Respondents Brief — Schlanger v. Seamans

INDEX

EASE ETE Sy alii i

Jurisdiction - -- - -- ceCSROCCSR RO ni neni psesacnces

a ee

MM .o sos. eessacceince lc.

Seatement .-.-.-..-...- woo nen eeee----------.

Summary of argument_________--_---_-_-

Me nS 60 os eee ween cam ce ne nunene oo me me

I. A serviceman on active military duty must

seek habeas corpus relief in the judicial

district where his assigned duty station

is located, even when he isin leave status.

I]. The district court properly declined to

entertain petitioner’s application be-

cause he had no commanding officer

within the district._....-._.___.____.

A. The Arizona court lacks jurisdic-

tion under 28 U.S.C. 2243. _

B. 28 U.S.C. 1391(e) does not affect

the jurisdictional requirements

for habeas corpus_. Pah

C. In any event, the action should be

transierred under 2S USC.

1404(a)

NED See ee ai

CITATIONS

Cases:

Ahrens v. Clark, 335 U.S. 188. __.

Brown v. McNamara, 387 F. 2d 150, certiorari

denied sub. nom. Brown vy. Clifford, 390

U.S. 1005_.

415-643—71 ?

14

Lo)

a |

30

34

35

13,

15, 16, 19, 21, 22, 23, 27

If

Cases—Continued

Carbo v. United States, 364 U.S. 611_________

Daoust v. Laird, D.C. C.A., No. 23944, de-

cided September 3, 1970___..-.--_-_____- 2»

Donigian v. Laird, 308 F. Supp. 449_.__ 25, 28, 29, 33

Duncan v. State of Maine, 295 F. 2d 528,

certiorari denied, 368 U.S. 998__________ 24

Eagles v. Samuels, 329 U.S. 304__..__.-____. 14

Endo, Ex parte, 323 U.S. 283___....-_______ yi

Fay v. Nowa, 372 U.S. 391____.__.--..____. 14

George v. Nelson, 410 F. 2d 1179, affirmed on

other grounds, 399 U.S. 224._.___________ 16

Ginyard v. Clemmer, 357 F. 2d 291__________ 24

Grimley, In re, 187 U.S. 147_____________- 14, 20

Hammond v. Lenfest, 398 IF’. 2d 705_____- 15, 24-25

Harris v. Nelson, 394 U.S. 286_.____.______ 32, 33

Jarrett v. Resor, 426 F. 2d 213_______._____ 11, 24

Jones v. Cunningham, 371 U.S. 236_____- 14, 15, 27

Kaufman v. United States, 394 U.S. 217_____- 18

Keeple v. Laird, D.D.C., H.C. No. 14-70,

decided April 1, 1970________- ae cee sacle 23

Laxer v. Cushman, 300 F. Supp. 920__---___- 24

McKay v. Seamans, D.D.C., No. H.C. 255-65,

decided, December 4, 1969, affirmed, C.A.

D.C., No. 23736, decided December 4, 1969.. 22

McKay v. Secretary of United States Air Force,

ee a A SUR, oon ce ae eweeas sua seac 22, 25

Morales Crespo v. Perrin, 309 F. Supp. 203.. 24

Morgan v. Underwood, 406 I’. 2d 1253, certio-

rari denied, sub nom. Lizarraga v. Under-

ON SE rs RG xa coco nana vase ndasaa 15

Nason v. Secretary of the Army, 304 F. Supp.

Fae ane deugulaxnudkawne a eeemek Conek ce 25

Nelson v. George, 399 U.S. 224_____________- 18

Oestereich v. Selective Service Board, 393 U.S.

Sc tn Lab Ge Catan aatne eka eee 14-15

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

ll

Cases—Continued Page

Orloff v. Willoughby, 345 U.S. 83__---.--__-. 21

Silberberg v. Willis, 306 F. Supp. 1013, re-

versed on other grounds, 420 F. 2d 662___- 25

United States v. Chemical Foundation, 272

8 i EO eee re enn ee ig Saget ae 20

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

Wine k 4 rcdbub ews cuneube ad nok: 22

United States ex rel. Brooks v. Clifford, 409

F. 2d 700, petition for rehearing denied, 412

eS RE ee ieee esa 15

United States ex rel. Keefe v. Dulles, 222 I. 2d

390, certiorari denied, 348 U.S. 952. ___- 28

Tnited States ex rel Lohmeyer vy. Laird, 3

Pt CES. oe on ties Ske aes Be uwee o 3072

United States ex rel. Meadows v. State of New

Atm, Ge F. Oe Tie... 27, 84-85

United States ex rel. Olsen v. Laird. MIDNA.

No. C-165-8-70, decided December 2, 1970. 22

United States ex rel. Van Scoten v. Common-

wealth of Pennsylvania, 404 I. 2d 767______ 16

16, certiorari denied, 396 U.S. 918__ 24, 28, 29, 33

United States v. Hayman, 342 U.S. 205... __-

Wales v. Whitney, 114 U.S. 564.--02

Webb v. Beto, 362 F. 2d 105___-_-__.

Weber v. Clifford, 289 I. Supp. 960___---

Whiting v. Chew, 273 F. 2d 885_____________

Wilson v. Girard, 354 U.S. 524... 6,

Wurster v. Perrin, 303 I. Supp. 480_____ |

Statutes, rules, and regulations:

Act of February 5, 1867, ch. 28, Sec. 1, 14 Stat.

28 U.S.C. 1391, P.L. 87-748 (76 Stat. 744)___

—

ees

17

13, 27

16

24

16

22

16-17

24

27

17

30

FOOLS LIE IES

IV

Statutes, rules, and regulations—Continued

28 U.S.C. 1391(e) ee 13, 30, 31, 32, 34

ie rs PO eo ok dus cialeknncet 34

oe Ra ME ota Cab avihacecdigun 2-3, 12, 15

28 U.S.C. (Supp. V) 2241(d)_.___-_________ 3, 18

Se I SS ane dnsncandauwnewesucutec 3,17

BO Wes GOON inca coi cee ncccks 3-4, 13, 19, 27

28 U.S.C. (Supp. V) 2254. .......-......._. 18

Oe I in AUS She ccsmbbne sabia ly 17

37 U.S.C. 203 (79 Stat. 545-546) Pear eue ae 5

Rule 81(a)(2), Fed. R. Civ. P..........__.. 32

Air Force Manual:

AFM 10-3 (June 67), para. 2-33________ 8

AFM 35-22 (Dec. 64), Ch. 1, para. 6___. 20)

AFM 35-22 (Dee. 64), para. 46b________ 9

SG Seer cht oka Keka: 7

AFM 50-5 (July 65), 3 AECP, para. 15__ 6

AFM 50-5 (Dec. 65), 3 AECP, para. 16__ 5

AFM 50-5 (July 67), 3 AICP, para. 7(a)_ 6

AFM 50-5 (July 67), 3 AECP, para. 7¢__ 7

AFM 213-1 (21 June 68), para. 4-1, et

a a §

PRI nae os oe

Pe nibs ness Saaeee ole 8,9

AFM 213-1 (June 68), Table 4-1, Rule

Mics SU endtudtealekasnuwcsnedeantenacane 8

Ray ery Os on oe nec. 6

AFR 53-20 (Sept. 1965)................._. 5

Miscellaneous:

H. Rep. No. 536, 87th Cong., Ist Sess., p.1-. 32

H. Rep. No. 1894, 89th Cong., 2d Sess.,

RON RS EE ise gh ap ata epee 18

S. Rep. No. 1502, 89th Cong., 2d Sess_______ 18

S. Rep. No. 1992, 87th Cong., 2d Sess., p.2.. 32

107 SS PN ee 32

108 Cong. Rec. 18783, 20093- 20094. beacneom 32

Gu the Supreme Gourt of the Wnited States

OcToBER TERM, 1970

No. 5481

HERBERT PHILLIP SCHLANGER, PETITIONER

Vv.

