United States District Court for the District of Columbia
February 7, 2005.
DAVID W. QUALLS, et al., Plaintiffs,
DONALD RUMSFELD, et al., Defendants.
The opinion of the court was delivered by: ROYCE LAMBERTH, District Judge
MEMORANDUM OPINION AND ORDER
Now before the court is plaintiff David W. Quall's Motion 
for Preliminary Injunction. For the reasons stated herein, the
court denies this motion.
Plaintiff David W. Qualls, affiliated with the United States
Army from 1986-1994, reenlisted in the Army National Guard's Try
One program on July 7, 2003 for a term of service lasting one
year, zero months, and zero days. Soon thereafter, in mid-October
of 2003, the Army called Qualls to active duty and extended his
term of service, changing his Expiration of Term of Service
("ETS") date from July 6, 2004 to December 24, 2031. The Army
form that informed Qualls about his involuntary extension asserts
that the extension was legally authorized by 10 U.S.C § 12305,
the so-called "stop-loss" statute.
On December 6, 2004, Qualls and seven other servicemen subject
extensions filed suit in this court against the Secretary of
Defense, the Secretary of the Army and the Assistant Secretary of
the Army for Manpower and Reserve Affairs ("Army"). Qualls, then
on leave in the United States, requested a temporary restraining
order directing the Army to allow him to remain in the United
States. The court denied this request at a hearing on December 8,
2004. Qualls also moved the court for a preliminary injunction
ordering the immediate release of Qualls from active military
service. That is the motion now before the court.
II. LEGAL STANDARD
A preliminary injunction is an "extraordinary" remedy. Mazurek
v. Armstrong, 520 U.S. 968, 972 (1997). The plaintiff must, by a
clear showing, carry the burden of persuasion. Id.; Cobell v.
Norton, 391 F.3d 251, 258 (D.C. Cir. 2004). In a motion for
preliminary injunction, the plaintiff must demonstrate: 1) a
substantial likelihood of success on the merits, 2) that the
plaintiff would suffer irreparable injury if an injunction is not
granted, 3) that an injunction would not substantially injure
another interested party, and 4) that an injunction would favor
the public interest. Cobell, 391 F.3d at 258. The court will
then "balance the strengths of the [plaintiff's] arguments in
each of the four required areas" to determine whether to issue an
injunction. CityFed Fin. Corp. v. Office of Thrift Supervision,
58 F.3d 738, 747 (D.C. Cir. 1995). In cases such as this, where
it is uncontested that the injunction sought would alter, rather
than preserve, the status quo, the moving party must show a clear
entitlement to relief or show that extreme or very serious damage
will result if the injunction does not issue. Nat'l Conf. On
Ministry To Armed Forces v. James, 278 F. Supp. 2d 37, 42
A. Likelihood of Success
1. Exhaustion of Remedies and Justiciability
As an initial matter, the Army argues that Qualls is unlikely
to succeed on the merits of his case because this court should
not reach the merits. The Army suggests that Qualls has failed to
exhaust the Army's administrative remedies before initiating this
action is federal district court. This Circuit does not require
exhaustion if pursuit of an administrative remedy would be futile
or if the plaintiff can show irreparable harm. Bois v. Marsh,
801 F.2d 462, 468 (D.C. Cir. 1986). The administrative remedy
cited by the Army is set forth in MILPER Message 03-040, which
allows "[s]oldiers who have compelling or compassionate reasons"
to apply for an exception to the Army's involuntary extension
policy. Qualls is not seeking an exception for these reasons,
rather he brings a legal challenge to the involuntary extension
policy and its application to him in the first instance. The
exhaustion the Army demands would be futile. Moreover, as
determined in Part III.B of this Memorandum Opinion, Qualls does
face irreparable harm. Therefore, the exhaustion requirement does
not apply to Qualls.
As to justiciability, the court notes that it would be likely
to find Qualls' claim justiciable. Recruiting activities, "by
their very nature, involve a crucial intersection of the military
and the general public that cannot be left to the sole discretion
of the military." Brown v. Dunleavy, 722 F. Supp. 1343, 1349
(E.D. Va. 1989). Further, "this case . . . involves a dispute
over the formation and interpretation of a contract, an area that
clearly falls within the expertise of the judiciary." Id.
