StopLoss 2 - page 4

<body topmargin=0 leftmargin=0 marginheight=0 marginwidth=0> <table cellpadding=0 cellspacing=0 border=0><tr> <td valign="top" colspan=2 height=100 BGCOLOR="#006699" TEXT="#080000" bgproperties="fixed" background="08478783.jpg"> <div> LAW OFFICES OF MICHAEL S. SORGEN<FONT SIZE="5" COLOR="#660000" FACE="Korinna BT" >   </FONT>   </div> <div> 240 Stockton Street, 9th Floor, San Francisco, CA  94108</div> <div> Tel: (415) 956-1360    Fax: (415) 956-6342    Email: msorgen@sorgen.net</div> <bR> <bR> <div> </div> </td> </tr><tr> <td valign="top" width=20% BGCOLOR="#FFCC66" TEXT="#080000" background="08478783.jpg"> <div> Home</div> <div> Practice Areas</div> <div> Attorneys</div> <div> Representative</div> <div> Cases</div> <bR> <div> Prospective Client</div> <div> Questionnnaire</div> <div> Links</div> <bR> <div> Employment</div> <div> Contact Us   </div> <bR> </td> <td valign="top" height=380 BGCOLOR="#FFFFFF" TEXT="#080000" bgproperties="fixed" background="08982823.jpg"> <div> MICHAEL S. SORGEN (SBN 43107)</div> <div> JOSHUA N. SONDHEIMER (SBN 152000)</div> <div> LAW OFFICES OF MICHAEL S. SORGEN</div> <div> 240 Stockton Street, 9<FONT SIZE="1" COLOR="#000000" FACE="Arial" >th</FONT> Floor</div> <div> San Francisco, California 94108</div> <div> (415) 956-1360</div> <bR> <div> Attorneys for Petitioner</div> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <DIV ALIGN="LEFT"></DIV> <div> UNITED STATES DISTRICT COURT</div> <bR> <div> EASTERN DISTRICT OF CALIFORNIA</div> <bR> <bR> <div> <TABLE BORDER="2" CELLPADDING="1" CELLSPACING="1" WIDTH="629" BORDERCOLORLIGHT="#C0C0C0" BORDERCOLORDARK="#808080" FRAME="BELOW" RULES="ALL" ALIGN="BOTTOM" HSPACE="0" VSPACE="0" > <tR> <tD VALIGN=TOP HEIGHT= 321 WIDTH="310"><div> JOHN DOE, </div> <bR> <div>           Petitioner,</div> <bR> <div>      vs.</div> <bR> <div> DONALD RUMSFELD, Secretary of Defense; LES BROWNLEE, Secretary of the United States Department of the Army (Acting); REGINALD L. BROWN, Assistant Secretary of the Army for Manpower and Reserve Affairs; CAPTAIN TORREY E. HUBRED, Company Commander, and Does 1-10, inclusive,</div> <bR> <div>           Respondents.</div> <bR> </tD> <tD VALIGN=TOP WIDTH="310"><div> Case No.     S-04-2080 FCD KJM</div> <bR> <div> <B>REQUEST FOR LEAVE TO FILE SURREBUTTAL; SURREBUTTAL</B></div> <bR> <bR> </tD> </tR> </TABLE></div> <bR> <DIV ALIGN="LEFT"></DIV> <div> <B>INTRODUCTION AND REQUEST</B></div> <bR> <div> At oral argument on Doe’s motion for a preliminary injunction, this Court permitted the government to file a surreply in response to its counsel’s concern that Doe’s Reply “raises new arguments that I haven’t had an opportunity to respond to.”  Transcript of Hearing, November 5, 2004, at 17.  However, the government’s Surreply goes well beyond responding to “new argument” in Doe’s Reply (fn.1), and expounds on the same deceptive arguments in its Opposition.  Thus, and in light of the fact that Doe’s moving and reply briefs were submitted solely in the context of motions for temporary relief, Doe respectfully requests that the Court consider the following brief Surrebuttal.  Doe’s commanding officer has stated in a declaration to the Ninth Circuit Court of Appeals that Doe’s unit will not deploy until mid-December.  This Court accordingly has more time to reflect on the merits of the parties’ respective arguments and still rule prior to Doe’s deployment.</div> <bR> <DIV ALIGN="LEFT"></DIV> <div> <B>SURREBUTTAL</B></div> <div> <B>The Government Confuses Activation With Extensions of Enlistments</B></div> <bR> <div>      The government continues to misinterpret provisions in Doe’s enlistment contract permitting his involuntary <I>activation</I> as authority to involuntarily <I>extend </I>his enlistment.  The Court need look no further than the contract itself to see that the two issues are distinct.  See Reply at 9-11.  Under the maxim <I>expressio unis est exclusio alterius</I>, the Court must assume that the absence of any clause authorizing involuntary extensions under Part 10(d)(1) and the Statement of Understanding (permitting call to active duty when the President has declared an emergency), <I>intended </I>that involuntary extensions were not authorized under those provisions since it <I>did </I>explicitly authorize such extensions under other parts of the contract (Parts 10(c) and (d)(2)) permitting involuntary activation under other circumstances.  See, e.g., <I>Barnes v. Independent Auto Dealers Ass’n</I>, 64 F.3d 1389, 1393 (9<FONT SIZE="1" COLOR="#000000" FACE="Arial" >th</FONT> Cir. 1995) (applying maxim to benefit plan document).  Doe had no notice that his enlistment could be involuntarily extended, potentially until December 24, 2031 (fn. 2), and that he could be sent into harm’s way well beyond the expiration of his voluntary enlistment without a declaration of war or national emergency by Congress.  