovershed of their constitutional rights on a plea of military necessity that has neither substance nor support.”  Korematsu, 323 U.S. at 234 (Murphy, J., dissenting).  In certain of his claims, Doe asks only that the Court determine whether there is “substance or support,” id., for the Army’s involuntary extension of his enlistment.

     DKT Memorial Fund, Ltd. v. Agency for International Development (“USAID”), 801 F.2d 1236 (D.C. Cir. 1987) demonstrates the application of these principles specifically in connection with the political question doctrine.  In DKT, plaintiff organizations challenged clauses inserted in USAID contracts to implement an executive policy that the United States would not contribute funds to foreign nongovernmental organizations that perform or promote abortion.  The plaintiffs argued that implementation of the policy was inconsistent and beyond the scope of relevant statutory authority, that it violated their first and fifth amendment rights, and was arbitrary and capricious under the Administrative Procedures Act.  Id. at 1237-38.

     The district court found that plaintiffs, if they had standing, would be barred from pursuing their claims because the case presented nonjusticiable political questions.  Id. at 1238.  The Court of Appeals disagreed, stating: “This court recently held that whereas attacks on foreign policymaking are nonjusticiable, claims alleging non-compliance with the law are justiciable, even though the limited review that the court undertakes may have an effect on foreign affairs.”  Id. (emphasis added) (citing Population Institute v. McPherson, 797 F.2d 1062, 1068-70 (D.C. Cir. 1986) (holding that challenge to AID Administrator’s determination of eligibility for AID funds under the Continuing Appropriations Act, 1985, did not constitute a nonjusticiable political question).

     The political question doctrine is “extremely limited in application and scope.”  Stillman v. Department of Defense, 209 F. Supp. 2d 185, 201 (D.D.C. 2002), rev’d on other grounds, 319 F.3d 546 (D.C. Cir. 2003) (rejecting political question challenge to justiciability of first amendment challenge to partial publication ban on book relating to Chinese nuclear weapons on ground that it contained classified material).  In particular, the doctrine “serves to prevent the federal courts from intruding unduly on certain policy choices and value judgments that are constitutionally committed to Congress or the executive branch.”  Koohi v. United States, 976 F.2d 1328, 1331 (9th Cir. 1992) (holding that political question doctrine did not bar claims against United States for deaths resulting from missile attack on passenger jet).

     Plaintiffs’ claims do not implicate policy choices or value judgments committed to Congress or the Executive.  None of the Baker v. Carr factors are “prominent on the face” of Doe’s claims.  Baker v. Carr, 369 U.S. 186, 217 (1962).  Doe’s claims will not require judicial intervention in control of the military, or require the Court to substitute its judgment over “sensitive political determinations,” as respondents suggest.  (Opp. at 21).

     Respondents’ citation and discussion of Gilligan v. Morgan on this issue is off base. 413 U.S. 1 (1973). Brought after the shootings of civilians at Kent State, plaintiffs in Gilligan essentially sought to make the Ohio National Guard a ward of the federal courts.  Justice Blackmun’s concurrence, which carried the crucial fifth and sixth votes, indicates that the case was nonjusticible because the relief sought by the plaintiffs – “constant judicial surveillance of the orders, training, and weaponry of the Guard” – was “beyond the province of the judiciary.”  Id at 13. (Blackmun, J., concurring).  Such relief is not at issue here.  Petitioner asks only that the court review his claim that the constraint on his liberty resulting from the involuntary extension is arbitrary and unauthorized—a form of relief with which the judiciary is both familiar and competent.

     By contrast, this Court need only apply principles of constitutional and administrative law and statutory and contractual review.  The political question doctrine does not apply to Doe’s claims.

     Though respondents suggest that entire case is nonjusticiable under the political question doctrine, their arguments pertain only to Doe’s claims that the infringement of his liberty is arbitrary and unauthorized by Executive Order 13223.  There can be no question that Doe’s contract, notice, and statutory claims are properly justiciable regardless of the Court’s ruling concerning the claims respondents challenge under the political question doctrine.

     The District of Columbia Circuit’s observation in Ramirez de Arellano v. Weinberger, is instructive as to the doctrine’s scope:          

                       The political question doctrine is a tempting refuge from the adjudication of difficult constitutional claims.  Its shifting contours and uncertain underpinnings make it susceptible to indiscriminate and overbroad application to claims properly before the federal courts. . . .  Despite confusion over whether a retreat to the political question doctrine is proper in particular cases, it is clear that the doctrine is, at best, a narrow  one. Baker v. Carr admonishes that "[t]he doctrine ... is one of 'political question,' not one of 'political cases.'  

745 F.2d 1500, 1514 (D.C. Cir.1984) (en banc), vacated on other grounds, 471 U.S. 1113 (1985).

     Refusing to address Doe’s claims on justiciability grounds will entirely insulate the Army’s stop loss actions from even a minimal review of basic rationality.  As respondents would have it, the Army could subject soldiers to stop loss for a foreign operational mission based on the President’s declaration of a national emergency relating to a Gulf Coast hurricane.  The Court cannot insulate the Army from any review of policies that so directly implicate the life and liberty of our soldiers.

VI.     CONCLUSION

     For the foregoing reasons, Doe respectfully requests that the Court grant his motion for a preliminary injunction.

Dated:     October 29, 2004               Respectfully submitted,

                              LAW OFFICES OF MICHAEL S. SORGEN

                              By: __/s/_________________
                                   Michael S. Sorgen
                                   Attorney for John Doe