# Brief for the United States in Opposition — Parisi v. Davidson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0323%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States in Opposition - **Published:** January 1, 1972 - **Citation:** 405 U.S. 34 ## Text Qa Re eee Marne PRIS | . a % : oO ie ames oe = conti : . . . mv: ; if ty > a a - » ay a Ww, : P 9 ets Ari, .t@ a yore, ost Octosex TERM, 1970 eae: i : : : , ; is ’ : : “ bare , _ . , : — ' : oe = ee — * J JOSEPH’ PARISH, PETITIONER 4 . ¢ °° ~” @ ‘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 \ - * ue © 4 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 - = } | | a -y/ 2 At petitioner’s request, the district court, on March 17, 1970, _ dismissed the first interlocutory ‘sppeal initiated by. petitioner on December 4, "1969. oy a oe _— 7 | 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. ie Pe « *% a4 6 be 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.. % 7 . _ 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- e 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). : o . 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. \ . : \ \ \ ‘e \ ™~™ 4 . 4 ’ ‘eo “SO - 2 Se * ees 5 ¢ oh $i, Sa o \ 3 . : f ? | . \ \e \ e N \ e y x \ \. . \ ° < \ 7 : \ -\ 4 \ - 7 \ \ \ \ ay ® XQ e - 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0323%3A3. Public record. Not legal advice.