 from the May 5th election, clashing with Tory leader Michael Howard. After eight years of Labour government, we're locking up teachers, not yorbs. Our voting system resembles that of a banana republic, and pensioners who can't find an NHS dentist are reduced to pulling out their own teeth. Prime Minister's question time from the British House of Commons, Sunday night at 9, on C-SPAN. Now, a look at Pentagon policy on extending a soldier's enlistment in the military without consent. The 9th Circuit Court of Appeals heard oral argument in the case of Santiago v. Rumsfeld. Army National Guard Sergeant Emiliano Santiago had two weeks left of an eight-year agreement to serve when he was ordered to Afghanistan for a year or more. This is about 45 minutes. Mr. Goldberg, may it please the Court. There are five minutes of my time for rebuttal. Emiliano Santiago asks this Court to declare illegal the involuntary extension of his enlistment contract with the Army National Guard beyond its specific termination date of June 27th, 2004. He also asks that until the Court issues its decision in this case, his deployment to Afghanistan, which is now scheduled two days from now for Friday, be enjoined. In 1996, when Emiliano Santiago was 18 years of age and completing his junior year in high school, he enlisted in the Oregon National Guard for a specific term of eight years. He did everything required of him during those eight years, promoted to sergeant, received fine evaluations. There is no question that under the terms of his contract, which is in turn consistent with the statute authorizing it, 10 USC 12302, Santiago could have been called to active duty at any time during those eight years, but there is nothing in the operative section of his contract which applies to national emergencies declared by the President, which allows his contract to be extended whether or not he is called to active duty. Mr. Goldberg, assuming that the common law of contracts applies to military enlistment contracts and assuming that we have the authority to address the issue, why is it not sufficient under your theory of the case that Santiago's enlistment contract states clearly at various points that it is only a partial statement of applicable law and that it is always subject to change without notice by act of Congress or declaration of the President? When one reads the contract, in fact, there is only one precision in the contract and it's at the record at ER2 section 9B which does say that laws and regulations that govern military personnel may change, so we acknowledge that if a law was subsequently passed, it could have changed the provisions of the contract. However, judge, that is not our case. In this case, the statute which the government was relying on 12305 had been in existence for almost 15 years before Santiago's Santiago's Scientist contract and there is no mention of that provision in the contract even though the contract cites every other statutory provision in the text of the contract which applies or which allows the military to extend military enlistment. Counsel, what about paragraph 11 that says the enlistee may at any time be ordered to act of duty involuntarily under any conditions authorized by law in effect at the time of his enlistment or which may hereafter be enacted into law. What do you make of that language? I'm sorry, is the court referring to paragraph 11 on ER10 or paragraph 11? ER15. On ER15. Yes. That's an addendum to the contract, the statement of understanding of reserve obligations and responsibilities. And again, it talks about conditions which were in existence at the time of his enlistment. The condition at the time of his enlistment was not, there was no national emergency declared by the president during that time. We have no dispute, again, that he could have been ordered to act of duty at any time during his contract. We do not dispute that fact. The issue though in this case is that if Santiago for example had been ordered to act of duty a year before June 27th 2004 and June of 2003 that once June 27th 2004 came along that date he would have to have been discharged because there was nothing in the contract which specifically addressed the extension of his enlistment contract in this situation in this case. You concede, do you not, that the president did in fact declare a national emergency in the days following September 11th 2001? Absolutely. And that declaration of national emergency was apparently repeatedly extended annually thereafter. There's no dispute about that. If that is the case then doesn't this really turn on whether or not Sergeant Santiago was ordered to act of duty as opposed to having his unit placed on an alert for possible mobilization? I think that does become an important factor in this case but if you first look at our first argument which is a contract argument again we have no dispute that he could have been ordered to act of duty he was not. Then the question becomes well if you accept the government's position well an alert is the same as an order to act of duty then essentially he was ordered to act of duty before June 27th 2004. However the statute 12305 is clear in its use of the phrase act of duty. Help me with the statutory language. 