United States District Court, E.D. CaliforniaNov 5, 2004
No. CIV. S-04-2080 FCD KJM (E.D. Cal. Nov. 5, 2004)

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No. CIV. S-04-2080 FCD KJM.

November 5, 2004


Late in the day on Friday October 1, 2004, petitioner filed a complaint and application for Temporary Restraining Order seeking to prevent his deployment to prevent his deployment to Iraq with his unit of the Army National Guard of the United States ("National Guard"). On October 5, 2004, the court denied petitioner's application for a Temporary Restraining order to prevent his deployment to Fort Brag for training on October 5, 2004. This matter now is before the court on petitioner's motion for a preliminary injunction. Based on petitioner's representation that he will be deployed to Iraq on November 19, 2004, the court set hearing on the preliminary injunction motion for November 5, 2004. After fully reviewing the parties' papers and hearing oral argument from parties' counsel, the court DENIES petitioner's request for a preliminary injunction.

By random assignment, the case was assigned to this court; however, I was unavailable the following week. Pursuant to the Eastern District's Local Rules, the matter was referred to Judge Levi, who heard and denied the TRO on October 5, 2004. See Local Rule 63-122. Because the Local Rules currently do not provide expressly for case reassignment to the judge who hears an emergency matter due to the assigned judge's unavailability, the case was not reassigned and is before this court.


Three days after the attacks on the World Trade Center and the Pentagon, President George W. Bush signed a Proclamation declaring a national emergency "by reason of the terrorist attacks . . . and the continuing and immediate threat of further attacks on the United States." 66 Fed. Reg. 48, 199, Presidential Proclamation 7463 (September 14, 2001). In the same Proclamation, the President invoked his power under 10 U.S.C. § 12302 to call the Ready Reserve, which includes the Army National Guard, to active duty. Id. Also on September 14, 2001, the President signed an Executive Order delegating authority to activate reserve units to the secretaries of the armed forces. 66 Fed. Reg. 48,201-48,202 (2001), Executive Order 13223 (September 14, 2004). In or about March of 2003, the United States invaded Iraq for the purpose of toppling the regime of Saddam Hussein.

The President has renewed annually the declaration of national emergency. See 67 Fed. Reg. 58, 317; 68 Fed. Reg. 53,665; 69 Fed. Reg. 55,313.

Shortly, thereafter, on May 1, 2003, petitioner enlisted for a one-year term in the Army National Guard. In February of 2004, petitioner voluntarily reenlisted for a second one-year term. His current enlistment is scheduled to expire May 1, 2004. On July 23, 2004, plaintiff's National Guard unit received orders to active duty in support of Operation Iraqi Freedom. Pursuant to those orders, the unit was deployed on October 6, 2004 to Fort Lewis, Washington for approximately 45 days of training. Petitioner, is expected to deploy to Iraq along with his unit for 545 days on November 20, 2004. According to petitioner, at the time he was advise of the mobilization order, he was told that any members of the unit who did not agree to voluntarily extend their enlistments would be placed under the Army's stop-loss policy.

Judge Levi granted petitioner's request to partially seal the record in this case with respect to petitioner's identity and to permit petitioner to proceed as John Doe, subject to later reconsideration. (October 5, 2004 Order Permitting Filing of Petition under Pseudonym and Sttement of Petitioner's Identifying Information Under Seal; Protective Order; Transcript of October 5, 2004 TRO hearing at 4-7.)

The papers and statements of counsel are in conflict regarding whether petitioner's enlistment ends April 30, 2004 or May 1, 2005. For purposes of this order the court relies on the date in petitioner's Memorandum in Support of motion for Temporary Restraining Order, filed October 1, 2004.

It is unclear from the record whether the 545 days of active duty are inclusive of, or in addition to, the 45 days of training at Fort Lewis.

On October 1, 2004, petitioner filed the present action seeking a temporary restraining order to prevent his deployment with his unit to Fort Lewis, Washington. The court denied the TRO on October 5, 2004, and petitioner is currently at Fort Lewis, Washington with his unit. Petitioner now seeks a preliminary injunction to prevent his deployment to Iraq with his unit. Petitioner claims that the order calling him to active duty for a period beyond his enlistment date, combined with the oral representations that he would be subject to stop-loss, abridges his due process rights, violates the terms of his enlistment contract and is otherwise contrary to federal law.


The Ninth Circuit recognizes two tests for determining whether to grant a preliminary injunction.

Under the traditional test, the movant must establish four factors to obtain injunctive relief: 1) a likelihood of success on the merits; (2) a significant threat of irreparable injury; (3) that the balance of hardships favors the applicant; and (4) whether any public interest favors granting an injunction. Raich v. Ashcroft, 352 F.3d 1222, 1227 (9th Cir. 2003).

Alternatively, the Ninth Circuit has articulated the test as requiring the moving party to demonstrate 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. These two formulations are not inconsistent. Rather, they represent two points on a sliding scale in which the required degree of irreparable harm increases as the possibility of success decreases. Roe v. Anderson, 134 F.3d 1400, 1402 n. 1 (9th Cir. 1998), aff'd, Saenz v. Roe, 526 U.S. 489 (1999).


