Carney v. SECRETARY OF DEFENSE, LAIRD

• Decision Date: 14 April 1971
• Docket Number: Civ. A. No. 4451.
• Citation: 326 F. Supp. 741
• Court: U.S. District Court — District of Rhode Island
• Parties: Raymond F. CARNEY, Jr., Petitioner, v. SECRETARY OF DEFENSE, Melvin LAIRD, et al., Respondents.

326 F. Supp. 741

Raymond F. CARNEY, Jr., Petitioner, v. SECRETARY OF DEFENSE, Melvin LAIRD, et al., Respondents.

Civ. A. No. 4451.

United States District Court, D. Rhode Island.

April 14, 1971.

COPYRIGHT MATERIAL OMITTED

Milton Stanzler, Providence, R. I., for petitioner.

Lincoln C. Almond, U. S. Atty., District of R. I., Providence R. I., for respondents.

OPINION

PETTINE, District Judge.

In this habeas corpus action, petitioner, a Navy officer, seeks judicial review of the denial by the Chief of Naval Personnel of his in-service conscientious objector application. Jurisdiction is alleged under 28 U.S.C. §§ 2241 and 1391(e). Respondents contend that this Court lacks jurisdiction to entertain this claim. The parties have submitted an agreed statement of facts relating to that issue, but the Government chose not to question the petitioner when he testified as the sole witness at the hearing upon the merits of the instant petition, and in fact objected to any hearing, apparently out of concern that its jurisdictional challenge might somehow be considered waived. Similarly, the Government offered no other evidence whatsoever. Thus, except as appears specifically to the contrary infra, I have before me an uncontroverted record.

JURISDICTION

The stipulated facts, insofar as relevant to the disposition of the jurisdictional aspect of this petition, disclose first that petitioner was commissioned an Ensign in the Navy on June 11, 1969, and assigned to active duty on a destroyer, the U.S.S. Samuel B. Roberts, attached to the Newport, Rhode Island Naval Base. Petitioner was then given a temporary appointment to the rank of Lieutenant (junior grade) on June 4, 1970. On July 30, 1970, after more than one year of continuous assignment to the same destroyer (which was stationed at Newport throughout his duty aboard it) petitioner applied for conscientious objector status. In a letter dated September 15, 1970, the Chief of Naval Personnel denied petitioner's C.O. request, and on the same date orders were cut, transferring petitioner to a hospital ship stationed off the coast of Vietnam. Petitioner received the letter on September 23, 1970 and received the orders on September 30, 1970. He left the ship on the latter date and took up residence in Newport, where he was living at the time he filed this petition, on November 2, 1970.

Habeas corpus jurisdiction in this case is founded upon 28 U.S.C. § 2241, which provides, in part:

"§ 2241. Power to grant writ

(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. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had.

* * * * * *

(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;

* * *" (emphasis added)

Respondents contend that the stipulated facts establish that this Court lacks sufficient "custody" of petitioner to maintain jurisdiction herein. Insofar as jurisdiction is asserted against the Secretary of Defense, the Secretary of the Navy and the Chief of Naval Operations, under 28 U.S.C. § 1391(e), I must agree. That provision relates only to proper venue and was not intended by Congress to broaden the availability of habeas corpus relief, and I read it not to have done so. Schlanger v. Seamans, 401 U.S. 487, 490 n. 4, 91 S.Ct. 995, 28 L.Ed.2d 251. However, the remaining respondent is the Commanding Officer of the U.S.S. Samuel B. Roberts. In support of his motion to dismiss he relies particularly upon the following arguments:

1) petitioner had already been ordered to report to a new duty station, beyond the territorial jurisdiction of this Court, prior to the filing of this petition;

2) petitioner had been officially detached from the destroyer and was on leave on November 2, 1970, and was therefore merely voluntarily in this District;

3) when detached from the destroyer, petitioner carried his personnel records with him;

4) in the preparation of fitness reports by a Naval command, pursuant to Bureau of Naval Personnel Instructions (specifically, BUPERSINST 1611.12B Sec. 2-1), the new duty station is obligated to account for and evaluate an officer's performance during the leave and travel time from the previous duty station.