12305A says notwithstanding any other provision of law during any period members of a reserve component are serving on active duty pursuant to an order to act of duty under authority of sections 12301 234 the president may suspend any provision of law relating to separation applicable to any member of the armed forces who the president determines is essential to the national security of the United States. Why doesn't that mean on its face that once the president declares a national emergency and once he or his delegate the secretary of defense or secretary of the army orders any reserve component anywhere in the country to act of duty and alerts other reserve components that they are now mobilized that that statute is triggered and in essence all leaves and enlistment terminations are canceled until further order. That of course is the government's interpretation of this contract and we will concede to the court. We're talking about 12305. I misspoke of the statute and I concede that that could be a reasonable interpretation of the contract. Our reading of the contract however says that the president does have the right to extend separate to postpone separations of contracts but only and now we refer to that first clause during and the plain meaning of the statute during any period members of a reserve component are serving on active duty. So our reading of the statute is that at the time he was stopped lost which would have been in June 27th, 2004 he was not using the words of the statute serving on active duty it was too late at that point for the government to apply stop-loss to him. You do concede that prior to June 27th, 2004 there had been reserve components around the country who had been ordered to active duty. I concede that it's irrelevant in terms of my of Santiago's reading of the statute although it's consistent with the government's reading of the statute. Let me ask a more practical question. How many reservists are potentially subject to this argument? My understanding is it could be in the thousand. In fact, there was no evidence in the trial court to answer that question. The government has asserted in its brief and I know it asserted an argument before the trial court that this could affect thousands of other people. The class we'd be talking about would be people fired between the time their unit was alerted and the time it was called active duty. Correct. Or the people who's specifically it's the people whose contracts ended before their unit had been ordered to active duty. Let me ask you the practical concern that I have if we rule in your favor and it is simply this who mans the watch when the president declares a national emergency based upon terrorist attacks and the country is in the process of mobilizing to meet that threat and the president has designated the reservists as essential to national security. Isn't the intent behind the statute to make sure that we have sufficiently ready forces that can be mobilized to meet the threat in order to do whatever it's going to take Congress and the president to do to mobilize the rest of the nation to backfill. And the response to that is that Congress has instituted a series of actions that the president can take in this situation and that Congress can take in this situation. Congress of course is free to declare war in the situation which would implicate other provisions of the contract and allow extensions of contracts but in this situation when you're dealing with the presidential national emergency the president can order troops to active duty reservists to active duty and there's certainly no evidence in the record that every reserve unit had been ordered to active duty. Second of all the president can extend enlistments but the president's authority in this regard is predicated on the authority which Congress has given him. Well and his authority as commander in chief to protect and defend the country from attack. Absolutely but that authority of the president is not unencumbered in the constitution and in fact what the scheme that's been set up in this case is that Congress in 1-2-3-0-5 gave the president the authority to do certain things in 1-2-3-0-2 it is Congress which gave the president the authority to order reservists to active duty. In 1-2-3-0-5 Congress gave the president the extraordinary authority of extending people's enlistments contract but only it's our position again in certain situations and the specific situation we're talking about is during the period where the unit has been ordered to active duty. But aren't you really asking the third branch of government we as judges are going to somehow second guess the president's determination is the commander in chief that he needs sergeant Santiago and others who are trained and ready to go at a time when it may take a significant period of time for the country to complete the logistics that are necessary in order to move the country from peace time to a war footing if that's what's going on. And my response to that is no, we are really asking that we are not again challenging the declaration of national emergency and in fact in the trial court we had raised the question of whether the national emergency still existed as regards Afghanistan and we withdrew that argument on appeal because we believed it did in fact move the court into the political realm. What we're asking the court to do in this case is really something which we've been trained to do as lawyers from the first year of law school. Number one interpret a contract and there is no basis. There are no cases which the government has cited that says that the provisions of this contract should be looked at differently just because it's a military contract. Secondly we're asking the court not to second guess whether there is a national emergency declared by the president, but we are asking the court to look at the authority given to the president by Congress in 1-2-3-0-5 and to