# Respondents Brief — Schlanger v. Seamans

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1971
- **Citation:** 401 U.S. 487

## Text

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)

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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.

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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

. =
-*

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
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

ra yee

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0249%3A3. Public record. Not legal advice.