Amicus Curiae Brief — Schlanger v. Seamans

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IN THE Greer er ee

Supreme Court of the United States

Ocroser Term, 1970

>

No. 5481

—>-

Hersert Puittie ScHLaNGER,

Petitioner,

—VvV.—

Hox. Dr. Roperr C. Seamans, Jr., Secretary of the Air

Force; Cot. Homer A. Baker, Commander, Moody Air

Force Base, Georgia; Cot. Nort B. Repprick, Comman-

der, AFROTC Det 25, Arizona State University,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION

AMICUS CURIAE

Mervin L. Wutr

Jorn M. Gora

American Civil Liberties Union

156 Fifth Avenue

New York, New York 10010

Attorneys for Amicus Curiae

t

INDEX

PAGE

Interest Of AMICUS .....receececcesnereeenennenncnnennenseneaneeneeneensene 1

Statement of the Case .............. Spbipdcndenlaeanissaaniteminianiinanaiiain 2

ARGUMENT:

TmtrOduction ....................c...cccscesccesemcesencsenensesnsesensesnsensnseonsenes 5

I. For the purposes of the habeas corpus statute,

a serviceman is “in custody” at least in any

district where he is assigned ........................-.-- 6

A. The changing concepts of “custody” ........ 6

B. “Custody” by the military .......................... 9

Se I Ae NOI, | intrsevrncanssremncscrnenstunines ll

Ul. The Arizona District Court had jurisdiction

over the respondents ancl was a proper forum

Ga GR TION ooo ccccsesceceneseens Sh RAIA TO 14

A. The Court had jurisdiction ....0...00........... 14

Bs RO CCU WE BUDIIOE onc coceeensscrrerrecesenrss 21

I a atacand anennabennsienanan cieiahlasetndils 22

TABLE OF AUTHORITIES

Cases:

Ahrens v. Clark, 335 U.S. 188 (1948) ...000........ 6, 7, 8, 20, 21

Daoust v. Laird, —— F.2d . 3 SSLR 3217 (D.C.

i euaiiitenaneiseaenanaiiiindinnsaniiiibl 9,10

Donigian v. Laird, 308 F. Supp. 449 (D. Mary. 1969) ..8, 9,

11, 12,15

2D ELIA TT ON NOS

———o

Ltteymee s (i0w

RI fe a

AG LOO EAMONN RNY, See er,

ed

ne

a OI

Eagles v. United States ex rel. Samuels, 329 U.S. 304

GERI IIG - sisisisseesnnahsbhcniaiineiaiipnastdlcimnbeciatinantedateedsanate aie aa 9

Feliciano v. Laird, 426 F.2d 424 (2 Cir. 1970)

George v. Nelson, 410 F.2d 1179 (9th Cir. 1969), aff'd

on other grounds, 26 L. Ed.2d 578 (1970) ........ 8, 13, 16, 20

Hammond vy. Lenfest, 398 F.2d 705 (2d Cir. 1968) 9, 10

Harris v. Ciccone, 417 F.2d 479 (Sth Cir. 9G) 19

Hirota v. MacArthur, 338 U.S. 197 | eae rea 5

Holland v. Ciecone, 386 F.2d 825 (Sth Cir. 1967) cert.

denied, 390 U.S. 1045 (1968) eee 19

International Shoe Co. vy. Washington, 326 U.S. 310

GED tehiennsieicctsiglsiiibsideinbibconiteatonetaladal aie Mean 16

Jarrett v. Resor, 426 F.2d 213 (9th Cir. ane 4,5,6

Johnson v. Laird, F.2d —— (9th Cir., No. 25383,

I SO MPD sitdeisccasetecabnnee tial oct te ed 9

Kepple v. Laird, 3 SSLR 3148 (D.C.D.C. 1970) ........ 9, 10

Laxer v. Cushman, 300 F. Supp. 920 (D. Mass. 1969) |

13, 16

McKay v. Secretary of the Air Force, 306 F. Supp. 1252

ah ene Mgt ee eT ET 13

Metz v. United States, 304 F. Supp. 207 (W.D. Pa.

OD en nesstapuiieamnaeennipnshdniciisbta tteSichiagsdicl «| 12,18

Nelson v. George, 26 L. E.a.2d 578 GE scichnccanueianes 7

ili

PAGE

O'Callahan v. Parker, 395 U.S. 258 (1969) -.......-....-.-...- 10

Qestereich v. Selective Service Local Board No. 11,

EE, Fe CD icihencitennitaccninienienininitiniircninsiiniigge i)

Seaggs v. Larsen, 90S. Ct. 5 (1969) one eeeeeeeeeeeeeeees 9

Schlanger v. Seamans, 3 SSLR 3323 (D. Ariz. 1970) ... 4

Silberberg v. Willis, 306 F. Supp. 1013 (D. Mass.

