Orville TAYLOR v. UNITED STATES of America, Appellant.
No. 82-1452
United States Court of Appeals, Third Circuit.
Decided June 21, 1983.
Rehearing and Rehearing In Banc Denied July 21, 1983.
711 F.2d 1199
Argued May 31, 1983.
The purposes for which New York required Dr. Doe to maintain patient files were too remote from the subject of the Government‘s investigation to justify abrogation of what would otherwise have been his constitutional privilege against compelled production of his own papers over his claim of self-incrimination. The subpoenas should have been modified accordingly.
Stanley M. Shingles, Philadelphia, Pa., for appellee.
Before GIBBONS and BECKER, Circuit Judges, and WEBER, District Judge.*
sitting by designation.
GIBBONS, Circuit Judge.
The United States appeals from a judgment of the district court ordering the release of Orville Taylor from military custody and restraining the government from surrendering him to the government of Spain for service of a sentence. We affirm.
I.
Mr. Taylor began a four year enlistment in the United States Navy in December 1973. He later executed a two-year voluntary extension of enlistment. Thus his term of voluntary enlistment was scheduled to terminate on December 30, 1979. In October of 1977, while Taylor was assigned to the naval base at Rota, Spain, he was involved in an off-base automobile accident which resulted in the death of a Spanish citizen. Pursuant to Policy Directive 110.5, Joint U.S. Military Group—Military Assistance Advisory Group, which implements the Agreement of Friendship and Cooperation between the United States and Spain of August 6, 1970, Mr. Taylor was immediately placed on legal hold status pending a decision as to whether he would be subject to the jurisdiction of the Spanish authorities. In that status, notice of which he acknowledged in writing on October 18, 1977, Taylor would not be transferred from or permitted to leave Spain without prior approval of the Commander, U.S. Naval Activities, Spain. The United States requested Spain to waive its right to exercise jurisdiction in favor of the United States, but Spain declined. Thus no military charges were pressed against Taylor. On August 7, 1978 he was criminally indicted by the Spanish authorities for involuntary manslaughter. Pursuant to Article XVIII of the January 24, 1976 Agreement in Implementation of the Treaty of Friendship and Cooperation, 27 U.S.T. 3095, 3116, T.I.A.S. No. 8361, the United States Naval authorities requested and were granted responsibility for Taylor‘s custody pending disposition of this charge. On July 16, 1979 Taylor was found guilty. Thereafter he was sentenced to eighteen months in prison and assessed civil damages of $15,500.00. Taylor appealed, but a Spanish appellate court affirmed his sentence.
Upon affirmance of the conviction on November 6, 1980 the Spanish authorities requested the United States Naval authorities to deliver Taylor on November 7, 1980 for service of his sentence. Meanwhile, however, the term of Taylor‘s extended voluntary enlistment had expired. He remained at the naval base at Rota and continued to receive military pay and benefits. There is a factual dispute over whether or not he requested a formal discharge, but it is undisputed that he was never formally discharged. Instead, the Navy authorized a voluntary extension of Taylor‘s term of enlistment, and, on January 22, 1980, he refused to execute it. Thereafter, the Navy purported, unilaterally, to extend the term of his enlistment involuntarily. That action was taken pursuant to Article 3840260(5)(h) of the Bureau of Naval Personnel Manual (BUPERSMAN) which reads:
5. Under certain conditions members may legally be retained beyond the date of expiration of enlistment or other period of obligated service, either voluntarily or involuntarily until discharge, release to inactive duty, or transfer to the Naval Reserve and release to inactive duty, is accomplished. When a member is retained in service beyond expiration of enlistment, or other period of obligated service, entry as to the reason and authority for the retention shall be made on the appropriate page of the member‘s service record and signed in accordance with this Manual. Enlisted members may be held beyond expiration of their enlistment or other period of obligated service for any of the following reasons:
* * * * * *
h. As a result of apprehension, arrest, confinement, investigation, or filing of charges that may result in a trial by court-martial, and continues for all purposes of trial by court-martial and the execution of any sentence thereof. Further, it continues by reason of any of the aforementioned actions that are taken by civil authorities, that may result in trial, because of any offense committed within the criminal jurisdic
tion of the civil authority concerned, by a member, prior to a legal discharge or separation, although the term of enlistment or obligated service may have expired. In those circumstances, the member may be retained in the service for trial and punishment by civil authorities after the member‘s period of obligated service would otherwise have expired....
