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QUALLS v. RUMSFELD

February 7, 2005.

DAVID W. QUALLS, et al., Plaintiffs,
v.
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 [5] for Preliminary Injunction. For the reasons stated herein, the court denies this motion.

I. BACKGROUND

  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 ยง 12305, the so-called "stop-loss" statute.

  On December 6, 2004, Qualls and seven other servicemen subject to involuntary Page 2 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 (D.D.C. 2003). Page 3

  III. ANALYSIS

  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 Page 4 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 ...


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