Court of Appeals denies soldier’s request

SEATTLE – A panel of the 9th U.S. Circuit Court of Appeals on Wednesday upheld a District Court’s decision denying a request by an Oregon National Guard soldier to delay his deployment to Afghanistan.

The court ruled just hours after hearing Sgt. Emiliano Santiago’s request. He ultimately seeks release from the Army since he has satisfied his initial eight-year enlistment.

As part of his lawsuit, he’s also challenging a military policy that has extended his term of service until 2031.

Santiago, of Pasco, is to be deployed Friday.

His lawyer, Steven Goldberg, asked the three-judge panel to overturn a decision by a District Court judge in Oregon, who denied a motion for a preliminary injunction.

The appellate panel sided with the Oregon judge.

“The appellant’s urgent motion for injunction pending appeal, which seeks to enjoin his deployment to Afghanistan, is denied,” the panel wrote. “The judgment of the District Court is affirmed.”

Following the decision on Santiago’s case, Goldberg said Wednesday afternoon that he will ask the entire 9th Circuit to reconsider the case.

Santiago, 27, is assigned to the Oregon Guard’s 113th Aviation Battalion.

He’s challenging the military’s policy that extended his eight-year enlistment, which he signed in 1996 at age 18.

At the heart of the issue is the Defense Department’s “stop-loss” rule, which allows the president to extend enlistments during war time or national emergencies.

The program affects thousands of American soldiers and has allowed many military personnel to remain in Iraq and Afghanistan despite having fulfilled their enlistment terms.

By the time Santiago’s enlistment was up June 27, 2004, “there was no national emergency,” Goldberg said in arguments Wednesday morning at the University of Washington School of Law.

He also argued that Santiago wasn’t given sufficient notice of a possible deployment, saying he would have had to be activated prior to completing his service. Although the Army alerted Santiago’s unit in April 2004 that it might be mobilized, he wasn’t called up until October 2004.

The Justice Department, however, countered that neither the government nor the military is required to give notice that enlistments might be extended. Attorney Thomas Byron said the stop-loss policy nullifies terms of enlistment and gives the president authority to call on soldiers beyond their set service dates.

Byron asked the court to uphold a ruling by U.S. District Judge Owen M. Panner, who said he thought the military would endure more harm than Santiago if the judge 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.