Thursday, April 7, 2005
Ninth Circuit Declines to Block Reservist’s Deployment to Afghanistan
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals late yesterday upheld a district judge’s denial of an injunction that would have blocked an Oregon reservist’s deployment to Afghanistan.
In a brief order, Senior Judge William Canby and Judges Richard Tallman and Johnnie Rawlinson affirmed the order by U.S. District Judge Owen Panner and denied Emiliano Santiago’s motion for an order blocking the deployment pending further appeals.
The court said it would file its opinion at an unspecified future date.
According to accounts in Oregon newspapers, Santiago, 27, lives in Pasco, Wash., but is a solider with D Company of the Oregon Guard’s 113th Aviation Battalion, based in Pendleton. He signed up for an eight-year tour beginning June 28, 1996, but in April, less than three months before he was scheduled to be discharged, the Army alerted Santiago’s unit that it might be mobilized.
As a result, Santiago’s termination date was extended more than 27 years—to December 2031.
In October, Santiago learned that the Army planned to activate his unit Jan. 2, 2005, and deploy the solider to Afghanistan in early February. He filed the lawsuit Nov. 30.
Under the terms of enlistment, the Army can extend under certain emergency circumstances the tour of National Guard soldiers for up to two years. But Santiago’s lawyer, Steven Goldberg, argued that the Army has to activate the soldier before the enlistment expires.
In Santiago’s case, the Army merely announced its intention to activate him before the end of his tour but didn’t do so until after his term had expired, Goldberg said.
Matthew Lepore, a Justice Department attorney arguing the government’s case, said the stop-loss policy applies to both official active-duty orders and the alerts typically issued to units months before the orders.
In this case, Lepore said, Santiago knew before the end of his contract that the enlistment would be extended.
Goldberg also argued that no further emergency exists with respect to Afghanistan, a position the government disputed. The government also urged the judge to recognize the traditional deference given the military in carrying out its responsibilities to safeguard the nation.
In denying a preliminary injunction, Panner said he thought the military would endure more harm than Santiago if he ruled in the soldier’s favor, essentially agreeing with the government’s argument that thousands of military members who are subject to stop-loss orders might file similar legal challenges.
Similar cases have been filed in several parts of the country. No judge has ruled against the government, but alternative arrangements have been agreed to by the government with some of the reservists who have challenged their orders.
Copyright 2005, Metropolitan News Company