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.
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
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).
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 ...