Emiliano Santiago enlists in the Army National Guard on June 28, 1996. His contract and his understanding is that his enlistment is for eight years. Which is, after all, what everyone else understands the enlistment period to be as well, since that's what the Army says it is. Then, eight years later, in June 2004, Santiago is told that he's not going to be let go: that the President has signed a "stop-loss" order that extends his contract. As a result, notwithstanding his eight-year contract, Santiago is told (in writing) that "[a]s a result of the unit alert, your [estimated termination of service] date was changed to 24 December 2031 and it is scheduled to remain so until [your] unit is removed from alert status or until demobilization is completed."
Santiago says: "But we had a deal!" The Army says: "Tough." And the Ninth Circuit agrees. Judge Canby holds that the Army is indeed bound to its contracts, but notes that there is a tiny clause in Santiago's contract that says the following: "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." As a result, Judge Canby concludes, the Army can do what it wants. Lawsuit dismissed.
I certainly understand Judge Canby's opinion. I only have two comments. First, I think that this result might well -- and perhaps should -- make people reluctant to join the armed forces in the first place. In the modern era, people join the armed forces for a variety of reasons, but nearly all of them expect the deal that they were promised. And the required length of service is -- especially nowadays -- a critical part of the deal. (If there's any doubt in this regard, just look at the Army's recent "15-month" active-duty enlistment offer, which is the shortest active-duty offer in the history of the service.) Since the fine print in Santiago's deal is the same fine print in everyone's deal, the Army's deal is, essentially, that the deal is whatever they say it is. Which should make people reluctant to join the armed forces if they're doing so in reliance upon a particular deal.
Second, the panel purports to be applying routine contract principles. But aren't they really doing something quite different? Do you really think this same rule would apply to any other type of contract? For example, if I signed up for Sprint and the fine print in the contract said "This contract can be changed by us at any time, in any way," and then Sprint thereafter told me that I had to stay with them until December 24, 2031, there's no doubt in my mind that the Ninth Circuit would apply routine contract principles to hold that this clause did not authorize Sprint to make such a change. Especially if, like the Army, Sprint had routinely gone around and told everyone that the deal was only for eight years, both in every single advertisement and in the office of every single Army/Sprint recruiter.
So we have a special rule for the Army. And perhaps that's legitimate. But if that's what we're doing, Judge Canby should be more forthright about it. Say something like this: "Every single recruit is hereby held to be on constructive notice that, once you sign up, you can be kept in for as long as they want you." Or, even more boldly, require the Army to actually tell potential enlistees of that fact -- either in the contract or beforehand -- rather than merely insert a meely-mouthed provision that in no way suffices to actually inform the recruit of their selected fate. Whichever way one might go in this regard would probably be better than Judge Canby's claim that this case can be decided based upon the same routine contract principles applicable to any other contract. I just don't think that's actually the case.
