Petition for Writ of Certiorari — Sherman v. United States

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1991

CRAIG L. SHERMAN, PETITIONER

V.

UNITED STATES OF AMERICA, ET AL,

RESPONDENTS

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ROGER LEE SHERMAN

COUNSEL OF RECORD

9306 WEST 87TH TERRACE

OVERLAND PARK, KS 66212

913/642-4809

ATTORNEY FOR PETITIONER

1/A

ae

QUESTION PRESENTED

Whether Petitioner should be

discharged from the United States Air

Force Reserve. On February 4,1991, the

decision of the United States District

Court held Petitioner had no Reserve

obligation. The eo ry contrary to

the District Court’s decision, placed

Petitioner in the Reserves to serve until

May 28, 1994. Petitioner appealed. The

Eleventh Circuit Court of Appeals on

August 20, 1991, held the issue of

petitioner’s discharge was not before them

and affirmed the decision of the District

court on September 16, 1991.

PETITIONER:

RESPONDENTS:

PARTIES :

Craig L. Sherman

United States of America;

Richard Gillis, Major

General, Commander of

Warner Robins Air Logistic

Command; Michael C.

Moehlencamp, Colonel,

Commander of 5th Combat

Communications Group; and

Donald B. Rice, Secretary

of the Air Force.

PE en

TABLE OF CONTENTS

i heb ewes ee ee enweseses

Jurisdiction...... a a er ea

Constitutional Provision Involvement.

poeuememe OF CRO COBO. oc ccccceccese ee

Reason for Granting the Writ..... ee

Cia Sebins Ca bb 60 00 08 6664-40 6-3 .

TABLE OF AUTHORITIES

Constitutional Provisions

Article I. Section 9, clause 2..

Statutes

oe ©.8.C. Section 1254(1)....- is

Be MebeC. SOCEION 2241..ccccccee

Be SiateoGe SSCCiOn 90O(D)..cccccee

Regulations

ae Gereme £1.6(5) (1990 @d) cece

Cases

Federal Dept. Stores Inc. v.

Moitie 452 U.S. 394, 69 L. Ed

2d 103, 101 S.Ct. 2424 (1981) ..

iii

17

19

17

OPINIONS OF COURTS BELOW

Petitioner filed a Writ a Habeas

Corpus

United

States

issued

The wr

to obtain a discharge from the

States Air Force. The United

District Court at Macon, Georgia,

a decision on February 4, 1991.

itten decision of the District Court

held that the Petitioner had no Reserve

obliga

decisi

tion. The pertinent part of the

on reads as follows:

"The petitioner, Craig L. Sherman,

is a sergeant in the United States

Air Force. He enlisted for an

eight-year term in the Air Force

Reserve and agreed to serve on

active duty for not less than four

years. This was later changed so

that he was to serve four years’

active duty only. He entered active

duty on November 28, 1986 and was

assigned to the 5lst Combat

Communications Squadron, 5th Combat

Communications Group at Robins Air

Force Base, Georgia. His term of

active duty was to expire on

November 27, 1990."

Thereafter on May 25, 1991, the

Respondents placed Petitioner in the Air

Force Reserves to serve until May 28,

1994. The Eleventh Circuit Court of

Appeals held in their written decision on

August 20, 1991, that the issue of

Petitioner’s discharge was not litigated

in the District Court, therefore, not

before them and dismissed the appeal. The

Appellate Court’s decision reads as

follows:

"We find that the matters relating

to appellant’s discharge from the

Air Force were not litigated in the

district court; therefore, we do not

consider them here, on appeal. All

eR eT TT

other issues in the case are moot."

On September 16, 1991, the Appellate

Court affirmed the decision of the :

District Court.

JURISDICTION

The judgment of the Eleventh Circuit

Court of Appeals dismissing the appeal was

entered August 20, 1991. The judgment of

the Eleventh Circuit Court of Appeals

affirming the judgment of the District

“Court was filed September 16, 1991. The

jurisdiction of the United States Supreme

Court for the Writ of Certiorari is

invoked pursuant to 28 U.S.C section

1254(1).