RosBert C. SEAMANS, JR., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS

OPINIONS BELOW

The order of the court of appeals (App. 68) is un-

reported. The order and opinion of the district court

(App. 65) are also unreported.

JURISDICTION

The judgment of the court of appeals (App. 68) was

entered on May 20, 1970. A petition for rehearing

(App. 80), with a request for rehearing en bane, was

denied on June 17, 1970. On July 2, 1970, the petition

for a writ of certiorari was filed; it was granted on

October 19, 1970. The jurisdiction of this Court rests

on 28 U.S.C, 1254(1).

(1)

5

+

¢

—_

EN, RES BOLI

Da a ee a

ie a. Ie el Ea ee hans els Lee pas

thet NS:

«>

QUESTIONS PRESENTED

1. Whether habeas corpus jurisdiction can be in-

voked by a serviceman on active duty, seeking dis.

charge from military service, in a judicial district

other than one to which he has been assigned to fulfill

his military obligation.

2. Whether petitioner's habeas corpus petition could

be entertained in a jurisdiction where no respondent

having custody and control over him is located,

STATUTES INVOLVED

28 U.S.C, 2241 provides:

Power to grant writ.

(a) Writs of habeas corpus may be granted

by the Supreme Court, any justice thereof, the

district courts and any circuit judge within

their respective jurisdictions. The order of 4

circuit judge shall be entered in the records

of the distriet court of the district wherein the

restraint complained of is had.

(b) The Supreme Court, any justice thereof,

and any cireuit judge may decline to entertain

an application for a writ of habeas corpus and

may transfer the . pplication for hearing and

determination to the distriet court having juris- |

diction to entertain it.

(ce) The writ of habeas corpus shall not extend

to a prisoner wnless—

(1) He is in custody under or by color of

the authority of the United States or is com-

mitted for trial before some court thereof:

or

(2) He is in eustedy for an act done or

omitted in pursuance of an Act of Congress,

3

or an order, process, judgment or decree of

a court or judge of the United States; or

(3) He is in eustody in violation of the

Constitution or laws or treaties of the United

States; or

* * * * *

(1) Where an application for a writ of habeas

corpus 1s made by a person in custody under

the judgment and sentence of a State court of a

State which contains two or more Federal judicial

districts, the application may be filed in the dis-

trict court for the district wherein such person

is in custody or in the district court for the dis-

trict within which the State court was held which

convicted and sentenced him and each of sueh

district courts shall have coneurrent jurisdiction

to entertain the application. The district court

for the district wherein such an application is

filed in the exercise of its discretion and in fur-

therance of justice may transfer the application

to the other district court for hearing and deter-

mination. [Supp. V.]

28 U.S.C. 2242 provides in part:

* * * * *

If addressed to the Supreme Court, a justice

thereof or a circuit judge [the application for a

writ of habeas corpus] shall state the reasons

for not making application to the district court

of the district in which the applicant is held.

28 U.S.C. 2248 provides:

Issuance of writ; return, hearing; decision.

A court, justice or judge entertaining an ap-

plication for a writ of habeas corpus shall forth-

with award the writ or issue an order directing

4

the respondent to show cause why the writ shoul

not be granted, unless it appears from the appli-

eation that the applicant or person detained jg

not entitled thereto.

The writ, or order to show cause Shall be

directed to the person having eustody of the per-

son detained. It shall be returned Within three

days unless for good cause additional time, not

exceeding twenty days, is allowed.

The person to whom the writ or order jg

directed shall make a return certifying the true

cause of the detention.

When the writ or order is returned a day

shall be set for hearing, not more than five days

after the return unless for good cause addj-

tional time is allowed.

Unless the application for the writ and the

return present only issnes of law the person to

whom the writ is directed shall be required to

produce at the hearing the body of the person

detained.

The applicant or the person detained may,

under oath, deny any of the facts set forth in

the return or allege any other material facts.

The return and all suggestions made against

it may be amended, by leave of court, before or

after being filed.

The court shall summarily hear and deter-

mine the facts, and dispose of the matter as law

and justice require.

STATEMENT

This is a habeas corpus action brought in the United

States District Court for the District of Arizona bya

serviceman seeking discharge from active military serv-

ice in the Air Force on the ground of an alleged breach

py the Air Force of his enlistment contract (App. 3).

The district court, finding that it lacked jurisdiction to

entertain the petition for a writ of habeas corpus,

granted respondents’ motion to dismiss (App. 65) ; the

court of appeals affirmed (App. 68), and denied a peti-

tion for rehearing en banc (App. 80).

1, Petitioner enlisted in the Air Force for a four-

year period in December, 1962 (App. 3). In 1965, he

applied for the Airman Education and Commission-

ing Program, a two-phase program in which the Air

Force pays for an airman’s education at a civilian

university and, then, upon completion of a subsequent

period of military training, awards him a commission.

AFR 53-20 (Sept. 3, 1965).* The academic phase of

the program is under the supervision of the Air Force

Institute of Technology, which is responsible for plac-

ing accepted airmen in selected civilian institutions

and for their administrative and academic supervision

while on campus (¢bid.).? The military phase begins on

satisfactory completion of the academic phase, and,

after a twelve-week training period, results in a com-

mission at Officer Training School (7bid.).

'*AFR” (Air Force Regulation) and “AFM” (Air Force

Manual) refer to regulations of the Air Force; in light of the

ciffering time periods involved in this case, the date of the ap-

plicable regulations is indicated in the references.

*Enlisted personnel participating in this program are auto-

matically promoted to Staff Sergeant (pay grade E-5) during

the program. AFM 50-5 (Dec. 1965), 3 AECP, para. 16. A

person in pay grade E-5, with over three years’ service (as

petitioner was at the time he began participating in the pro-

gram at the end of 1965), would earn $250.50 per month in base

pay in December 1965. 87 U.S.C. 203 (79 Stat. 545-546).

415—-643--71—---2

Eg ERGY CTU Ge REET AE HORT TO SPY RN a RMS CGI

OL Oe lei

6

In October, 1965, petitioner was notified that he

had been accepted in the program; orders were issued

designating him an “officer trainee” and assigning hin

to Arizona State University (App. 4). On December

8, 1965, he was discharged and, on December 9, 1965,

he reenlisted for a period of six years in order to

meet the retainability requirement for participation

in the program.’

Petitioner remained in this assignment at Arizona

State University under the Airman Edueation and

Commissioning Program until June 17, 1968. On that

date, he was removed from the program by the Com-

mandant, Air Force Institute of Technology (App,

13) and demoted to the pay grade (E-3) he had held

immediately prior to being selected for the program,

in accordane with AFR 39-30, para. 6a (App. 20);'

he was informed that the basis for removal was his

lack of officer potential, as demonstrated by his failure

to attend scheduled classes (App. 13, 17, 32). Attend-

ance of all scheduled classes is required by the Air

SAFM 50-5 (July 1965), 3 AECP, para. 15, specifies:

Reenlistment Before Training:

a. On receipt of reassignment. instructions from the AFIT,

and just before the selectee departs for training, the unit

commander will initiate action in accordance with para. 3b,

AFR 39-14, to discharge him from his current enlistment

and reenlist him for a 6-year period, not withstanding the pro-

visions of AFM 39-9, * * *

*AFM 50-5 (July 1967), 3 AECP, para. 7(a) specifies that

“ft}he Commandant, AFIT, is delegated the authority and re

sponsibility for the prompt dismissal of any student who, in his

opinion, reveals a lack of academic potential for the cours

undertaken or fails in any way to measure up to the high

standards expected of Air Force officers.”

Cn beni nena

— 2 Ne meer a a ee

7

Force regulations unless the serviceman obtains ex-

cused absences (App. 26). ,

Following petitioner’s removal, he was ordered to

yithdraw immediately from the University (App.

