Santiago v. Rumsfeld

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

EMILIANO SANTIAGO, 
Petitioner-Appellant,
v.
DONALD H. RUMSFELD, Secretary of
Defense; LES BROWNLEE, Secretary No. 05-35005
of the United States Department of
the Army (Acting); RAYMOND  D.C. No.
CV-04-01747-OMP
BYRNE, Acting Adjutant General of
OPINION
the Oregon National Guard; DAVID
DORAN, Captain, Detachment One,
Company D, 113 Aviation Unit
Commander,
Respondents-Appellees.

Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior Judge, Presiding

Argued and Submitted
April 6, 2005—Seattle, Washington

Filed May 13, 2005

Before: William C. Canby, Jr., Richard C. Tallman, and
Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Canby

5213
5216 SANTIAGO v. RUMSFELD

COUNSEL

Steven Goldberg, Goldberg, Mechanic, Stuart & Gibson,
LLP, Portland, Oregon, for the petitioner/appellant.

H. Thomas Byron, III, Attorney, Appellate Staff Civil Divi-
sion, Department of Justice, Washington, D.C., for the
respondents/appellees.

OPINION

CANBY, Circuit Judge:

Emiliano Santiago, a sergeant in the Army National Guard
facing immediate deployment to Afghanistan, appeals from
the district court’s denial of his petition for a writ of habeas
corpus. Santiago’s eight-year enlistment in the Guard was due
to expire on June 27, 2004, but shortly before that date his
enlistment was extended by a “stop-loss” order when his unit
was alerted prior to being ordered to active service. Santiago
challenges this application of the government’s “stop-loss”
policy on the ground that it violates his enlistment contract
and is unauthorized by statute. He also asserts a due process
claim. We affirm the district court’s denial of the petition
because we conclude that the stop-loss order was authorized
by 10 U.S.C. § 12305(a), and that it neither violated Santia-
go’s enlistment agreement nor his right to due process of law.1
1
Amicus curiae John Doe attempts to assert statutory and constitutional
arguments not raised by Santiago or the government. We follow our gen-
 SANTIAGO v. RUMSFELD 5217
I. Factual Background

Santiago enlisted in the Army National Guard on June 28,
1996, when he was eighteen years old. He enlisted for a term
of eight years. After his enlistment, Santiago completed basic
training and advanced individual training, after which he was
released from active duty. Since that time, Santiago has been
participating in monthly weekend training activities as part of
his commitment to the Army National Guard. Santiago cur-
rently serves as a sergeant in his Pendleton, Oregon, unit.

Santiago is an Aircraft Petroleum Specialist—a refueler. He
tests petroleum products for safety and then refuels Army avi-
ation equipment. On the civilian side, Santiago lives with his
wife in Pasco, Washington, where he works as an electronic
technician at Pacific Northwest National Laboratory (which is
operated by Battelle Memorial Institute for the Department of
Energy).

On April 17, 2004, the Oregon National Guard received a
“mobilization alert order” from the Army National Guard.
The order directed the unit stationed in Pendleton to “prepare
for a mobilization into federal active service,” but specified
that “[t]his is an alert order only” and “[t]he official mobiliza-
tion order may mobilize less than authorized strength.” In
May 2004, the commander of Santiago’s company “an-
nounced to the soldiers that the unit was going to deploy, and
that the entire unit was under stop loss.”

In June 2004, when Santiago’s eight-year term was due to
expire, Santiago attended a weekend training session. Santi-

eral rule in declining to address these arguments not raised by the parties.
See, e.g., Artichoke Joe’s Cal. Grand Casino v. Norton, 353 F.3d 712, 719
n.10 (9th Cir. 2003) (“In the absence of exceptional circumstances, which
are not present here, we do not address issues raised only in an amicus
brief.”). We note that Doe is currently pursuing his own federal suit chal-
lenging the stop-loss policy. See Doe v. Rumsfeld, No. 05-15680, appeal
from CIV-S-04-2080-FCD-KJM (E.D. Calif.).
5218 SANTIAGO v. RUMSFELD
ago “assumed that the weekend training that he attended . . .
was his last weekend duty.” On June 11, however, Santiago
learned that his enlistment would not end on June 27—the
original termination date of his contract—because he was sub-
ject to the stop-loss order.

