District Court for the Northern District of California has
jurisdiction under 28 U.S.C. § 2241(c)(1) to hear and determine the
habeas corpus application of petitioner, who was on unattached,
inactive Army reserve duty while domiciled in California, where
military authorities processed his application for conscientious
objector discharge, though he was under the nominal command of the
commanding officer of the Reserve Officer Components Personnel
Center in Indiana.
Schlanger v. Seamans, 401 U.
S. 487, distinguished. Pp.
406 U. S.
342-346.
445 F.2d 843, reversed.
DOUGLAS, J., delivered the opinion of the Court, in which
STEWART WHITE, MARSHALL, and BLACKMUN, JJ., joined. REHNQUIST, J.,
filed a dissenting opinion, in Part I of which BURGER, C.J., and
BRENNAN and POWELL, JJ., joined,
post, p.
406 U. S.
346.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner is an Army Reserve officer not on active duty. His
active duty obligations were deferred while
Page 406 U. S. 342
he went to law school after graduating from college. During the
period of deferment and at the time this action was commenced, his
military records were kept at Fort Benjamin Harrison, Indiana. His
nominal commanding officer was the Commanding Officer of the
Reserve Officer Components Personnel Center at Fort Benjamin
Harrison. Petitioner was, however, at all times domiciled in
California, and was never in Indiana or assigned there. On
finishing law school, he took the California Bar examination, and,
on March 5, 1970, he was ordered to report for active duty at Fort
Gordon, Georgia, beginning April 13, 1970. Before that time,
however, he had filed an application for discharge as a
conscientious objector. That application was processed at Fort Ord,
California, where hearings were held. Fort Ord recommended his
discharge, and review of that recommendation was had in Indiana.
The result was disapproval of the application.
Petitioner thereupon filed a petition for writ of habeas corpus
in California. The District Court denied a motion to dismiss,
holding that it had jurisdiction (3 S.S.L.R. 3152), but ruled
against petitioner on the merits. On appeal, the Court of Appeals
agreed with the District Court as to jurisdiction, but disagreed
with it on the merits and granted the writ. 3 S.S.L.R. 3784.
Shortly thereafter, our decision in
Schlanger v. Seamans,
401 U. S. 487, was
announced. Thereupon, the Court of Appeals granted a petition for
rehearing and dismissed the action, holding that the District Court
had no jurisdiction under the habeas corpus statutes. 445 F.2d 843.
The case is here on a petition for certiorari, which we granted. We
reverse the judgment below.
In
Schlanger, the serviceman -- on active duty in the
Air Force -- was studying in Arizona on assignment from Ohio. There
was no officer in Arizona who was his
Page 406 U. S. 343
custodian or one in his chain of command, or one to whom he was
to report. While the Habeas Corpus Act extends to those "in custody
under or by color of the authority of the United States," 28 U.S.C.
§ 2241(c) (1), we held in
Schlanger that the presence of
the "custodian" within the territorial jurisdiction of the District
Court was a
sine qua
non. In
Schlanger,
the only "custodian" of the serviceman was in Moody AFB, Georgia.
While there were army officers in Arizona, there was none to whom
the serviceman was reporting and none who was supervising his work
there, though he was on active duty. Moreover, the serviceman in
that case was in Arizona only temporarily for an educational
project.
In the present case, California is Strait's home. He was
commissioned in California. Up to the controversy in the present
case, he was on reserve duty, never on active duty, and, while he
had gone east for graduate work in law, California had always been
his home. Fort Ord in California was where his application for
conscientious objector discharge was processed, and where hearings
were held. It was in California where he had had his only
meaningful contact with the Army, and his superiors there
recommended his discharge as a conscientious objector.
Thus, the contention in the dissent that we "abandon
Schlanger" by the approach we take today is incorrect.
Sergeant Schlanger was on permissive temporary duty. While his stay
in Arizona was thus not charged to his leave time, it was primarily
for his own benefit, [
Footnote
1] he paid
Page 406 U. S. 344
his own expenses, and he was as much on his own as any
serviceman on leave. We held in
Schlanger that, while an
active duty serviceman in such a status light be in military
"custody,"
see Donigian v. Laird, 308 F.
