ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Gibbons and Becker, Circuit Judges and Weber, District Judge.*fn*
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.
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 jurisdiction 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,*fn1 and the Navy listed him as a deserter in violation of 10 U.S.C. § 885 (1976).
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.
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 hearing with the trial on the merits, Fed. R. Civ. P. 65(a)(2), it did not do so here and did not notify the parties in advance of its intention to render a final judgment. Here, however, the gist of the government's position is that it had legal authority to extend Taylor's enlistment involuntarily. It concedes ...