In October 2004, Santiago’s unit received an order to mobi-
lize for active duty. Pursuant to the mobilization order, Santi-
ago and his unit were instructed to mobilize on January 2,
2005, and depart for Fort Sill, Oklahoma, shortly thereafter
for six weeks of training, followed by deployment to Afghani-
stan for one year in support of “Operation Enduring Free-
dom.”

Santiago retained counsel to challenge the involuntary
extension of his enlistment under the stop-loss policy. Santia-
go’s attorney wrote a letter to Santiago’s unit commander
requesting that Santiago be released from further service on
the ground that he had fulfilled his contractual obligations.
Santiago’s lawyer explained that if no “confirmation of Sgt.
Santiago’s discharge [is received] within two weeks . . . this
letter constitutes Sgt. Santiago’s attempt to exhaust adminis-
trative remedies prior to filing suit to enforce his rights.”

The Oregon Military Department replied by letter to Santia-
go’s lawyer, stating that “[a]s a result of the unit alert, your
client’s ETS [estimated termination of service] date was
changed to 24 December 2031 and it is scheduled to remain
so until his unit is removed from alert status or until demobili-
zation is completed.”2 The letter also directed that “[r]equests
for waivers/exceptions to reserve component unit stop loss
should be forwarded through the chain of command.” After
learning about the waiver policy, Santiago concluded that it
would be futile to seek a waiver or exception. Santiago testi-
fied by declaration that his civilian supervisor was “not will-
2
The government asserts that the 2031 date is purely for administrative
convenience and bears no relation to Santiago’s actual separation date.
 SANTIAGO v. RUMSFELD 5219
ing to request an exception to my deployment based upon a
‘negative national security impact’ on my employment.” He
also concluded that he could not make a claim of personal
hardship beyond that which other members of his unit were
forced to endure.

In January 2005, Santiago reported to Fort Sill to begin his
six weeks of training in preparation for deployment to
Afghanistan.

II. Procedural History

In November 2004, Santiago filed a petition for writs of
habeas corpus and mandamus, and for declaratory relief, in
the United States District Court for the District of Oregon. He
moved for a temporary restraining order and preliminary
injunction. The parties stipulated that the hearing on the pre-
liminary injunction was to serve as a bench trial on the perma-
nent injunction, to expedite appellate review. The district
court dismissed the petition for writ of habeas corpus and
entered judgment for the federal defendants denying all relief.
Santiago promptly appealed.

III. Discussion

A. Justiciability and Exhaustion

The district court assumed for purposes of its decision that
Santiago’s claims met the requirements for reviewability of
military decisions under Wenger v. Monroe, 282 F.3d 1068,
1072 (9th Cir. 2002) (applying the rule of Mindes v. Seaman,
453 F.2d 197 (5th Cir. 1971)). The district court also assumed
for purposes of decision that Santiago had sufficiently
exhausted his administrative remedies. The government sug-
gests that we make the same assumptions for purposes of this
appeal, and we follow that suggestion. Wenger and Mindes set
forth a prudential rule, not a limitation on our subject-matter
jurisdiction. See Winck v. England, 327 F.3d 1296, 1299 (11th
5220 SANTIAGO v. RUMSFELD
Cir. 2003). Exhaustion of administrative remedies, when not
made mandatory by statute, is similarly a prudential doctrine.
See Acevedo-Carranza v. Ashcroft, 371 F.3d 539, 541 (9th
Cir. 2004). We therefore proceed to the merits.

B. Enlistment Contract3

[1] Enlistment contracts, with exceptions not relevant here,
are enforceable under the traditional principles of contract law.4
See Jablon v. United States, 657 F.2d 1064, 1066 & n.3 (9th
Cir. 1981) (noting that contract principles apply when an
enlistee seeks release from the military because of an alleged
misrepresentation in the enlistment contract); Johnson v.
Chafee, 469 F.2d 1216, 1219-20 (9th Cir. 1972) (enforcing an
agreement to extend an enlistment period based on contract
principles); Taylor v. United States, 711 F.2d 1199, 1205 (3d
Cir. 1983) (noting that “enlistee status does not invalidate the
contractual obligation of either party or prevent the contract
from being upheld, under proper circumstances, by a court of
law”) (citation and alteration omitted).

