Application by member of Armed Forces claiming he is entitled to
a conscientious objector classification for stay of deployment
outside the Northern District of California denied where (1)
District Court, though refusing to issue a writ of habeas corpus or
to restrain respondents from transferring applicant outside that
district, issued protective order against his having to engage in
combat activities greater than his present duties required, pending
Army board's review of his classification and further court order;
(2) the Court of Appeals, though denying a deployment stay,
specified that applicant will be produced in the Northern District
if he wins his habeas corpus case; and (3) the fact that the
Secretary of the Army is party to the action precludes mooting of
the case by applicant's deployment.
Quinn v. Laird, 89 S.
Ct. 1491, and companion cases, distinguished.
MR. JUSTICE DOUGLAS, Circuit Justice.
Applicant claims he is a conscientious objector entitled to
classification as such. The Army did not approve that
classification and his appeal is now pending before the Army Board
for Correction of Military Records.
Meanwhile, he applied to the District Court for the Northern
District of California for a writ of habeas corpus, and for an
order restraining respondents from transferring him out of the
Northern District of California. The District Court denied that
relief but it did restrain respondents from assigning applicant
"to any duties which require materially greater participation in
combat activities or combat training than is required in
Page 396 U. S. 1234
his present duties."
The District Court retained jurisdiction of the case.
Applicant appealed to the Court of Appeals and asked for an
order staying his deployment pending disposition of his appeal.
That court denied his motion for a stay "on condition that
Respondents produce the Appellant in this district if the appeal
results in his favor." He now seeks a stay from me, as Circuit
Justice, and he represents that he is under orders to report for
deployment to Vietnam the day after tomorrow, December 31,
1969.
Applicant is at present assigned to duties of "psychological
counseling." It would seem offhand that "psychological counseling"
in Vietnam would be no different from "psychological counseling" in
army posts here. He would, of course, be closer to the combat zones
than he is at home, and he says that he could end up carrying
combat weapons.
I heretofore granted like stays in cases involving deployment of
alleged conscientious objectors to Vietnam.
See Quinn v.
Laird, 89 S. Ct. 1491. But this case is different because of
the protective order issued by the District Court and the assurance
given the Court of Appeals that the applicant will be delivered in
the Northern District if he wins his habeas corpus case. Moreover,
as the Solicitor General points out, the Secretary of the Army is a
party to this action; hence the case will not become moot by the
deployment.
If it were clear that applicant would win on the merits, a
further protective order at this time would be appropriate. But the
merits are in the hands of a competent tribunal and as yet
unresolved. And I cannot assume that the Army will risk contempt by
flouting the protective order of the District Court.
Application denied.