13). On July 10, 1968, he was sent a transfer order

to report to a new assignmerit at Moody Air Force

Base, Georgia (App. 20). Petitioner complied with

this order and, on September 4, 1968, applied for a

discharge from active military service (App. 33).

The Air Force denied his application on the grounds

that “‘Airman Schlanger was properly eliminated

from the AECP”’, and that, since he “received over

two years of college education, at essentially no ex-

pense to himself, while drawing pay and allowances

from the Air Force, the Air Force is entitled to ex-

pect him to comply with his December 1965 enlist-

ment contract” (App. 39).°

Since petitioner, at the time of his removal from

the program, needed only two more months of classes

to obtain a degree from Arizona State University

(App. 5). he asked his commanding officer at Moody

Air Force Base for an opportunity to return to that

university under ‘Operation Bootstrap,” an Air

Foree program which, ‘rte alia, authorizes airmen at

AFM 50-5 (July 1967), 3 AECP, para. Tc, provides that

persons eliminated from the Airman® Education and Commis-

sioning Program must serve the remainder of their six-year

enlistment : ;

c. Disposition of Eliminees. An individual dismissed from

this program for reasons other than court-martial convic-

tion will be reassigned to conplete his 6-year enlistment in

accordance with AFM 39-11.

(AFM 39-11 specifies general {ssignment procedures.)

. SENS PRT RIN AT Pears — - @

. GTS REL Se OOM

STRAPS PRR WRISTS EORTC LR ee OF oe

8

their own request to attend a university to complete

their college education (App. 59; AFM 213-1 (21

June 68), para. 4-1, et seq.).

Operation Bootstrap is separate and distinct from

the Airman Education and Commissioning Program,

Under Operation Bootstrap, an airman who ean be

released from his normal duties and who ean complete

tke requirements for a baccalaureate degree Within

one year may be granted permission to attend an ae-

credited college of his choice (AFM 213-1 (June 21,

1968), para. 4-1, et seq.) ; however, the airman must

pay his own college expenses (para. 45b) and is

responsible for all his travel expenses to and from the

university (para. 4-5d). While attending college

under Operation Bootstrap, the airman is placed in

permissive temporary duty status (‘permissive

TDY”),* and consequently is free to terminate his

participation in Operation Bootstrap and return to

his permanent duty station at any time.’

Petitioner was granted permission to participate in

Operation Bootstrap. On May 28, 1969, an order was

promulgated by Headquarters, Moody Air Force

Base, Georgia, assigning petitioner to permissive

temporary duty at Tempe, Arizona, for the purpose of

attending Arizona State University (App. 51). By its

terms, the order ‘‘permitted [petitioner] to proceed

*AFM 10-3 (June 1967), para. 2-33, defines “Permissive

orders” as “[a]n order permitting an individual to travel as

distinguished from an order directing him to travel.”

* Acceptance for this program is conditioned on an agreement

by the airman to extend his active duty commitment for a pe-

riod three times the length of his temporary duty (AFM 213-1

(June 21, 1968), Table 4-1, Rule 5C).

.

Sea ERS ARE Se OTN

EPR REE I yt EG, COTE ERR OTROS Pees «tl

— Se NO ARON ES RTP TEA CRIT WN OF aS ~ ee ee

9

from Moody AFB, GA. to Arizona State University,

Tempe, AZ, effective on or about 4 June 1969 for ap-

proximately 70 days for the purpose of attending the

University under Operation Bootstrap and then re-

turn to Moody AFB, GA.” The travel authorized was

to be “at no expense to the Government.’’ Petitioner

had also requested 15 days delay enroute in conjunc-

tio with his attendance under Operation Bootstrap,

and this request was granted (App. 59); thus, the

order also provided: ‘Airman is authorized 15 days

leave, Leave Address: 2419 N. Saratoga, Tempe, AZ,

5281." 8

Petitioner attended Arizona State University in the

summer of 1969 and obtained his degree. Air Force

records reflect petitioner’s status during this period

of time as the following (App. 46-47) :

June 4 through June 14____-- 11 days leave

June 15.....-.------......-. TDY for purpose of travel ®

June 16 through August 22__. TDY while attending school 68

days

August 23 through September

1D 2.n.nnncnencennnccenccceuse 28 days leave *°

*A “leave address” is an address “at or through” which the

Air Force can contact an airman on leave; he is under no obli-

gation to remain physically present at that address (AFM 35-

2 (Dec. 1964), para. 46b).

*Under AFM 213-1 (June 1968), para. 4—5d, the time spent

in travelling to and from the university is charged to TDY

instead of against the airman’s leave time.

Under the original order of May 28, 1969, petitioner was

granted only 15 days leave; consequently, his last day of leave

would have been August 26, and, on August 27—the day this

suit was brought—he would have been in TDY status for pur-

poses of his return travel to Moody Air Force Base. However,

on August 27 he did not return to Moody Air Force Base, but

eS eet

10

a TDY for purpose of travel

September @1................ Present for duty at Moody Air

Force Base"

2. On August 27, 1969, after obtaining his under.

graduate degree, petitioner commenced this action in

the United States District Court for the District of

Arizona, alleging that he was unlawfully detained in

the Air Force and was entitled to be discharged on the

ground that the Air Force, by removing him from the

Airman Edueation and Commissioning Program, had

violated the re-enlistment contract of December 9,

1965 (App. 3-9). Named as respondents were the See

retary of the Air Force, Col. Homer Baker, Com-

mander, Moody Air Force Base, Georgia, and (Col.

Noel B. Reddrick, Commander Air Force ROTC De-

tachment 25, Arizona State University, Tempe, Ari-

zona. In the terms of the petition (App. 3):

The Hon. Robert Seamans, Jr, Secretary of

the AF and Colonel Homer Baker, Commander,

Moody AFB, Georgia, are the persons who are

at present unlawfully restraining applicant of

his liberty * * *. Col. Reddrick is the ROTC

commander at ASU.

The district court, without issuing a show cause order,

dismissed the petition sua sponte on August 28, 1969

instead filed this suit in Arizona. By order of September 1),

1969, his 15 days leave time was retroactively extended to 45

days, so as to avoid carrying him in an absent without leave

status from Moody Air Force Base during the period after

August 27 (App. 50).

" Thongh petitioner did not in fact have to report back to

Moody Air Force Base until September 27, 1969, he actually

returned on September 21, 1969.

*? Since the respondents had not been served with the petition, no

Appearances were made on their behalf.

SOON Rte aR oe ae BaeT HTS HE KNEE ORO ERT

_—_~”"—S~"”” PPP AIO OE NCE SEE TETRIS

ll

(App. 40), and denied reconsideration on September 5,

1969. Petitioner, who returned to Moody Air Force

Base after the district court’s decision, appealed pro se.

Moody Air Force Base granted him leave time, com-

mencing December 9, 1969 (App. 47), so that he could

personally argue his appeal before the Court of Appeals

for the Ninth Circuit in San Francisco, On December

12, 1969, following petitioner’s argument, the court of

appeals issued an order setting aside without prejudice

the district court’s order and remanding the case to the

district court for issuance of an order to show cause and

further proceedings (App. 41). Respondents were also

stayed from removing petitioner from the jurisdiction

until completion of the proceedings in the district court

(App. 43).

On remand, the district court issued the show cause

order on January &, 1970 (App. 42). Respondents ap-

peared specially by counsel, and filed a motion to dismiss

the petition for lack of personal jurisdiction over them

(App. 44). This motion was granted on February 10,

1970 (App. 65), the court ruling that no person having

custody of petitioner was within the district court’s

jurisdiction. The stay order barring removal of peti-

tioner from the jurisdiction was continued pending ap-

peal (App. 67).