Santiago relies on the provision of his contract specifying
an eight-year term and contends that it requires his separation
at the end of that period. He acknowledges that the contract
spells out some instances in which his enlistment can be
extended (for example, during a declared war), but insists that
the extension under the present circumstances, in an alert dur-
ing an emergency declared by the President, is not among
3
The district court’s interpretation of a written contract presents a ques-
tion of law that we review de novo. See, e.g., Flores v. Am. Seafood Co.,
335 F.3d 904, 910 (9th Cir. 2003).
4
Exceptions have been created for issues related to military pay or bene-
fits due to the unique nature and characteristics of military service. See
Borschowa v. Claytor, 568 F.2d 616, 617 (9th Cir. 1977) (holding that
habeas relief is unavailable for breach of an enlistment contract when the
“breach consists wholly of the non-payment of money”); cf. Bell v. United
States, 366 U.S. 393, 401 (1961) (holding that “common-law rules govern-
ing private contracts have no place in the area of military pay”).
 SANTIAGO v. RUMSFELD 5221
them. He relies on the interpretive doctrine of expressio unius
est exclusio alterius to support his view that the failure to
include a provision for a particular contingency, after specify-
ing others, implies a negative. See, e.g., Barnes v. Indep.
Auto. Dealers Ass’n of Cal. Health & Welfare Benefit Plan,
64 F.3d 1389, 1393 (9th Cir. 1995).

It is inappropriate, however, to imply an intent to exclude
when the contract itself specifies that unlisted contingencies
may cause an alteration in the agreed-upon terms. See United
States v. Crane, 979 F.2d 687, 690 (9th Cir. 1992) (“[T]he
maxim expressio unius is a product of logic and common
sense and is properly applied only when the result is itself
logical and sensible.”). Santiago’s enlistment contract states
that rights and obligations may be affected by federal law, and
the contract provides notice that changes in federal law—even
if inconsistent with the written terms of the contract—would
apply to Santiago once he enlisted:

Laws and regulations that govern military personnel
may change without notice to me. Such changes may
affect my status, pay, allowances, benefits, and
responsibilities as a member of the Armed Forces
REGARDLESS of the provisions of this enlistment/
reenlistment document.

Enlistment Doc. § C, ¶ 9(b). This clause is broad enough to
encompass the stop-loss order that Santiago challenges. Santi-
ago argues that the statute under which the President acted, 10
U.S.C. § 12305(a), was in effect prior to his enlistment and
therefore cannot qualify as a “change” in the law. The stop-
loss regulation, however, was not promulgated until Novem-
ber 21, 2002, see MILPER MESSAGE NO: 03-040, TAPC-
PDT-PM (hereinafter “MILPER 03-040”), and it therefore
qualifies as a change in regulations within the meaning of the
quoted clause of the enlistment contract.

[2] In any event, the enlistment contract clearly contem-
plates that the terms of enlistment are subject to existing fed-
5222 SANTIAGO v. RUMSFELD
eral laws and regulations that may not be spelled out in the
contract. The clause quoted above appears under the general
heading “PARTIAL STATEMENT OF EXISTING UNITED
STATES LAWS” and is introduced by a passage stating:

Many laws, regulations, and military customs will
govern my conduct and require me to do things a
civilian does not have to do. The following state-
ments are not promises or guarantees of any kind.
They explain some of the present laws affecting the
Armed Forces which I cannot change but which
Congress can change at any time.

Enlistment Doc. § C, ¶ 9. There is no question, therefore, that
the parties to the contract understood and intended that many
laws and regulations not set forth in the contract would gov-
ern Santiago’s service, and the reference to changes in the law
simply made clear that even subsequently enacted, as well as
pre-existing, law would apply. In so providing, the contract
was reflecting well-established rules of law applicable to
enlistment contracts. See Winters v. United States, 412 F.2d
140, 144 & n.6 (9th Cir. 1969) (holding that a statute applies
to preexisting enlistment contracts notwithstanding contrary
language in the contract and noting unanimity of courts on the
issue); Antonuk v. United States, 445 F.2d 592, 598-99 (6th
Cir. 1971) (holding that a federal statute, enacted subsequent
to enlistment, trumped the contrary terms of an enlistment
contract).