(citing Santos v. Franklin, 493 F. Supp. 847 (E.D. Pa. 1980)).
"There are few instances that would invite judicial intervention
in military affairs to a greater degree than matters
relating to enlistment contracts." Irby v. United States,
245 F. Supp. 2d 792, 799 (E.D. Va. 2003).
2. Contract Claims
To determine whether the military has breached an enlistment
contract or whether an enlistment contract is invalid, courts
apply general, common law principles of contract law.
Cinciarelli v. Carter, 662 F.2d 73, 78 (D.C. Cir. 1981);
Woodrick v. Hungerford, 800 F.2d 1413, 1416 (5th Cir. 1986);
Pence v. Brown, 627 F.2d 872, 874 (8th Cir. 1980); Castle v.
Caldera, 74 F. Supp. 2d 4, 8-9 (D.D.C. 1999) (citing numerous
cases); Brown v. Dunleavy, 722 F. Supp. 1343, 1349 (E.D. Va.
1989).*fn1 Qualls alleges that the Army's extension of his
term of service constitutes a breach of contract. Qualls also
alleges that the Army's failure to disclose the
possibility of involuntary extension constitutes a
misrepresentation that invalidates the contract.
(a) Terms of the Contract
The success of Qualls' contract claims hinges in large part on
the terms of his enlistment contract. At this point in the
litigation, Qualls and the Army apparently dispute what terms
make up the enlistment contract. Qualls has proffered a copy of
his enlistment contract that had been kept by his local Armory.
(Pl. Mot. for Preliminary Injunction, Exh. 3.) According to the
Army, this copy of Qualls' contract, unlike the typical contract
executed by Try One enlistees, lacks a page titled "C. Partial
Statement of Existing United States Laws." The Army insists that
Qualls' original contract contains the missing page on the
reverse side of the contract's first page. The Army was unable to
produce Qualls' original contract before its opposition to the
preliminary injunction was due. On the other hand, Qualls has
never claimed, either in affidavit or through written argument of
counsel, that the copy kept at the armory, which lacks the page,
is identical to the original contract that he signed.
The court faces an odd situation. First, the plaintiff seeking
relief from an allegedly breached and invalid contract has not
provided a copy of that contract that the plaintiff affirms is a
true and correct version. Second, the defendant accused of breach
and misrepresentation which asserts the presence of certain terms
in the original contract has not produced the original version,
which it ought to have on file. Thankfully, this odd factual
situation does not pose a complex legal problem. When moving the
court for a preliminary injunction, plaintiffs bear the burdens
of production and persuasion. See Cobell, 391 F.3d at 258. To
meet these burdens, Qualls may rely on "evidence that is less
complete than in a trial on the merits," Natural Res. Def.
Council v. Pena, 147 F.3d 1012, 1022-23 (D.C. Cir. 1998)
(quoting Univ. of Texas v.
Camenisch, 451 U.S. 390, 395 (1981)); however, the evidence
Qualls does offer must be credible evidence, Sampson v. Murray,
415 U.S. 61, 87 (1974); Serv-Air, Inc. v. Seamans, 473 F.2d 158
(D.C. Cir. 1972). See generally Societe Comptoir de
L'Industrie Cotonniere, Establissements Boussac et al. v.
Alexander's Dept. Stores, Inc., 190 F. Supp. 594, 601-02
(S.D.N.Y. 1961) ("As support for a preliminary injunction the
court can consider only facts presented by affidavit or testimony
and cannot consider facts provable under the modern liberal
interpretation of the complaint but which have not been proved.
Indeed, proof to support a preliminary injunction must be strong
and clear in view of the restraint put upon the defendant at a
time before his liability has actually been adjudged."); Dunn v.
Stewart, 235 F. Supp. 955, 964 (S.D. Miss. 1964) ("Statements
of counsel during arguments, unsupported by any record evidence,
are not evidence and therefore cannot be proof for purposes of
issuing temporary restraining order.").
In Sampson, the Court found a temporary injunction improper
when the record "indicates that no witnesses were heard on the
issue of irreparable injury, that respondent's complaint was not
verified, and that the affidavit she submitted to the District
Court did not touch in any way upon considerations relevant to
irreparable injury." Id. The Court was "somewhat puzzled about
the basis for the District Court's conclusion that respondent
`may suffer immediate and irreparable injury.'" Id.