I. Irreparable Injury

According to respondents, the Ninth Circuit requires a military plaintiff seeking preliminary injunctive relief against the military to demonstrate "circumstances that are genuinely extraordinary." Hartikka V. United States, 754 F.2d 1516, 1518 (9th Cir. 1985) (quoting Sampson v. Murray, 415 U.S. 61, 91-92 (1974).

Petitioner argues that the heightened standard adopted by the Ninth Circuit in Hartikka is inapplicable because this case does not involve the military's "internal personnel decisions."See e.g., Makua v. Rumsfeld, 163 F. Supp. 2d 1202 (D. Hawaii 2001) (applying traditional test in granting preliminary injunctive relief to prevent military from conducting training at a military reservation.) In support, petitioner cites two similar district court cases from the Fourth Circuit that applied the traditional irreparable injury requirement in cases challenging involuntary mobilizations. Parrish v. Brownlee, 335 F. Supp. 2d 661 (E.D.N.C. 2004); Irby v. United States, 245 F. Supp. 2d 792 (E.D. Va. 2003).

The court need not resolve which standard applies, because petitioner can satisfy neither test. Petitioner is enlisted in the military until May of 2005. There is no dispute that, until that time, petitioner is subject to activation and deployment. While the court readily acknowledges that such deployment is fraught with great personal risk, the order of deployment to Iraq during the course of voluntary enlistment is not the gravamen of petitioner's claim for injunctive relief. Rather, it is the involuntary extension of his enlistment beyond May 1, 2005 under the military's stop-loss policy. Any injury to petitioner related to that challenge can only commence in May of 2005 when his term of enlistment expires.

Petitioner offers no legal basis to this court to enjoin petitioner's deployment in order to resolve his challenge to the stop-loss policy. While petitioner concedes he is subject to activation and deployment until the end of his enlistment in May of 2005, petitioner argues that the orders under which he is being deployed are invalid because they illegally extend his enlistment. Petitioner concludes that, if the order is invalid, he cannot be called to active duty under such order, either during the period of his enlistment or afterward. (Reply at 5.)

During oral argument, counsel for petitioner asserted that he would reserve the right to challenge such an order. However, any such challenge would need to raise separate grounds not raised here which relate solely to the extension of his enlistment.

The court disagrees with petitioner's analysis. The question before the court is whether it is necessary to prevent petitioner's deployment in order to avoid irreparable injury pending resolution of this case on the merits. Initially, the court notes that the status quo here is that petitioner is an enlisted member of the National Guard, subject to activation. Thus, to preserve the status quo, the court should not disrupt petitioner's activation during a period when he is admittedly subject to such activation, pending the court's determination of the merits of this case.

Nor do the cases cited by petitioner support his position. Illustrative is Scaggs v. United States, 396 U.S. 1206 (Douglas, Circuit Justice 1969), in which the Court granted an army reservist's petition for habeas corpus and released him from the custody of the Army pending resolution of his appeal. However, the petitioner in Scaggs was situated quite differently than petitioner here. In that case, the petitioner was ordered to active duty for a period beyond his enlistment contract as a result of an alleged failure to comply with military orders to "join a unit of the Ready Reserve and attend regular drills." Id. The petitioner challenged not just the extension of his enlistment, but the grounds for the order to active duty itself, which he argued was "punitive and unauthorized." Id. Consequently any time the petitioner spent on active duty would cause immediate injury. Here, by contrast, petitioner does not raise a challenge to the grounds for his activation, which was attendant to the mobilization of his entire unit; he challenges the extension of personal his enlistment. Thus, unlike the petitioner in Scaggs, his injury does not commence with activation, it occurs when his enlistment expires.

The court also notes that the petitioner in Scaggs sought a Writ of Habeas Corpus. Consequently, the court did not grant injunctive relief, and did not address the irreparable injury requirement.

The remaining cases cited by petitioner are distinguishable on similar grounds. See Patton v. Dole, 806 F.2d 24 (2d Cir. 1986) (granting injunctive relief to prevent involuntary induction into Navy by former midshipman at Merchant Marine Academy who had resigned from academy); Kudley v. Hollo, 431 F. Supp. 470 (N.D. Ohio 1976) (granting temporary restraining order to prevent Army reservist's call up to active duty for unexcused absences); Walsh v. Local Bd. No. 10, 305 F. Supp. 1274 (S.D.N.Y. 1969) (granting injunctive relief to prevent petitioner's involuntary induction into the military).

Moreover the balance of hardships tips strongly in favor of respondents. Permitting petitioner to avoid deployment, during a period he admittedly is subject to such deployment, would set a troubling precedent which could impede the military's ability to mobilize full-strength units were other similarly situated soldiers to file similar challenges.

From a practical standpoint, there is no impediment to petitioner's deployment. Respondents concede that the court will retain jurisdiction over this matter after petitioner is deployed, and agree that petitioner can be called back from Iraq if this court so orders. If petitioner prevails, his period of active duty will end in May of 2005; if petitioner's challenge is unsuccessful, he will remain on active duty under the military's stop-loss policy. Until that time, the military can deploy petitioner as it deems proper.


In conclusion, petitioner has failed to demonstrate that he will suffer any immediate irreparable injury if injunctive relief is not granted. Consequently, petitioner's motion for preliminary injunction is DENIED. Because the merits of the case are well developed in the papers previously filed, and the court finds further oral argument will not be of material assistance, the court will provide respondent with an opportunity to submit a surreply, and thereafter issue a final written order on the merits of petitioner's claim.