The District Court for the District of Arizona did not have
jurisdiction to entertain a habeas corpus application by an Air
Force enlisted man in Arizona on temporary duty orders, as no
custodian, neither the commanding officer at Moody Air Force Base
in Georgia nor anyone in the chain of command, was a resident of
Arizona. Pp.
401 U. S.
488-492.
Affirmed.
DOUGLAS, J., delivered the opinion of the Court, in which
BURGER, C.J., and BLACK, BRENNAN, WHITE, MARSHALL, and BLACKMUN,
JJ., joined. HARLAN, J., concurred in the result. STEWART, J.,
dissented.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
The sole question in this case is whether the District Court for
the District of Arizona had jurisdiction to entertain on the merits
petitioner's application for a writ of habeas corpus. He is an
enlisted man who was accepted in the Airman's Education and
Commissioning Program, an officer training project, and was
assigned to
Page 401 U. S. 488
Wright-Patterson Air Force Base (AFB), Ohio, "with duty at
Arizona State University" for training. While studying in Arizona
and before completion of the course, he was removed from the
program, allegedly for engaging in civil rights activities on the
campus.
While he was seeking administrative relief through command
channels, he was reassigned to Moody AFB, Georgia, to complete the
remainder of his six-year reenlistment in a noncommissioned status.
After exhausting those remedies, he was given permissive temporary
duty to attend Arizona State for study, this time by his superiors
at Moody AFB under a different program called Operation Bootstrap,
and at his own expense. [
Footnote
1]
Thereafter [
Footnote 2] he
filed his application for habeas corpus in Arizona alleging that
his enlistment contract had been breached and that he was being
detained unlawfully. The District Court denied the application. The
Court of Appeals affirmed on the basis of
Jarrett v.
Resor, 426 F.2d 213. The case is here on a petition for
certiorari which we granted. 400 U.S. 865.
The respondents to this suit are the Secretary of the Air Force,
the Commander of Moody AFB, and the Commander of the AF ROTC
program on the Arizona State campus. The last respondent was the
only one of the
Page 401 U. S. 489
three present in Arizona and he had no control over petitioner,
who concededly was not in his chain of command, since petitioner
was not in the AF ROTC program, but in Operation Bootstrap. The
commanding officer at Moody AFB in Georgia did have custody and
control over petitioner, but he was neither a resident of the
Arizona judicial district nor amenable to its process.
It is true, of course, that the commanding officer at Moody AFB
exerted control over petitioner in the sense that his arm was long
and petitioner was effectively subject to his orders and
directions. There are cases which suggest that such control to
establish custody may be adequate for habeas corpus jurisdiction
even though the control is exercised from a point located outside
the State, as long as the petitioner is in the district or the
State.
Donigian v. Laird, 308 F.
Supp. 449. For reasons to be stated, we do not reach that
question.
The procedure governing issuance of the writ is provided by
statute. The federal courts may grant the writ "within their
respective jurisdictions." 28 U.S.C. § 2241(a). While the Act
speaks of "a prisoner" (28 U.S.C. § 2241(c)), the term has been
liberally construed to include members of the armed services who
have been unlawfully detained, restrained, or confined.
Eagles
v. Samuels, 329 U. S. 304,
329 U. S. 312.
The Act extends to those "in custody under or by color of the
authority of the United States." 28 U.S.C. § 2241(c)(1). The
question in the instant case is whether any custodian, or one in
the chain of command, as well as the person detained, must be in
the territorial jurisdiction of the District Court.
In
Ahren v. Clark, 335 U. S. 188, we
held that it was not sufficient if the custodian alone be found in
the jurisdiction where the persons detained were outside the
jurisdiction, [
Footnote 3]
Page 401 U. S. 490
and that jurisdiction over the respondent was territorial.
[
Footnote 4] The dissent in
that case thought that the critical element was not where the
applicant was confined, but where the custodian was located; that,
if the custodian were in the territorial jurisdiction of the
District Court, then appropriate relief could be effected.
Whichever view is taken of the problem in
Ahrens v.
Clark, the case is of little help here. For while petitioner
is within the territorial jurisdiction of the District Court, the
custodian -- the Commander of Moody AFB --
Page 401 U. S. 491
is not. In other words, even under the minority view in
Ahrens v. Clark, the District Court in Arizona has no
custodian within its reach against whom its writ can run. Hence,
even if we assume that petitioner is "in custody" [
Footnote 5] in Arizona in the sense that he
is subject to military orders and control which act as a restraint
on his freedom of movement (
Jones v. Cunningham,
371 U. S. 236,
371 U. S.
240), the absence of his custodian is fatal to the
jurisdiction of the Arizona District Court.