Here, as in Sampson, the court is puzzled by Qualls' failure
to offer any statement by way of affidavit, testimony, motion
papers for preliminary injunction, or even complaint that the
contract featured as his Exhibit 3 is in fact his contract or
that he never was presented with the Partial Summary of Existing
United States Laws. Rather than present such important and simple
claims on behalf of Qualls, Qualls' attorneys demand that this
court take Exhibit 3 to be Qualls'
contract because the Army has been unable to produce a different
version of the contract within two weeks of getting notice of
Qualls' preliminary injunction motion. (Pl. Reply Br. at 1.)
There is simply no credible evidence that Exhibit 3 is in fact
In addition to the absence of credible evidence that Exhibit 3
is the full contract, there are several reasons to credit the
Army when it asserts that Qualls' contract contained the Partial
Statement of Existing United States Laws. First, the first page
of Qualls' contract appears to be labeled "DD Form 4/1, May 88"
and informs the recruit that the form is "[c]ontinued on reverse
side." The Army's Exhibit E, the Partial Statement of Existing
United States Laws, is labeled "DD Form 4/1 Reverse, MAY 88." The
DD form is a standard form, it is likely that Qualls' contract
made use of the standard DD form that had terms on the reverse
side, and it is likely that whoever copied the file simply forgot
or chose not to copy both sides. Second, Qualls has not produced
his own copy of his enlistment contract. Enlistment contracts,
like offers of employment, leases, and other important contracts,
are the kinds of documents people tend to keep, and Qualls'
failure to produce his copy, combined with his failure to comment
about the contents of the contract he remembers signing, lends
further credit to the Army's position.
For these reasons, the court concludes that Qualls has not met
his burden of production as regards his claim that the reverse
side of form DD 4/1 was missing from Qualls' contract. Therefore,
at this stage of the litigation, the court will consider Qualls'
claims as if the reverse side of form DD 4/1 were present.
(b) Breach of Contract
Having determined that the Partial Statement of Existing United
States Laws is part of
Qualls' contract, the court can now turn to Qualls specific
contract claims A plaintiff states a claim for breach of contract
by alleging "the existence of a valid and enforceable contract
between the plaintiff and defendant, the obligation of defendant
thereunder, a violation by the defendant, and damages resulting
to plaintiff from the breach." Perry v. Baptist Health, 21
I.E.R. Cas. (BNA) 941 (Ark. 2004); accord Parrish v.
Brownlee, 335 F. Supp. 2d 661, 673 (E.D.N.C. 2004).*fn2
Here, the parties apparently have a live dispute about what
language actually constitutes the enlistment contract between
Qualls and the Army.
The question in this case is whether the contract obligates the
Army to not involuntarily extend Qualls' term of service beyond
the one year for which he enlisted. Qualls argues that no
language provides for the involuntary extension of his one year
term of service set forth in that contract. In response, the Army
cites language that it claims would entitle it to extend Qualls'
term of service. The statement of existing laws contains several
possibly relevant provisions that the parties have discussed.
First, Paragraph 9(c) tells a recruit that "in the event of war"
an enlistment "continues for six months after the war ends."
(Def. Br. in Opp., Exh. E., ¶ 10(b).) Second, paragraph 10(b)
tells reservists that if they are:
a member of a Reserve Component of an Armed Force at
the beginning of a period of war or national
emergency declared by Congress, or if [they] become a
member during that period, [their] military service
may be extended without [their] consent until six (6)
months after the end of that period of war.
Id. ¶ 10(b). Finally, paragraph 10(d)(1) provides that "in
times of national emergency declared by the President," a member
of the Ready Reserve "may be ordered to active duty . . . for not
more than 24 consecutive months." Id. ¶ 10(d)(1).