The court of appeals on May 20, 1970, affirmed per

curiam (App. 68) on the basis of its decision in Jarrett

v. Resor, 426 F.2d 213 (C.A. 9). In Jarrett, the court

had ruled that “[a] member of the Armed Forces who

is voluntarily in a place other than an assigned post is

not in eustody in that place’”’ (426 F.2d at 217) for pur-

poses of habeas corpus jurisdiction.

TROON Fe eT SOE eR ee OTR ERE OD TENE Mog TUALLY BES ce _—

— ; 3 ST PST SLUTS TMS TIA BE SSeS Rp Rr came ree eo:

” PUTS Cpa

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o OL ANNE EEG TEAL AL IN EPIL LS IED EA TLE ie REINO IRL (YER RR aI Fee yr” ee RR a

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t

15 AE OR WR Ret ET 0h RRA ET S

12

A petition for rehearing was filed on June 3, 1970

(App. 69), and denied on June 17, 1970 (App. 80) ; how.

ever, the court of appeals granted petitioner an addi-

tional stay until July 2, 1970 (App. 81). On the expira-

tion of that stay, which Mr. Justice Black refused to con-

tinue, petitioner was ordered to resume his regular

duties at Moody Air Force Base, Georgia.”

SUMMARY OF ARGUMENT

I

Petitioner commenced this action in the United States

District Court for the District of Arizona, while on

leave from his assigned duty station at Moody Air

Force Base, Georgia. Under 28 U.S.C. 2241, he was

clearly “‘in custody” in the United States Air Force at

the time he sought habeas corpus relief. He was not,

however, being detained in the State of Arizona, but

indeed had gone to that jurisdiction, at his own ex-

pense, only because he personally chose to complete

his final college semester at Arizona State University

under a special Air Force program called “Operation

Bootstrap’’; he voluntarily remained there on leave

after receiving his degree, and it was then that the pe-

tition was filed.

* Upon his return to Georgia, petitioner filed a petition for

a writ of habeas corpus in the District Court for the Middle

District of Georgia. On August 18, 1970, the district court dis-

missed the case on the ground that petitioner had failed to exhaust

his administrative remedies, This case is now pending on ap-

peal, C.A. 5, No. 30480. By order of November 5, 1970, the

court of appeals deferred consideration of the appeal pending

determination of this case.

C9 RSL: TELIA ET ha acne Na

13

This Court has long recognized that a district court

may only inquire into the cause of restraints on lib-

erty of those confined or restrained within its terri-

torial jurisdiction. Ahrens v. Clark, 335 U.S. 188. The

need for adherenee to that principle in cases of this

sort is amply demonstrated by the present proceed-

ings. For, if a serviceman on active duty is permitted,

while on leave, to bring a habeas corpus action in any

judicial district he chooses, he can successfully obtain,

pendente lite, release from his assigned military duties

at his permanent base during the pendency of his case,

with resulting unnecessary interference with military

operations. Nor, as a matter of judicial policy, should

a serviceman be permitted to shop for a judicial

forum which he believes will be especially receptive to

his habeas corpus claim. Petitioner at all pertinent

times has had available a suitable forum for habeas

corpus in Georgia, where he in fact filed a subsequent

petition.

II

Similarly, a serviceman such as petitioner should

be required to comply with the requirement embodied

in 28 U.S.C. 2243, that the writ of habeas corpus “be

directed to the person having custody of the person

detained.’’ As construed by this Court in Wales v.

Whitney, 114 U.S. 564, this provision requires that

the person having immediate custody of the petitioner

must be within the jurisdiction of the district court.

28 U.S.C. 1391(e), on which petitioner relies, does

not eliminate this special habeas corpus requirement.

In the instant case, petitioner’s immediate command-

415-643—-71——_8

14

er was located at Moody Air Force Base, Georgia;

he was not in Arizona. The Secretary of the Air

Force, also named as a respondent, had his official

residence at Washington. Only Col. Reddrick, the

ROTC commander at Arizona State University, was

within the territorial limits of the Arizona court; how-

ever, he concededly had no custody or control over

petitioner. Since both his custody and his custodian

were in Georgia, petitioner should properly be remitted

to his remedies there.

ARGUMENT

I

A SERVICEMAN ON ACTIVE MILITARY DUTY MUST SEEK

HABEAS CORPUS RELIEF IN THE JUDICIAL DISTRICT

WHERE HIS ASSIGNED DUTY STATION IS LOCATED, EVEN

WHEN HE IS IN LEAVE STATUS

In general, the law of habeas corpus has evolved in

cases brought by prisoners seeking release from in-

prisonment on criminal convictions, /.g., Fay v. Noia,

372 U.S. 391. However, ‘besides physical imprison-

ment, there are other restraints on a man’s liberty,

restraints not shared by the public generally, which

have been thought sufficient in the English-speaking

world to support the issuance of habeas corpus.”

Jones v. Cunningham, 371 U.S. 236, 240. Consequently,

it has long been recognized that this writ is the ap-

propriate remedy for servicemen who claim to be

unlawfully detained in the Armed Forces. E.g., In re

Grimley, 137 U.S. 147; Eagles v. Samuels, 329 US.

304; Oestereich v. Selective Service Board, 393 US.

15

933, 235." Such persons are, as a practical matter, ‘‘in

custody” as that term is used in 28 U.S.C. 2241, in

the sense that they are subject to military orders and

control which act as a restraint on their freedom of

movement. See Jones v. Cunningham, supra, 371 U.S.

at 240. |

The question presented in the instant case does not

concern the appropriateness of the remedy of habeas

corpus for servicemen seeking discharge, That is

agreed upon by the parties. Rather, what is in issue

here is the proper jurisdiction in which such a peti-

tion for a writ of habeas corpus should be brought

by a serviceman in active military service.

A

Congress has provided that ‘‘[w]rits of habeas

corpus may be granted by * * * the district courts

** * within their respective jurisdictions.”’ 28 U.S.C,

2241, In passing on the intended meaning of this

language, this Court, in Ahrens v. Clark, 335 U.S. 188,

ruled that habeas corpus jurisdiction of the district

courts is limited “to inquiries into the causes of re-

straints of liberty of those confined or restrained

within the territorial jurisdiction of those courts.’’

335 U.S. at 190. It went on to point out that (335

U.S. at 190-191) :

“Similarly, see, e.g.. Hammond vy. Lenfest, 398 F. 2d 705

(CLA, 2): United States ex rel. Brooks v. Clifford, 409 F. 2d

700 (CLA. 4), rehearing denied, 412 F. 2d 1137; Morgan v. Under-

wood, 406 F. 2d 1253 (C.A. 5), certiorari denied sub nom. Lizar-

raga v. Underwood, 396 U.S. 944: Brown v. McNamara, 387 F; 2d

150, 152 (C.A. 3), certiorari denied sub nom. Brown vy. nee,

390 U.S. 1005.

~ a

TENS BAR TS RE SE ORRIN IC ORG Hen St eegeee

Tee

16

*** ['T }he statutory scheme contemplates a pro.

cedure which may bring the prisoner before the

court. * * * It would take compelling reasons

to conclude that Congress contemplated the

production of prisoners from remote section

perhaps thousands of miles from the District

Court that issued the writ. The opportunities

for escape afforded by travel, the cost of trans-

portation, the administrative burden of such an

undertaking negate such a purpose. These are

matters of policy which counsel us to construe

the jurisdictional provision of the statute in the

conventional sense, even though in some situa-

tions return of the prisoner to the court where

he was tried and convicted might seem to offer

some advantages.

