Santiago v. Rumsfeld

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EMILIANO SANTIAGO,  No. 05-35005

Petitioner-Appellant, D.C. No.

v. CV-04-01747-OMP

DONALD H. RUMSFELD, Secretary of ORDER

Defense; LES BROWNLEE, Secretary AMENDING

of the United States Department of OPINION AND

the Army (Acting); RAYMOND  DENYING

BYRNE, Acting Adjutant General of PETITION FOR

the Oregon National Guard; DAVID REHEARING AND

DORAN, Captain, Detachment One, PETITION FOR

Company D, 113 Aviation Unit REHEARING EN

Commander, BANC AND

Respondents-Appellees. AMENDED

 OPINION

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

Amended September 28, 2005

Before: William C. Canby, Jr., Richard C. Tallman, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Canby

13677

13680 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.

ORDER

The opinion filed in this case on May 13, 2005, and

reported at 407 F.3d 1018, is amended as follows:

At page 1022, right column, first new paragraph: modify

the first full sentence so that it states: “It is inappropriate,

however, to imply an intent to exclude when the contract

itself specifies that many laws, only partially listed, affect the

enlistment and that unlisted contingencies may cause an alter-

ation in the contract’s agreed-upon terms.”

SANTIAGO v. RUMSFELD 13681

At page 1022, right column, first new paragraph, to page

1023: delete the material following the citation to Crane and

accompanying parenthetical (deletion to begin with “Santia-

go’s enlistment contract states . . .” ) to the end of the para-

graph on page 1023 (deletion to end with . . . quoted clause

of the enlistment contract.”).

At page 1023, left column, first new paragraph: At the

beginning of the paragraph, delete “In any event” and capital-

ize the following word “the.”

At page 1023, left column, first new paragraph: modify the

second sentence of the paragraph before the block quotation

so that it states: “The contract contains a section with the gen-

eral heading ‘PARTIAL STATEMENT OF EXISTING

UNITED STATES LAWS’ and is introduced by a passage

stating:”.

At page 1023, right column, after the paragraph carried

over from the left column (the paragraph ending . . . trumped

the contrary terms of an enlistment contract)”), add the fol-

lowing new paragraphs:

The statute that authorized the stop-loss order, 10

U.S.C. § 12305, was enacted in 1983. It therefore

was one of the federal laws to which Santiago’s

enlistment contract was subject when he entered it.

As more fully discussed in the next section of this

opinion, section 12305(a) authorized the President to

suspend the laws relating to separation of any mem-

ber of the armed forces under specified conditions of

national emergency. This presidential power was

properly delegated to the Assistant Secretary of the

Army for Manpower and Reserve Affairs, who

entered the stop-loss order suspending the separation

laws on November 4, 2002. The order was dissemi-

nated to personnel on November 21, 2002. See MIL-

PER MESSAGE No: 03-040, TAPC-PDT-PM

13682 SANTIAGO v. RUMSFELD

(hereinafter “MILPER 03-040”). It was therefore

the congressionally-authorized implementation of

§ 12305, a statute that was in effect at the time Santi-

ago signed his enlistment contract, that caused his

term of enlistment to be extended. The contract rec-

ognized that federal statutes would apply to the

enlistment.

It is true that, at the time of Santiago’s enlistment,

the emergency conditions specified by Congress in

section 12305 for suspension of the separation laws

did not yet exist. Those emergency conditions have

since come to pass, however, and their existence is

not contested on this appeal. That being the case,

Congress by section 12305 has authorized the sus-

pension of separation laws. This application of pre-

existing federal law does not violate the terms of

Santiago’s enlistment contract.

Santiago’s enlistment contract contains an even

more explicit warning:

“ ‘Laws and regulations that govern mili-

tary personnel may change without notice

to me. Such changes may affect my status,

pay, allowances, benefits, and responsibili-

ties as a member of the Armed Forces

REGARDLESS of the provisions of this

enlistment/reenlistment document.

Enlistment Doc. § C, ¶ 9(b). The congressionally-

authorized suspension of the separation laws quali-

fies as a “change” in the law within the meaning of

this clause. Without the suspension of those laws,

Santiago would have been entitled to be separated in

due course at the end of his term of enlistment. With

the laws suspended, he could be held under alert and

ordered to active duty beyond the term of his enlist-

SANTIAGO v. RUMSFELD 13683

ment. We conclude that the suspension qualifies as

one of the changes in law that Santiago’s enlistment

contract provided for in § C, ¶ 9(b). That provision

permits the application of the suspension to Santiago

regardless of the term of enlistment specified else-

where in his contract.

At page 1023, right column, in the last sentence before

heading of Section C: change “stop-loss regulation” to “stop-

loss order.”