Supp. 449 (Md.1969), his custodian may not be deemed present
wherever the serviceman has persuaded the service to let him go.
The jurisdictional defect in
Schlanger, however, was not
merely the physical absence of the Commander of Moody AFB from the
District of Arizona, but the total lack of formal contacts between
Schlanger and the military in that district.
Strait's situation is far different. His nominal custodian,
unlike Schlanger's, has enlisted the aid and directed the
activities of armed forces personnel in California in his dealings
with Strait. Indeed, in the course of Strait's enlistment,
virtually every face-to-face contact between him and the military
has taken place in California. In the face of this record, to say
that Strait's custodian is amenable to process only in Indiana --
or wherever the Army chooses to locate its recordkeeping center,
see n 3,
infra -- would be to exalt fiction over reality.
In a closely parallel case, the Court of Appeals for the Second
Circuit held that an unattached reserve officer who lived in New
York and whose application for discharge as a conscientious
objector was processed in New York could properly file for habeas
corpus in New York, even though the commanding officer of the
reservists was in Fort Benjamin Harrison, Indiana.
Arlen v.
Laird, 451 F.2d 684. The court held that the only contacts the
serviceman had had with his commanding officer were through the
officers he dealt with in New York. Those contacts, it concluded,
were sufficient to give the
Page 406 U. S. 345
commanding officer "presence" in New York. It concluded:
"Quite unlike a commanding officer who is responsible for the
day to day control of his subordinates, the commanding officer of
the Center is the head of a basically administrative organization
that merely keeps the records of unattached reservists. To give the
commanding officer of the Center 'custody' of the thousands of
reservists throughout the United States, and to hold at the same
time that the commanding officer is present for habeas corpus
purposes only within one small geographical area, is to ignore
reality."
Id. at 687.
We agree with that view. Strait's commanding officer is
"present" in California through the officers in the hierarchy of
the command who processed this serviceman's application for
discharge. [
Footnote 2] To
require him to go to Indiana, where he never has been or assigned
to be, would entail needless expense and inconvenience. It "would
result in a concentration of similar cases in the district in which
the Reserve Officer Components Personnel Center is located."
Donigian v. Laird, 308 F. Supp. at 453. [
Footnote 3] The concepts of "custody" and
"custodian" are
Page 406 U. S. 346
sufficiently broad to allow us to say that the commanding
officer in Indiana, operating through officers in California in
processing petitioner's claim, is in California for the limited
purposes of habeas corpus jurisdiction.
We intimate no opinion on the merits of the controversy --
whether petitioner is entitled to a discharge or whether, by
denying that relief, the Army has acted in accordance with the
prescribed procedures. We hold only that there is jurisdiction
under 28 U.S.C. § 2241(c)(1) for consideration of this habeas
corpus petition and for decision on the merits.
Reversed.
[
Footnote 1]
At the time Sergeant Schlanger received his assignment, Air
Force Regulation 326 (Mar. 6, 1968) defined "permissive temporary
duty" as "duty of a quasi-official nature performed at other than
the permanent duty station, without costs to the Government for per
diem and travel." So defined, primary difference between "leave"
and "permissive temporary duty" appears to be that the latter
status requires the serviceman to convince the military that his
proposed activity, while away from his permanent duty station,
would be of some direct or indirect benefit to the service.
[
Footnote 2]
That such "presence" may suffice for personal jurisdiction is
well settled,
McGee v. Int'l Life Ins. Co., 355 U.
S. 220;
Int'l Shoe Co. v. Washington,
326 U. S. 310, and
the concept is also not a novel one as regards habeas corpus
jurisdiction. In
Ex parte Endo, 323 U.
S. 283,
323 U. S. 307,
we said that habeas corpus may issue "if a respondent who has
custody of the prisoner is within reach of the court's process. . .
." Strait's commanding officer is "present" in California through
his contacts in that State; he is therefore "within reach" of the
federal court in which Strait filed his petition.