This interpretation is supported by the legislative

history of the habeas corpus statute (335 U.S. at 191;

but see 335 U.S. at 204-206 (Rutledge, J., dissent.

ing)), and, as carefully noted in Ahrens (335 U.S, at

192-193), if the statutory scheme is to be altered so as

to afford “district courts discretion in cases like this,”

the responsibility for making such a change lies with

Congress, not with the courts. See also Carbo v. I Tnited

States, 364 U.S. 611. Thus, subsequent decisions have

continued to recognize the strictly jurisdictional nature

of the requirement that a district court may issue a writ

of habeas corpus only if the petitioner is detained within

the boundaries of its district. George v. Nelson, 410

F.. 2d 1179 (C.A. 9), affirmed on other grounds, 399

U.S. 224; United States ex rel. Van Scoten v. Common-

wealth of Pa., 404 F. 2d 767 (C.A. 3); Webb v. Beto,

362 F. 2d 105 (C.A. 5) ; Whiting v. Chew, 273 F. 2d 885

(C.A. 4) ; but see Word v. North Carolina, 406 F. 2d 352,

17

958-361 (C.A. 4). Compare United States ex rel. Mead-

ows v. State of New York, 426 F. 2d 1176 (C.A. 2).”

Significantly, Congress has been most reluctant

to import into the statute any relaxation of this

jurisdictional requirement for habeas corpus relief.

Separate legislation (28 U.S.C, 2255") has been

enacted to provide a forum for a challenge to a crim-

inal conviction in the sentencing court by a federal

prisoner “in custody” elsewhere. But this Court em-

phasized, in United States v. Hayman, 342 U.S. 205,

990, that Section 2255 did not change the principle

Tn this regard, we note that in 1948 there was added in

98 U.S.C, 2242 the requirement that any habeas petition ad-

dressed to an appellate judge “state the reasons for not making

application to the district court of the district in which the

applicant is held.” 62 Stat. 965. This language reinforces the

principle that only the district court for the district of confine-

ment has jurisdiction over a petition.

#98 1.S.C, 2255 provides in pertinent part:

A prisoner in custody under sentence of a court estab-

lished by Act of Congress claiming the right to be released

upon the ground that the sentence was imposed in violation

of the Constitution or laws of the United States, or that the

court was without jurisdiction to impose such sentence,

or that the sentence was in excess of the maximum au-

thorized by law, or is otherwise subject to collateral at-

tack, may move the court which imposed the sentence to

vacate, set aside or correct the sentence.

ae bd * % *

An application for a writ of habeas corpus in behalf of a

prisoner who is authorized to apply for relief by motion pur-

suant to this section, shall not be entertained if it appears

that the applicant has failed to apply for relief, by motion,

to the court which sentenced him, or that such court has

denied him relief, unless it also appears that the remedy

by motion is inadequate or ineffective to test the legality

of his detention.

18

of Ahrens that a habeas corpus action “required the

presence of the prisoner within the territorial juris.

diction of the District Court’’; it simply establishes a

new remedy that “is not a habeas corpus proceeding”

(tbid). See also Kaufman v. United States, 394 U8.

217. Congress did make a narrow exception to the

jurisdictional limit recognized in Ahrens in a 1966

amendment which allows a state prisoner to seek habeas

corpus in the district where he was sentenced, as well

as in the district where he is confined, so long as both

are within the same State. 28 U.S.C. (Supp. V) 2241

(d) ; * see also 28 U.S.C. (Supp. V) 2254. However, this

Sourt has noted that the legislative history of this lim.

ited exception “suggests that Congress may have in-

tended to endorse and preserve the territorial rule of

Ahrens to the extent that it was not altered by [the 1966]

amendments.”” Nelson v. George, 399 U.S. 224, 228 n.5;

see also H. Rep. No. 1894, 89th Cong., 2d Sess., pp. 2, 4;

S. Rep. No. 1502, 89th Cong., 2d Sess.

Consequently, in the absence of any legislative man-

date to the contrary, there is no basis for any devia-

tion from the strict requirement that a serviceman

28 U.S.C. (Supp. V) 2241(d) provides >

Where an application for a writ of habeas corpus is

made by a person in custody under the judgment and

sentence of a State court of a State which contains two

or more Federal judicial districts, the application may be

filed in the district court for the district wherein such per-

son is in custody or in the district court for the district

within which the State court was held which convicted

and sentenced him and each of such district courts shall

have concurrent jurisdiction to entertain the application.***

19

gecking to obtain release from active military service

fle his petition in the district where that service “con-

fines” him. Ordinarily, each serviccman in the Armed

Forces is assigned to a specific military post, and gen-

erally he is required to he present at his duty station

each work-day. Only when he is on leave, or other-

wise has permission to be away from his duty station,

is he free to travel elsewhere. Plainly, without the

territorial rule of Ahrens, a serviceman would be able

properly to file a habeas corpus petition while in leave

status in a judicial district other than the one in

which his duty station is located.’* His presence would

most likely then be required in that district court so

that the merits of his petition may be resolved. See 28

U.S.C. 2243. This would be so especially if, as here,

the petition is prosecuted pro se, And this is true not-

withstanding the fact that during the course of the

proceedings the serviceman’s leave, or his permission

otherwise to be absent from his duty station, termi-

nates, and his services at his duty station are needed

again. The military would thus be faced with the

alternatives of either transporting the applicant from

his duty station to the appropriate judicial district

each time his presence is required in court (assuming

the court permits him to be ordered back to his duty

“If the Court were to accept petitioner's suggest ion—which

we discuss infra, pp. 27-29—that there need not be a proper

custodian within the jurisdiction of the district court that

‘ssued the writ, the serviceman could shop around for any

forum he believes might be most receptive to his claim (see

pp. 22-24, infra). Indeed, it is not clear that, under petition-

er’s approach, there would be any barrier to a serviceman’s fil-

ing a petition—by mail or through counsel—in a foreign dis-

trict even while he is on duty at his regular station.

la i OE a

NE PE OR ETE ECE

ROT Pew

station while his petition is pending), or simply ex.

tending his leave time to allow him to be absent from

his duty station during the course of the habeas cor

pus proceedings.”

It must, of course, be assumed, until proved other.

Wise, that a person in military service is validly there

and the military has the right. to his services, See €.9,

United States v. Chemical Foundation, 272 US. 1,

14-15; In re Grimley, 137 U.S. 147, 150-152. However,

if a serviceman is permitted to seek habeas corpus re-

lief in judicial districts other than where his duty

station is located, it will, at the very least, create a

serious potential for widespread avoidance of duty

assignments. The instant case highlights the point.

Petitioner, through the filing of his original petition in

Arizona instead of Georgia, where his duty station is

located, has already succeeded in obtaining relief

pendente lite from his military duty assignment for

more than six months.” The undesirability of such im-

20

** In the instant case petitioner was placed by the Air Fore

in leave status. Upon termination of the maximum amount of

paid leave time allowable, he was placed in “excess leave"

status, during which, under Air Force regulations, a member

is not entitled to pay and allowances. See AFM 35-22 (Dee.

1964), Ch. 1, para. 6.

* The day after petitioner filed his habeas corpus petition,

the Arizona district court improperly dismissed the action ez

parte and without a hearing. Petitioner then returned, on Sep-

tember 21, 1969, to Moody Air Force Base and noted an appeal

pro se from the district court's decision. He was granted per-

mission by the Air Force to go to San Francisco in Decem-

ber 1969 to argue his case in the Ninth Circuit, That court

determined that the ex parte action by tho district court had

been improper and, on December 12, 1969, remanded the case

without prejudice to the district court. An order was entered

. =< ee

ea : ; aS

meee ;

EBA REI NY SS

pairment of military operaions hy judicial proceed-

ings has been noted by thisQourt in another context.

In Orloff v. Willoughby, 35 1.8. 83, the Court re-

fused to consider a doctor's on atlenge to his duty as-

signment as improper and 4;.oriminatory, observing

(345 U.S. at 94-95), that—

Orloff was ordered ont to the Far East

Command, where thermnited States is now en-

gaged ae combat. By reason of these proceed-

ings, he has remaine i, the United States and

successfully avoided foreign serviee until his

period of induction | almost past. * * * It is

ues difficult to se€ hat the exercise of such

jurisdiction as is her urged would be a disrup-

ies Pevee se aft as peculiarly within the

jurisdiction of the Mitary pene ws Sa

In Ahrens, this Court reast og that the habeas corpus

statute rionigrie aay Prcedure which may bring

the prisoner before the “art. * * * It would take

compelling reasons to cone

lated the production of ide that Congress contem-

pla 1

hisoners from remote sec-

a — ppg miles from the District

ware Wat issue’ we 6h.” $95 U.S. at 190-191.

