Judge rejects soldier's plea in enlistment contract suit

WASHINGTON -- A soldier who challenged an Army policy requiring him to serve past the date of his enlistment contract must return for duty in Iraq while his lawsuit is under review, a federal judge ruled Wednesday.

U.S. District Judge Royce Lamberth refused to issue a temporary restraining order allowing Spc. David Qualls to remain in the United States, where he is home on leave. He is scheduled to fly to Iraq on Friday.

"It appears to me the extension was legally proper," Lamberth said during the hourlong hearing. "I find no likelihood of success on the merits."

Qualls, 35, is one of eight soldiers challenging the "stop loss" policy that lets the Army extend enlistments during war or national emergencies to promote continuity and cohesiveness on the battlefield.

The lawsuit contends the enlistment contracts are misleading because they make no explicit reference to the policy. The soldiers also say no one told them they could be kept in the service beyond their discharge date.

"Nothing in the contract that he signed says anything about involuntary enlistment," said Jules Lobel, a Qualls' attorney.

Justice Department attorney Matt Lepore, representing the Army, argued that Qualls' enlistment contract has a provision that says he may be involuntarily ordered to active duty in the event of war, national emergency or any other condition required by law. Lepore said the language should be read broadly to include extensions of existing contracts.

Lamberth agreed the language was clear enough and rejected Lobel's claim that the military conflict does not qualify as a war because Congress never made a formal declaration of war.

"I don't think the average person looking at this would think we had to have a declared war" for it to apply, Lamberth said.

About 7,000 active-duty soldiers have had their contracts extended under the policy, and up to 40,000 reserve soldiers also could be ordered to stay longer. The Army says the policy is needed to ensure there are enough experienced soldiers on the battlefield.

Visiting troops in Kuwait on Wednesday, Defense Secretary Donald H. Rumsfeld said the policy is "a sound principle" that is "well understood" by soldiers.

"My guess is it will continue to be used as little as possible, but that it will continue to be used," he said.

In court, Lepore contended a ruling for Qualls could irreparably harm the military and "open the floodgates" for thousands of soldiers to try to leave.

Qualls declined to comment after the hearing, but Lobel said he was very disappointed.

"Obviously the judge wasn't willing to interfere with the military," Lobel said. He said his client would comply with the decision and return to Iraq as scheduled.

The other seven soldiers in the lawsuit -- listed as John Does to protect their privacy -- are serving in Iraq or are in Kuwait en route to Iraq, according to court papers. The soldiers, believed to be the first active-duty personnel to file such a lawsuit, are asking Lamberth to order the Army to immediately release them from service.

Qualls signed up for a one-year stint in the Arkansas National Guard in July 2003 but has been told he will remain on active duty in Iraq until next year. His pay stub now shows his term of service expiring on Dec. 24, 2031.