Brief for the United States in Opposition — Parisi v. Davidson

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— * J JOSEPH’ PARISH, PETITIONER 4

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ke UNITED States of AMERICA. as

ON PETITION. FOR A W RIT OF CERTIORARI TO RE UNITED

STATES COURT OF APPEALS FOR THE NINTH: CIRCUIT , }

‘ | - Pre @. f . _ : . . :

- BRIEF FOR THE UNITED ‘STATES IN OPPOSITION .

%,' s ° : *» ‘ jo 3 Fs . <i

| ERWIN N. GRISWOLD,: 7

7 ® © Solicitor General,

° _ ROBERT C. -MARDIAN,

- ER _ Assistant Attorney General, ’

ROBERT L. KEUCH, -° © |

=. _ ROBERT A. CRANDALL, .

"es . _ Attorneys,

_ Department of Justice,

: ; Washington: De. 20580.”

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3 the Supreme gout of the aanited sine

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" OcTOBER m TERM, 1970

No. 1413

* JosEPH Parisi; PETITIONER |

P . v. : . a *

Unitep StaTEs OF AMERICA

sy

On PETITION: FOR A WRIT OF CERTIORARI TO ‘THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Ga. . . : ol

"© BRIEF FOR THE a IN OPPOSITION |

a _ " OPINION BELOW

The opinion of the.cou of appeals (Pet. App..A)

-is not yet reported. The \stay order of the district

court (Pet. App: B) is unreported.

JURISDICTION.

The judgment of the court of. appeals was enter ed

. on December 3, 1970. The petition for a writ of certi-

qari was filed on March 1,. 1971. The Jurisdiction of

_ - this Court is invoked under 28 U.S‘C. 1254(1). |

. om |

< QUESTION PRESENTED _

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Whether the. district ~ court properly stayed this

habeas corpus action, to review the Department of the

(1)°

421-785—71 -

. Q-. .

“Army’s. denial of petitioner ’S. conscientious objector

_ ¢clain, until a final ‘adjudication of the claim in pend-

| ing. court-martial proceedings, | |

STATEMENT OF FACTS

The facts are essentially as set forth in the margin —

of the opinion: below (Pet. App. A n, 1). Petitioner:

was inducted into the Army as a draftee on Au-

gust 22, 1968, and; on May 22, 1969; made application.

for discharge as a conscientious objector. He asserted

* that ‘his .Army experiences had led him to the firm

- conviction that participation in any form of. militar Vv

activity conflicted irreconcilably with liis Christian

beliefs. Petitioner’s initial interviews with the base

| Chaplain, the-base psychiatrist and the special hearing

‘officer, all pursuant to Army: Regulation’ AR 635-20,

_ uniformly terminated in his favor; however, his im-

~ mediate commanding offic er. recommended disapprov al

of the appheation on the ground that petitioner’s

beliefs were “based on essentially political, sociologi-

cal, or philosophical views, or on @ merely- personal

‘moral code.” AR 635-20, para. 3b(3). .

In November 1969, the Departmi@nt. of the Army

denied petitioner’s application on the grounds that’ (1)

his professed beliefs became fixed prior to entering. the.

service, and (2) he was not truly opposed to all war

due to. his religious beliefs: Petitioner then applied to

the Army Board for Correction of Military. Records .

for review of the denial of his discharge. Shortly -

~ thereafter, on. November 28, 1969, -he- filed’ in the

United States District Court for the Northern District

" of California a petition for a writ -of. habeas corpus ~

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‘should result in his favor. On December 29, 1969, a)

seeking discharge from the Army as a conscientious an

_ objector. He also sought: a ‘preliminary injunction to

prevent his transfer from the jurisdiction of the dis- _

trict court and to prohibit further training prepara-

tory to being t nsferred to Vietnam. |

After a hearihg on the request: fora preliminary i in-

junction, the district. court ordered the Army ‘to re-

frain from. - ‘requiring: petitioner to participate in

activity or training beyond his current noncombatant -

duties; however, injunctive. relief against his transfer

outside the district was denied. ‘The court agreed ‘to.

| retain jurisdiction of: the case until the Army’ Board’