determine whether in fact the president and the executive branch has exceeded that authority. You really are asking us to make some sort of a reasonableness determination once the president issues the executive order declaring the national emergency to somehow second guess his determination that in this particular instance Sergeant Santiago by virtue of the terms of his contract is simply not amenable to call up when the president is saying I need him. We are asking the court to do that though we are not asking the court to second guess anything the president has done. We are asking the court to scrutinize the president's actions based upon the contract that was entered into based upon his clear statutory authority and based upon the constitutional issue that we raise. You know the one point we submitted a 28J supplemental authority to the court citing the Cherokee Nation case which had been decided by the US Supreme Court last month and though that case is not on all fours regarding this case there is a very important principle in that case. Number one the Supreme Court said that government promises, government contracts should be upheld as other contracts but on this issue what the court said is that if you could look at a statute and you can interpret it in two different ways and we can see as Judge Chalmers pointed out that the government interprets one, two, three, or five one way we believe our interpretation is equally reasonable in light of the legislative history and in light of the language of the statute. If you have two different reasonable interpretations but if one results in nullification of the government's promises or contracts and the other interpretation allows you to uphold the government's promises and contract then what the Supreme Court admonished us to do I believe is to accept the interpretation which allows us to uphold the contract. Our interpretation of one, two, three, or five allows you to uphold this contract that was entered into between this 18 year old kid and the United States government. But the contract was subject to any subsequent statutes so where does that leave us in terms of upholding the contract? One, two, three, or five if one, two, three, or five had been enacted subsequently I'd have a problem. But that's the point I think the judges pointed out or you've pointed out exactly the point one, two, three, or five was in existence 15 years before this contract was signed it was not a subsequently enacted contract and the contract included every other provision every other statutory provision which allowed contracts to be extended except that one. And it's our position and we talked about the Expresio Unius maximum of construction which the court has recognized just a couple years ago in the Morales and Scardo case. The fact that the government could have included that provision in the contract and didn't we believe is indication of the government's attempt intent. The government knew about one, two, three, or five all it needed to do was add another paragraph to this contract. Santiago who was 18 years of age didn't know about one, two, three, or five and if the government intended at some later point to apply it to him then they should have included it in the contract. But that reads out the provision in the contract that says that the law could subsequently change I mean there wouldn't be any way that the government might anticipate and therefore it couldn't list all of the potential circumstances in the future that might change the terms of his and was. Again I agree with the court if there had been a change in the law. One, two, three, or five was enacted subsequent to the contract. We would certainly not have the same argument but the operative fact is that it was how does your reading of the statute address the government's argument that there's a substantial need to maintain unit cohesion to ensure that soldiers who have trained and worked together are employed together to ensure maximum efficiency as a military fighting unit. Well I think in answering that it's important to remember that the government concedes that if the alert to Santiago's unit had been sent after June 27th he would have been allowed to leave the military. So obviously you know the government does throughout these terms unit cohesion and the idea of deferring to the military but I think we do have to scrutinize those terms and there obviously would have been an effect on unit cohesion. So do we question the commander in chief's declaration if that's what it was through the Department of Defense that this is important to unit cohesion? No I don't doubt that it's that the idea of unit cohesion is important but again Congress has set limits in the president doing this on how that can be applied but I think it's not unrealistic and I certainly don't need to be disrespectful to say that you have to scrutinize some of this stuff. We have submitted declarations to show for example that there were several people in the unit that was stationed in Pendleton, Oregon who were not deployed to Afghanistan because of other reasons. There were medical reasons some became pregnant some in the meantime have been convicted of crimes well that effected unit cohesion not everyone went over nonetheless there are other factors which come into play in that regard. But the country provides for that does it not? I mean there's an exception for example if his employer had certified that his civilian duties were more important to national security then there's a provision to get an exemption under that part of the country. I've spent time