CONSTITUTIONAL PROVISION INVOLVED

This case involves Article I, Section

9, Clause 2 of the United States

Constitution. Said section reads as

follows:

"The Privilege of the Writ of Habeas

Corpus shall not be suspended unless

when in Cases of Rebellion or

Invasion the public Safety may

require it."

STATEMENT OF THE CASE

Petitioner filed a Writ of Habeas

Corpus in the United States District Court

at Macon, Georgia on January 25, 1991.

The District Court had jurisdiction

pursuant to 28 U.S.C. section 2241.

Petitioner and the appropriate Respondents

were within the territorial jurisdiction

of the District Court 28 U.S.C. section

-4-

90(b). The purpose of the Writ was for

the Petitioner to obtain an honorable

discharge from the United States Air

Force. Petitioner was on active duty in

the United States Air Force at the time he

filed the Writ of Habeas Corpus.

Respondents had involuntarily extended

Petitioner’s contract of active duty

enlistment for an indefinite period due to

the war in the Middle East (Desert Storm).

Petitioner’s contract of enlistment had

expired on November 27, 1990 and

Petitioner had no Reserve obligation. At

the trial in the District Court the

Petitioner testified as to the Reserve

Obligation as follows:

Q. Mr. Sherman, I’1l hand you what

has been marked plaintiff’s

exhibit 1. What is that, Mr.

Sherman?

A. This is an enlistment contract.

-5-

And how many pages did I hand

you.

Two pages.

And Mr. Sherman, have you seen

this document before?

Yes, I have.

And on the back of that first

page, I believe, is that your

signature?

Yes it is.

And that is dated what?

May 29th, 1986.

All right. Is that when you

Signed that?

Yes, it is.

THE COURT: Excuse me just a

second. I thought I had a

copy. In fact, I Know I’ve

seen it, but I can’t find it

now.

MR. SHERMAN: Let me hand you a

copy here, Your Honor.

THE COURT: Oh, here it is.

Excuse me. I’ve got it.

MR. SHERMAN: I don’t Know that

you have both pages.

THE COURT: All right.

MR. SHERMAN: I will also

provide counsel with those

pages.

By Mr. Sherman: And what was

your understanding when you

signed that contract of your

obligation to the United States

Air Force?

Four years active duty service.

When you signed it on May of

1986, was it then a four year:

No, it wasn’t.

What was it?

EMEP: | ern metre

It was an eight year Reserve

commitment.

Was it your understanding that

that would change as time went

on?

Yes. It was my understanding

that when I enlisted in active

duty service that would change.

What would it change to?

A four year active duty

commitment.

And would you have any Reserve

to serve after that?

No.

All right. I point out to you

that on that first page there

on Number 8, it does state an

eight year commitment in the

reserves; is that right?

That’s right.

And that’s the paragraph Number

8; is that true? You’ll have

to say yes or no.

Yes.

And then, Mr. Sherman, on that

second page that I handed you,

is that your signature on that

second page?

Yes, it is.

And by your signature, is

that--what is the date?

Tell me what subsection.

No, what is the date by your

Signature?

May, 29th 1986.

I’m on the second document.

All right.

THE COURT: Can you hear the

witness? Mr. Goulian can you

hear him all right?

MR. GOULIAN: I can hear him.

-9-

Q.

THE WITNESS: Paragraph 20(a)?

Paragraph 20(a)(b).

MR. SHERMAN: May I approach

the witness and point out the

paragraph, Your Honor?

THE COURT: Yes, and you are

going to have to do it for me.

| Mine stops with 19(a).

(Counsel approaches witness)

THE COURT: All right. Go

ahead.

BY MR. SHERMAN: And what is

the date by your signature on

that 20(a)?

November 28th, 1986.

So you signed the document

first in May of 1986; is that

right?

Yes.

And is this the one that states

that you went in for four

years?

-10-

Yes.

And it does state that in

20(a), to your opinion

Yes.

And then in 21(a), what does

that state?