[3] Consequently, we conclude that the military stop-loss
policy does not violate the terms of Santiago’s enlistment
contract. The next question we must address is whether the
stop-loss regulation as applied to Santiago was authorized by
statute.
 SANTIAGO v. RUMSFELD 5223
C. Section 12305

Article I, section 8, clause 14 of the Constitution grants
Congress the power to “make Rules for the Government and
Regulation of the land and naval Forces.” Congress exercised
this power, and the laws applying to the various segments of
the armed forces are now codified in Title 10 of the United
States Code. We conclude that, under the circumstances of
this case, the military’s stop-loss policy does not exceed the
statutory authority conferred on the President by 10 U.S.C.
§ 12305(a).5

The parties do not dispute that the purpose of reserve com-
ponents “is to provide trained units and qualified persons
available for active duty in the armed forces.” 10 U.S.C.
§ 10102. Nor do they dispute that “[i]n time of national emer-
gency declared by the President . . . or when otherwise autho-
rized by law, an authority designated by the Secretary
concerned may, without the consent of the persons concerned,
order any unit, and any member not assigned to a unit orga-
nized to serve as a unit, in the Ready Reserve . . . to active
duty for not more than 24 consecutive months.” 10 U.S.C.
§ 12302(a). The President declared a national emergency on
September 14, 2001, in response to the terrorist attacks in
Pennsylvania, at the World Trade Center, and on the Penta-
gon. See Proclamation No. 7463, 66 Fed. Reg. 48,199 (Sept.
14, 2001). The President simultaneously delegated to the sec-
retaries of the armed services the authority to order reserves
to active duty. See Exec. Order No. 13223, 66 Fed. Reg.
48,201-48,202 (Sept. 14, 2001).

We must resolve a narrow question: whether Congress has
delegated to the President the authority to apply the stop-loss
policy to an individual whose enlistment contract expires after
a mobilization alert but prior to a call to active duty. We con-
5
We review de novo the district court’s interpretations of statutes and
regulations. See United States v. Ani, 138 F.3d 390, 391 (9th Cir. 1998).
5224 SANTIAGO v. RUMSFELD
clude that the stop-loss policy is authorized by the plain lan-
guage of section 12305. See Robinson v. Shell Oil Co., 519
U.S. 337, 340 (1997) (“Our first step in interpreting a statute
is to determine whether the language at issue has a plain and
unambiguous meaning . . . .”).

[4] Section 12305 authorizes the executive branch to imple-
ment a stop-loss policy in order to prevent retirement or sepa-
ration of reserve members who are essential to national
security:

Notwithstanding any other provision of law, during
any period members of a reserve component are
serving on active duty pursuant to an order to active
duty under authority of section 12301, 12302, or
12304 of this title, 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.

10 U.S.C. § 12305(a) (emphasis added). Pursuant to this stat-
utory authority, the Army implemented a stop-loss policy for
Army National Guard units on November 21, 2002. The stop-
loss policy provides the following:

Generally, all enlistments, reenlistments, extensions,
and periods of service for [Army National Guard]
soldiers who are members of units alerted or
ordered to active duty . . . are extended until further
notice. . . . This applies to [Reserve Component]
units that are mobilized or have been alerted, but not
yet mobilized, at the time this message is published,
and to [Reserve Component] units that are alerted or
mobil[iz]ed after this message is published.

MILPER 03-040, ¶ 5 (emphasis added). Because his National
Guard unit was alerted prior to his scheduled separation date,
 SANTIAGO v. RUMSFELD 5225
the stop-loss policy clearly applies to Santiago. The question
is whether the policy is authorized by section 12305(a).

Santiago’s central contention is that section 12305(a)
authorizes the President to delay separation only of members
of the reserve components who are on active duty. Because
his enlistment would have expired during the period of alert
but before his unit was ordered to active duty, Santiago con-
tends that the statute does not authorize application of the
stop-loss order to him.

