Opinion
No. 72-1042.
February 9, 1972.
John J. C. O'Shea, Lubbock, Tex., for petitioner-appellant.
Eldon B. Mahon, U.S. Atty., Fort Worth, Tex., Robert Wilson, Asst. U.S. Atty., Lubbock, Tex., for respondents-appellees.
Appeal from the United States District Court for the Northern District of Texas; Halbert O. Woodward, Judge.
Before WISDOM, GODBOLD and RONEY, Circuit Judges.
ORDER
The petitioner's motions for injunction pending appeal are denied.
I would grant Sergeant Shelton's request for an injunction pending appeal. In my opinion, Shelton has set forth substantial reasons to question the validity of the contract of reenlistment on which the Air Force now bases its authority to disrupt the life of Shelton and his family by transferring Shelton to Iceland — half way round the world from Florida, South to North, if not East to West. It appears that various officers made representations to Shelton that the medical waiver given him to begin the "bootstrap" officers' program by attending Colorado State University would carry over and permit him to be commissioned upon completion of Officers Training School. In consideration of such assurances, Shelton says, he agreed to reenlist for six years.
The lower court, 335 F. Supp. 186, rejected Shelton's contentions. It reasoned, first, that Shelton's reenlistment contract contained a provision (paragraph 54) by which Shelton waived his right to rely on recruiters' representations as to future commissioning and medical waivers. But close reading of paragraph 54 discloses that the paragraph does not apply or at best applies only tangentially to the representations made to Shelton. And it is hornbook law that "[s]ince one who speaks or writes, can by exactness of expression more easily prevent mistakes in meaning, than one with whom he is dealing, doubts arising from ambiguity of language are resolved in favor of the latter . . ." Williston on Contracts § 621. This principle has been applied most severely when "contracts of adhesion" are involved — insurance policies, parking tickets, airline tickets, and the like. It might well be argued that the form enlistment contract in dispute here would make an appropriate addition to that catalogue.
Paragraph 54 of the enlistment contract read as follows:
"I have had this contract fully explained to me, I understand it, and certify that no promise of any kind has been made to me concerning assignment to duty, geographical area, schooling, special programs, assignment of Government quarters, or transportation of dependents except as indicated."
The second justification offered by the district court was that the Air Force recruiters and doctors lacked authority to bind the Air Force to the commitments they may have made Shelton. But to me this conclusion that the recruiters lacked actual authority to bind the Air Force is irrelevant. The question is, rather, one of apparent authority: whether it was reasonable for Shelton to conclude that the recruiters had the authority to bind the Air Force which their very function, and apparently their own words, suggested they would have.
Finally, the district court found that Shelton enlisted not because he was promised a commission but in the hope of a commission, and because he sought educational advancement and a financial bonus. This finding, standing alone, might suffice under appropriate principles of contract law to sustain the denial of habeas corpus in this case. But we cannot tell whether the finding was made because of the accompanying (and in my view erroneous) legal analysis or in addition to that analysis, and in support of it. At the least, then, it seems necessary to require further finding of fact, uninfected by considerations of contractual waiver and actual authority. In short, I have genuine doubts that the Air Force has demonstrated the legality of its custody of Shelton. It is true that there is possible inconvenience to the Air Force in keeping Shelton stateside until we resolve his appeal. But this inconvenience is small when compared with the injustice of denying him a commission, requiring him to serve four extra years induced by unfulfilled promises and, adding insult to injury, shipping him from Florida to Iceland before his case could be heard on appeal.
After quoting Paragraph 54 in full, the district court set forth its reasons for rejecting Shelton's allegations of fraud and misrepresentation.
The execution of this reenlistment contract with the above paragraph is sufficient answer to Sergeant Shelton's allegations of fraud and misrepresentations. Although some personnel of the Air Force undoubtedly tried to "sell" these programs to him and medical officers did recommend a waiver, none of these persons had authority to bind the Air Force as to its future actions concerning petitioner. Petitioner did not have a right to rely on any such representations concerning future waiver of his high blood pressure or hypertension; and in fact, Petitioner's Exhibit 3 conclusively shows that petitioner did not rely on any such alleged representation when he reenlisted. The Court finds as a fact that petitioner reenlisted on April 15, 1968 because of the educational benefits he was to receive at Colorado State University, the $772.20 bonus paid him at that time, and the possibility that he might obtain a commission. However, such a commission could only be granted him subject to the regulations of the Air Force. Petitioner has failed to satisfy such regulations with respect to his medical condition.
All these reasons are contained in the same paragraph and there is no indication at all of the logical relation among them. (Petitioner's Exhibit 3 was his six-year enlistment contract.)
I respectfully dissent.