At page 1024, in the paragraph that continues immediately

after the first block quotation and accompanying citation,

delete the first full sentence and the first four words of the

next sentence (beginning “Pursuant to this statutory authority

. . .” and ending . . . The stop-loss policy provides”) and sub-

stitute the following:

Pursuant to this statutory authority, properly dele-

gated from the President, the Assistant Secretary of

the Army for Manpower and Reserve Affairs, Regi-

nald J. Brown, executed on November 4, 2002, the

stop loss order suspending the laws governing sepa-

ration for Army National Guard units. This stop-loss

policy was implemented on November 21 in a direc-

tive stating:

With these amendments, the Clerk shall file the attached

amended opinion.

The panel has unanimously voted to deny the petition for

panel rehearing. Judges Tallman and Rawlinson have voted to

deny the petition for rehearing en banc, and Judge Canby has

so recommended.

The full court has been advised of the petition for en banc

rehearing and the amendments to the opinion herein. No judge

13684 SANTIAGO v. RUMSFELD

of the court has requested a vote on the petition for rehearing

en banc. Fed. R. App. P. 35(b).

The petition for panel rehearing and the petition for rehear-

ing en banc are denied. No further petitions for panel or en

banc rehearing will be entertained.

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-

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.).

SANTIAGO v. RUMSFELD 13685

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-

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-

13686 SANTIAGO v. RUMSFELD

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-

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

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 13687

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

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.

13688 SANTIAGO v. RUMSFELD

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

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.

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 13689

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 many laws, only par-

tially listed, affect the enlistment and that unlisted contingen-

cies may cause an alteration in the contract’s 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.”).

[2] The enlistment contract clearly contemplates that the

terms of enlistment are subject to existing federal laws and

regulations that may not be spelled out in the contract. The

contract contains a section with the general heading “PAR-

TIAL 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

13690 SANTIAGO v. RUMSFELD

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] The statute that authorized the stop-loss order, 10

U.S.C. § 12305, was enacted in 1983. It therefore was one of

the federal laws to which Santiago’s enlistment contract was

subject when he entered it. As more fully discussed in the

next section of this opinion, section 12305(a) authorized the

President to suspend the laws relating to separation of any

member of the armed forces under specified conditions of

national emergency. This presidential power was properly

delegated to the Assistant Secretary of the Army for Man-

power and Reserve Affairs, who entered the stop-loss order

suspending the separation laws on November 4, 2002. The

order was disseminated to personnel on November 21, 2002.

See MILPER MESSAGE No: 03-040, TAPC-PDT-PM

(hereinafter “MILPER 03-040”). It was therefore the

congressionally-authorized implementation of § 12305, a stat-

ute that was in effect at the time Santiago signed his enlist-

ment contract, that caused his term of enlistment to be

extended. The contract recognized that federal statutes would

apply to the enlistment.

[4] It is true that, at the time of Santiago’s enlistment, the

emergency conditions specified by Congress in section 12305

for suspension of the separation laws did not yet exist. Those

emergency conditions have since come to pass, however, and

their existence is not contested on this appeal. That being the

case, Congress by section 12305 has authorized the suspen-

sion of separation laws. This application of pre-existing fed-

eral law does not violate the terms of Santiago’s enlistment

contract.

[5] Santiago’s enlistment contract contains an even more

explicit warning:

SANTIAGO v. RUMSFELD 13691

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). The congressionally-authorized

suspension of the separation laws qualifies as a “change” in

the law within the meaning of this clause. Without the suspen-

sion of those laws, Santiago would have been entitled to be

separated in due course at the end of his term of enlistment.

With the laws suspended, he could be held under alert and

ordered to active duty beyond the term of his enlistment. We

conclude that the suspension qualifies as one of the changes

in law that Santiago’s enlistment contract provided for in § C,

¶ 9(b). That provision permits the application of the suspen-

sion to Santiago regardless of the term of enlistment specified

elsewhere in his contract.

[6] 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 order as applied to Santiago was authorized by stat-

ute.

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

13692 SANTIAGO v. RUMSFELD

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-

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 . . . .” ).

[7] Section 12305 authorizes the executive branch to imple-

ment a stop-loss policy in order to prevent retirement or sepa-

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).

SANTIAGO v. RUMSFELD 13693

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, properly delegated from the President, the

Assistant Secretary of the Army for Manpower and Reserve

Affairs, Reginald J. Brown, executed on November 4, 2002,

the stop-loss order suspending the laws governing separation

for Army National Guard units. This stop-loss policy was

implemented on November 21 in a directive stating:

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,

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

13694 SANTIAGO v. RUMSFELD

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.

[8] 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.

[9] 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

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.

SANTIAGO v. RUMSFELD 13695

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).

[10] Legislative history does not compel a contrary inter-

pretation 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

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:

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.”).

13696 SANTIAGO v. RUMSFELD

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

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.

SANTIAGO v. RUMSFELD 13697

D. Due Process

[11] 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

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,

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).

13698 SANTIAGO v. RUMSFELD

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.