Similarly, the same statut,, Lolegaie anager

disruptions by reason of hal ) = : “e

charge from military servi suits seeking dis-

by the Ninth Cireuit Court of. ; a

the Air Force from removing \Ppeals at that time enjoining

disposition of his case by thetitioner from Arizona pending

were also issued during the colistrict court; subsequent stays

late proceedings (App. 43, 675° of the next round of appel-

lost on the second appeal, reh@l). Only after petitioner had

Justice Black had denied his fe had been denied, and Mr.

beyond July 2, 1970, could thetion to continue the stay order

return to his duty station at Air Force require petitioner to :

oody Air Force Base, Georgia.

| 14

SR cs PR Oe Ng a

PRT RONEN ED —

22

But it is not this disruptive force on military oper-

ations alone that requires adherence to the territorial

rule of Ahrens in cases of this sort. There is also the

sound judicial policy of discouraging a litigant’s

natural desire to “shop around” for the judicial forum

that appears most favorably disposed to the position

he has taken. Such forum shopping would inevitably

result if petitioner were to prevail here, for the juris.

dictional rule he urges would permit a serviceman on

active duty, while on leave from his assigned duty

station, to file his habeas corpus petition in any judi-

cial district he chooses on the theory that military

“custody”? can be deemed to exist wherever “its effects

are felt’? rather than where the immediate authority

is actually exercised (Pet. Br. 10-11). Cf. McKay

v. Secretary of United States Air Force, 306 F. Supp.

1252 (D. Mass.) ; MeKay v. Seamans, D. D.C., No. H.C-

255-69, decided, December 4, 1969, affirmed, C.A.D.C.

No, 23736, decided, December 4, 1969; United States ex

rel Olsen v. Laird, M.D. N.C., No. C-165-8-70, decided,

December 2, 1970.

It is difficult to perceive a rational basis for such a

novel proposition. The traditional concepts of habeas

corpus jurisdiction do not deprive a serviceman on

active duty of a judicial forum in which to assert his

claim,” or impose on him any substantial burdens

** Even where a serviceman is stationed overseas, he i is, for

purposes of habeas corpus jurisdiction, considered to be “in

custody” within the District of Columbia, and thus he may

properly maintain a suit there seeking discharge from active

military service so long as there is a proper respondent custo-

dian within the reach of the court's process. See, e.g.. Wilson vy.

(rirard, 354 U.S. 524: Daoust vy. Laird, D.C. C.A.. No. 23944. de-

cided September 3, 1970: United States ex rel. Bary v. Resor, 309

nt ae aE ns

>

-*

that he is able to avoid by bringing his action else-

where. The situation is not comparable to that of a

prisoner who finds himself in custody in a jurisdiction

different from that in which the court imposing sen-

tence is located (supra, pp. 17-18). Plainly, if, on the

facts of this case, petitioner had waited one more

day and reported to Moody Air Force Base on Au-

oust 28, 1969, as ordered, he could have as easily

commenced habeas corpus proceedings in the United

States District Court for the Middle District of Geor-

gia—the jurisdiction in which all his records were

kept and his commanding officer was located—just as

he later decided to do after returning to his regular

duty station in July 1970 (supra n. 13).

Thus, even if the balance of convenience to the

serviceman, the military and the courts were the basis

upon which this ease should be decided, there is noth-

ing in the circumstances of this case—or in any other

case that has been suggested—that would warrant the

fashioning of a rule permitting habeas corpus to be

sought in any district other than that of the petition-

er’s military station. In any event, any such argument

would have to be directed to Congress and not to the

courts, since, as we noted at the outset, the restric-

tion of habeas corpus to the district of confinement is

F. Supp. 917 (D. D.C.) : Heeple v. Latnd. D. D.C, HC. No, 4

70, decided April 1, 1970, This question was specifically reserved

in Ahrens, 335 U.S. at 192, n. 4.

Nor, in our view, do the traditional concepts of habeas

corpus jurisdiction need to deprive a serviceman on active duty

of an opportunity to maintain a suit for discharge in the un-

usual situation, not presented here, where his assigned duty

station is located in a jurisdiction other than the one where his

immediate commander is stationed. See 7nfra, n. 28.

ee

<n ae GRP RTI CP s Pe eee

, FE OE EE ee RE ee RE EIS MTC

PO ee OE ye

24

a jurisdictional requirement arising directly from the

statute.

Those courts of appeals which have considered the

question have consistently recognized the continuing

validity of the Ahrens jurisdictional principle in the

field of military habeas corpus. Thus, in United States

ex rel. Rudick v. Laird, 412 F. 2d 16 (C.A. 2), certio.

rari denied, 396 U.S. 918, a suit filed by a serviceman

in New York while on leave between two duty assign-

ments in California, the Second Circuit held that the

New York district court was without jurisdiction since

petitioner was not ‘‘in custody’ there, but was in New

York on his own volition. Similarly, in Jarrett y.

Resor, 426 F. 2d 213 (C.A. 9), followed by the court

of appeals below, a serviceman whose duty station was

located at Fort Knox, Kentucky, was not permitted

to commence habeas corpus proceedings while on leave

in the Northern District of California; as the court

there stated (426 F. 2d at 217): “A member of the

Armed Forces who is voluntarily in a place other than

an assigned post is not in eustody in that place.” And

see Duncan v. State of Maine, 295 F. 2d 528, 530 (C.A,

1), certiorari denied, 368 U.S. 998; Ginyard v. Clem mer,

357 I’, 2d 291, 292-293 (C.A.D.C.); Wurster v. Per-

rin, 303 F. Supp. 480 (D. P.R.) ; Morales C respo V. Per-

rin, 309 F. Supp. 203 (D. P.R.) ; Weber v. Clifford, 289

F. Supp. 960 (D. Md.) ; Orloff v. Lovett, 101 F. Supp.

750 (D. D.C.).” In addition, Hammond v. Len fest, 398

* Cf. Laxer v. Cushman, 300 F. Supp. 920, 924 n. 5 (D.

Mass.). Contra: (’nited States ex rel. Loh meyer v. Laird, 3 SSLR

3072 (D. Md.).

F. 2d 705 (C.A. 2), a suit brought by a serviceman

not on active duty, but in the Naval reserves, reaches a

similar conclusion. The judicial district there held to

have habeas corpus jurisdiction was the one in which

his assigned reserve unit to which he reported monthly

was located (398 F. 2d at 707). And see McKay v. Sec-

retary of United States Atr Force, 306 F. Supp. 1252

(D. Mass.) ; Silberberg v. Willis, 306 F. Supp. 1013, 1020

(D. Mass.), reversed on other grounds, 420 F. 2d 662

(C.A. 1); Nason v. Secretary of Army, 304 F. Supp.

422 (D. Mass.).**

b.