trying to figure out how to address unit cohesion argument and I think the issue is so much unit cohesion as much as needing more people in the military to perform these tasks at a time when recruitment is difficult and people are not re-enlisting as they have in the past. And the military can deal with this in many other ways they can reduce troop levels they can order more reservists to active duty they can even institute or congress can institute a draft but to deal with the situation by ignoring a service member's contract statutory and constitutional rights that is something even with unit cohesion floating around which should not be tolerated by this court. What constitutional right is being ignored? It's our position that he has his due process rights under the Fifth Amendment are being ignored in two ways we've tried to spell this out in this contract one if you do not buy our contract or statutory arguments the fact that he wasn't given notice by the government at the time that his contract his enlistment could be extended in this situation in the case of a presentially declared national emergency results in him not having been given the kind of meaningful notice that we believe the due process clause requires if you're going to deprive someone of his liberty of his freedom in this particular case. Judge Rawlinson read to you to warn him that subsequent events may affect the terms and conditions of his enlistment. Again, as I interpret the contract at least, what it provides is that we can change the law to deal with those subsequent events but again, that's not what happened in this case. The law that's in effect at the time not only talked about subsequent law but law that was in effect at the time of the enlistment. This is where I think the due process argument to some extent overlays the contract and statutory arguments. We have to think about what the Constitution is saying in terms of meaningful notice and fairness here. We have an 18-year-old kid we have the U.S. government he's signing a contract every provision, every eventuality for his contract being extended as well as him being ordered to active duty in that contract except one. Except one. To expect that an 18-year-old kid is going to read this contract and say, oh, I better go out and read the United States Code to see if there's another provision that might apply to me I think is really unreasonable when the government has included every other provision in the contract and when all, again, all they had to do was add one more paragraph to put him on notice. Now you can ask. If you don't mind, your time has expired. Let's hear from the United States. Thank you, Mr. Goldberg. May it please the court, I'm Thomas Byron from the Department of Justice here on behalf of the respondents and appellees in this case. The United States is engaged in ongoing military operations around the world including in Afghanistan and Iraq and the military depends to meet the challenges posed by those operations on the volunteer armed forces including the Ready Reserve. I want to emphasize at the outset that the United States government is deeply grateful for the dedicated service of all personnel active and reserve who preserve and protect our nation's security. But I also want to emphasize that Sergeant Santiago's unit is now in Afghanistan making final preparations for operations that they are undertaking there and that Captain Duran, the commander of that unit has affirmatively emphasized in the record of this case that Sergeant Santiago is critical to those operations. That might be true even if the stop-loss order had come a day after he was separated. I think that's right Judge Kenby but the military's policy is what's that issue here that's embodied in the military personnel message in the record and that policy makes clear that units that are alerted or mobilized order to active duty in other words are subject to unit stop-loss. Well that's certainly what the order says and the question is whether that's authorized. That's right Judge Kenby and the question then is a statutory one I think case of a policy of the United States government or one of its agencies the question becomes does a statute authorize or the Constitution authorize the policy that has been adopted and here section 12305A by its terms does give the military through the President and his delegation of that authority the clear statutory power to suspend provisions of law relating to separation, retirement, etc. Counsel what's your response to opposing counsel's argument that if there is one interpretation that preserves the contractual rights and as opposed to one that does not that we should adopt the interpretation that preserves the contractual rights what's your response? Judge Rollins and I think he invoked for that principle a recent case by the Supreme Court and Cherokee Nation Cherokee Nation in other cases I think that address that kind of maximum dealt with a plain conflict between a contract and a statute to be sure those are difficult cases but this is not such a case because there is no conflict between the terms of the contract if it is a contract never called one it's called an enlistment or reenlistment in the terms of that document and any statute indeed the document takes great pains as I think the court's questions recognize to preserve the principle that federal law and statutes and regulations apply and they are not superseded by this agreement that he signed and nothing in that document purports to waive the applicability of any otherwise governing statute it does say that the law