Correction of Military Records | _Teached - its®

decision,

On ‘December 4, 1969, petitioner appealed that part

of the order denying a stay of transfer; at about the

sathe time, he received orders to report, on December

31, 1969, to the Overseas Replacemient Station at Oak-

land, California. This was later changed to the United

States Army Personnel Center, Fort Lewis, Washing- —

ton. Petitioner then sought a stay of deployment out-

side the court’s jurisdiction pending: disposition of his

appeal. The stay was denied by a three-judge panel |

of the court of appeals on December 10, 1969, on ane| .

dition that the Army produce petitioner if the appeall|

similar application for stay was denied by Mr. J ustice

Douglas. 396 U.S. 1288. s |

Petitioner reported to his duty station at Fort

Lewis, Washington, on December 31, 1969. At that.

time he requested an opportunity to file a second

application for discharge as a conscientious objector

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and, as required under AR 635-20, he was given seven

days to complete and file such an application. On

January 6, 1970, he informed the Personnel Center

that he no longer wished: to submit the. application. He

“was them booked for transpor tatio verseas, where he

_was to perfotm noncombatant ate oS similar to those

whi¢h had been assigned to him and which hé-had per-

formed in this country. He refused, however, to obey 7

a military order to board the plane for. Vietnam. As’

-a result, petitioner was charged with violation of

Article 90 of the Uniform Code of Military Justice, — |

-10 U.S.C..890, and was confined to the post stockade

pending disposition of the charge against him. |

5 On March 2, 1970, while the court-martial was pend-

7 an

. SRS

ing, the Army Board for Correction of . Military

. Records notified petitioner that it had rejected his —

application for relief from the denial of his conscien-

tious objector claim. The district court, on March 6,°° _

1970, issued an order to the. Army to show cause why

petitioner’ s pending writ of habeas corpus should not

now issue. On the government’s motion, ‘the district

“gourt, on March 31, 1970, entered an order staying

consideration of petitioner’s habeas petition until final

judgment in the military courts on the court-martial

charges (Pet. App. B). Petitioner took an. appeal

from that order."

On April 8, 1970, the court-martial convicted peti- .

; tioner on the charge of refusing to obey a lawful

- military order; the military judge found that the -

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2 At petitioner’s request, the district court, on March 17, 1970,

_ dismissed the first interlocutory ‘sppeal initiated by. petitioner

on December 4, "1969.

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| denial of his conscientious objector claim had not been

arbitrawy, €apricious, unreasonable, or an abuse of

. discretion; he. déclined, however, to apply the “basis _

in fact’’ standard df review that would be applied on

~~ habeas. corpus in a district court (Pet. App. A n. 11).

Petitioner is presently. confined” in the United States

Army Disciplinary Barracks, - Fort Leavenworth,

’ Kansas, serving a sentence of two years at_hardtabor, -

‘with dishonorable ‘discharge..-His “appeal. from the

court-inartial_ ‘conviction is now pending -before the

Court of Military Review. . 3

On December 3, 1970, the court of appeals (Pet. .

App. A) affirmed the district court’s stay order. It IS

that affirmance which petitioner now seeks to have |

this. Court review.

ARGUMENT

Petitioner seeks to set aside the stay order in this

’ case on the ground that a servicenian should not be

required to exhaust militar Vv judi cial remedies before

obtaining habeas corpus review of a. military adminis- “>:

trative determination denying him conscientious ob-

- jector status. In the normal course of events, we

_ Wortd-agree. As stated in United States Department —

of Justice Memo. No. 652, issued October 23, 1969

( Appendix, infra, p. 10): “If court- martial charges

_ have. not been preferred, a serviceman need not

- commit an offense and exhaust military, judicial ©

"remedies as a “prerequisite to: relief by way of

habeas corpus proceedings in the District Court.’

But see Polsky. v. Wetherill, C.A. 10, No. 625-70, de-

_eaded February 24, 1971.

