# Amicus Curiae Brief — Schlanger v. Seamans > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0249%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1971 - **Citation:** 401 U.S. 487 ## Text ene FILE CO Sy | wre “7 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. _ 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. ? Roy Pia Sys tO ae opt + nan i 8 3 & 3 e 3 FS i i S a & Ss = é * & SD DP eer ener rere. 4 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. w a ‘ tas « - J ; sae é ek IE me? eer Fe OORT ER LOGY BTN 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 eourt wher brought service, | t proceed S, thy . { -.. 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 it tor Second corpus (re orge v. Stat fined 1 Impose oners 1 sions ¢ federa 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. : gt Ps LPM, SMS NALRS SPER ANID: gl PEMD MGS 834 — 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0249%3A2. Public record. Not legal advice.