That I am discharged from the

Reserve Component shown in Item

8 and accepted in regular

order, United States Air Force.

Now, then that says Reserve

Component shown in Item 8?

That’s right.

Is that what Item 8 on that

first page that you talked

about where your signature was

in May?

Yes.

Okay. So that is the one, the

paragraph that says you have an

eight year commitment to the

-ll-

Reserves and then on the next

page where it says you are

discharged from that eight year

commitment; is that your

understanding?

Yes.

You have no Reserve commitment

after you have served your four

years in the regular Air Force;

is that your understanding?

Yes.

MR. SHERMAN: Offer into

evidence, Your Honor,

Petitioner’s Exhibit 1.

THE COURT: Mr. Goulian, any

objections?

MR. GOULIAN: Your Honor, I

don’t have any cross because I

think everything he said is

irrelevant to the proceedings.

-12-

THE COURT: Do you have any

objection to his tendering of

this enlistment contract?

Mr. GOULIAN: No, no objection.

THE COURT: How many pages is

it?

MR. SHERMAN: Let the record

show that this is a two-page

document, but there is printing

on both sides. So when the

copies are made, there are four

copies.

THE COURT: All right. Make

sure yours and mine--all right.

Plaintiff’s Exhibit 1,

Petitioner’s Exhibit 1 is

admitted without objection.

In accordance with the testimony the

District Court on February 4, 1991 issued

its judgment which reads in pertinent part

as follows:

-13-

"The petitioner, Craig L. Sherman,

is a sergeant in the United States

Air Force. He enlisted for an

eight-year term in the Air Force

Reserve and agreed to serve on

active duty for not less than four

years. This was later changed so

that he was to serve four years’

active duty only. He entered active

duty on November 28, 1986, and was

assigned to the 5lst Combat

Communications Squadron, 5th Combat

Communications Group at Robins Air

Force Base, Georgia. His term of

active duty was to expire on

November 27, 1990."

Although the District court ruled in

favor of the Petitioner that (1) his

contract of enlistment expired on November

27, 1990, and (2) he had no Reserve

obligation, the District Court denied the

-14-

petitioner a discharge holding the

President had authority to involuntarily

extend enlistments due to the war in the

Middle East. Further, the District Court

judgment reads in pertinent part as

follows:

" If the law were clear that

Petitioner is entitled to be

discharged, then this court would

order him discharged."

The Petitioner appealed the judgment

of the District Court. The Respondents

did not appeal the District Court

judgment. Before Petitioner’s appeal came

to a hearing in the Eleventh Circuit Court

of Appeals, the Middle East war ended.

Respondents issued Petitioner an Honorable

Release from active duty beginning May 25,

1991, but placed Petitioner in a Reserve

obligation until May 28, 1994. The

Petitioner presented only one issue at the

-15-

ooo

appeal hearing held August 14, 1991, and

that issue was "Whether petitioner is

entitled to an honorable discharge upon

release from active duty." The term

discharge is defined at 32 CFR 41.6(b)

(1990 ed) as complete severance from all

military status gained by the enlistment

or induction concerned. On August 20,

1991, the appellate court in its written

decision held:

"We find that the matters relating

to appellant’s discharge from the

Air Force were not litigated in the

district court; therefore, we do not

consider them here, on appeal. All

other issues in the case are moot."

The appellate court’s written judgment

filed September 16, 1991, affirmed the

District court decision. Although the

District Court held the Petitioner had no

-16-

Reserve Obligation, the Appellate Court

refused to discharge the Petitioner from

the Reserves.

REASON FOR GRANTING THE WRIT

This case should be heard by the

United States Supreme Court because the

Petitioner has no other remedy. This case

is Res Judicata as to all courts of the

United States except this Supreme Court.

Federal Dept. Stores Inc. v. Moitie 452

U.S. 394,69 L. Ed 2d 103, 101 S. Ct. 2424

(1981)

The Federal District court has ruled

the Petitioner has no Reserve obligation.

In disregard of the District court ruling

the Respondents placed Petitioner ina

Reserve obligation until May 28, 1994.