See Donigian
v. Laird, 308 F.
Supp. 449, 453;
cf. United States ex rel. Armstrong v.
Wheeler, 321 F.
Supp. 471, 475.
[
Footnote 3]
This concentration would be exacerbated in the extreme by the
fact that the Reserve Components Personnel Center at Fort Benjamin
Harrison, Indiana, has now been moved to St. Louis, Missouri, and
has been there merged into the United States Army Reserve
Components Personnel and Administration Center (RCPAC). RCPAC has
recordkeeping and nominal administrative responsibility for
approximately 2,000,000 servicemen, all unattached, inactive
reservists such as petitioner.
MR. JUSTICE REHNQUIST, dissenting.
The Court today emasculates
Schlanger v. Seamans,
401 U. S. 487
(1971), by permitting habeas corpus when the custodian against whom
the writ must run is not within the forum judicial district. It
stretches the concept of custody beyond anything contained in any
of our previous decisions, and permits the federal courts, through
habeas corpus, to exercise broader review of military
administration than has ever been permitted. I therefore
dissent.
I
The facts of this case are indistinguishable in any material
respect from
Schlanger v. Seamans, supra. Petitioner was
assigned to the Reserve Officer Components Personnel Center at Fort
Benjamin Harrison, Indiana. His dealings with the Army consisted of
several requests for delay in commencing active duty, all of which
were addressed to and granted by his commanding
Page 406 U. S. 347
officer at Fort Benjamin Harrison, and an application for
discharge as a conscientious objector, which was also submitted to
the Indiana command. Although petitioner was interviewed by a
chaplain, psychiatrist, and another Army officer at Fort Ord,
California, each of whom made recommendations about petitioner's
application, petitioner was not subject to military orders from any
command in California, nor did any California command rule upon his
application. The preliminary processing accomplished by the
interviews was forwarded to petitioner's commanding officer at Fort
Benjamin Harrison, who convened a review board to pass upon the
application. Following the board's recommendation, petitioner's
commanding officer denied the requested discharge. Nothing in the
record before us indicates that petitioner has ever been subject to
the orders of any Army officer or command in California. What
little control the Army imposed upon petitioner emanated from his
commanding officer in Indiana. Only last Term, this Court held in
Schlanger that a district court has jurisdiction to issue
a writ of habeas corpus under 28 U.S.C. § 2241 to a military
custodian only where a commanding officer or other custodian in the
chain of command is found within the judicial district. Because
Schlanger had been assigned to a command in Georgia, and no
official in Arizona controlled his activities, the District Court
of Arizona had no habeas jurisdiction. Attempting to reconcile
Schlanger with this case, the Court today says:
"In
Schlanger, the only 'custodian' of the serviceman
was in Moody AFB, Georgia. While there were army officers in
Arizona, there were none to whom the serviceman was reporting, and
none who were supervising his work there, though he was on active
duty. Moreover, the serviceman in
Page 406 U. S. 348
that case was in Arizona only temporarily for an educational
project."
"In the present case, California is Strait's home. He was
commissioned in California. Up to the controversy in the present
case, he was on reserve duty, never on active duty, and, while he
had gone east for graduate work in law, California had always been
his home. Fort Ord in California was where he processed his
application for conscientious objector discharge and where hearings
were held. It was in California where he had had his only
meaningful contact with the Army; and his superiors there
recommended his discharge as a conscientious objector."
Ante at
406 U. S. 343.
But there were no officers in California to whom this petitioner
was reporting, and "none who was supervising his work there." His
control by the Army has heretofore consisted only of requests for
delayed commencement of active duty, and for discharge. All such
requests were addressed to and decided by his commanding officer in
Indiana. His "meaningful contact" with the Army was not in
California, but Indiana. His interviews with staff officers at Fort
Ord neither constituted them "superiors" nor did it bring them
within petitioner's chain of command. No officer or command in
California had authority to provide the relief requested by
petitioner. Under the principle enunciated in
Schlanger,
the Northern District of California lacked jurisdiction to issue
habeas corpus for want of a custodian within the district.