The last two arguments can be readily disposed of. Even assuming, arguendo, that possession of one's personnel records while in transit to a new duty station has any probative value on the issue of "custody," this contention was raised only in respondent's memorandum of law, and is unsubstantiated by the record herein, and therefore is not properly before me for consideration. As to the Instruction concerning fitness reports, it also is not in evidence herein because of the Government's voluntary silence. However, I take judicial notice of its existence¹ and have examined its contents. Again I am left to divine, without Government assistance, the rationale behind the report by the new duty station rather than the old. I conclude that the Instruction in question has no probative value on the issue of "custody." While it may, as the Government suggests, indicate the relinquishment of control by the former duty station, it may also be nothing more than a determination that it is more expedient that an officer's future command be concerned with his misconduct during the leave and/or travel period than his prior duty station for reasons of future disciplinary action. Perhaps neither of these is the real explanation for the fitness report procedure, but at any rate the equivocal nature of the Instruction, insofar as it bears on the issue of "custody," causes me to reject the assertion that it points to lack of jurisdiction in this forum.

That an enlisted member of the Armed Forces is "in custody," within the meaning of § 2241(c), is a question that has not been finally determined. Scaggs v. Larsen, 396 U.S. 1206, 1208 n. 3, 90 S.Ct. 5, 24 L.Ed.2d 28 (1969). However in my opinion the better-reasoned view is that federal courts have limited review over claim of unlawful military service. Hammond v. Lenfest, 398 F.2d 705, 710-712 (2d Cir. 1968); cf. Bates v. Commander, First Coast Guard District, 413 F.2d 475, 477 (1st Cir. 1969). I note in passing that the Government here concedes that "it is already well settled by sic law that a member of the armed forces is in custody so as to be entitled to the availability of the writ of habeas corpus citing Hammond, supra." Respondents' brief at p. 2.

The jurisdictional issue in this case, therefore, is whether petitioner may pursue habeas corpus relief in this Court—i. e., whether this is the proper federal forum for maintaining this action, considering the territorial limitation contained in § 2241(a). Respondents place primary reliance upon the following language, drawn from Ahrens v. Clark, 335 U.S. 188, 192-193, 68 S.Ct. 1443, 1445, 92 L.Ed. 1898 (1948):

"Thus the view that the jurisdiction of the District Court to issue the writ in cases such as this footnote omitted is restricted to those petitioners who are confined or detained within the territorial jurisdiction of the court is supported by the language of the statute, by considerations of policy, and by the legislative history of the enactment. We therefore do not feel free to weigh the policy considerations which are advanced for giving district courts discretion in cases like this. If that concept is to be imported into this statute, Congress must do so."

Precision in the use of the term "custody" when applied to State or federal prisoners disappears when applied to a member of the military who has freedom of travel during authorized leave from a duty station to which he has been attached. In this situation the fiction represented by the term "custody" breaks down as an attempt is made to give it operational meaning in the face of a complex military chain of command. However it can be stated with some certainty at this time that a member of the Armed Forces cannot maintain a habeas corpus action in a jurisdiction where he has merely chosen to travel while on leave or while absent without leave. United States ex rel. Rudick v. Laird, 412 F.2d 16, 21 (2d Cir.), cert. denied, sub nom. Rudick v. Laird, 396 U.S. 918, 90 S.Ct. 244, 24 L. Ed. 197 (1969) (hereinafter Rudick); Weber v. Clifford, 289 F.Supp. 960, 961 (D.Md.1968); Tucci v. Laird, C.A.No. 4731 (D.R.I.1971) (unpublished opinion); see Donigian v. Laird, 308 F. Supp. 449, 453 (D.Md.1969).

The situation here, however, is very different. Petitioner had been attached to a ship assigned to Newport for over one year prior to filing this petition. At the time his conscientious objector application was rejected by the Navy, he was still assigned to Newport. He received his new orders while on duty in Newport. He has never taken up a duty station other than on a ship attached to Newport. This is not a case in which a serviceman has chosen merely to reside in a jurisdiction which is unrelated to his military duties and to which he has voluntarily traveled to file his petition.

There are several recent decisions supporting the proposition that where a serviceman is under orders to report to a new duty station, there is sufficient "custody" in the District where his former duty station is found to support the filing of a habeas corpus action in that jurisdiction, at least where, as here, the record fails to demonstrate that the petitioner is already A.W.O.L. Feliciano v. Laird, 426 F.2d 424, 427 n. 4 (2d Cir. 1970); Morales Crespo v. Perrin, 309 F.Supp. 203, 205 (D.P.R.1970); United States ex rel. Armstrong v. Wheeler, 321 F.Supp. 471, 476 (E.D.Pa. 1970); Laxer v. Cushman, 300 F.Supp. 920, 923-24 (D.Mass.1969); Weber v. Clifford, 289 F.Supp. 960, 961 (D.Md. 1...