Basic principles of fairness underlying the guarantee of due process require some notice before the government may impose such an extreme restriction on liberty.</div> <bR> <div>      <B>The Consistent Statutory Scheme Regarding Involuntary Extensions of Service</B></div> <bR> <div>      All statutes relied upon by Doe reflect Congress’ intent that U.S. soldiers – whether in the National Guard, the regular armed forces, or the reserves, both volunteers and draftees – be free from having their military service involuntarily extended except when Congress has declared a war or national emergency.  10 U.S.C. § 506, 50 App. U.S.C. §§ 454(c)(1), (d)(1) and (d)(2), 10 U.S.C. § 12103 and 32 U.S.C. §§ 302 and 303 (fn.3).  The Constitution places the power of conscription in the hands of Congress.  U.S. Const., art. I, sec. 8, cl. 12.  These statutes appropriately reflect Congress’ constitutional role of authorizing involuntary military service.  Section 12305, however, if allowed to be applied in the sweeping manner the government claims, effectively nullifies and repeals all of these existing statutory limitations on involuntary extensions of enlistments.</div> <bR> <div>      <B>The Government Relies Exclusively on and Misapplies 10 U.S.C. § 12305</B></div> <bR> <div>      Even 10 U.S.C. § 12305 does not contemplate a sweeping “backdoor draft.”  As applied by the government, the stop loss policy requires the involuntary extension of <I>all </I>members of units of the reserves or regular Army called to active duty for certain military operations who would otherwise be eligible for separation or retirement during the period any members of the unit are mobilized.  However, as the government itself acknowledges, section 12305 requires the President or his delegate to make an individual determination that a particular member of the armed forces “is essential to the national security of the United States.”  10 U.S.C. § 12305(a) (fn. 4).  No such specific determination has been made, and the stop loss policy instead has been applied indiscriminately to <I>all</I> members of <I>all</I> regular and reserve units falling within the ambit of the Army’s broad stop loss policy.</div> <bR> <div>      The Army’s attempt to sweepingly apply stop loss demonstrates the constitutional infirmity of section 12305.  Contrary to the government’s claims, the statute provides no effective guidelines or limitations on the involuntary induction of soldiers for extended military service under stop loss.  The requirement that the President declare a national emergency is not an effective limitation, as the President has unilateral authority under the National Emergencies Act to declare emergencies and to identify the statutory powers to be exercised pursuant to the emergency.  50 U.S.C. § 1621 and 1631 (fn. 5).  Nor is a Presidential declaration of emergency required: the reserves may be activated, and thus section 12305 triggered, by the President or his delegate to augment forces for “any operational mission.”  10 U.S.C. § 12304.</div> <bR> <div>      Despite the government’s claim, the limitations on the number of reservists subject to activation under 10 U.S.C. §§ 12302 (1 million) and 12304 (200,000) do <I>not</I> limit the numbers of soldiers subject to stop loss.  Under 10 U.S.C. § 12305, the call-up of any reservists under sections 12302 or 12304 renders “<I>any member of the armed forces</I>” subject to an involuntary extension of their service (fn. 6).  Section 12305 provides no protection against the arbitrary exercise by the Army of its delegated power of “backdoor” conscription.</div> <bR> <div> <B>10 U.S.C. § 12407 Specifically Applies to the National Guard</B></div> <bR> <div>      The government’s reformulated technical arguments concerning 10 U.S.C. § 12407 – now their second attempt to discount this statute raised by Doe in his initial Memorandum (at 11) – is as nonsensical as before.  Under the government’s technical reading of the statute, members of the National Guard could <I>not</I> be kept under federal active duty orders beyond their enlistments if called up under 10 U.S.C. § 12406 to help defend the United States from as grave a threat as an “invasion by a foreign nation,” but <I>may </I>be held over under federal orders to support an “operational mission” of any nature under 10 U.S.C. § 12304.  Congress cannot have intended such an absurd result.  "Legislative enactments should never be construed as establishing statutory schemes that are illogical, unjust, or capricious."  <I>Bechtel Constr., Inc. v. United Bhd. of Carpenters,</I> 812 F.2d 1220, 1225 (9th Cir.1987).  As another court has noted:</div> <bR> <div> Proper statutory construction requires more than linguistic examination and review of the rules of statutory construction.  The interpretation should be reasonable, and where the result of one interpretation is unreasonable, while the result of another interpretation is logical, the latter should prevail.