1969), rev'd on other grounds, 420 F.2d 662 (1st Cir.

SIDE. <iniictinennnneinschinasintipiibiteiainiaainninesitaglinssieiiinminitininisndiaie 12,19

United States v. Hayman, 342 U.S. 205 (1952)... 20

United States ex rel. Altieri v. Flint, 54 F. Supp. 889

(D. Conn. 19438), aff'd on opinion below, 142 F.2d 62

GE GIR SII dcincatences dcenensadnsiantiteeiseenitiancaibionsaniientinine 9

United States ex rel. Barr v. Resor, 309 F. Supp. 917

As SPUD | sacepshsshiiniaiasiditcanepeineatbiidnicesnseeitdiiiamtishiantad 9,10

United States ex rel. Meadows vy. State of New York,

496 F.2d 1176 (2a Cir. 1970) ....................1 8, 13, 16, 20, 21

United States ex rel. Lohmeyer v. Laird, 3 SSLR 3072

CR PRE eee erro ae 9, 10, 12, 18, 19

United States ex rel. Rudick v. Laird, 412 F.2d 16 (2d

Cir.), cert. denied, 396 U.S. 938 (1969) oo. 12,13

Word v. North Carolina, 406 F.2d 352 (4th Cir. 1969) ..8, 13,

19, 20, 21

Constitutional Provision:

United States Constitution

eee ac SI Wi Gta ee 21

Pete M

:

7

ok ss

RE OL SRE NOS NY eae

Fae oe ee

SLEPT ANSE

Statutes:

10 U.S.C. §$§801 et seg.

a MED ciciiincseninviniincannnscsssansasssrntansereeny 17, 18, 19

ee RPE WEE. seniitrstnnasiiorerasivasacennnssexsnssicnransnannsanarnnnad 5, 20

Ie RIED ncraigcsttibrnscnoveiesnanstnnsnninahnaidspiccrnansonnsaace 2

Other Authorities:

“Guidebook for the AECP,” p. 1 ooo 9

“AFIT Student Manual”, paras. 1-7 200 3

Developments-Federal Habeas Corpus, 83 Harv.

L. Rev. 1160 7

IN THE

Supreme Court of the United States

Ocroser TERM, 1970

No. 5481

-——ij——--

Herpert PHILLie SCHLANGER,

Petitioner,

—_—Vi—

Hox. Dr. Ropert C. Seamans, JR., Secretary of the Air

Foree; Cot. Homer A. Baker, Commander, Moody Air

Force Base, Georgia; Cov. Nort B. Repprick, Comman-

der, AFROTC Det 25, Arizona State University,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

—_—f>_

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION

AMICUS CURIAE

Interest of Amicus*

The American Civil Liberties Union is a nationwide, non-

partisan organization engaged solely in the defense of those

liberties guaranteed by the Bill of Rights. In its fifty-year

existence it has been particularly concerned that procedural

* Letters of consent from the petitioner and the respondent to the

filing of this brief have been filed with the Clerk of the Court.

eA

ee

OME EF LENE LY PE IOI —

* sats,

SE OAT fo gL SepeR or

2

remedies, particularly ones such as the Great Writ, be fully

available to rectify the denial of civil liberties.

In recent years, the American Civil Liberties Union has

provided legal representation to hundreds of servicemen

who have sought release from military custody becanse

their rights of free expression, religious liberty, or due

process of law have been infringed. Habeas corpus has been

the primary vehicle for safeguarding those substantive

rights.

The decisions below take an unnecessarily restrictive

view of the availability of habeas corpus to military peti-

tioners. The writ has proven flexible in other contexts and

on behalf of other types of petitioners. We believe it must

be responsive to the newer types of demands represented

in this case.

Statement of the Case

Herbert P. Schlanger enlisted in the United States Air

Force on December 7, 1962. Three years later he re-enlisted

for a period of six years and entered the Airman’s Educa-

tion and Commissioning Program (AECP). The AECP

provided for “undergraduate education, followed by officer

training and commissioning, for a selected number of care-

fully sereened, career-minded airmen at selected civilian

colleges and universities.” *

In January, 1966, Sgt. Schlanger entered the AECP and

was assigned to Wright-Patterson Air Force Base, Ohio

“with duty at Arizona State University” (R. 2, 18); that

duty was, primarily, the satisfactory completion of his

*“Guidebook for the AECP”, p. 1 (AFIT, AU, WPAFB, 0).

