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Federal appeals court stays out of 'stop-loss program' lawsuit

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Posted: Saturday, April 9, 2005 12:00 pm | Updated: 3:14 pm, Wed Aug 15, 2012.

By Bob Egelko

San Francisco Chronicle

A federal appeals court has refused to interfere with the Armys stop-loss program, under which thousands of soldiers and National Guard members have been sent to Iraq or Afghanistan after their enlistments were scheduled to expire.

Hours after hearing arguments earlier this week, the 9th U.S. Circuit Court of Appeals in San Francisco denied an emergency injunction sought by Sgt. Emiliano Santiago, 27, whose Oregon National Guard unit was ordered to Afghanistan last October, four months after his eight-year enlistment was due to end.

The three-judge panel said it would file an opinion in the coming days explaining its reasons. Meanwhile, Santiago, who had been allowed to remain stateside to await the ruling, was set to go to Afghanistan on Friday, said his attorney, Steven Goldberg, who unsuccessfully sought a stay from the full appeals court on Thursday.

Goldberg said the opinion, when issued, would be the first by a federal appeals court on the legality of stop-loss, under which the Army has extended enlistments and postponed discharges of at least 7,000 soldiers and deployed them to Iraq or Afghanistan. Authorized in times of war and national emergency by a 1983 law, the policy was triggered by President Bushs declaration of an emergency three days after the Sept. 11, 2001, terrorist attacks.

Two other cases are pending nationally, one of them filed by a California Army National Guard member whose one-year enlistment had been scheduled to expire at the end of this month before it was extended last September for another 18 months.

The soldier, a combat veteran identified only as John Doe, was sent to Kuwait in December for deployment in Iraq but has been returned to the United States for medical tests, said his attorney, Michael Sorgen. He said he planned to file an appeal with the 9th Circuit of a ruling last month by a federal judge in Sacramento upholding stop-loss.

Santiago, now of Pasco, Wash., joined the National Guard at 18, as a junior in high school and served in a unit that refuels helicopters. Less than three weeks before his enlistment was to expire last June, he was told that it was being prolonged by stop-loss. After the one-year deployment order to Afghanistan was issued in October, Santiago was told that his enlistment had been extended for 27 years, to 2031.

His suit claimed that the order violated his enlistment contract, which provided for an extension in the event of a war or national emergency declared by Congress and did not mention presidential orders. But government lawyers argued, and a federal judge ruled, that the contract did not limit the Armys authority to extend enlistments under Bushs national-emergency declaration.

Goldberg, part of a National Lawyers Guild team challenging stop-loss orders, said the governments position helped to explain current shortages in military enlistments. Why would someone sign up, he asked, when theyre told that a specific (contract) term may mean nothing?

(E-mail Bob Egelko at begelko(at)sfchronicle.com.)

(Distributed by Scripps Howard News Service, www.shns.com.)

AP-NY-04-08-05 1122EDT

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