Motion by Army reservist for release from military custody
pending Court of Appeals' review of District Court's denial of
petition for habeas corpus is granted. Reservist's claims that the
order requiring him to serve 17 months beyond his enlistment
contract was without notice and opportunity to be heard, and in
violation of the terms of his enlistment contract, are within the
scope of the writ of habeas corpus. There is no statutory provision
for a hearing, and the issue is substantial, and should be
resolved.
MR. JUSTICE DOUGLAS, Circuit Justice.
This is a phase of review of the action of respondents in
ordering movant to active duty in the United States Army Reserve
for a period of approximately 17 month beyond the term of his
enlistment contract. His enlistment expires in September, 1969. He
was directed in January, 1969, to join a unit of the Ready Reserve
and attend regular drill. If his allegations are to be believed, he
made a diligent effort to comply, but was rejected, since his
enlistment period would expire in September, 1969. Up until that
time, he had met all the requirement of the Army Ready Reserve. He
claims that the order thereafter entered requiring him to serve
about 17 months beyond the end of his enlistment contract was
punitive and unauthorized.
He therefore filed a petition for habeas corpus with the
District Court, complaining that the crucial step taken when he was
ordered to active duty was taken without notice and an opportunity
to be heard, in violation
Page 396 U. S. 1207
of procedural due process, and also was in violation of the
terms of his enlistment contract. The District Court denied the
petition, and that decision is presently awaiting review by the
Court of Appeals. Scaggs seeks by this motion release from military
custody pending that review.
He rests on 28 U.S.C. § 2241 [
Footnote 1] to support his claim that the District Court
has jurisdiction of the habeas corpus action.
It has been argued in other cases that the word "custody"
indicates that § 2241 does not reach cases where military authority
is being contested by civilians at a pre-induction stage [
Footnote 2] or by servicemen not yet
convicted of an offense who entered the Armed Forces "voluntarily."
[
Footnote 3]
Page 396 U. S. 1208
I take the opposed view, though the question has not been
authoritatively decided. However that may be, § 2241 is not a
measure of the constitutional scope of the guarantee in Art. I, §
9, of the Constitution that:
"The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public
Safety may require it."
The Great Writ was designed to protect every person from being
detained, restrained, or confined by any branch or agency of
government. In these days, it serves no higher function than when
the Selective Service Boards (
Oestereich v. Selective Service
Bd., 393 U. S. 233) or
the military act lawlessly. I conclude, in other words, that, in
spite of the prejudice that exists against review by civilian
courts of military action, habeas corpus is in the tradition of
Oestereich wherever lawless or unconstitutional action is
alleged.
Page 396 U. S. 1209
As stated, the gravamen of the complaint in this case is that
the critical steps forcing petitioner to serve beyond his
enlistment contract were taken without notice and opportunity on
his part to be heard. The statute makes no provision for a hearing.
Neither did the statute in
Wong Yang Sun v. McGrath,
339 U. S. 33,
authorizing the deportation of aliens. But the Court said that
constitutional requirements made a hearing necessary.
Neither deportation nor a military order to active duty is, in
form, penal. But the requirement that a man serve beyond his
enlistment contract may be as severe in nature as expulsion from
these shores. At least the issue presented is substantial, and
should be resolved.
It is hereby ordered that petitioner be, and he is hereby,
released on his own recognizance from any and all custody of the
United States Army or the United States Army Reserve, and from
compliance with the orders heretofore issued requiring that he
report for active duty at Fort Ord, California, on July 27, 1969.
This order shall remain in effect until a determination of the
cause on the merits by the Court of Appeals.
[
Footnote 1]
"(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. . . ."
"
* * * *"
"(c) The writ of habeas corpus shall not extend to a prisoner
unless --"
"(1) He is in custody under or by color of the authority of the
United States or is committed for trial before some court thereof;
or"
"(2) He is in custody for an act done or omitted in pursuance of
an Act of Congress, or an order, process, judgment or decree of a
court or judge of the United States; or"
"(3) He is in custody in violation of the Constitution or laws
or treaties of the United States. . . ."
[
Footnote 2]
With the apparent lone exception of
Ex parte
Fabiani, 105 F.
Supp. 139, the federal courts have held that habeas corpus is
not available prior to induction.
See, e.g., DeRozario v.
Commanding Officer, 390 F.2d 532;
Lynch v. Hershey,
93 U.S.App.D.C. 177, 208 F.2d 623,
cert. denied, 347 U.S.
917;
Petersen v. Clark, 285 F.
Supp. 700. Pre-induction judicial review is more frequently
sought by way of injunction, mandamus, or declaratory judgment.
See Oestereich v. Selective Service Bd., 393 U.
S. 233;
Wolff v. Selective Service Bd., 372
F.2d 817;
Townsend v. Zimmerman, 237 F.2d 376.
[
Footnote 3]
It is settled that illegal induction is properly attacked by a
petition for a writ of habeas corpus.
Oestereich v. Selective
Service Bd., supra. The remaining debate concerns cases
challenging the legality of continued military service that has
been entered under a contract of enlistment. Cases denying
jurisdiction to issue a writ of habeas corpus where the petitioner
enlisted in the military forces include
Fox v. Brown, 402
F.2d 837;
United States ex rel. McKiever v. Jack, 351 F.2d
672;
McCord v. Page, 124 F.2d 68;
In re
Green, 156 F.
Supp. 174. Others upholding such jurisdiction are
Hammond
v. Lenfest, 398 F.2d 705;
Crane v.
Hedrick, 284 F.
Supp. 250;
cf. Jones v. Cunningham, 371 U.
S. 236,
371 U. S. 240;
Orloff v. Willoughby, 345 U. S. 83,
345 U. S. 94;
Tarble's Case,
13 Wall. 397. In
United States ex rel. Schonbrun v. Commanding
Officer, 403 F.2d 371, the petitioner, a member of the Army
Reserve, sought exemption from active duty on the basis of personal
hardship. Although the court held that "[a]n inquiry into the
legality of this restraint would be within the traditional function
of the writ,"
id. at 373, it further held that "[w]hether
or not habeas corpus is available, the district court was free to
treat the petition as one for mandamus under 28 U.S.C. § 1361."
Id. at 374.