</div> <bR> <div> <I>Sierra Club v. Train, </I>557 F.2d 485, 490 (5<FONT SIZE="1" COLOR="#000000" FACE="Arial" >th</FONT> Cir. 1977) (citing C. Sands, <I>Sutherland's Statutory Construction</I> § 45.12 (4th ed. 1973)).</div> <bR> <div>      The plain language of 10 U.S.C. § 12407 bars keeping members of the National Guard under federal orders to active duty beyond their enlistment terms.  This statute is not affected by any authority to suspend laws relating to “separation” from military service under section 12305.  In effect, section 12407, adopted ten years after section 12305 in 1993, operates at least as a specific exception to section 12305 with respect to members of the National Guard.  There was no “conflict in these statutes” that Congress would have been required to resolve when it amended the statutes in 1994, nor does section 12407 implicitly repeal section 12305.  See Surreply at 10.</div> <bR> <div> <B>The True Scope of Doe’s Claim</B></div> <bR> <div>      The government again grossly distorts Doe’s arguments to resurrect its claim that this case somehow is nonjusticiable.  Nowhere has Doe challenged “the President’s authority to order reservists to active duty and to maintain troop levels and unit cohesion,” or determinations “whether the United States faces a national emergency, whether a soldier is essential to national security and . . . whether a need exists to order reserves to active duty in support of the war on terror.”  Surreply at 5.  Doe challenges only whether he may, consistently with his contract, applicable statutes, administrative law, and Due Process, properly be subject to orders that involuntarily <I>extend his enlistment</I> under the present circumstances.  Reviewing such claims is a traditional and necessary function of the courts.  See Reply at 20-29.</div> <bR> <DIV ALIGN="LEFT"></DIV> <div> <B>CONCLUSION</B></div> <bR> <div>      Doe asks only that this Court declare that the individual order extending Doe’s enlistment (Reply Decl., Ex. 3) is unlawful.  Should the Court rule in Doe’s favor, the government may then simply issue a new order to Doe consistent with the Court’s ruling.</div> <bR> <div> Dated:     November 24, 2004               Respectfully submitted,</div> <bR> <div>                               LAW OFFICES OF MICHAEL S. SORGEN</div> <bR> <bR> <bR> <div>                               By: __<U>_/s/_</U>______________</div> <div>                                    Michael S. Sorgen</div> <div>                                    Attorneys for John Doe</div> <bR> <div> Fn. 1 - As the court recognized in <I>Heil Co. v. Curotto Can Co.</I>, 2004 WL 2600134 at *1 n.1 (N.D. Cal., Nov. 16, 2004), matters raised in reply to an opposition brief “do[] not raise new legal arguments.”  The only “new” arguments in Doe’s Reply that are not a response to points raised in the government’s Opposition are his references to 10 U.S.C. § 12103 and 32 U.S.C. §§ 302 and 303.</div> <bR> <div> Fn. 2 - See Ex. 2 to Declaration of Joshua Sondheimer in Support of Application for Temporary Restraining Order, <I>Milper 03-040</I>, ¶ 6(c)(2) (declaring that National Guard soldiers subject to stop loss “will have their [Expiration of Term of Service] date changed to 24 December 2031").</div> <bR> <div> Fn. 3 - Congress intended these statutes to remove the military’s authority  to involuntarily extend enlistments solely based on a Presidential declaration of emergency.  See <I>Taylor v. United States</I>, 711 F.2d 1199, 1203 (3d Cir. 1983) (by enacting 10 U.S.C. § 506, “Congress chose to restrict the authority of all the [service] Secretaries by permitting involuntary extensions of enlistments only in periods of war”).  10 U.S.C. § 12103 is virtually identical in substance to 10 U.S.C. § 506.  32 U.S.C. §§ 302 and 303 are to the same effect.</div> <bR> <div> Fn. 4 - See Surreply at 14 ([B]efore “stop loss” is permitted, the President or his delegate must make a separate determination that the soldiers whose enlistments may be extended are “essential to national security”).</div> <bR> <div> Fn. 5 - Further demonstrating the Army’s lack of authorization for stop loss, the President in Executive Order 13223, did not identify 10 U.S.C. § 12305 as one of the statutes “made available for use in the event of an emergency . . . under which he proposes that he, or other officers will act,” as required for the Army to properly invoke that statute under 50 U.S.C. § 1631.</div> <bR> <div> Fn. 6 -  The stop loss policy is being applied to soldiers in the regular Army as well as to members of the Reserves.  See, e.g., MILPER Message No. 04-169, Implementation of Active Army (AA) Stop Loss/Stop Movement Program for Units Scheduled to Deploy [Outside the Continental U.S.] in Support of [Operation Iraqi Freedom and Operation Enduring Freedom] (June 02, 2004), (<I>https://perscomnd04.army.mil/MILPERmsgs.nsf/All+Documents/04-169?OpenDocument</I>)</div> </td> </tr></table></body>