We turn, then, to the question whether the juris-

dictional requirement has been met in the instant

case. At the time petitioner filed his habeas corpus

petition in Arizona he was coneededly (App. 58, 59)

on leave from his permanent duty station at Moody

Air Force Base, Georgia. His status was thus mark-

edly different from what it would have been had he

not been withdrawn from the Airman Education

* The case of Donigian v. Laird, 308 F. Supp. 449 (D. Md.),

presents a unique situation, wholly distinguishable from the

instant case on its facts. There the petitioner, a reserve officer,

had been “placed on inactive status and deferred in order that

he might pursue graduate study in chemistry at Johns Hopkins

University” (308 F. Supp. at 450). At the time he filed his

habeas corpus petition he was not on leave from a permanent

duty station; indeed, unlike petitioner here, Donigian was “at-

tached to no unit” and had no “ascertainable duty stations”

(308 F. Supp. at 453). Even there, however, it is instructive

to note that the court, in sustaining jurisdiction emphasized that

“the custody of which [Donigian] complains relates very definitely

to this district” (308 F. Supp. at 453). And see infra n. 28.

oo

—_— EES EI GLE I ET ET FOE EET TS

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26

and Commissioning Program. As earlier indicated

(supra, pp. 5, 6-7), by the terms of that program,

the Air Force Institute of Technology assigns an air.

man to a participating civilian institution and “[a]t-

tendance at scheduled classes is the direct counterpart

of reporting to duty or to a military formation under

normal duty conditions” (App. 26). Accordingly, peti-

tioner, before being removed from AECP in 1968,

was admittedly stationed at Arizona State University

in Arizona.

When, however, he was withdrawn from that pro-

gram and reassigned to Moody Air Force Base, his

only duty station was in Georgia. His return to the

Arizona campus almost a year later under Operation

Bootstrap, though with the Air Force’s permission,

was of his own choosing and at his own expense, and

in no sense could he be considered stationed there.

The permissive TDY (temporary duty) status he was

given merely relieved him of duty assignments. in

Georgia while he was completing the final semester of

classes. It was, in essence, the equivalent of an ex-

tended leave; petitioner was not required to report to

anyone in Arizona, he was not there to perform any

military duties, nor was he under the supervision of

any Air Force personnel who might have been sta-

tioned there.* In any event, once he received his degree,

the sole purpose for his sojourn in Arizona had been

realized and he was then in no different posture than

** Petitioner was thus free to miss scheduled classes under the

Operation Bootstrap program, something he was not permitted

to do at the time he was attending the university under Air

Force supervision (svpra p. 6).

ee ee Se

eFE SAAT NNR GL aN, EOE TPR INE TEE

27

any other serviceman on leave from Moody Air Force

Base; it was at this time that the petition was filed.

Plainly, as petitioner states (Pet. Br. 11), “the was

lawfully present in Arizona”’; but just as clearly, he

was not then ‘‘in custody’”’ within that judicial district

for purposes of habeas corpus jurisdiction.

II

THE DISTRICT COURT PROPERLY DECLINED TO ENTERTAIN

PETITIONER’S APPLICATION BECAUSE HE HAD NO COM-

MANDING OFFICER WITHIN THE DISTRICT

A. The Arizona court lacks jurisdiction under 28

U.S.C. 2243. 7

Even assuming arguendo that there is in this case

jurisdiction to the extent that the petitioner is “in

custody” within the territorial limits of the Arizona

district court, there is another reason why the action i

must fail. Section 2243 of Title 28 specifies that the q

writ of habeas corpus “shall be directed to the per-

son having custody ef the person detained.” This sta- 4

tutory language, as it originally appeared in the Act i

of February 5, 1867, ch. 28, Sec. 1, 14 Stat. 365, was

interpreted by this Court as requiring that a person 3

having immediate custody over the petitioner must be

subject to the jurisdiction of the court issuing the i

writ. Wales v. Whitney, 114 U.S. 564, 574. And the i

Court has more recently recognized this prerequisite

for habeas corpus jurisdiction. See Ex Parte Endo,

323 U.S. 283, 306-307; Jones v. Cunningham, 371 US.

236, 244. And see, Ahrens v. Clark, 335 U.S. at 198-205

(Rutledge, J. dissenting).

J

5

4

aa

A

1

Pe,

” EL MLLER BR NN Nk te RI RCE

- Deere ROE SH UPR RL? “

EB OT TE OLE SRT EY ENTERS OW ere Ne tae IR te TPT IO ai OY =

eH bas

28

Applying this principle, courts of appeals faced

With the question whether a serviceman on active

duty can maintain habeas corpus proceedings in a par.

ticular judicial district have correctly looked to see,

inter alia, if a proper respondent custodian is within

reach of the court’s process. See, ¢.g., United States

ex rel. Rudick v. United States, 412 F, 2d 16 (C.A, 2),

certiorari denied, 396 U.S, 918; United States ex rel,

Keefe v. Dulles, 222 F. 24.390 (C.A.D.C.), certiorari

denied, 348 U.S. 952. Such an examination in the

instant case reveals that this jurisdictional require.

ment cannot be met.

The respondents to this suit are ( L) the Secretary

of the Air Foree, (2) Colonel Homer Baker, the com-

mander of Moody Air Force Base, Georgia, and (3)

Colonel Noel Reddrick, the commander of the Re-

serve Officer Training Corps at Arizona State Uni-

versity. Of the three, Col. Reddrick was the only one

physically present within the jurisdiction of the Ari-

zona district court at the time the action Was com-

menced. However, as petitioner readily concedes (App.

3), Col. Reddrick’s command authority was limited

to the ROTC program at the university. He had no

custody or control over petitioner by virtue of the

fact that petitioner chose to attend classes on the

Arizona State campus under Operation Bootstrap

(supra, p. 10). Petitioner was not in the ROTC, at Ari-

zona State, or elsewhere. See, ¢.9., Donigian vy. Laird,

308 F, Supp. 449, 452 (D. Md.). Indeed, even assuming

the contrary, it is clear that any custody or control Col.

Reddrick might have had would have terminated at the

,

= mone se li

Dace at 2) Ut ee you ; . . at .

29

time petitioner received his degree and would not

have extended to the subsequent leave time from

Moody Air Force Base, on the last day of which this

petition was filed.

The person who did have custody and control over

petitioner was Col. Baker, his commanding officer in

Georgia. But he was neither a resident of the judicial

district in question nor amenable to its process. While

it was Col. Baker who granted petitioner’s request

for permissive TDY (at a time when petitioner was in

Georgia), who had authority to recall petitioner in the

event of a national emergency, and who was the com-

mander to whom petitioner was required to report on

his return to Moody Air Force Base, Col. Baker was

not a person over whom the Arizona court had juris-

diction so as to order him to carry out its mandate.

The same can be said for the Secretary of the Air

Force, whose official residence is at Air Force head-

quarters in Washington. See, e.g., Donigian v. Laird,

308 F. Supp. 449, 452 (D. Md.). If he could be sued

in Arizona for purposes of the present action, it would,

as expressed in a related context in United States ex

rel Rudick v. Laird, supra, 412 F. 2d at 21, suggest

the following anomaly:

** * a soldier seeking habeas corpus relief

would not be required to bring suit against his

commanding officer where he is stationed and

presumably where his pertinent files are located.

Instead, he would be entitled to sue the Secre-

tary of the [Air Force] * * * in any forum

of his own choosing anywhere in the United

States.

li

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SS 0 8 EE Sarees UNE Hoe FT

B. 28 U.S.C. 1391(e) does not affect the jurisdic.

tional requirements for habeas corpus.

Petitioner and amicus argue that the Secretary and

Col. Baker could properly be named as respondents jp

the Arizona district court (assuming custody there)

under the 1962 emendment adding 28 U.S.C, 1391 (¢)

P.L. 87-748 (76 Stat. 744), which provides that

A civil action in which each defendant. js

an officer or employee of the United States

or any ageney thereof acting in his official capac.

itv or under color of legal authority, or an

agency of the United States, may, except as

otherwise provided by law, be brought in any

judicial district in whieh: (1) a defendant

in the action resides, or (2) the eause of action

arose, or (3) any real property involved in the

action is situated, or (4) the plaintiff resides

if no real property is involved in the action,

The summons and complaint iv sneh an

action shall be served as provided by the Fed-

eral Rules of Civil Procedure except that the

delivery of the summons and complaint to the

officer or ageney as required by the rules may

he by certified mail beyond the territorial i-

mits of the district in which the action js

brought.