The Army argues that the last mentioned provision, paragraph
10(d)(1), notifies Qualls of the possibility of involuntary
extension. It is true that the prerequisites exist for the
application of paragraph 10(d)(1): due to the September 11
attacks, a state of national emergency has existed throughout
Qualls' enlistment, see Presidential Proclamation 7463,
66 Fed. Reg. 48,199 (2001); 67 Fed. Reg. 58,317 (2002);
68 Fed. Reg. 53,665 (2003); 69 Fed. Reg. 55,313 (2004), and Qualls has been a
member of the Ready Reserve. However, paragraph 10(d)(1), unlike
the other provisions described above, says nothing about
extension, only activation. While the paragraph clearly notifies
the recruit that the Army could call a reservist to active duty
and the Army did call Qualls to active duty it does not permit
the Army to unilaterally extend an enlistment without consent in
order to make possible further service on active duty.*fn3
with 10(d)(2) (stating that under certain circumstances, a
reservist may be "required to perform active duty . . . without . . .
consent" and that the reservist's "enlistment may be extended
so [the reservist] can complete 24 months of active duty.").
Further, the Partial Statement of Existing United States Laws,
including paragraph 10(d)(1), is a standard list of terms that
appears in both Try One contracts and contracts for enlistments
over 24 months, see, e.g., (Def. Opp. to TRO, Exh. D.) (Qualls'
1986 eight-year enlistment contract). This demonstrates that the
"not more than 24 consecutive months" provision in paragraph
10(d)(1) operates not as an extension mechanism but as a limit on
the period of active duty an enlistee can be required to serve
On the other hand, the conditions necessary to trigger an
involuntary extension pursuant to the first provision, paragraph
9(c), and the second provision, paragraph 10(b), were met at the
time Qualls enlisted, July 7, 2003, and when the Army extended
his term of service, mid-October of 2003. Both paragraphs require
the existence of war. On September 18, 2001, Congress authorized
the President "to use all necessary and appropriate force against
those nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such organizations or
persons, in order to prevent any future acts of international
terrorism against the United States by such nations,
organizations or persons." Authorization for Use of Miliary
Force, 107 Pub.L. 40, § 2(a), 115 Stat. 224 (2001); see Hamdi
v. Rumsfeld, 124 S. Ct. 2633, 2635 (2004). Shortly thereafter,
the President sent United States military forces to Afghanistan
to "subdue al Qaeda and quell the Taliban regime that was known
to support it." Hamdi, 124 S. Ct. at 2635. As late as June 28,
2004, some eight months after Qualls had been involuntarily
extended, the Supreme Court noted
that active combat operations against the Taliban continued in
Afghanistan.*fn4 In addition, "in October 2002, Congress
passed the Authorization for Use of Military Force Against Iraq
Resolution of 2002 (the "October Resolution"), Pub L. No.
107-243, 116 Stat. 1498." Doe v. Bush, 323 F.3d 133, 134 (1st
Cir. 2003). The United States Congress, by its authorization
statutes, has initiated war in the same way it has initiated war
since World War II. Qualls' argument that Congress has not
declared war is made without legal argument or factual basis; the
facts suggest that the United States is at war at the behest of
Congress. Even if Qualls were somehow right that the United
States Congress has not declared a war, paragraph 9(c) makes no
mention of declared wars but only speaks of a "state of war."
Therefore, paragraph 9(c) alone would allow the Army to
involuntarily extend Qualls' enlistment whether or not the United
States was in a formally declared war.*fn5
Therefore, either paragraph 9(c) or paragraph 10(b)*fn6
give the Army the right to extend Qualls' enlistment. Nowhere in
the enlistment contract does the Army forfeit its right to
involuntarily extend enlistees pursuant to United States laws.
Therefore, Qualls has no likelihood of success on the merits of a
breach of contract claim.
(c) Fraud and Misrepresentation
Recision of an enlistment contract is proper if the recruit was
induced to enter into the contract by fraud or false
representations. Brown, 722 F. Supp. at 1350; Withum v.
O'Connor, 506 F. Supp. 1374, 1378 (D.P.R. 1981) (citing
Chalfant v. Laird, 420 F.2d 945, 945 (9th Cir. 1969)). This is
so even if the misrepresentations were innocently or
non-negligently made. Withum, 506 F. Supp. at 1378. The
elements of fraudulent misrepresentation are: (1) a false
representation or non-disclosure of material facts, (2) made with
knowledge of its falsity, (3) with an intent to induce reliance,
and (4) reasonable reliance on that representation. Barrer v.
Women's Nat'l Bank, 761 F.2d 752, 758 (D.C. Cir. 1985); Nader
v. Allegheny Airlines, Inc., 626 F.2d 1031, 1036 (D.C. Cir.