The Court of Appeals affirmed the District

Court decision. The District court

decision therefore remains valid and,

-17=<

therefore Petitioner has no Reserve

obligation. Petitioner has no means to

enforce the District Court decision except

by this petition to the United States

Supreme Court.

Furthermore, the Eleventh Circuit

Court of Appeals was in error in their

judgment that the issue of Petitioner’s

discharge was not tried in the District

Court. The entire proceeding on the Writ

of Habeas Corpus before the District Court

was on the issue of Petitioner’s discharge

as evidenced by the wording of the

judgment of the District Court.

Counsel of Record

9306 West 87th Terrace

Overland Park, KS 66212

913/642-4809

Attorney for Petitioner

-18-

APPENDIX

Judgment dated February 4, 1991, of

the United States District Court for

the Middle District of Georgia.

Judgment dated August 20, 1991, of

the Eleventh Circuit Court of

Appeals.

Judgment filed September 16, 1991,

of the Eleventh Circuit Court of

Appeals.

-19-

IN THE UNITED STATES DISRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

CRAIG L. SHERMAN, :

Plaintiff, :

vs. : CIVIL ACTION

UNITED STATES OF AMERICA, : NO. 91-33-3-

ET AL., : MAC (DF)

Defendants. :

JUDGMENT

Pursuant to the order of this court

which was dated and filed February 4,

1991, and for the reasons stated therein,

the petition for a writ of habeas corpus

is denied.

Judgment is therefore entered in

favor of the defendants.

This 4th day of February, 1991.

GREGORY J. LEONARD, Clerk

By: (SIGNED)

Filed at 5:28 p.m. Elaine W. Jones

February 4, 1991 Deputy Clerk

Deputy Clerk

U.S. DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

CRAIG L. SHERMAN, :

Petitioner, :

vs. :CIVIL ACTION

UNITED STATES, et al., :FILE NO.

Respondents :91-33-3-MAC (DF)

FITZPATRICK, District Judge

This petition for a writ of habeas

corpus presents the court with an

important question concerning the armed

forces at a time when our nation is

engaged ina war in the Middle East. More

specifically, the issue is whether the

President has the authority under 10

U.S.C. Section 673c to involuntarily

extend the term of enlistment for an

active member of the Air Force. The court

holds that he does, and so the petition is

DENIED.

I. BACKGROUND

The petitioner, Craig L. Sherman, is

a sergeant in the United States Air Force.

He enlisted for an eight-year term in the

Air Force Reserve and agreed to serve on

active duty for not less than four years.

This was later changed so that he was to

serve four years’ active duty only. He

entered active duty on November 28, 1986,

and was assigned to the 5lst Combat

Communications Squadron, 5th Combat

Communications Group at Robins Air Force

Base, Georgia. His term of active duty

was to expire on November 27, 1990.

An unforeseeable series of events

intervened. On August 2, 1990, Iraq

invaded and occupied Kuwait. On that same

day, President George Bush issued

Executive Order 12722, declaring a

national emergency. Executive Order

12728, issued on August 22, delegated the

-2-

President’s authority under 10 U.S.C.

Section 673c to the Secretary of Defense.

That same Order allows the Secretary of

Defense to redelegate this authority

without the approval of the President.

The Secretary passed this power to the

Secretary of the Air Force, who in turn

delegated it to the Assistant Secretary

for Manpower, Reserve Affairs,

Installations and Environment, who then

announced the suspension of those

provisions of law and Air Force policy

relating to the separation, retirement and

promotion of personnel deemed to be in an

essential category by the Secretary of

Defense. This same procedure was followed

with later executive orders authorizing

the calling up of other reserve units and

the extension of their terms of service.