3

academic program.” In June of 1968, while progressing

satisfactorily toward completion of his degree program and

with his scheduled graduation only ten weeks away, peti-

tier was summarily removed from the program, ordered

to withdraw from the University and placed in a state of

arrest (R. 4). The removal was precipitated by his forma-

tion and leadership of the “ASU Civil Rights Board”—a

campus organization which sought through mediation, com-

munication and recourse to legal channels to alleviate grow-

ing racial tensions which had arisen on the ASU campus

(R. 23, 24).

While Set. Schlanger was seeking an administrative

remedy of his removal from the AICP program and denial

of a commission, he was demoted and re-assigned to Moody

Air Force Base, Georgia to complete the remainder of his

six-year enlistment in a non-commissioned status (R. 5, 19).

On May 28, 1969, having unsuccessfully exhausted his

administrative remedies (R. 5, 31) and having, in the opin-

ion of his military superiors, performed his duties at Moody

in an “outstanding manner,” * he was issued temporary

duty (TDY) assignment orders which re-assigned him to

Arizona State University to complete, under a different

program at his own expense, his degree requirements.

These orders assigned him to Tempe, Arizona, for a period

of 85 days (June 4 through August 29, 1969), seventy days

of which were designated as “duty” and 15 as “leave.” The

precise distribution between these two categories was not

specified.

?“AFIT Student Manual”, para. 1-7.

’This characterization of Sgt. Schlanger’s service is reflected in

his performance reports, letter of recognition and recommendation

of this TDY.

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On August 27, 1969, Sgt. Schlanger filed his application

for a writ of habeas corpus in the United States District

Court of Arizona. At that time, as before, he was present

within that jurisdiction pursuant to the temporary duty

assignment orders issued from Moody AFB, Georgia. Fur.

thermore, he was clearly within the period of time covered

by these orders. He named as respondents Dr. Robert

Seamans, the Secretary of the Air Force, Colonel Homer

Baker, the Commander at Moody AFB and Colonel Noe]

Reddrick, the Commander of the Air Force ROTC detach.

ment at Arizona State University.

The petition was summarily dismissed by District Judge

Copple on August 29, 1969 and reconsideration was denied

on September 5, 1969. Sgt. Schlanger filed his appeal and

returned, as ordered, to Moody AFB, Georgia. He was

subsequently granted leave from Moody on December 9,

1969, in order to argue his appeal to the Ninth Circuit.

That Court vacated and remanded for further considera-

tion.

Thereafter, the District Court, per Judge Copple, dis-

missed the petition for lack of jurisdiction, because “neither

the Secretary [of the Air Force] nor the commanding offi-

cer is within the territorial jurisdiction of the District Court

or within reach of the Court’s process... ” Schlanger

v. Seamans, 3 SSLR 3323 (D. Ariz. 1970). The essence of

the ruling was that there was no proper respondent within

the district. The opinion did not diseuss the effect of join-

ing Colonel Reddrick as a respondent. The United States

Court of Appeals affirmed in a one paragraph order, con-

cluding that the case was indistinguishable from its earlier

decision in Jarrett v. Resor, 426 F.2d 213 (9th Cir. 1970),

Introduction

ARGUMENT

The District Court held that it was without jurisdiction

to entertain this habeas corpus application because there

was no proper respondent in the district. The Court of

Appeals, however, affirmed on the basis of an earlier ruling

which explicitly did not reach the issue of whether the re-

spondents must be within the District before the writ can

issue. See Jarrett v. Resor, supra at 217. What Jarrett

did decide—which is presumably the rule of law applied to

petitioner here—was that a serviceman on leave status

within a district is not “in custody” there for the purposes

of 28 U.S.C. §2241. Amicus submits that both propositions

are incorrect. The petitioner was “in custody” within the

district of Arizona at the time he filed this application and

the District Court had jurisdiction over the respondents.

We advance two premises for our argument. First, the

Great Writ is “one of the basic safeguards of personal

liberty,” and the “statutes governing its use must be gener-

ously construed if the great office of the writ is not to be

impaired.” Hirota v. MacArthur, 338 U.S. 197, 201 (1949)

(Mr. Justice Douglas, concurring). Accordingly its con-

temporary reach must accommodate the claims of a new

class of petitioners like Sgt. Schlanger whose confinement

is of a type not foreseen decades ago.

Second, for purposes of this type of uniquely federal

litigation—a lawsuit brought in a District Court by a United

States serviceman against United States officials, seeking

to vindicate rights steeped in federal constitutional, statu-

tory and regulatory law,—traditional, rigid concepts of the

6

territorial jurisdiction of a particular District Court are

outmoded, Rather, in this type of suit the federal courts

in effect constitute one nation-wide “district” where limite.

tions on the choice of forum should be based on concepts

of venue and the doctrine of forum non convenicns. Viewed

from this perspective, territorial niceties are of diminished

importance, this Court’s opinion in Ahrens y. Clark, 335

U.S. 188 (1948) emerges as a venue decision, and this

habeas corpus petition was properly brought in the Dis.

trict of Arizona.