1980); see also Restatement (Second) of Contracts §§ 161,
Qualls alleges that the his enlistment contract failed to
disclose that the Army could involuntary extend Qualls' term of
service. As already discussed, the contract, with its statement
of United States laws, does indeed put Qualls on notice that the
Army might involuntarily extend his term of service. Qualls also
alleges that the Army falsely represents its Try One program as a
one year trial program after which a recruit can decide to
reenlist or leave when in fact, Try One enlistees can have their
terms of service involuntary extended. As evidence of the
representations that the Army makes, Qualls has submitted Army
recruiting materials from the Army National Guard's Internet
website. One webpage states that Try One "allows a veteran to
serve for only one year on a trial basis before committing to a
full enlistment;" another webpage describes the Try One program
under the heading of "Trial Programs." Exhibit 2.
Qualls, however, has offered no evidence of his own reliance on
the Army's representations, or, for that matter, his own reliance
on the Army's alleged omissions. The webpage printouts that
Qualls submitted with his motion for preliminary injunction were
printed on November 22, 2004, which is months after Qualls signed
up for Try One. Qualls never affirms that he viewed let alone
relied on similar recruitment material or representations from
Army recruitment personnel.*fn7 Qualls offers no evidence
that "false or fraudulent inducements, representations,
promises, or guarantees . . . prompted or caused [him] to sign
his contract of enlistment." Chalfant, 420 F.2d at 945 (quoting
the district court's findings). As discussed above, Qualls must
produce the credible evidence essential to making a clear showing
of that he is likely to succeed on his claim. Again, Qualls has
not done so.
3. Due Process Claims
In addition to his contract claims, Qualls alleges that the
Army, by failing to notify him of its involuntary extension
policies, deprived him of due process. Assuming for the moment
that involuntary extension is a deprivation of liberty, as Qualls
argues, due process would require some type of notice before that
constitutional deprivation took place, Zinermon v. Burch,
494 U.S. 113, 127(1990) (citing Goss v. Lopez, 419 U.S. 565, 579
(1975)). For enlistees, notice of military personnel practices
and procedures is given in their enlistment contracts. Parrish
v. Brownlee, 335 F. Supp. 2d 661, 671-72 (finding that "the
terms of plaintiff's contract and Army regulations and statutes
provided plaintiff with sufficient notice that he would continue
to be treated as a commissioned officer" who could be called up
to active duty. As already discussed in relation to Qualls'
misrepresentation claim, the contract, through the Partial
Statement of Existing United States Laws, notified Qualls of
possible involuntary extension during periods of war and for
various other reasons. Moreover, the Army's decision to extend
Qualls was not arbitrary or capricious, because Qualls was
treated like similarly situated enlistees subject to the standard
terms of the enlistment contract and statutes that permit
involuntary extension, 10 U.S.C. §§ 506, 12302, 12305; the Qualls
due process claim has no likelihood of success because the Army
in fact gave Qualls the notice that was due.
For all these reason, the court finds Qualls has no chance of
success on the merits given the lack of evidence before the
B. Irreparable Harm
Mr. Qualls is currently serving on active duty in Iraq. He,
like other military personnel in Iraq, puts his life on the line
every day and faces a great risk of harm and death as a result of
his continuing service. Qualls would be forced to remain in harms
way and would be irreparably injured should an injunction not
issue. This is irreparable harm. See Parrish v. Brownlee,
335 F. Supp. 2d 661, 668 (E.D.N.C. 2004) ("[A]ssuming for purposes of
the irreparable harm analysis that plaintiff's arguments are
meritorious and that the call to active duty is unjustified, a
loss of liberty and companionship of family in such circumstances
is significant and irreparable. Accordingly, if the injunction is
improperly denied, there is a strong probability of irreparable
harm to plaintiff pending trial and final judgment.").
The Army argues that Quall's delay in seeking relief from
October of 2003 when he learned of his extension until December
of 2004 when he filed suit militates against a finding of
irreparable harm. Such a delay may count against a plaintiff in
the court's harm analysis. See, e.g., Mylan Pharms., Inc. v.
Shalala, 81 F. Supp. 2d 30,44 (D.D.C. 2000). In this case,
Qualls' delay does not date from October of 2003, but from July
7, 2004, the first date of his involuntary extension. Doe v.