applies as to conditions of service pay and several other things it never does save length I'm not sure what to make of that the judge can be after all it nowhere says that it guarantees a release date either it says that it's for a term of eight years to be sure but it doesn't say that he's promised he will be released on any certain date that actually implicates an example I think that that opposing council omitted to mention and that's in section 11 68 of title 10 which states that separation is not complete discharge is not effective until the soldier receives a discharge certificate there's paperwork to be done in other words that has actual meaning in a category of cases this court may or may not be familiar with they typically don't arise in the district court or go to the court of appeals but there are cases involving soldiers who are under court martial proceedings at the time they would otherwise be eligible for separation from the military and the courts have been clear and the military's policy is equally clear that the separation is not automatic and that if a soldier is in court martial proceedings the soldier remains in active service until those proceedings are complete that's not the situation here of course not Judge Rawlinson my point is merely that there are circumstances in which an anticipated release date comes and goes without the soldier actually leaving service and that it's not true that the enlistment document sets out every circumstance I think there are others as well Title X is lengthy and complex and while no one is expected at the time of enlistment to understand everything in that statute it's true that the Document I signs that Sergeant Santiago here did sign emphasizes to the enlistee that there are a wide and broad body of regulations and statutes that will govern your service as as a military member counsel do you take issue with the idea that this was a contract I don't think it's necessary for this court to decide that question there's certainly language in a number of older cases in which and some more recent actually in which the courts have said they will apply principles of contract interpretation to understand what the enlistment document means but none if that's true Mr. Byron why is it not unconscionable that an enlistment contract not clearly state that the term of enlistment can be extended indefinitely in time of war a national emergency Mr. Goldberg argues that most of the people signing these agreements are young and relatively unsophisticated in contract law well Judge Talman there are after all plenty of things that are in Title 10 that are not set forth it's I think it's not I'll accept your argument that ignorance of the law is no excuse but the question is from if contract principles apply why why can't we simply declare it's unconscionable not to include as Mr. Goldberg has argued a very simple statement in paragraph 11 it would just involve a simple rewording of the language the reason is that although those cases that I referred to rely to some extent on contract principles as I was about to say none of them has ever held that interpreting that document as a contract allows the majesty to avoid an otherwise applicable federal law that's the fundamental reason and it's true in other areas of contract as well a contract is not interpreted in a vacuum after all applicable federal law presumably is 12 through 05 that's right Judge Kennedy now that says during any period members of a reserve component are serving on active duty the president can extend basically yes any member of the armed forces does it make any sense to read that as applicable other than those who are on active duty I think it only makes sense to read it that way Judge Kennedy and here's why as we explained in our brief the statute's reference to members of a reserve component serving on active duty to establishing a temporal limitation in other words the period during which the president may suspend those provisions of law relating to separation and retirement et cetera the problem that gets to it under 12301 individual members of the reserve can be called to active duty for medical treatment only with their consent Judge Kennedy so let's say two of them are recalled to active duty with their consent yes so that means that it's a period when members of a reserve component are serving on active duty that would mean then the president can extend every reserve is enlistment till 2031 as long as the president's willing to say they're needed for national security is that the implication of your interpretation? it may be Judge Kennedy but I don't think it's obviously so and it's certainly not the way the statute has been interpreted by the president or the defense department the only references in Congress of course were that well this gives the president the power to extend people on active duty and I can understand why when you call a unit to active duty you don't want to get someplace and have people dribbling away you want the full two years of commitment that's right and that explains the policy when the enlistment contract is up then somebody can tackle it well that explains the policy concern which after all is also reflected in the legislative history in the senate report which says the effectiveness of the president's call of authority in times of crisis would be diminished or weakened by the normal separation or retirement of regular and active personnel but that it doesn't explain in any way it doesn't refer in any way to that preliminary temporal predicate in the statute which says only that this is the