Before the Navy could turn Taylor over to the Spanish authorities he fled the country. The Spanish authorities issued a fugitive warrant,1 and the Navy listed him as a deserter in violation of
On May 24, 1982 the Richmond, Virginia police, checking Taylor‘s record after a traffic violation, discovered that he was sought as a deserter and turned him over to the Navy. He was transferred to the Navy Brig, Naval Station, Philadelphia, to await transfer to Rota and surrender to Spanish custody. On June 9, 1980 Taylor filed suit in the district court, alleging an unconstitutional detention and seeking injunctive and declaratory relief to prevent his return to Spain. The trial court issued a temporary restraining order, which was extended several times. On June 30 an evidentiary hearing was held, and on July 15, 1982 a final judgment was entered granting an injunction against Taylor‘s return to Spain and ordering his release. A panel of this court stayed the order for his release. Prior to the entry of the stay, however, Taylor posted bail and was released from physical custody by the Navy. A stipulation was subsequently executed by the parties and approved by the district court which provided that Taylor would remain free on bail in a leave without pay status from the Navy until a final ruling by this court.
II.
The United States has three objections to the district court order, one procedural and two substantive.
A. The Procedural Objection
The United States contends that the district court acted improperly when, following the June 30, 1982 hearing on Taylor‘s application for a preliminary injunction, the court proceeded to enter a final judgment. Although the trial court has authority to consolidate a hearing on an application for a preliminary injunction with the trial on the merits,
The government also contends, however, that it was prejudiced in presenting its factual claim that Taylor is estopped from challenging the Navy‘s authority to extend his enlistment involuntarily. The only disputed issue of fact the government has pointed to is the question of whether Taylor requested a formal discharge. Taylor says that he did, and that the Navy refused to process the request. The Navy denies that he made it. We conclude that this issue is not dispositive on any principle of estoppel.
It is undisputed that Taylor voluntarily refused to extend his enlistment and that the Navy acted unilaterally. The facts as to Taylor‘s conduct after the Navy acted unilaterally are undisputed. The Navy asserted its authority to detain him, and he drew pay during the period in which he submitted to that detention. When he lost his appeal, Taylor fled from Spain. These are the only facts relevant to the issue of involuntary extension, and they do not estop Taylor in this case.
Thus we can only set aside the trial court‘s actions in these respects if the United States can show that it was prejudiced
B. The Substantive Objections
1. The Involuntary Extension of Enlistment
The government contends that Taylor is still an enlistee in the Navy because its unilateral involuntary extension of enlistment was lawful. That contention requires consideration of the several sources of authority on which the government places reliance.
a. Title 10
Under
b. The Treaty With Spain
The government implicitly acknowledges the lack of express statutory provision for such extensions but contends that the necessary authority is derived from article XVIII of the Agreement in Implementation of the Treaty of Friendship and Cooperation of January 24, 1976 between Spain and the United States, 27 U.S.T. 3095, T.I.A.S. No. 8361, which states in part:
3. The custody of a member of the United States Personnel in Spain, who is legally subject to detention by the military authorities of the United States and over whom Spanish jurisdiction is to be exercised, shall be the responsibility of the United States military authorities, at their request, until the conclusion of all judicial proceedings, at which time the member will be delivered to Spanish authorities at their request for execution of the sentence. Nevertheless, at the conclusion of a trial at which the sentence of the court includes confinement for more than one year, the member shall, if ordered by the judge of the court, be delivered to the Spanish authorities for execution of the sentence even if the verdict of the trial is being appealed. During periods of custody by the United States military authorities, those authorities, within the legal powers given them by the military law of the United States, shall give full consideration to the decisions of the competent Spanish authorities regarding conditions of custody. The United States
military authorities shall guarantee his immediate appearance before the competent Spanish authorities in any proceedings that may require his presence and, in any case, his appearance at the trial.
27 U.S.T. at 3116-17.
Assuming that the agreement is an exercise of Congressional article I, section 8, clause 14 power,2 the validity of the government‘s assertion depends on whether a servicemember such as Taylor whose term of enlistment has expired but who has not received a discharge is “a member of the United States Personnel in Spain [] who is legally subject to detention by the military authorities of the United States....” Under the terms of the Agreement, United States Personnel include military personnel that are stationed in or that visit Spain; civilian employees; employees of organizations which accompany the armed forces, such as the American Red Cross and the USO; and the dependents of any individuals in these categories. 27 U.S.T. at 3098-100. According to the government, the phrase “legally subject to detention” has both a descriptive and a substantive meaning. As to nonmilitary personnel, the phrase merely acknowledges that there must be a legal basis for detention independent of the treaty. As to military personnel, however, this phrase supposedly confers the substantive authority to detain servicemembers who are subject to Spanish jurisdiction. See Government Brief at 16-22.