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But this is not such @ case. Here, after a denial...

of his conscientious objector claim by the: Adjutant

General of the Department ‘of- the Army, petitioner

elected to initiate ‘alr application for review to the

Arny. Board for Correction: of Military cords.”

gore While~hemeatt not-have dere Seas - a_condition to, ce

judicial -review,’ once petitioner chose such a course, ~

‘6 the. district court could properly defer consideration

‘of his subsequently. filed habeas corpus’ petition pend- -

ing the outeome of that administrative appeal. ‘Nor

~~ does petitioner: suggest otherwise (Pet. 11). : |

Rather, the dispute: here centers around the court-

“martial proceedings, instituted. whtile the administra- |

tive appeal was pending, for failure to obey an order to

report for noncombatant military service in Vietnam.‘

“We are. advised by the Department of Deferise that. the |

Army and> Air Force , boafds will take cognizance of such

“es _claims: however, the. Navy adheres to the policy of» rejecting

applications of this nature for want’ of Jurisdiction. See Mem.’

No. 652, infra, p.11

. %See Appendix, infra; p. 11. Craycroft v. Ferrell, 397. US:

335. Where a serviceman does not seek further’ review by the’

~-Army Board for -Correction of Military Records prior to filing

his habeas corpus petition, the Department of Justice now.

_~ _ follows the Fourth Circuit's decision - in’ United States ex rel. —

Brooks v. Clifford, 409 F. 2d 700, 706-707, holéing that in such

principle does not mandate that he do so. .

* This order was separately considered by both courts below

_ and by Mr, Justice Douglas, on petitioner’s application fora stay — .

of deployment. In denying the stay, Mr. Justice Douglas. noted ~

that, under the district court’s protective order, petitioner could

not be assigned in Vietnam “to any duties which require mate- |

rially greater participation in combat activities or combat train-

ing than is required in his present duties.” He was then assigned

to “psychological counselling.” Parisi v. Davidson, 396 U.S. 1233..

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_ Petitioner, relying primarily on Hammond vy. Lenfest,

398 F. 2d 705 (C.A. 2),° contends that because his habeas

"petition was filed priof to commencement of his court- os

. martial, the’stay pending a final judgment in the later -

military judicial proceedings is invalid. But, as ‘noted ©

above .(supra, p. 6), thepetition for habeas corpus

was for another reason premature-in this case; by the

time the Army Board for Correction of Military Ree-

_ords had decided petitioner was not ‘entitled to con-—

scientious objector status, and thus eliminated the prior

bar to habeas corpus, “thé charges had then already

been filed against [petitioner] by the military au-

thorities, the tribunal that was to judge him | ad |

already been convened, and the trial itself.was i .

nent” (Pet. App. A, p. 4). Thus, as the court below

pointed out (7bid.), Hammond is inapposite, for here -

petitioner was not required by. the challenged . court:

order- ae * to commit a further military ‘crime’

in order to provide himself with a forum. He had .

already done the act alleged to be unlawful.” :

The instant case is therefore. essentially no differ-

ent from In ve Kelley; 401 F. 24.211 (C.A. 5), where . *

the Fifth Circuit, on facts very similar to those pre- ..

- sented here, upheld a. Stay order. pending final judg-

-ment in court-martial proceedings that. had already

commenced. Since, here, petitioner’ s' conscientious’ ob-

jector claim was raised as a. defense at his court-

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5In Hammond, no military charges were- pending, but the.gov-

ernment there argued that Hammond was required by the ex-

-" haustion principle to submit. to military-court-martial as a -pre- ~

. condition to judicial review. That position has since been aban-

doned (see supra p. 5). :

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. martial® and ‘is’ presently subject to review by the -

. military appellate courts, the courts below properly

_ declined to intervene pending a final determination ;

_ by the military tribunals.’ See Noyd v. Bond, 395 U.S. -

683; Gusik v. Schilder, 340 U.S. 128. Nor is there any —

cause to assume that petitioner cannot obtain a dis-

charge from the military if he is ultimately found to~

be a conscientious’ objector. As ‘noted by the ¢ourt

below (Pet. App. A, n. 13) “(t]he military court’s

power to isstie emergency, writs of habeas corpus is

well settled. Noyd v. Bond, 395-U.S. 683, 695 n. 7

(1969) ; Levy'v, Resor, 17 U.S.C.M:A. 135, 37 C.M.R.