Emphasizing that petitioner brought this habeas corpus suit in the
district where his home is cannot cure that defect,
cf. Rudick
v. Laird, 412 F.2d 16 (CA2 1969). We deal not with the
provisions of a venue statute, but with the established requirement
that the petitioner's custodian be within the
Page 406 U. S. 349
district. Petitioner's presence in his home State to take the
bar examination, after a three-year absence while attending law
school, affords him no more support than did Schlanger's presence
in Arizona.
The Court substitutes the approach of
Arlen v. Laird,
451 F.2d 684 (CA2 1971), for its
Schlanger rule.
Arlen, incorrectly concluding that
Schlanger
reserved the question presented here, [
Footnote 2/1] held that the type of contacts between the
commanding officer and a reservist that have been found to support
state jurisdiction over nonresidents under cases like
McGee v.
Int'l Life Ins. Co., 355 U. S. 220
(1957), and
Int'l Shoe Co. v. Washington, 326 U.
S. 310 (1945), would also suffice for habeas
jurisdiction. To adopt
Arlen is to abandon
Schlanger. But the reasons given by the Second Circuit in
Arlen do not support a result in that case different from
Schlanger. Arlen noted that Government counsel
were adequately available in any judicial district, and the records
could be forwarded from petitioner's command to the forum district.
The same could have been said of
Schlanger. Moreover, the
Government can assert that Indiana would be the appropriate forum,
for the actions of which petitioner complains were taken by the
commanding officer and his advisory board at Fort Benjamin
Harrison, and presumably the proper witnesses for this litigation
were there. These factors would be appropriately considered in a
determination as to venue or
forum non conveniens, but
they are not a substitute for the actual presence of a custodian,
which
Schlanger held was required by statute.
Page 406 U. S. 350
II
While I am satisfied that the Ninth Circuit correctly applied
Schlanger and ordered dismissal of the habeas corpus
petition for want of a custodian within the district, the analysis
of the Court in reaching the opposite conclusion highlights what
is, for me, the more substantial issue of whether petitioner was in
the custody of anyone.
The Court believes that petitioner's commanding officer was
merely a record center, and says that the realistic approach is to
rule that such a record center is present in all States where there
are reservists over whom it has custody. I believe that, where the
control exercised over petitioner is so attenuated as to require
the contacts between himself and his commanding officer to be
weighed for a jurisdictional nexus, the problem is not where the
custodian may be found, but whether the petitioner is in custody at
all. The most realistic approach is to recognize that custody as a
prerequisite for habeas corpus simply does not exist for an
unattached reservist who is under virtually no restraints upon
where he may live, work, or study, and whose only connection with
the Army is a future obligation to enter active duty. This Court
has recognized that a person on active duty with the armed forces
is sufficiently "in custody" to invoke habeas corpus.
Eagles v.
Samuels, 329 U. S. 304
(1946);
Schlanger v. Seamans, supra; Parisi v. Davidson,
405 U. S. 34
(1972). Aside from ruling that release from active to inactive duty
does not moot a habeas proceeding, [
Footnote 2/2] however, the Court has never considered
whether a future obligation to commence Army duty is a sufficiently
severe restraint to support habeas jurisdiction.
Habeas corpus is a powerful remedy, to be wielded promptly in
cases where restrictions on individual liberty
Page 406 U. S. 351
are substantial. The requirement of custody is a primary
parameter for preserving the great writ for appropriate situations.
It is undefined by statute, but depends upon the severity of
restraint upon liberty that is involved.
Jones v.
Cunningham, 371 U. S. 236
(1963); Developments in the Law -- Federal Habeas Corpus, 83
Harv.L.Rev. 1038, 1073 (1970).
Notions of custody have changed over the years. In 1885, this
Court held that a military order restricting a serviceman to the
confines of the District of Columbia did not place him in custody.
Wales v. Whitney, 114 U. S. 564
(1885). Recent decisions dealing with nonmilitary petitioners have
admittedly broadened the concept of custody.
Jones v.
Cunningham, supra; Carafas v. LaVallee, 391 U.
