Arlen v. Laird, 58

• Decision Date: 28 October 1971
• Docket Number: No. 58,Docket 71-1446.,58
• Parties: Jeffrey M. ARLEN, Petitioner-Appellant, v. Hon. Melvin LAIRD, Secretary of Defense, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

451 F.2d 684 (1971)

Jeffrey M. ARLEN, Petitioner-Appellant, v. Hon. Melvin LAIRD, Secretary of Defense, et al., Respondents-Appellees.

No. 58, Docket 71-1446.

United States Court of Appeals, Second Circuit.

Argued September 14, 1971.

Decided October 28, 1971.

Michael N. Pollet, New York City, for petitioner-appellant.

Joseph P. Marro, Asst. U. S. Atty., for respondents-appellees.

Before MOORE, SMITH and HAYS, Circuit Judges.

HAYS, Circuit Judge:

This is an appeal from an order of the District Court for the Southern District of New York, 325 F.Supp. 1334, dismissing appellant's petition for a writ of habeas corpus on the ground that the court lacked jurisdiction over the person of the Commanding Officer of the United States Army Reserve Components Personnel Center, who was held to be the proper respondent. The district court dissolved a stay of the order requiring petitioner-appellant to report for active duty. We reverse.

Petitioner is a physician, presently holding the rank of First Lieutenant in the United States Army Reserve. In 1969, while interning at a hospital in San Francisco, he enlisted in the Medical Corps of the United States Army Reserve at the headquarters of the Sixth United States Army, Presidio of San Francisco. He has never been assigned to a military unit for active duty nor has he been attached to a specific reserve component. In military parlance, petitioner is an unattached, inactive reservist. His nominal commanding officer is the Commanding Officer of the Reserve Officer Components Personnel Center, located at Fort Benjamin Harrison, Indiana. That Center is the administrative clearing-house for all assignments, orders, and notices affecting unattached, inactive reservists such as petitioner. All such material directed to petitioner is issued by the Commanding Officer of the Center and sent to petitioner via the Commanding Officer, Sixth United States Army.

In October, 1969 petitioner completed his internship and returned to New York where his family lives. Since November, 1969, he has resided and carried on his practice in this judicial circuit, first in Long Island and, since January 1970, in Manhattan. During this period petitioner at all times continued in his status as an unattached, inactive reservist. In August, 1970 petitioner filed an application with the Commanding Officer, Sixth United States Army, for discharge from the United States Army Reserve. Petitioner advanced as the basis for his application his conscientious objection to war in any form. Because petitioner was then residing within the geographical jurisdiction of the First United States Army, the Commanding Officer of the Sixth Army forwarded the application to the Commanding Officer of the First Army for administrative action. In accordance with the provisions of Army Regulation 135-25, petitioner was interviewed in New York City during October and November, 1970, by the officers designated in the Army Regulations, all of whom, petitioner alleges, recommended his discharge. On December 29, 1970 petitioner was ordered by the Commanding Officer of the Center at Fort Benjamin Harrison to report on February 5, 1971 to Fort Polk, Louisiana for active duty. On January 8, 1971 the Commanding Officer of the Sixth Army forwarded petitioner's application for discharge and the recommendations of the interviewing officers to the Commanding Officer of the Center, together with his own recommendation that the discharge be granted. On February 3, 1971, the conscientious objector discharge review board of Fort Benjamin Harrison, which reviews reserve officers' applications for discharge, denied petitioner's application. Petitioner thereupon filed in the United States District Court for the Southern District of New York, the application now under consideration. The district court issued an order to show cause and stayed petitioner's removal from the jurisdiction pending a determination of his petition. On April 21 the district court denied the petition.

In denying petitioner's application the district court relied upon Schlanger v. Seamans, 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971). Schlanger involved the unusual situation of a serviceman on active duty assigned to a duty station outside the territorial jurisdiction of his commanding officer. In that case the petitioner, assigned to an Air Force unit at Moody Air Force Base in Georgia, applied for and received from his commanding officer a temporary duty assignment at Arizona State University. While at that duty station, he filed a petition for habeas corpus in the United States District Court in Arizona. The petition was denied on the ground that the only respondent with custody over this active duty serviceman, the Commanding Officer of Moody Air Force Base, was not within the territorial jurisdiction of the Arizona District Court. The Supreme Court affirmed. See 401 U.S. at 490-491, 91 S.Ct. 995.

A serviceman in the position of petitioner in the present case is "in custody" in this jurisdiction within the meaning of 28 U.S.C. § 2241(c) (1970). See United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371 (2d Cir. 1968), cert. denied, 394 U.S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969); Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968); Donigian v. Laird, 308 F. Supp. 449, 451-452 (D.Md.1969), discussed infra. The only question presented, therefore, is whether the district court had jurisdiction under 28 U.S.C. § 2241(a) (1970) to issue the writ when the petitioner is an unattached reservist within the court's territorial jurisdiction but the commander of all such reservists is not physically within that jurisdiction. The Supreme Court was faced in Schlanger with a situation involving a serviceman on active duty and under specific orders who was in the rare position of not being within the same territorial jurisdiction as his commanding officer. Before the decision in Schlanger this court had held that a serviceman on active duty outside the territorial jurisdiction of his commanding officer cannot petition for the writ in the jurisdiction in which he happens to be, but must proceed in the jurisdiction where his commanding officer is present. United States ex rel. Rudick v. Laird, 412 F.2d 16 (2d Cir.), cert. denied 396 U.S. 918, 90 S.Ct. 244, 24 L.Ed.2d 197 (1969). See Feliciano v. Laird, 426 F.2d 424, 427 n. 4 (2d Cir. 1970). The specific question of the unattached reservist has not been decided in this Circuit. Schlanger, as we view its holding, does not preclude a district court, with jurisdiction over the territory in which an unattached reservist is in custody and in which he resides and works, from entertaining his petition for habeas corpus solely because his nominal "commanding officer" is not physically present in the jurisdiction. The Supreme Court reserved decision on this precise question, 401 U.S. at 489, 491 n. 5, 91 S.Ct. 995 and cited, apparently with approval, Donigian v. Laird, 308 F.Supp. 449 (D.Md.1969). Donigian involved the same question as is presented by our case: whether, in a habeas corpus proceeding commenced by an unattached reservist, the Commanding Officer of the Reserve Officer Components Personnel Center in Indiana could be sued in the district court of the district in which the reservist resided. It was decided in favor of such...