I,

For the purposes of the habeas corpus statute, a ser.

viceman is “in custody” at least in any district where

he is assigned.

It is undisputed that the petitioner was physically pres-

ent within the District of Arizona when he filed his appli-

cation. Thus, the very threshold requirement of jurisdic.

tion, even under the traditional view expressed in Ahrens,

has been met. The issue is whether his relationship to the

military was such that he was “in eustody” there for habeas

corpus purposes. By relying on Jarrett, the Court of Ap-

peals impliedly ruled that he was not and therefore did not

make the further inquiry concerning whether an appropri-

ate respondent was within the jurisdiction.

A. The changing concepts of “custody”

In Ahrens vy. Clark, supra this Court noted that,

... the view that the jurisdiction of the District

Court to issue the writ in cases such as this is re-

stricted to those petitioners who are confined or de-

7

tained within the territorial jurisdiction of the Court

is supported by the language of the statute, by con-

siderations of policy, and by the legislative history of

the enactment. 335 U.S. at 192 (footnote omitted).

Whatever may be said about whether Ahrens v. Clark was

correctly decided or about its reading of legislative history

and policy considerations, see Developments-Federal Ha-

beas Corpus, 83 Harv. L. Rev. 1160-65, or, indeed, whether

it hav continuing vitality, cf. Nelson v. George, 26 L. Kd.2d

578, 582, n. 5 (1970), it is apparent that the judicial con-

cept of custody has changed radically in the interim. When

the existing habeas corpus statute was enacted, “custody”

was virtually synonymous with actual physical constraint

and confinement. The only remedy which could be sought

was immediate release.

The changing concept of custody was carefully traced

by District Judge Northrup in deciding a case quite similar

to this one,

While it is true that custody is an essential element

of a petition for habeas corpus relief, it is also true

that the nature of the custody considered sufficient for

habeas corpus has undergone significant conceptual

change. At one time habeas corpus would lie only for

those prisoners in actual confinement for the offense

which was the subject of their petition. See, e.g. Jones

v. Cunningham, 371 U.S. 236, 238, 83 8S. Ct. 3738, 9

L. Ed.2d 285 (1963); MeNally vy. Till, 293 U.S. 131,

55S. Ct. 24, 79 L. Ed. 238 (1934). This notion of

custody has expanded, however, and the writ is now

looked on as ea procedural device for subjecting re-

straints on liberty, although often short of actual physi-

8

cal confinement, to judicial scrutiny. It is used to test

convictions before service of sentence for that offense

has actually begun, Peyton v. Rowe, 391 U.S. 54, gg

S. Ct. 1549, 20 L. Ed. 426 (1968); to test a conviction

while the petitioner is on parole, Jones v. Cunningham,

supra; and test the validity of a conviction even after

the prisoner’s unconditional release, Carafas vy. La.

Vallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed.2d 554

(1968). This line of cases constitutes recognition of

the fact that restraints on liberty short of physical con.

finement can be of such magnitude as to warrant the

protection of the writ of habeas corpus. as “both the

symbol and guardian of individual liberty.” Peyton y,

Rowe, 891 U.S, at 58, 88.8, Ct. at 1551, Habeas corpus

“is not now and never has been a static, narrow, for.

malistie remedy; its scope has grown to achieve its

grand purpose—the protection of individuals against

erosion of their right to be free from wrongful re-

straints upon their liberty.” Jones v. Cunningham, 37]

U.S. at 243, 83S. Ct. at 877. Donigian v. Laird, 308

F. Supp. 449, 451 (D. Mary. 1969).

This modern concept of custody for habeas corpus pur

poses has been applied in a manner which would have been

doctrinally impossible when Ahrens was decided. Ey,

Word v. North Carolina, 406 F.2d 352 (4th Cir. 1969):

George v. Nelson, 410 F.2d 1179 (9th Cir. 1969), aff'd on

other grounds, 26 L. Ed.2d 578 (1970) ; United States ex rel.

Meadows vy. State of New York, 426 F.2d 1176 (2d Cir.

1970). For the petitioner challenging a criminal conviec-

tion, a flexible concept of custody has been utilized to render

the Great Writ responsive to the needs of the situation.