S. 234 (1968).
Jones held that a parolee was in
custody because he was restricted to the community of his parole,
needed special permission to undertake some activities such as
driving an auto, and was subject to prompt reincarceration with
only administrative proceedings if he violated parole conditions.
In
Carafas, a convicted felon who was neither in prison
nor on parole was held to be "in custody" because the disabilities
of his conviction prevented him from engaging in many types of
businesses, voting at any state election, or serving as a labor
official or juror.
But even if this nonmilitary standard were to be applied to
petitioner, it is difficult to place him in that class of persons
laboring under substantial restraints for whom habeas corpus is
reserved. By his own admission, petitioner "has not been subject to
military orders, reserve meetings or summer active duty." From all
that appears in the record, petitioner is free to go anywhere he
desires, or to engage in any activity he chooses, and is not
subject to any Army control until he commences active duty. His
situation is indistinguishable from a prospective inductee, who is
not considered to
Page 406 U. S. 352
be in custody for habeas corpus purposes until after induction.
DeRozario v. Commanding Officer, 390 F.2d 532 (CA9 1967).
Neither precedent nor the
raison d'etre of the writ
sanctions the result reached in this case. Petitioner would be in
"custody" only when he reported to Fort Gordon, Georgia, pursuant
to his orders, and only then would he be entitled to bring habeas
corpus.
III
There is yet another shortcoming in petitioner's claim to habeas
corpus.
Unlike those who are covered by the Military Selective Service
Act, 50 U.S.C.App. § 41
et seq., there is no statutory
right afforded petitioner and other voluntary members of the armed
services to be discharged as conscientious objectors. Under
Department of Defense Directive 1300.6, the armed forces will
approve administrative discharges on a discretionary basis. By
assuming that habeas corpus review of the exercise of this
discretion is proper, the Court and the courts of appeals applying
the same standards of review called for under § 6(j) of the
Military Selective Service Act, 81 Stat. 104, as amended, 85 Stat.
351, [
Footnote 2/3] have failed to
recognize well established limitations upon habeas corpus in
military cases, and the also well established restriction
Page 406 U. S. 353
upon reviewing the administration of the armed services.
A district court has power to grant a writ of habeas corpus only
where a prisoner "is in custody in violation of the Constitution or
laws or treaties of the United States" [
Footnote 2/4] or "is in custody under or by color of the
authority of the United States." [
Footnote 2/5] Petitioner has voluntarily assumed a
reserve officer's commission, and there is no indication from the
record that his present obligation violates either the Constitution
or laws of the United States. Nor is he restrained under any color
of authority of the United States that cannot be traced to
legitimate statutory authorization. Our inquiry should go no
further.
In
Burns v. Wilson, 346 U. S. 137
(1953), the Court reiterated the rule that the scope of habeas
corpus has always been narrower in military cases than when a
prisoner is in civil custody. That case permitted review of a
court-martial conviction for claimed violations of constitutional
due process where the military justice system had failed to fully
consider such claims. Except for constitutional violations,
however, relief is proper only if the military had no jurisdiction
to take the action complained of.
Lack of jurisdiction to review requests for administrative
discharge has similarly been well established. In
Orloff v.
Willoughby, 345 U. S. 83
(1953), the Court refused to review a military duty assignment or
to order a discharge on the ground that the petitioner there had
been unlawfully treated, recognizing that military discretion is
not subject to review in the courts.
See also Noyd v.
McNamara, 378 F.2d 538 (CA10 1967) (refusal to order
assignment to nonobjectionable duties or accept resignation of
conscientious objector);
United States ex
Page 406 U. S. 354
rel. Schonbrun v. Commanding Officer, 403 F.2d 371 (CA2
1968) (no habeas corpus or mandamus jurisdiction to review denial
of hardship discharge request);
Antonuk v. United States,
445 F.2d 592 (CA6 1971) (no jurisdiction to review promotions).
It is said that jurisdiction is established to review military
exercise of administrative discretion where the promulgated
procedures are not followed. Authority for this proposition is
stated to be
Service v. Dulles, 354 U.