Rumsfeld, Civ. No. 04-2080, 2004 U.S. Dist. LEXIS 23338 (E.D.
Cal. Nov. 5, 2004) (finding no harm when soldier's voluntary
service was still running). The five month delay indicates that
Qualls, during those months, was not concerned enough about his
about safety to file suit.
Nevertheless, the court finds that, on balance, the delay is of
less importance given Qualls' location overseas in Iraq and the
significant life and liberty interests at stake. This factor
weighs in favor of granting a preliminary injunction.
C. Harm to the Military
Should Qualls prevail on his motion for preliminary injunction,
the court would order the Army to discharge Qualls. The harm to
the Army associated with one such an order, which would concern
one individual, is likely minimal, see Parrish,
335 F. Supp. 2d at 668; Irby v. United States, 245 F. Supp. 2d 792, 797-98
(E.D. Va. 2003), though perhaps difficult to precisely calculate
given the difficulty of putting a value on the efforts of one
soldier, see Decl. of Kieth Klemmer, ¶ 3 ("Like all soldiers
here, [Qualls] is an important member of our team and he is
needed back here as soon as possible."). Even if the harm is
minimal as regards one soldier, more than one soldier is likely
to be affected should a preliminary injunction issue. An
injunction ordering Qualls' discharge on the evidence presented
on his standard Try One enlistment contract and his involuntary
extension would open the door to similarly situated Try One
enlistees seeking identical relief. In evaluating the harm to the
Army, the court must consider the aggregate harm of all these
possible claims, "looking at the total effect of such cases."
Irby, 245 F. Supp. 2d at 797; see also Guerra v. Scruggs,
942 F.2d 270, 275 (4th Cir. 1991); Parish,
335 F. Supp. 2d at 669. In the aggregate, the harm to the Army, though "somewhat
removed and abstract," is nonetheless real in that it "present[s]
the possibility of substantial disruption and diversion of
military resources." Id.; see Guerra, 942 F.2d at 275;
Irby, 245 F. Supp. 2d at 797-98. Qualls has therefore failed to
show that issuing an injunction would not substantially harm the
D. Public Interest
The public interest can be hard to ascertain. In this case,
there are competing interests
that can be said to be public interests.
On the one hand, the public has an interest "particularly in
light of current events, in seeing that the Army's discretionary
decision making with respect to personnel decisions is
effectuated with minimal judicial interference." Parish,
335 F. Supp. 2d at 675 (quoting Irby, 245 F. Supp.2d at 798).
On the other hand, this case involves the integrity of the Army
recruitment and enlistment process, and an injunction ordering
Qualls' discharge, assuming his claims were legally sound, would
show to the public that Army is not above the law and that truth
and disclosure in recruiting is important. See Novak v.
Rumsfeld, 423 F. Supp. 971, 972 (N.D. Cal. 1976) ("Without this
candid appraisal of the benefits as well as the burdens, the Navy
cannot expect to foster credibility among prospective recruits.
Without candid disclosure and a commitment to follow through on
recruitment promises, a volunteer Navy cannot function. Above all
other contracting parties the Government must be held to its
promises."); Brown, 722 F. Supp. at 1353 ("The integrity of the
recruiting process in today's all volunteer peacetime Navy
compels rescission of [the] enlistment contract."). Of course, it
is hoped the Army would strive for the utmost candor regardless
of whether this court issues an injunction.
What is clear, however, is that Qualls' presently has no
likelihood of success on the merits of his claim in this case,
and "where plaintiff's claims lack merit, it is not in the public
interest for this court to restrain the Army from carrying out
its duty under law and executive order." Id. It is in the
public interest to deny injunctive relief when the relief is not
likely deserved under law.
Qualls has not shown a likelihood of success on the merits.
While he has demonstrated irreparable harm, he has not shown that
the Army would not also suffer harm. The public interest, given
that Qualls has no likelihood of success on the merits, militates
against granting an injunction. For these reasons, and
additionally because Qualls seeks a mandatory injunction, the
court finds that, on balance, the factors weigh against granting
a preliminary injunction.
IV. CONCLUSION AND ORDER
For the foregoing reasons, it is hereby ORDERED that Qualls's
motion for a preliminary injunction is DENIED.