[5] Santiago’s interpretation of section 12305(a) is not sup-
ported by the statute’s plain words. The limiting clause, “dur-
ing any period members of a reserve component are serving
on active duty pursuant to an order to active duty under
authority of section 12301, 12302, or 12304 of this title,”
refers only to the period of time during which the President
may exercise the power conferred by section 12305(a). That
condition is met because the President declared a national
emergency in September 2001 and invoked his authority to
order reserve units to active duty under section 12302. See
Proclamation No. 7463, 66 Fed. Reg. 48,199.6 The district
court found that members of the Army National Guard have
been serving on active duty pursuant to this authority since
October 2001. The temporal condition for exercise of the
President’s power under section 12305(a) accordingly has
been met.

[6] The actual operative power conferred on the President
by section 12305(a)—the power to suspend the laws govern-
ing promotion, retirement or separation—may be exercised
with regard to “any member of the armed forces who the
President determines is essential to the national security,” not
merely those who are on active duty.7 Had Congress intended
6
There is no dispute that the declaration of national emergency has been
renewed each year since 2001, most recently on September 10, 2004. See
69 Fed. Reg. 55,313.
7
Santiago does not challenge, nor do we presume to review, the Presi-
dent’s discretionary determination that Santiago and the members of his
5226 SANTIAGO v. RUMSFELD
to limit the President’s power under section 12305(a) so that
he could suspend the laws relating only to those members of
the armed forces on active duty, it would have been a simple
matter for Congress to say so in the statute. It did not.

Section 12305(a) is not irrational when read according to
its plain meaning. As the government points out, the temporal
limitation to a period when reserves have been called to active
duty under sections 12301, 12302 or 12304 makes sense
because call-up of reserve units under those three statutes
ordinarily requires formal declarations or specified conditions
of national emergency. In times of national emergency result-
ing in the activation of reserve units, it is rational to authorize
the President to take special measures to ensure the services
of other members of the armed forces whom he deems to be
essential to national security. That is what Congress has done
in the plain words of section 12305(a).

[7] Legislative history does not compel a contrary interpre-
tation of the statute’s plain language.8 The Senate Report’s
brief reference to the new legislation enacting section
12305(a) says that “the President would be authorized to
extend the enlistment or appointment of essential regular and

unit are essential to the national security of the United States. See 10
U.S.C. § 12305(a). Apart from any such challenge, Santiago does assert
that, as a practical matter, his duties could easily be performed by others.
Santiago’s commander, however, submitted a declaration that Santiago’s
services were critical because his unit was already short on refuelers, and
Santiago’s absence would impose duty overloads on the other refuelers.
8
“Although the Supreme Court has advised that recourse to legislative
history is not necessary where a statute’s plain meaning is clear, the Court
does suggest that we review the legislative history to ensure that there is
no clearly contrary congressional intent.” Carson Harbor Vill., Ltd. v.
Unocal Corp., 270 F.3d 863, 884 (9th Cir. 2001) (en banc); see also Con-
sumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108
(1980) (“[T]he starting point for interpreting a statute is the language of
the statute itself. Absent a clearly expressed legislative intention to the
contrary, that language must ordinarily be regarded as conclusive.”).
 SANTIAGO v. RUMSFELD 5227
reserve personnel serving on active duty . . . .” S. REP. NO. 98-
174 (1983), reprinted in 1983 U.S.C.C.A.N. 1081, 1099. The
House of Representatives adopted the Senate provision,
describing it as follows in its Conference Report:

The Senate bill contained a provision [ ] that would
authorize the President, during a time of crisis or
national emergency, to extend the enlistment or
appointment of essential regular and reserve person-
nel serving on active duty regardless of the normal
separation dates for those individuals.