time when the president can invoke these authorities and I think judge can be if you're concerned for example about an extreme interpretation which neither the president nor the military has adopted that would suggest for example that a military I'm sorry that a medical mobilization might be sufficient it seems that construing military materials sections 12301, 12302 and 12304 the thing they have in common is the activation of the reserves in a time of crisis and that certainly that's consistent with the interpretation that's been given to the president's section 12305 authority here that this is a time that the president has declared to be a national emergency by reason of terrorist attacks on September 11th and the continuing and immediate threat of further attacks on the United States that was the basis for invoking section 12302 in 19, I'm sorry, in 2001 that's the basis for invoking section 12305 in the military personnel message and that What's your response to opposing council's argument that there has been a constitutional violation to allow you to give notice of the possible extension of the release date Judge Rawlinson, nothing in the constitution and certainly nothing in any case law that my opponent has cited suggests that the government is under an obligation to deliver the kind of very specific notice that would be required to satisfy that argument. There is no obligation on the part of the government generally or the military specifically to deliver that kind of notice some many years ahead of time before it's even invoked and I would emphasize as well that there's ample notice as we explained in our brief in the enlistment document that the period of enlistment might be extended. Now there's nothing in the constitution that says the government has to deliver very specific instances of every kind of circumstance in which that extension might occur. I would emphasize as well as I think Judge Rawlinson, one of your questions recognized that the provision in the enlistment document that says the governing law might change does not limit itself to statutes. It says statutes and regulations and it specifically says statutes and regulations relating to personnel. And there has been a change in the relevant governing law because the stop-loss policy was adopted in the unit stop-loss policy the one that's at issue here was adopted in November 2002 it's a personnel regulation that has changed and in that respect there was ample notice in the enlistment document that this could happen. What's your response to opposing the provision that 1-2-3-0-5 was conveniently omitted from the list of statutes that were included or incorporated? Well as I've explained I think there are lots of provisions in Title 10 it is after all a very large title of the United States Code that are not included in that document he seized upon the one he complains of in this case but I don't think that's representative of the many statutory provisions that are not specifically referenced. And after all the argument he makes from the canon Expresio Unius is a means of interpreting an ambiguous contract or statute or other document. It is not one after all that establishes a clear conflict by its terms between the enlistment document and the governing statute. After all the case is talking about Expresio Unius which is a common law canon emphasize that it is a means of implying meaning where there is nonexpressed. That's not a basis for avoiding in this circumstance. The governing statute in which Congress gave the president the time the power in times of crisis when there's a national emergency to mobilize the armed forces of the United States and to ensure that those units that have trained together and are prepared to work together to ensure our national security will undertake their missions by staying together. That's the fundamental policy underlying the statute and its meaning is not subject to question my opponent has not offered any basis for understanding the actual language in section 12305. Judge can be I think a few moments ago investigated that question whether there's a basis in the terms of the statute, its language and structure for understanding the reference to active duty as in any way modifying the very broad reference to the president's power to suspend provisions of law relating to that would otherwise apply to any member of the military. Your position is that once the president activates a reserve component anywhere in the country and issues a mobilization alert that's sufficient to trigger this particular paragraph in Sergeant Santiago's enlistment of it. It is because the statute gives the president that broad authority and the military has implemented the unit stop-loss policy in terms that my opponent does not dispute govern this case. Yes. Council, what effect if any in your view does opposing council's concession that the government's interpretation of 12305 is reasonable? What effect does that have in your view? Judge Rawson, I appreciate you raising that. I think it's very significant. After all it is a normal principle of statutory interpretation when a federal regulation or other binding legal policy is challenged as contrary to law that the courts will ask if there's any ambiguity in the statute at all and I frankly don't think there is but even if there were whether the government's interpretation of that statute is a reasonable one whether it is permissible and the fact that it is permissible I think is indisputable as my opponent's concession explains there's no dispute here that the statute can be understood to mean