‘

1, Even if Section 1391(e) applied to habeas cor-

pus procecdings—and we shall contend that it does

not—it would not permit petitioner to sue in Arizona

on the facts of this case. As indicated above (supra

pp. 28-29), there is not a defendant with custody and

control over petitioner who resides in Arizoua: nor is

this an action involving real property situated in that

state. Since the cause of action is not one for breach

31

of contracc—although petitioner asserts as a ground for

discharge that the Air Force violated his re-enlist-

ment contract of December 9, 1965—but rather is an

habeas corpus action charging unlawful detention, it

arose not in Arizona, but in Georgia where petitioner

was in fact being “detained” at the time he com-

meneed his suit (see supra pp. 25-27). And, finally,

votitioner’s phice of residence cannot properly be con-

sidered to be in Arizona.”” When he went to that jurisdic-

tion under Operation Bootstrap, it was solely to at-

tend his final semester of classes at Arizona State

Cniversity, from June 16 through August 22, 1969

(supra p. 9). Thereafter, as earlier indicated, he

remained in Arizona only because it was there that

he chose to spend his last five days of leave from his

permanent duty station at Moody Air Force Base, iTis

place of residence throughout this period, however,

was in Georgia, the state to which he was required to

return after receiving his college degree and in which

he was committed to remain during the last 244 vears,

or so, of his military service, or until ordered to a new

duty station.”

2. In any event, Section 1391(e) does not affect

the jurisdictional requirements for habeas corpus. It

was enacted expressly ‘‘to make it possible to bring

actions against Government officials and agencies in

oe sh

"On all petitioner's Air Force personnel records, his “tlome

of Record” is at 380 Dongan Place, New York, New York.

“We have been advised that petitioner has recently received

orders to report to a new duty station in Iceland shortly after

this Conrt hears oral argument in this case. He still has over

one year to serve,

¢ t

\

es ee weeerar’D> PL ate tates Yeast > ext > TOMER en orrmnas . —_

i eee |

PLE RES

i ae Eon eed a

32

U.S. district courts outside the District of Columbia,

which, because of certain existing limitations on juris.

diction and venue, may now be brought only in the

U.S. District Court for the District of Columbia”

H. Rep. No. 536, 87th Cong., Ist Sess., p. 1; 8S. Rep. No,

1992, 87th Cong., 2d Sess., p. 2; and see 107 Cong. Ree.

12157; 108 Cong. Rec. 18783, 20093-20094. But there

never has been any such limitation on habeas corpus

actions, which can be brought (even by servicemen on

active duty) against the appropriate custodians jy

federal district courts throughout the country; thus,

there was never any need for Section 1391(e) in ha-

beas corpus proceedings, and there is nothing in the

legislative }istory to suggest that habeas corpus pro-

ceedings were ever contemplated as being within the

ambit of this amendment. Indeed, the explicit refer-

ence in the 1962 legislation to the Federal Rules of

Civil Procedure—which at that time expressly ex-

cluded habeas corpus proceedings from their reach

(Rule 8l(a)(2), Fed. R. Civ. P.)—yvreinforces this

reading. See Harris v. Nelson, 394 U.S. 286, 294.

As this Court observed in Harris v. Nelson, supra,

the fact that habeas corpus proceedings are for some

purposes characterized as “civil’’ does not automati-

eally mean that the procedures applicable to them

are identical with those provided for conventional civil

* As this Court noted in Zarris vy. Velsow (394 U.S. at 295 n.3),

Rule 81(a) (2) has since been amen:led, effective July 1, 1968, to

read, “These rules [the Federal Rules of Civil Procedure] are

applicable to proceedings for * * * habeas corpus * * * to the

extent that the practice in such proceedings is not set forth in

statutes of the United States and has heretofore conformed to the

practice in civil actions.” Obviously, this action did not amount

to an amendment of Section 1391(e).

33

actions. “['TJhe [civil] label is gross and inexact. Es-

sentially, the proceeding is unique. Habeas corpus

practice 0 the federal courts has conformed with

civil practice only in a general sense.” 394 U.S, at 293-

994 (footnote omitted). In light of the fact that the ha-

beas corpus statutes ereate—as we have pointed out—

a unique requirement for personal jurisdiction over a

eystodian, it should not lightly be inferred that a gen-

eral venue statute, focused on a different problem

altogether, inadvertently modifies that specific require-

ment. See United States ex rel. Rudick v. Laird, supra,

$12 F. 2d at 20.

To be sure, there may be situations where a rigid

requirement that both custody and custodian be in

the same district would present difficulties in ap-

plying the habeas corpus remedy. But in those situa-

tions a suitable remedy can be fashioned within the

habeas corpus system, in accordance with the principle

recognized in Harris v. Nelson that “The very nature

of the writ demands that it be administered with the

initiative and flexibility essential to insure that mis-

carriages of justice within its reach are surfaced and

corrected.”’ 394 U.S. at 291.° But that does not

“Such a situation would be presented by an occasional serv-

iceman who, unlike petitioner here, is sfa¢ioned at an isolated

location in a district where there is no commanding officer; such

a serviceman might well be allowed—in the exercise of the flex-

ibility inherent in the statutory scheme—to file his habeas

corpus petition in the district of his “custody,” ie. where he

is stationed, with extraterritorial jurisdiction over the person of

his immediate commanding officer, Otherwise there would be no

district in which a petition could be filed.

Similar considerations led to the result in Ponigian v. Laird,

supra, involving a reserve officer, located in the district of Mary-

land, who had no custodian in any real sense other than the

ond

LO LINDE LEGS: ICO A SE EI Eph en

Sf NG TNA MT IN: 0 Hato

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34

mean that the well established principles of habeas

corpus jurisdiction should be abandoned wholesale,

which would be the result of a blind application of the

literal language ef Section 1391(e). As we have con.

tended, no exception to the established principles of

habeas corpus jurisdiction is necessary to provide a

fair remedy in petitioner’s situation, since both his

custody and his custodian were at the pertinent time

in Georgia, where he in fact now has a separate habeas

corpus action pending (see n. 13, supra). He should be

remitted to his remedies in that district, where both of

the prerequisites lacking in the present case are met.

C. In any event, the action should be transferred

under 28 U.S.C. 1404(a).

Even if the Court should find that the Arizona

district court does have jurisdiction to entertain the

instant petition, it seems obvious that the case should

he transferred to the Middle District of Georgia under

28 U.S.C. 1404(a), and the direction for remand should

be without prejudice to the filing of a motion under

that provision. Cf. United States ex rel. Meadows

v. State of New York, 426 PF. 2d 1176, 1183-1184 n.

commander of the personnel center for reservists in Indiana, In

this admittedlys “highly unusual situation” (308 F. Supp. at

453)—where there was no concurrence of custody and custodian

in any district in the United States—the court allowed a peti-

tion to be filed in the district where the reserve oflicer was at the

time actually attending graduate school, with the Army's permis-

sion, and where at least part of the military’s processing of his dis-

charge application had taken place. See n. 25, supra. We disagree,

of course, with the Yonigian court's reliance upon Section 1391 (e),

and with the similar lower court decisions in two other districts

upon which petitioner relies (Pet. Br. 17).

Ee PRONE I lat tte DBE eR

35

g (C.A. 2). As we have pointed out, the baiance of

convenience to the serviceman, the military and the

courts amply demonstrates the propriety of an appn-

cation of the forum non conveniens principle in the

circumstances of this case.

CONCLUSION

For the reasons stated, the judgment of the court

of appeals should be affirmed.

Erwin N. Griswop,

Solicitor General.

L. Parrick Gray, III,

Assistant Attorney General.

Wa. Braprorp REYNOLDS,

Assistant to the Solicitor General.

Morton HoaNnvDER,

Rosert E. Kopp,

Attorneys.

FEBRUARY 1971.

US. GOVERNMENT PRINTING OFFICE: 1971

oA SRP NTT