Donigian v. Laird

• Decision Date: 15 December 1969
• Docket Number: Civ. A. No. 20884.
• Parties: Lt. Douglas W. DONIGIAN v. Hon. Melvin LAIRD, Secretary of Defense, Lt. Gen. Jonathan O. Seaman, Commander of the 1st U. S. Army, Hon. Stanley Resor, Secretary of the Army; Col. John H. Hoffman, Commander, United States Army Reserve, Components Personnel Center.
• Court: U.S. District Court — District of Maryland

308 F. Supp. 449

Lt. Douglas W. DONIGIAN v. Hon. Melvin LAIRD, Secretary of Defense, Lt. Gen. Jonathan O. Seaman, Commander of the 1st U. S. Army, Hon. Stanley Resor, Secretary of the Army; Col. John H. Hoffman, Commander, United States Army Reserve, Components Personnel Center.

Civ. A. No. 20884.

United States District Court D. Maryland.

December 15, 1969.

Elsbeth Levy Bothe, Baltimore, Md., and Gaillard T. Hunt, Washington, D. C., for plaintiff.

Stephen H. Sachs, U. S. Atty., and Alan I. Baron, Asst. U. S. Atty., Baltimore, Md., for defendants.

NORTHROP, District Judge.

Lieutenant Douglas W. Donigian has brought a petition for habeas corpus in this court challenging the refusal of the Army to discharge him as a conscientious objector. The defendants answered, claiming that this court lacks jurisdiction, that the plaintiff has failed to exhaust his administrative remedies, and that on the merits, there was a basis in fact for the defendants' action in refusing to grant such a discharge. These contentions will be dealt with in order.

Lieutenant Donigian became a member of the Army ROTC while an undergraduate at Carnegie Institute of Technology, in Pittsburgh, Pennsylvania. He was commissioned in 1964, but was placed on inactive status and deferred in order that he might pursue graduate study in chemistry at Johns Hopkins University. During 1968 Donigian submitted his application for discharge pursuant to AR 135-25 as a conscientious objector. This application was denied, and on June 25, 1969, Donigian received orders to report for induction on July 6. These orders were subsequently revoked pending the outcome of this litigation.

The Army attacks the jurisdiction of this court on three grounds. First, that the plaintiff is not in custody, a requirement for habeas corpus; second, that such custody, if it exists, is not within the territorial jurisdiction of this court; and third, that no custodian can be found within the jurisdiction of the court.

While it is true that custody is an essential element of a petition for habeas corpus relief, it is also true that the nature of the custody considered sufficient for habeas corpus has undergone significant conceptual change. At one time habeas corpus would lie only for those prisoners in actual confinement for the offense which was the subject of their petition. See, e. g., Jones v. Cunningham, 371 U.S. 236, 238, 83 S. Ct. 373, 9 L.Ed.2d 285 (1963); McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L. Ed. 238 (1934). This notion of custody has expanded, however, and the writ is now looked on as a procedural device for subjecting restraints on liberty, although often short of actual physical confinement, to judicial scrutiny. It is used to test convictions before service of sentence for that offense has actually begun, Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); to test a conviction while the petitioner is on parole, Jones v. Cunningham, supra; and to test the validity of a conviction even after the prisoner's unconditional release, Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). This line of cases constitutes recognition of the fact that restraints on liberty short of physical confinement can be of such magnitude as to warrant the protection of the writ of habeas corpus, as "both the symbol and guardian of individual liberty." Peyton v. Rowe, 391 U.S. at 58, 88 S.Ct. at 1551. Habeas corpus "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." Jones v. Cunningham, 371 U.S. at 243, 83 S.Ct. at 377.

With this background in mind, it would appear patently obvious that retention in the Army is a significant enough restraint on liberty to support habeas corpus jurisdiction. This position is further buttressed by a recent decision on virtually identical facts by the Second Circuit Court of Appeals in Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968). In that case petitioner, having enlisted in the Naval Reserve in September, 1963, became conscientiously opposed to war in any form and in March, 1967, submitted a request to his commanding officer for a discharge on that ground. Petitioner in that case had never served on active duty, and until the time of his application, was a student at the University of Connecticut. Rejecting the Navy's contention that the District Court lacked the power to issue a writ of habeas corpus because the petitioner was not in custody, the court said:

We believe the better reasoned and modern view is that a petitioner in Hammond's predicament is under sufficient restraint of his liberty to make appropriate habeas corpus jurisdiction. Any other view would make the ends to be served by the great writ wooden indeed. Id. at 711.