what the government, the president and the army have interpreted it to mean and that should be dispositive. If the court has no further questions we'd urge the court both to affirm the judgment below and to deny the motion for an injunction pending decision in this case. Thank you. Thank you very much Mr. Byron. Mr. Goldberg, I'll give you a couple minutes since Mr. Byron finished early. Thank you. Hopefully I won't take very long. To address the last point that you may judge Robinson the fact that there is an alternative interpretation that the government puts forward and we have a different interpretation of the contract the question I think perhaps is do we defer to the executive in terms of their interpretation and that we've argued in our brief the issue of the Chevron case and we don't believe that deferral or deference to the government's interpretation is required in this particular case in fact even if not required is it something that's permissible? Not based upon Cherokee Nation and I think that the rules of trying to interpret all of this change to some extent when the Supreme Court said that you do have to look at it in the context of a contract and I wanted to say that there are various points where the government and I agree and there are points where we disagree on the contract and going back to the initial stages of law school there was consideration on both sides it talks in terms of promises that both sides are making. This document is a contract and if you accept our interpretation of one two three oh five then you're upholding this contract and the ramifications of that I think are significant because again what we're trying to do is we're trying to deal with national issues and ensure that young men and women enlist in the military service. If you accept with the government what Mr Byron suggested which is that somehow there is no ending point or this contract could be read in such a way that there is no ending point what young man or woman is going to be willing to sign up where they're willing to commit for a specific term as Sergeant Santiago was willing to do to give eight years of his life to the military where he's told instead you're going to have to give it all at that point. It will adversely effect. Isn't that the problem for the executive branch and for Congress? I mean that's certainly a valid consideration and a risk here that it will have an adverse impact on military recruiting but how can we seize upon that fact in order to resolve the issue of contract and statutory interpretation? Well that becomes I think and I think it's important for us not to take policy considerations and the legal issues We're not legislators. You're making an argument that might very well receive favorable consideration on the ears of Congress. I'm trying not to make that argument. What I'm trying to say in this case is that the military and Congress through these statutes have set up a scheme which allow the military to enter into contracts with men and women for specific terms which define when they can be ordered to act of duty and that's what paragraph 11 which you refer to is really saying to this young man you may be ordered to act of duty in certain situations and we don't dispute that but the next step which is not only are you in listening for eight years not only can you be ordered to act of duty but you know what we can extend that eight year period of time perhaps indefinitely. But let me ask you this one question if we disagree with you regarding applicability of Cherokee Nation to this case. Do you lose? No. Because I'm scratched. No because our first argument is a contract argument and Cherokee Nations although Cherokee Nation does say that governmental promises and government contracts should be upheld it's simply following a long line of cases that the government I guess ignore here that government contracts our contracts and should be upheld so if you agree with us on that basis we don't have to go to the statutory interpretation argument. This question may be a repeat of Judge Rawlinson's in another way and that is your position makes it seem as if your statutory argument is really dependent on the success of your contract argument. No. Because you're saying that while there are two reasonable ways to read the statute and you shouldn't read it the government's way because the contract will be frustrated and the government's answer to that is well the contract doesn't promise what you think it promises. No if I apologize if I've confused the court on that our argument on the contract is that congress intended or the military intended not to include the provision in the contract which would allow the extension of the contract and that's the union's argument in part. Thank you very much. Council on both sides of the case just argued is submitted excellent arguments on both sides and we thank you we will take a five minute recess and then come back to hear argument in the next case. Coming up on C-SPAN we'll look at religion and the judiciary after that life coverage of the funeral mass of Pope John Paul II from Vatican City and later Washington Journal topics include the rise of oil prices filibusters on judicial nominees and an energy bill making its way through congressional committees tomorrow a discussion on immigration policy it's a look at administration policy and new polls on public attitudes toward possible changes the Manhattan Institute and Americans for tax reform host live coverage begins at noon eastern here on C-SPAN also tomorrow a look at the 50th anniversary of the Salk Valley C-SPAN