H.R. CONF. REP. NO. 98-352, reprinted in 1983 U.S.C.C.A.N.
1160, 1176. It is true that these references say nothing about
extending periods of enlistment of members of units that have
been alerted for mobilization, but not yet ordered to active
duty. There is no reason, however, to construe these minimal
references of congressional history as demonstrating a clear
intent contrary to the plain words of section 12305(a). The
congressional committee statements are accurate as far as they
go: section 12305(a) does authorize the President to extend
the enlistments of those on active duty. The committee reports
do not express an intent to make that authority exclusive, pre-
cluding the President from extending enlistments of members
of the reserve alerted for, but not yet ordered to, active duty.
We do not read the congressional history as sufficient to dem-
onstrate a clear congressional intent contrary to the plain
words of section 12305(a). We conclude, therefore, that sec-
tion 12305(a) authorized the application of the stop-loss order
to Santiago at a time when his enlistment had not yet expired
and his unit was alerted for, but had not yet been ordered to,
active duty.9
9
At oral argument, Santiago relied on Cherokee Nation of Okla. v.
Leavitt, 125 S.Ct. 1172 (2005), for the proposition that, when a statute
may reasonably be interpreted either of two ways, a court should avoid an
interpretation that “would undo a binding governmental contractual prom-
ise.” Id. at 1182. We conclude that Cherokee Nation is inapplicable for
5228 SANTIAGO v. RUMSFELD
D. Due Process

[8] Santiago next argues that his constitutional right to due
process of law has been violated by the government’s failure
to provide adequate notice that his enlistment could be
extended involuntarily for reasons not specified in his enlist-
ment contract.10 As our earlier discussion of Santiago’s con-
tractual claim makes clear, however, Santiago’s enlistment
contract provided notice that subsequently enacted laws and
regulations would affect the terms of his contract. Santiago
signed an enlistment contract that said “[l]aws and regulations
that govern military personnel may change without notice to
me.” Enlistment Doc. § C, ¶ 9(b). The contract also states that
Santiago “may at any time be ordered to active duty involun-
tarily . . . under any other conditions authorized by law in
effect at the time of my enlistment or which may hereafter be
enacted into law.” Id., Statement of Understanding at ¶ 11. If
Santiago’s rights under his enlistment contract have not been
violated, it is difficult to see how his constitutional claim—
which is essentially a variation of his breach of contract claim
—can prevail. Under these circumstances, the government’s
failure to notify Santiago in his enlistment contract of each

two reasons: (1) the plain words of section 12305(a) require the interpreta-
tion we adopt; and (2) Santiago’s enlistment contract expressly contem-
plates that statutes and regulations may apply and change the contract, so
there is no direct conflict between our interpretation of section 12305(a)
and the contract.
10
Santiago did not raise this due process argument in the district court.
Although we usually do not consider arguments raised for the first time
on appeal, see Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999), we
may do so when “the issue presented is purely one of law and either does
not depend on the factual record developed below, or the pertinent record
has been fully developed.” Briggs v. Kent (In re Prof’l Inv. Props. of Am.),
955 F.2d 623, 625 (9th Cir. 1992) (internal quotation omitted). Those con-
ditions are met here, and the government is not prejudiced by our address-
ing the issue. See Ariz. Cattle Growers’ Ass’n. v. U.S. Fish & Wildlife, 273
F.3d 1229, 1241 (9th Cir. 2001) (finding no prejudice when party asserting
waiver would not have introduced additional facts into the record).
 SANTIAGO v. RUMSFELD 5229
specific reason that his service might be extended involuntar-
ily does not violate Santiago’s due process rights.

Nor does Santiago’s “indefinite extension” violate his due
process rights. Santiago’s new ETS date is December 25,
2031, but this date was entered for administrative conve-
nience. The stop-loss policy makes clear that soldiers “will
generally be mobilized for an initial period of 12 months, but
may be extended for a cumulative period up to, but not to
exceed, 24 months.”

Accordingly, we reject Santiago’s claims that his right to
due process of law was violated.

IV. Conclusion

We do not minimize the disruption, hardship and risk that
extension of his enlistment is causing Santiago to endure. We
also accept the fact that his claim not to be subject to the stop-
loss order has been brought in complete good faith. For the
reasons we have set forth, however, we conclude that the
application of the stop-loss order did not breach his enlistment
contract or deprive him of due process of law. We also con-
clude that it was authorized by 10 U.S.C. § 12305(a). The
judgment of the district court is accordingly

AFFIRMED.11

11
Santiago also moved for an injunction pending appeal to forestall his
deployment to Afghanistan, scheduled to occur shortly after oral argument
of this appeal. We denied that motion by separate order shortly after oral
argument on April 6, 2005.