This plan, known as a "Stop Loss"

program, originally applied to personnel

with dates of separation or retirement

-3-

between October 2 and December 31, 1990,

although the latter date was given as

tentative in an announcement of September

17, 1990. This same announcement

identified those personnel whose units or

Air Force Specialty Codes (AFSC), which

are numerical designations of job titles,

were essential to national security and

therefore subject to the Stop Loss

program. A later statement extended Stop

Loss indefinitely past December 31 and

deleted Petitioner’s AFSC from the list of

critical skills, although his unit

remained designated as essential. After

the deadline declared by the United

Nations for Iraq to leave Kuwait passed on

January 15, war began on the next day. A

January 25, 1991, announcement removed

Petitioner’s unit from the list of

‘critical units but adding his AFSC back to

the list of critical skills.

-4-

These events had a direct impact on

the Petitioner. His unit was shipped to

Saudi Arabia on August 16, 1990, but he

was left behind due to a broken finger.

Before the Stop Loss program was

implemented he volunteered, for

unexplained reasons, to rejoin his unit,

but permission was denied since he had so

little time left on his enlistment

contract and did not wish to extend it.

After the Stop Loss order went into

effect, Petitioner in the latter part of

October or the first of November orally

applied for a hardship waiver, which was

denied. He then took three weeks’ leave

to be married. After receiving his second

Stop Loss order, Petitioner filed a

written request for a waiver on January

10, 1991, and then again went on leave,

returning on January 25, the same day this

petition was filed. On January 28,

-5-

Petitioner received notice that his second

request was also denied and that he was

shortly to be shipped overseas.

Since this is a matter requiring the

immediate attention of this court due to

the fact that Petitioner’s orders have

already been sent directing him to depart

Robins Air Force Base for duty with

Operation Desert Storm in the Kingdom of

Saudi Arabia on February 8, 1991, the

court will not delay its ruling on the

writ of habeas corpus and will instead

issue its order forthwith.

I1l. DISCUSSION

The first issue raised by the

Petitioner concerns which statute controls

his case. He contends that the

controlling statute is 50 App. U.S.C.

Section 454(c)(1), which forbids

involuntary extensions of enlistments

without a declaration of war or national

-6-

emergency by Congress, while the

government relies on 10 U.S.C. Section

673c (West Supp. 1990). The court is

persuaded that Section 673c controls, in

part because it was enacted at a later

date, and the court is willing to believe

that Congress was well aware of the

existence of Section 454 while considering

Section 673c, and so took the older

statute into consideration. Contrary to

Petitioner’s claims, the court finds that

Section 673c acts as a specific exception

to the prohibition on involuntary

extensions found in Section 454, a broader

and more general statute. Section 673c

therefore controls this case.

The question to be decided by the

court is whether section 673c gives the

President the authority to extend the

enlistment of an active duty Air roree

enlisted man as well as a member of the

=Je

a eer

Air Force Reserve. The statute reads:

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 672, 673 or 673b 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.A. Section 673c(a) (West Supp.

1990). (Sections 672, 673 and 673b, to

which the statute refers, concern reserve

components generally, the ready reserve

-8-

and selected reserve, respectively.) The

answer to the question asked above is

"yes."

The Petitioner contends that since

the statute begins by referring to members

of a reserve component, the rest of it

must be read to concern the reserves only.

This court cannot, however, read the

statute in that manner. Although the

statute begins by referring to the

reserves, it ends by referring to "any

member of the armed forces who the

President determines is essential to the

national security of the United States."

A more logical reading would lead to the

conclusion that Congress intended to

provide for the authority of the President

to extend the enlistment of members of the

armed forces, regular or reserve, if and

when "members of a reserve component are

serving on active duty pursant to an

-9-

order to active duty." The statute ends

after stating that the President may

Suspend any provision of law relating to

separation applicable to any member of the

armed forces who the President determines

is essential to national security.

The legislative history of the

statute clearly indicates the will of

Congress by the use of the following

language:

"The effectiveness of the

President’s call-up authority is

weakened furher by the normal

separation or retirement of

regular and reserve personnel.

At the very time that he has

augmented the active forces to

respond to a crisis, the

President lacks the authority to

prevent the loss of regular and

reserve personnel who become

-10-

eligible to separate or retire

from the military services....