Cf. Rudick v.
Laird, 412 F.2d 16, 21.
Had petitioner, at the time of the filing of the petition, been
under the command of the Air Force officer assigned
Page 401 U. S. 492
as liaison officer at Arizona State to supervise the Education
and Commissioning Program, we would have a different question. We
do not reach it, nor do we reach any aspects of the merits,
viz., whether, if petitioner be right in contending that
his contract of enlistment was breached, habeas corpus is the
appropriate remedy.
Affirmed.
MR. JUSTICE HARLAN concurs in the result. MR. JUSTICE STEWART
dissents.
[
Footnote 1]
Headquarters at Moody AFB assigned petitioner to temporary duty
at Arizona State University. By its terms, the order
"permitted [petitioner] to proceed from Moody AFB, GA. to
Arizona State University, Tempe, AZ, effective on or about 4 June
1969 for approximately 70 days for the purpose of attending the
University under Operation Bootstrap and then return to Moody AFB,
GA."
The travel authorized was to be "at no expense to the
Government."
Petitioner attended Arizona State in the summer of 1969 and
obtained his degree.
[
Footnote 2]
This action was started shortly after petitioner had obtained
his degree at Arizona State and while he was still in Arizona.
[
Footnote 3]
Shortly thereafter, Congress provided that a prisoner, no matter
where held, could by motion invoke the jurisdiction of the
sentencing court and be released on a showing that the sentence was
unlawful. 28 U.S.C. § 2255.
See United States v. Hayman,
342 U. S. 205,
342 U. S. 220;
Kaufman v. United States, 394 U.
S. 217.
Later, Congress made an exception to the jurisdictional
requirement noted in
Ahrens by allowing a state prisoner
to seek habeas corpus in the district where he was sentenced, as
well as in the district where he is confined, provided both are
within the same State. 28 U.S.C. § 2241(d) (1964 ed., Supp. V). As
respects that amendment, the Court said in
Nelson v.
George, 399 U. S. 224,
399 U. S. 228
n. 5:
"The legislative history of the 1966 amendments to 28 U.S.C. §
2241(d) (1964 ed., Supp. V) suggests that Congress may have
intended to endorse and preserve the territorial rule of Ahrens to
the extent that it was not altered by those amendments.
See H.R.Rep. No. 1894, 89th Cong., 2d Sess., 1-2 (1966).
See also S.Rep. No. 1502, 89th Cong., 2d Sess.
(1966)."
[
Footnote 4]
Although, by 28 U.S.C. § 1391(e) (1964 ed., Supp. V), Congress
has provided for nationwide service of process in a "civil action
in which each defendant is an officer or employee of the United
States," the legislative history of that section is barren of any
indication that Congress extended habeas corpus jurisdiction. That
section was enacted to broaden the venue of civil actions which
could previously have been brought only in the District of
Columbia.
See H.R.Rep. No. 536, 87th Cong., 1st Sess., l;
S.Rep. No.1992, 87th Cong., 2d Sess., 2. Though habeas corpus is
technically "civil," it is not automatically subject to all the
rules governing ordinary civil actions.
See Harris v.
Nelson, 394 U. S. 286.
[
Footnote 5]
The concept of "custody" has been an evolving one, as Judge
Northrop shows in
Donigian v. Laird, 308 F.
Supp. 449, 451.
And see Peyton v. Rowe, 391 U. S.
54,
391 U. S. 64-66.
In
Jones v. Cunningham, 371 U. S. 236,
371 U. S. 238,
371 U. S. 240,
371 U. S. 243,
we said:
"While limiting its availability to those 'in custody,' the
statute does not attempt to mark the boundaries of 'custody' nor in
any way other than by use of that word attempt to limit the
situations in which the writ can be used. . . ."
"
* * * *"
"History, usage, and precedent can leave no doubt that, besides
physical imprisonment, there are other restraints on a man's
liberty, restraints not shared by the public generally, which have
been thought sufficient in the English-speaking world to support
the issuance of habeas corpus. . . ."
"
* * * *"
"It [the Great Writ] is not now and never has been a static,
narrow, formalistic remedy; its scope has grown to achieve its
grand purpose -- the protection of individuals against erosion of
their right to be free from wrongful restraints upon their liberty.
While petitioner's parole releases him from immediate physical
imprisonment, it imposes conditions which significantly confine and
restrain his freedom; this is enough to keep him in the 'custody'
of the members of the Virginia Parole Board within the meaning of
the habeas corpus statute; if he can prove his allegations this
custody is in violation of the Constitution, and it was therefore
error for the Court of Appeals to dismiss his case as moot instead
of permitting him to add the Parole Board members as
respondents."