9

B. “Custody” by the military

In light of this judicial trend, it is not surprising that

there has been a similar expansion of the availability of

the writ to those who seek their release from the armed

services. This Court, as well as numerous lower federal

courts, have long recognized that one’s mere membership

in the military—active or inactive—is a sufficient state of

custody to permit habeas corpus relief. As Mr. Justice

Douglas stated in Scaggs v. Larsen, 908. Ct. 5 (1969) :

The Great Writ was designed to protect every per-

son from being detained, restrained or confined by any

branch or agency of government. In these days, it

serves no higher function than when . . . the military

act{[s| lawlessly.

See, Eagles v. United States ex rel, Samuels, 329 U.S. 304

(1946) ; Oestereich v. Selective Service Local Board No. 11,

393 U.S. 233 (1968); Hammond v. Lenfest, 398 F.2d 705

(2d Cir. 1968); Daoust v. Laird, —— F.2d ——, 3 SSLR

3217 (D.C. Cir. 1970) ; United States ex rel. Altieri v. Flint,

34 F. Supp. 889 (D. Conn. 1943), aff'd on opinion below,

142 F.2d 62 (2d Cir. 1944); United States ex rel. Barr v.

Resor, 309 F. Supp. 917 (D.C.D.C. 1970) ; Donigian v. Laird,

supra; Kepple v. Laird, 3 SSLR 3148 (D.C.D.C. 1970) ;

United States ex rel. Lohmeyer v. Laird, 3 SSLR 3072

(D. Mary. 1970). Indeed, even the Ninth Circuit has re-

cently criticized a restrictive view of the custody require-

ment in military habeas corpus cases: “[t]he more con-

temporary view, however, is that actual physical restraint

is not necessary and that one need only show a potential

restraint upon his liberty to seek habeas corpus relief.”

Johnson v. Laird, —— F.2d —— (9th Cir., No. 25383, Nov.

24, 1970), slip opinion, p. 6.

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10

The nature of military custody is f ar-reaching. Petitioner

is subject to courts-martial jurisdiction, for service-con-

nected offenses, throughout the world. O'Callahan y.

Parker, 395 U.S. 258 (1969) ; 10 U.S.C. Sections 801 ef seq.

(Uniform Code of Military Justice). The Secretary of De.

fense and the Secretary of the Air Force have custodial

control over the petitioner wherever he goes. Daoust y.

Laird, supra; Kepple vy. Laird, supra; U.S. ex rel. Bary

v. Resor, supra.* Indeed, in this very case, the petitioner,

while pursuing his studies at the University, was placed

in a state of arrest upon the order of his then-commanding

officer at Wright-Patterson Air Force Base in Ohio. A man

subject to that type of restraint and control is “in custody,”

If a reservist seeking release from the Armed services js

found to be in sufficient custody to seek habeas corpus re-

lief, see, e.g., Hammond v. Lenfest, supra, then a fortiori,

one on active duty who secks the same relief is entitled

to the same remedy. The applicability in the military con.

text of these modern notions of custody is and has been

compelling:

In view of this line of cases broadening the concept

of “custody” from an actual physical custody to a sig.

nificant restraint on liberty, it is not surprising, there-

fore, that one subject to military orders or control has

of late uniformly been found by the courts to be “in

custody” as that term is used in section 2241 .. . and

hence one authorized to seek habeas corpus relief. U.S.

ex rel. Lohmeyer v. Laird, supra, at 3072.

Judge Northrup summed it up suceinctly: “ . . . to hold

that retention in the Armed Forces is not a sufficient re-

* These three cases involved petitioners who were all in Vietnam

at the time their habeas corpus actions were commenced in the

District of Columbia district court.

ll

straint on liberty would be to ignore the realities of life.

Donigian Y. Laird, supra at 451,

C. The locus of custody

While a serviceman is in custody wherever he may be,

for the purposes of interpreting the habeas corpus statute

and in the context of this case the Court need only hold that

a petitioner is in custody in any district where he is as-

signed.

Apparently the petitioner was not due back at Moody

Air Foree Base, Georgia until August 29, 1969. It is un-

clear whether his status on August 27, the day he filed his

petition, was one of active duty or leave. But it is clear

that petitioner had been assigned to Arizona and was not

unlawfully there. It was there that his commanding offi-

cers could direet and control him, as had occurred in 1968

when petitioner was dropped from the officers’ program and

placed in arrest.

Many courts have come to agree that a person who is

confined or restrained in some way, ean be in custody within

the district where he is located even though his custodian

is elsewhere, It is the actual or potential restraint upon the

petitioner that places the locus of custody in the District

where the effects of that restraint are felt.

Donigian v. Laird, supra reflects this concept. There, an

Army lieutenant, unattached to any unit, was attending

Johns Hopkins University at his own choice and expense.