399 (1967).”’ The results of the military. procedures

- will, of course, be subject to consideration by the dis-.

trict court, which has retained jurisdiction of the a

tase, at the appropriate. time. _ en

* As noted by the court below (Pet. App. A, n. 12), “Parisi /

himself argued at his court-martial that United States v. Noyd, ©

18 U.S.C.M.A: 483, 40 C.M.R. 195, 2 S.S.L.R. 3218 (1969), had —

| . settled that review of the basis in fact. for administrative de-

-nial of 2 conscientious objector’ discharge -was proper on the

issue of the lawfulness of the order alleged to have been dis=

obeyed” To be sure, ‘the”scope of the review to be given the

administrative decision in a court-martial stich as petitioner’s

appears not to have. been settled by the Court of: Military

Appeals. See United States v. Stewart, 20 U.S.C.M.A. 272, 43

CMR. 112. But there can be no doubt. that it is subject to

further review in the military appellate proceedings. .

__ * Petitioner's: assertion. that he is ‘unfairly subject to inear-

_ceration while his case “winds slowly through the military

judicial system” is somewhat. disingenuous. Here, the delay of

* almost one year between petitioner’s conviction and review by.

the Military Court of Appeals has been occasioned not by the

‘military, but by petitioner himself, who-has made a total of

seven requests for “erilargement of time.”

| CONCLUSION Sa oe |

For. the reasons stated, it is therefore respectfully _ Leo

y, submitted that the petition for a writ of certiorari —

should be denied.

23, _. Erwin N. GRiswoLn,

YO | '. Solicitor General.

cr : Rosert ©. MARDIAN, |

oe _ Assistant Attorney General

+ Ropert-L. Keven; °

\ _Roserr A. Cuanpat,

er _ Attorneys.

Aprit 1971. \

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- APPENDIX

Unrrep Sates. DerarrMent OF Justice, |

‘Washington, D.C. 20530, October 23, 1969:

ane. . = a! ae Memo. No. 652

- | - ‘To All U ited States Attorneys

the fo lowing. policy respecting review’ of denials. of re- |

1300. 6 has been adopted effective immediately:

A. EXHAUSTION QF MILITARY J UDICIAL REMEDIES:

‘If court-martial charges have not been pr efer red, a:

serviceman need not commit ah offense and exhaust *nili-

tary judicial remedies as a prerequisite to relief by way

of habeas corpus proceedings. in the District Courts.

~ However, if court-martial charges have been preferred :

‘mnilitary ‘jadisial remedies" must he exhausted’ before

- -in the degisions in In re Kelly, 401 F. 2d 211 (5th Cir.

1968) and Hammond v. Lenfest, 398 F. 24.705. (2d Cir.

' 1968) and will no longer urge the position sake i in N oyd

" v. McNamara, 378 F. 2d 538 (10th Cir. 1967 1): ;

0)

lease sought under: Department of Defense Directive. PSPS

- resort to the civil eéurts. The Government acquiesces :

_ going, are revoked. mE rd

es ' 2, EXHAUSTION OF MILITARY ADMINISTRATIVE.

‘REMEDIES’

We: ‘decision of the Military’ will lie deemed: ripe .

for judicial review upon the final aétion of the Ad-

- jutant General of’ the Army, the Chief: of the Bureau-? |

of Naval Personnel, the Adjutant General-of the Air - ;

- Force: or the Commandant of the Coast Guard. Appi-

cation to. the Army and Air: Force’ Boards for the

Correction. of Military-Records will remain an avail-

- able’ pr ocedure but will.not be insisted upon by the.

Government as a precondition to judicial review. The

: *. Board for tlie Cor rection. of Naval Records adheres _

eto “its policy | of rejecting” applications for want of -

jur isdi¢tion. a

3. The instructions set forth in the United Shatin

Attorneys Bulletin, Vol 17, No. 23, pp. 613-14,. to &

the. extent. that they are inconsistent with thé fore- —

Wun Wison, |

Assistant Attorney Generals Criminal Division.

8.8. covennucey Printing OFFICE: 197