Sen. No. 98-174, 98th Cong., lst Sess, 2,

reprinted in 1983 U.S. Code Cong. & Admin.

News, 1081, 1098 (emphasis added).

The Petitioner has also challenged

the determination that he is essential to

national security as required by the

statute. The court is not willing to

challenge this finding. In a time of war,

the military decisions made by the

President and the executive branch carry a

special weight. Such decisions have been

left to the discretion of the President by

the very language of #ction 673c, and

this court would be overstepping its

bounds to challenge such a decision.

Moreover, although Petitioner has labored

mightily to show that he is not essential,

the government has presented convincing

evidence that he is.

-ll-

Furthermore, adopting the

Petitioner’s reading of Section 673c would

lead to an illogical and inequitable

result. It would make little sense to say

that the President is allowed to call up

or extend the enlistments of reservists in

case of war but that he cannot do so for

active duty personnel. Although the

Petitioner has claimed that extending his

enlistment would cause him undue hardship,

this court is well aware of the even

greater hardships experienced by members

of the reserves who have been taken away

from their families and civilian careers.

In a time of war it would be terribly

unfair and unreasonable to allow such

disruptions to affect reservists, but not

members of the regular armed forces.

In -a nutshell, the Petitioner has

asked this court to order the termination

of his contract as an enlisted man in the

-l12-

United States Air Force in time of war, a

decision which would trigger lawsuits and

Claims by other military personnel

Similarly situated and bring chaos to

orderly military planning. If the law

were clear that the Petitioner is entitled

to be discharged, then this court would

order him discharged. In this opinion of

this court, however, the law does not

favor the Petitioner and it would be

unreasonable to read the statute that way.

The language of the statute, its

legislative history, the discretionary

decisions made by the executive branch and

basic notions of fairness all convince the

court that the Petitioner’s case must

fail. Accordingly, the petition for a

writ of habeas corpus is DENIED.

-ji3-

SO ORDERED, this 4th day of February,

1991.

(signed) —. |

DUROSS FITZPATRICK, JUDGE

UNITED STATES DISTRICT COURT

MEM/bb

-14-

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 91-8204

D. C. Docket No. CIV91-33-3-MAC (DF)

CRAIG L. SHERMAN,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA;

RICHARD GILLIS, Major General,

Commander of Warner Robins Air

Logistic Command; MICHAEL C. MOEHLENKAMP,

Colonel, Commander of 5th Combat |

Communications Group and DONALD B. RICE,

Secretary of Air Force,

Respondents~Appellees.

Appeal from the United States District

Court for the Middle District of Georgia

(August 20, 1991)

Before TJOFLAT, Chief Judge, HATCHETT,

Circuit Judge, and HENDERSON, Senior

Circuit Judge.

PER CURIAM:

We find that the matters relating to

appellant’s discharge from the Air Force

were not litigated in the district court;

therefore, we do not consider them here,

on appeal. All other issues in the case

are moot.

AFFIRMED.

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 91-8204

D. C. Docket No. CIV91-33-3-MAC (DF)

CRAIG L. SHERMAN,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA;

RICHARD GILLIS, Major General,

Commander of Warner Robins Air

Logistic Command; MICHAEL C. MOEHLENKAMP,

Colonel, Commander of 5th Combat

Communications Group and DONALD B. RICE,

Secretary of Air Force,

Respondents~Appellees.

Appeal from the United States District

Court for the Middle District of Georgia

Before TJOFLAT, Chief Judge, HATCHETT,

Circuit Judge and HENDERSON, Senior

Circuit Judge.

JUDGMENT

This cause came to be heard on the

transcript of the record from the United

States District Court for the Middle

District of Georgia, and was argued by

counsel ;

ON CONSIDERATION WHEREOF, it is now

hereby ordered and adjudged by this Court

that the judgment of the said District

Court in this cause be and the same is

hereby AFFIRMED.

Entered: August 20, 1991

For the Court: Miguel J. Cortez, Clerk

By: /sS/ Karleen McNabb

Deputy Clerk

ISSUED AS MANDATE; Sept. 16, 1991