He sought a writ of habeas corpus seeking release from the

Army following the wrongful denial of his application for

discharge as a conscientious objector. The Government

argued that Donigian could only sue in Indiana, the district

in which the Army Personnel Operations Center was lo-

cated. Judge Northrup rejected the contention, stating,

a a |

The Army seeks to exert nt r Donigian

Marylar It tt hon of th

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-.. It is doubt whether a soldier who is absent

without leave can be characte zed as within the eus-

tody of any officer of the Armed Forees anvmore than

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13

it ean be said that an escaped prisoner is in the cus-

tody of his jailer.” 412 F.2d at 21.

Second, and similarly, the courts have also refused to enter-

‘in the application of a serviceman who has come into a

sstriet for transparent forum-shopping purposes. Com-

VeKay v. Secretary of the Air Force, 306 F. Supp.

2 (D. Mass. 1969) (the petitioner had no “substantial

ation” to the district) with, Feliciano v. Laird, 426 F.2d

64. 427, n. 4 (2 Cir. 1970) (“Whatever the mysteries of

. bookkeeping might ordain ... the fact that Feliciano

~feon in this distriet and attached to Fort Wadsworth

er three months cannot be ignored”), and Lazer v.

supra at 924, n.5 (“The fear of forum-shopping

ostant forum... is not present here. This district

ostret in which petitioner has been subjected to mili-

mtrol for the past six months. ...”). Sgt. Schlanger

ssiened to and had been in the district for a substan-

period of time when he filed this application. He was

sfally there, and his choice of that forum was certainly

‘ made in bad faith.

(he principle of the locus of custody which amicus urges

this Court to aecept with regard to members of the armed

forces has been recognized in more traditional habeas

corpus contexts. E.g., Word v. North Carolina, supra;

George Vv. Nelson, supra; United States ex rel. Meadows

vy. State of New York, supra. In those eases, prisoners con-

fined in one jurisdiction sought to challenge convictions

imposed by other jurisdictions which subjected the pris-

oners to future restraints on their liberty. The three deci-

sions above all agreed that suit could be brought in the

federal district of confinement, although the “custodian” of

NOS ea

14

the prisoner was elsewhere. The only substantial disagree.

ment was over which of the two districts exercising con.

current jurisdiction would be the most appropriate forum

for the application to be heard.

Decisions such as these, which refuse to allow strict ter.

ritorial concepts to frustrate the purposes of the Great

Writ, guide the way for resolution of this case. The peti-

tioner was physically present in Arizona, his presence was

pursuant to orders and in good faith, he was in the custody

of the Air Force, which custody he questioned, and the

effects of that custody were manifest upon him in Arizona.

He was therefore “in custody” within that district and

this Court should so hold.

Il.

The Arizona District Court had jurisdiction over the

respondents and was a proper forum for this action.

The District Court held that there was no respondent

subject to the personal jurisdiction or process of that Court.

For many of the reasons advanced in Point 1, supra, as

well as those suggested infra, any Distriet Court where a

serviceman is in constructive custody has jurisdiction over

his appropriate commanding officers. The only limits on

the exercise of that jurisdiction should be those of con-

venience.

A. The Court had jurisdiction

For most members of the Armed services who seek the

aid of the federal courts to secure their release from the

military, the kinds of problems raised here are non-existent.

15

The serviceman is stationed at a particular place, his com-

manding officer is at the same location and the court can

usually proceed directly to a disposition of the merits of

the application.

But a new class of military habeas corpus petitioners

has come into existence, Like Set. Schlanger they may be

servicemen on active duty assigned to temporary duty at

a place in a different federal district from their command-

ing officer. Or they may he soldiers between duty stations,

or reservists unattached to a particular command or to a

command in a different state. As with prisoners seeking

to challenge out-of-state convictions, the courts have at-

tempted to construe the jurisdictional statutes so as to

allow a revolution of the merits and not subject this new

type of petitioner toa jurisdictional whipsaw.

One approach has been to find the commanding ofiicer

to be amenable to the court’s jurisdiction because he exer-

cises control or custody over ihe petitioner there. E.¢.,

Donigian v. Laird, supra. Custody is a two-way street:

it is the linchpin of jurisdiction over both the petitioner

and his commander. The authority of the commanding

officer over the military petitioner is what renders the

serviceman both “in custody” and in custody in the district

where he is assigned. See Point I, supra. Simultaneously,

that same authority of the commanding officer is what sub-

jects him to the jurisdiction of that district. As Judge

Northrup put it:

“The Army seeks to exert control over Donigian in

Maryland. It cannot, then, avoid the jurisdiction of this

Court merely because such control is exercised from

a point located outside of this state.” Denigian v.