The attempts of the defendants in the instant case to distinguish Hammond are not convincing, and I feel that to hold that retention in the Armed Forces is not a sufficient restraint on liberty would be to ignore the realities of life.

Next the Army states the requirement that the custody must be in this jurisdiction, and contends that Donigian's custody, if it exists, is not within the jurisdiction of this court. On the facts of this case, this contention is unavailing. The first answer is that a strict territorial location of custody is not in keeping with the trend of thought in this circuit and elsewhere. See, e. g., Word v. North Carolina, 406 F.2d 352 (4th Cir. 1969), where the court held that a prisoner serving a sentence in Virginia could attack a conviction in North Carolina. That case allowed a prisoner, clearly in custody in one jurisdiction, to maintain his habeas corpus action in a jurisdiction in which he was not even present. In this case, however, it is clear that I need not rely on the reasoning of Word. Having decided that retention in the Armed Forces is sufficient to constitute custody within the meaning of the statute, it follows that the petitioner is in custody wherever he is. This is not to say that a habeas corpus action may properly be maintained by one in Donigian's position in any jurisdiction in which he may go. There is yet another requirement which must be met before jurisdiction is complete.

It is settled that in habeas corpus actions, for the jurisdiction of a District Court to be complete under 28 U.S.C. § 2241, the action must be brought against a proper custodian who is subject to the personal jurisdiction of the court. See United States ex rel. Rudick v. Laird, 412 F.2d 16 (2d Cir. 1969). Since the Army has contended that this requirement is not met, it must be determined whether any defendant in this suit is at once a proper custodian and subject to the jurisdiction of this court.

The plaintiff has named, and effected personal service on the Hon. Melvin Laird, the Secretary of Defense. The plaintiff claims that by virtue of Mr. Laird's residence in Chevy Chase, Maryland, and his position in the government, personal service on him is sufficient to uphold this suit. This contention is without merit. Although the status of the Secretary of Defense as a proper custodian is not free from doubt, it is clear that the fact of his residence within this district is of absolutely no significance when a suit is maintained against him in his official capacity. In view of the fact that the official residence of the Secretary of Defense is in Washington, the seat of the United States Government, that is the only place in which he may be sued. Stroud v. Benson, 254 F.2d 448 (4th Cir. 1958) (Secretary of Agriculture); cf. United States ex rel. Rudick v. Laird, supra. Therefore maintenance of this action here is improper as to Secretary Laird. Similarly there does not appear to be personal jurisdiction over the Hon. Stanley Resor, Secretary of the Army, who was served by registered mail at his office at the Pentagon in Arlington, Virginia.

The plaintiff also joined Lieutenant General Jonathan O. Seaman, Commander of the First Army at Fort Meade, Maryland. While General Seaman might well be a proper official if the plaintiff were stationed at Fort Meade or attached to the First Army, such a situation does not exist here. Although some of the processing of the plaintiff's claim for conscientious-objector status was done at Fort Meade, he had no other connection with the First Army, and General Seaman can hardly be said to be his commanding officer or custodian. This administrative processing does have other ramifications, however, as hereinafter noted.

The only one of the defendants who is a custodian in the real sense is Colonel John H. Hoffman, Commander, United States Army Reserve Components Personnel Center, Fort Benjamin Harrison, Indiana, who was served by registered mail as required in 28 U.S.C. § 1391(e). That he stands in the position of a custodian does not appear to be seriously disputed. See Defendant's memorandum at 4. The only serious question is whether he is subject to the jurisdiction of this court.

Ordinarily habeas corpus petitions must be brought in the district in which the custodian is located. In Word v. North Carolina, 406 F.2d 352 (4th Cir. 1969) the court was confronted with suits by prisoners serving sentences in Virginia prisons, attacking North Carolina convictions. One of the prisoners had brought his petition in a North Carolina court, while the other two had filed theirs in a Virginia court. The court held that the former was proper, but that the "latter, where permissible, infrequently preferable." Id. at 355. This is one of the rare instances where maintenance of a habeas corpus action in a district other than that of the custodian is both permissible and preferable. Form in this instance cannot prevail over substance.

Lieutenant Donigian is a member of the United States Army Reserve. He is attached to no unit, and his activities...