S. 363 (1957), and
Vitarelli v. Seaton,
359 U. S. 535
(1959). Although the principles of those cases might not carry over
undiminished to the military services, [
Footnote 2/6] some lower courts have assumed that they
do. [
Footnote 2/7] Reviewing an
administrative decision for conformity to regulations, however,
would afford no relief to petitioner in this case. If his
application for discharge was processed as required by DOD
Directive 1300.6, the Army has fulfilled its responsibility
regardless of whether its ultimate conclusion corresponds to the
decision that a court of law would make. In this case, the
provisions of DOD Directive 1300.6 were applied to petitioner by
Army Regulation 135-25. It requires submission of a form request by
petitioner, subsequent interviews with a chaplain, medical officer,
and an "O-3" hearing officer, consideration of the application by a
board of recommendation, and finally action by petitioner's
commanding officer. All these procedures were followed in
petitioner's case. The Army acted within its jurisdiction in
denying the request.
Page 406 U. S. 355
Habeas corpus will issue where a person is held in custody under
color of federal authority, or in violation of the Constitution or
laws of the United States. 28 U.S.C. §§ 2241(c)(1) and (c)(3).
There is no question that the Army had jurisdiction over petitioner
at least to the limited extent discussed above in reference to the
issue of custody. There is also no question that the Army is under
no statutory command to discharge petitioner before the expiration
of his contracted period of military service. Acting in accordance
with its own procedures, it has chosen not to do so. For me, this
ends the permissible scope of habeas corpus inquiry.
THE CHIEF JUSTICE, MR. JUSTICE BRENNAN, and MR. JUSTICE POWELL
join Part I of this dissent, and, on that ground, would affirm the
judgment of the Court of Appeals.
[
Footnote 2/1]
"The Supreme Court reserved decision on this precise question,
401 U.S. at
401 U. S. 489, 491 n. 5 . .
. and cited, apparently with approval,
Donigian v.
Laird, 308 F.
Supp. 449 (D.Md. 1969),"
451 F.2d at 686. But the cited portions of
Schlanger
dealt only with the question of custody, and not with the separate
jurisdictional requirement that a custodian be present within the
judicial district.
[
Footnote 2/2]
Gillette v. United States, 401 U.
S. 437,
401 U. S. 440
n. 2 (1971).
[
Footnote 2/3]
Most of the circuits have permitted habeas corpus review of an
application for discharge under DOD 1300.6.
E.g., United States
ex rel. Sheldon v. O'Malley, 137 U.S.App.D.C. 141, 420 F.2d
1344 (1969);
Bates v. Commander, 413 F.2d 475 (CA1 1969);
Hammond v. Lenfest, 398 F.2d 705 (CA2 1968);
Brown v.
McNamara, 387 F.2d 150 (CA3 1967);
United States ex rel.
Brooks v. Clifford, 409 F.2d 700 (CA4 1969);
Brown v.
Resor, 407 F.2d 281 (CA5 1969);
Packard v. Rollins,
422 F.2d 525 (CA8 1970);
Sertic v. Laird, 418 F.2d 915
(CA9 1969).
This Court has considered petitions for habeas corpus under DOD
1300.6 in
Craycroft v. Ferrall, 397 U.
S. 335 (1970), and
Gillette v. United States,
401 U. S. 437
(1971).
[
Footnote 2/4]
28 U.S.C. § 2241(c)(3).
[
Footnote 2/5]
28 U.S.C. § 2241(c)(1).
[
Footnote 2/6]
"[W]e cannot review the merits of appellant's present claim that
the Air Force in the case at bar did not comply with its own
regulations in regard to appellant. Such a claim must indeed be
strained to contain an overtone of constitutional invalidity giving
rise to immediate judicial review of its application."
Nold v. McNamara, 378 F.2d 538, 540 (CA10 1967).
[
Footnote 2/7]
E.g., Antonuk v. United States, 445 F.2d 592 (CA6
1971);
Smith v. Resor, 406 F.2d 141 (CA2 1969).