Laird, supra, at 453.

a Tot te a ie

16

The concept that the respondent is present where his ef.

fects are manifested on the petitioner, has been employed

in other military habeas corpus cases. E.g. Laxer v. Cush.

man, supra. The petitioner’s commanding officer at Moody

Air Force Base exercised actual and potential control oyer

the petitioner in Arizona, just as the petitioner’s previous

commanding officer at Wright-Patterson Air Force Base,

Ohio had, in fact, done. This impact on petitioner in the

district of Arizona is sufficient to have given that court

jurisdiction over Colonel Baker for the purposes of testing

that official’s right to continue to exercise custody of the

petitioner. There is no constitutionally significant distinc.

tion between the power which Colonel Baker had over peti-

tioner and the power of a state which files a detainer

against a prisoner. Cf., George v. Nelson, supra; United

States ex rel. Meadows y. State of New York, supra. The

detainer is merely a physical embodiment of a claim to

future custody over the person. If anything, Colonel

Baker’s potential for control over the petitioner was more

immediate.

In certain respects, the jurisdictional principle recog.

nized in these habeas corpus eases is similar to one which

stems from this Court's decision in International Shoe Co.

v. Washington, 326 U.S. 310 (1945), and has fostered the

new jurisdictional regimes of the “long-arm” statutes. In

International Shoe, this Court held that the activities of a

corporation can establish “sufficient contacts or ties with

the state of the forum to make it reasonable and just ac-

cording to our traditional conception of fair play and sub-

stantial justice to permit the state to enforce the obliga-

tions which appellant has incurred there.” 326 U.S. at 320.

Under modern concepts of in personam jurisdiction, the

17

fact that a defendant has had a significant impact in a

state is sufficient to allow that state to exercise jurisdiction

over him in connection with claims arising from that rela-

tionship. Conceptually, the continuing effects which Colonel

Baker had over petitioner in the district of Arizona provide

the same basis for jurisdiction. For habeas corpus pur-

poses, Colonel Baker was a proper respondent amenable to

the jurisdiction of the Arizona Court.

A second and similar approach to the question of juris-

diction over military commanders has been based upon a

broad reading of 28 U.S.C. Section 1391(e). That section

provides :

A civil action in which each defendant is an officer or

employee of the United States or any agency thereof

acting in his official capacity . .. may, except as other-

wise provided by law, be brought in any judicial dis-

trict in which: (1) a defendant in the action resides,

or (2) the cause of action arose, or... (4) the plaintiff

resides...

Service of papers may be made by certified mail “beyond

the territorial limits” of the district in which the action

is brought. Although the statute is denominated a venue

provision, by allowing jurisdiction over federal officials

who may be outside the district where the suit is filed and

providing for valid service by mail, the statute has, realis-

tically, extended the extraterritorial jurisdiction of the

federal courts in suits against federal officers. In a sense

this is a kind of long-arm statute which enables a District

Court to reach across district lines and assert jurisdiction

over a federal official whose official conduct has had some

effect within the forum.

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18

District Judge Gourley, in a ease involving efforts to en-

join the activation of a Pennsylvania national guardsman,

found that section 1391 (e) gave the District Court in Penn.

sylvania jurisdiction over Secretary of Defense Melyin

Laird:

Although Section 1391 ostensibly is concerned with

venue as distinguished from jurisdiction, Professor

Moore concludes that the addition of subsection (e)

was, in fact, intended to extend the extraterritorial

jurisdiction of federal district courts where each of

the named defendants are officers, employees, or

agencies of the United States. 2 J. Moore, Federal

Practice, paragraph 4.29, at 1210-11 (2 ed. 1967). This

is confirmed by a reading of Sen. Rep. No. 1992, 87th

Cong., 2d Sess., to accompany HR 1960, 2 U.S. Code

Cong. and Adm. News (1962) p. 2784. I therefore

conclude that the Court does have authority to exercise

extraterritorial jurisdiction in the circumstances con.

templated by Section 1391. Met: vy. United States,

supra at 209.

The District Court in United States ex rel. Lohmeyer vy.

Laird, similarly relied on section 1391 to find it had juris-

diction over a petitioner seeking release from the Army:

In the instant case the petitioner is a resident of Mary-

land. Hence, under section 1391 (e) (4) of Title 28

suit was properly brought in this district, Extrater.

ritorial service of process was effected on the Honor-

able Stanley Resor, Secretary of the Army and on

Major General K. G. Wickham, Adjutant General of

the Army, by certified mail pursuant to the statutory

authorization of section 1391(e) and personal service

19

was effected upon the Honorable Melvin Laird, Seere-

tary of Defense, pursuant to the provisions of Rule

4(d), F.R.C.P., 28 U.S.C. This court concludes there-

fore that having jurisdiction over the subject matter,

having venue jurisdiction and having jurisdiction over

the respondents this case is properly before the court.