Such a double reading runs counter to all normal rules governing the interpretation of contracts. The government attempts to bolster its argument by referring to the intent of the two parties—Spain and the United States—to this Agreement. Thus, the government points to the privileges and protections which the United States obtained for servicemembers subject to foreign jurisdiction in exchange for the obligation to surrender such members at appropriate times during the course of Spanish proceedings. As a result, according to the government, “[i]t is clear that neither the United States nor Spain contemplated that such obligation, once assumed, would be defeated by the mere expiration of the serviceman‘s term of enlistment....” Government Brief at 20. But this conclusion, whatever its validity as a statement of the parties’ unarticulated intent, in no way follows from the quid pro quo which is evident in the language of article XVIII. The obligation to surrender a servicemember is not defeated by the expiration of a term of enlistment. The Navy must merely find another legally sufficient basis for detaining the member, or acknowledge its lack of authority and surrender the member to the Spanish authorities. Such a reading does not threaten the obvious intent of the United States to extend the privileges and protections of its custody to those who are subject to its jurisdiction and, unlike the government‘s reading, does no violence to the plain meaning of article XVIII.3 The Navy could and probably should have surrendered Taylor to the Spanish authorities prior to the expiration of his voluntary enlistment. Article XVIII of the treaty justifies naval custody of servicemembers only when there is an independent legal basis for such detention. See Amidon v. Lehman, 677 F.2d 17, 19 (4th Cir.1982).
c. Implicit Navy Rulemaking Authority
We next consider whether the validity of regulations such as BUPERSMAN
The Regulations, however, provide that Navy officers and officials may promulgate regulations concerning matters over which they have supervision and control.
d. The Inherent Nature of an Enlistment Contract
The government also argues that involuntary extensions of enlistment are permissible under the caselaw which defines the nature of enlistments. Like marriage, an enlistment is a contract which changes status. In re Grimley, 137 U.S. 147, 152, 11 S.Ct. 54, 55, 34 L.Ed. 636 (1890). The government points out that the breach or expiration of this contract does not result in automatic discharge. Garrett v. United States, 625 F.2d 712, 713 (5th Cir.1980), cert. denied, 450 U.S. 918, 101 S.Ct. 1363, 67 L.Ed.2d 344 (1981). “But [the 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.” Pfile v. Corcoran, 287 F.Supp. 554, 556-57 (D.Colo.1968). Thus, for example, while a soldier is barred by the Feres doctrine from recovering damages under the
Such factual issues are not presented in this case, however. Whether or not Taylor formally requested a discharge, it is clear that he was opposed to his involuntary enlistment. It is also clear that the sole reason for his detention was that the Navy considered itself authorized as a matter of law to detain him beyond his enlistment term and that were Taylor to have pressed a formal discharge claim he would have been met at every stage by this legal argument. Since there is no additional factual record required for resolution of this issue and no arcane Navy regulation which must be explicated, there is no justification for judicial deference.8
2. Estoppel
Finally, the government argues that even if it lacks statutory, regulatory, or inherent authority to extend enlistments involuntarily, and even if the nature of the enlistment status is in itself an insufficient basis for detaining Taylor, his behavior was such as either to estop him from challenging this detention or to create an implied in fact enlistment contract. Under each theory, Taylor must have intended to act in such a way that the Navy could have reasonably believed that he assented to an extension of his enlistment. See, e.g., United States v. Ruby Co., 588 F.2d 697, 703 (9th Cir.1978) (estoppel), cert. denied, 442 U.S. 917, 99 S.Ct. 2838, 61 L.Ed.2d 284 (1979); Restatement (Second) of Contracts § 19 (1981) (conduct
III.
The Navy‘s unilateral and involuntary extension of the term of Taylor‘s enlistment was without lawful authority. The Navy is detaining him solely on the basis of that involuntary extension. Taylor is not estopped from challenging it as unlawful. The judgment appealed from will, therefore, be affirmed.
Before SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER and BECKER, Circuit Judges, and WEBER, District Judge.**
SUR PETITION FOR REHEARING
GIBBONS, Circuit Judge.
The petition for rehearing filed by appellant in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied. Circuit Judges ADAMS, HUNTER, WEIS and GARTH would grant petition for rehearing.
on panel rehearing only.
JOHN J. GIBBONS
UNITED STATES CIRCUIT JUDGE