(Footnote omitted) 3 SSLR at 3074.

Accord, Silberberg v. Willis, supra. Such interpretations

of Section 1391 (e) are consonant with this Court’s state-

ment in Ex Parte Endo, 323 U.S. 283, 306 (1944): “But

we are of the view that the court may act if there is a

respondent within reach of its process who has custody of

the petitioner.” The statute placed these respondents with-

in reach of the Arizona Court’s process.

Both of these approaches to the problems of the military

petitioner recognize that in federal court litigation involv-

ing federal claims against United States officials, jurisdic-

tional barriers based on concepts of territoriality must give

way. Section 1391 (e) is an implicit recognition of such a

concept. Especially when the availability of habeas corpus

relief is at issue, strict concepts of territorial jurisdiction

over the federal respondent are an anomoly in our highly

mobile society. See, e.g., Word v. North Carolina, supra;

Harris v. Ciccone, 417 F.2d 479 (8th Cir. 1969) (per Black-

mun, C.J.) cert. denied, 397 U.S. 1078 (1970); Holland v.

Ciccone, 386 F.2d 825 (Sth Cir. 1967) cert. denied, 390 U.S.

1045 (1968). A contemporary perspective is particularly

necessary where the federal defendants are military or

defense officials who have the power to order servicemen to

any one of the hundreds of military installations spread

throughout our nation.

20

Moreover, there are no policy inhibitions which should

prevent this Court from ruling that the respondents were

subject to the jurisdiction of the Arizona District Court

First, such a ruling would present no problems of federal.

ism or comity as between state and federal officials or courts,

Compare Word vy. North Carolina, supra; United States

ex rel. Meadows v. State of New York, supra; George vy,

Nelson, supra. Here the parties, the eustody, the claims

and the interests are solely and completely federal. Second,

the rule which amicus urges upon the Court does not allow

forum-shopping. The primary forum would be the one

where the petitioner was assigned. Third, the government

is not disadvantaged because its attorneys are in every

district. Most habeas corpus applications could probably

be adjudicated on the administrative record, without need

to transport witnesses or officials. The inconveniences to

a federal prisoner which flow from the venue scheme of

section 2255 were not found sufficient to overturn the ar.

rangement. See United States v. Hayman, 342 U.S. 205

(1952). Conceivable inconvenience to the government

should not be the basis for a narrow construction of section

2241. Finally, one would assume that the particular federal

court would not meet difficulty in attempting to secure com-

pliance by federal officials with its orders. See Ex Parte

Endo, 323 U.S. 283 (1944), ef. Feliciano v. Laird, supra at

427, n. 4. At the very least, since service of the court’s

process can be effected beyond the limits of the district,

the respondents could be directed to comply with the court’s

directives. Similarly there would be no problems of bring-

ing the petitioner before the Court since he is already

there. Compare Ahrens v. Clark, supra.

21

In sum, the habeas corpus statute can and must be con-

strued to hold that the District Court had jurisdiction over

the respondents in this case; such a holding is not fore-

closed by considerations of policy or efficiency. Indeed,

if the habeas corpus application was not properly brought

in the District of Arizona, then it is questionable whether

it could have been brought anywhere at all, see Ahrens y.

Clark, supra; but see, e.g., Word v. North Carolina, supra,

—a result in violation of Article I, section 9 of the Constitu-

tion.

B. The forum was proper

There is little that amicus can add to petitioner’s discus-

cussion of these matters. It is apparent that the choice of

forum was eminently made in good faith. The petitioner

was there and the events which gave rise to his claim for

release from the Air Force occurred there. The District

of Arizona was the effective equivalent of the sentencing

court. See United States ex rel. Meadows vy. State of New

York, supra; Word vy. North Carolina, supra. The juris-

dictional propositions suggested above provide ample con-

trol on forum-shopping.

CONCLUSION

For the reasons set forth above, amicus submits that

the decision below should be reversed and remanded

for consideration of petitioner's claims.

Respectfully submitted,

Metvin L. Wuir

Jory M. Gora

American Civil Liberties Union

156 Fifth Avenue

New York, New York 10010

Attorneys for Amicus Curiae*

* Attorneys for amicus curiae wish to express their appreciation

to Edwin J. Oppenheimer, Director of the New York Civil Liberties

Union Selective Service and Military Law Panel, for his invaluable

assistance in the preparation of this brief.