Eisel v. Secretary of the Army

• Decision Date: 28 March 1973
• Docket Number: No. 71-1943,71-1944.,71-1943
• Citation: 477 F.2d 1251
• Parties: Leo M. EISEL, Appellant, v. SECRETARY OF THE ARMY. Gary S. GELBER, Appellant, v. SECRETARY OF THE AIR FORCE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

477 F.2d 1251 (1973)

Leo M. EISEL, Appellant, v. SECRETARY OF THE ARMY.

Gary S. GELBER, Appellant, v. SECRETARY OF THE AIR FORCE.

Nos. 71-1943, 71-1944.

United States Court of Appeals, District of Columbia Circuit.

Argued January 19, 1973.

Decided March 28, 1973.

David Rein, Washington, D. C., for appellants.

James B. McMahon, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, James F. Flanagan, and Ruth R. Banks, Asst. U. S. Attys., were on the brief, for appellees.

Before McGOWAN, TAMM and WILKEY, Circuit Judges.

WILKEY, Circuit Judge:

Appellants in this case are two members of the "inactive reserve" of the United States Army and Air Force who voluntarily joined the Armed Forces, but who were permitted to complete their educations before beginning tours of active duty. Prior to entering active duty appellants allegedly became conscientious objectors and under the appropriate military regulations sought release from their military obligations. The Army and Air Force denied appellants' requests for discharge, whereupon appellants petitioned the U.S. District Court for the District of Columbia for a writ of habeas corpus to obtain their releases from the military. The District Judge issued preliminary injunctions to prevent appellants from being required to report for active duty; this injunction has remained in effect pending disposition of this appeal and appellants have never reported for active duty. After hearing argument the trial court dismissed the petitions on the ground of lack of jurisdiction, since appellants' respective "immediate custodians" were not located in the District of Columbia.

We agree that the District Court lacked jurisdiction to grant appellants' petitions. Our conclusion is not, however, based upon a finding that appellants' "immediate custodians" are not present in the District of Columbia. Indeed, we find that the concept of "immediate custodianship" is largely irrelevant to determining which particular federal court may entertain habeas petitions brought by inactive reservists.

I. Background

A. Appellant Eisel

Eisel was commissioned as an officer in the United States Army Reserve in June 1964. He was allowed to continue his education and was never attached to an active unit of the military. For bookkeeping purposes Eisel's records were kept at a records center in Indiana, although he was never stationed there or physically present in Indiana. During this period of inactive status Eisel lived several places in the United States and for a time in New Zealand.

While living in Cambridge, Massachusetts, and while still on inactive status, Eisel applied for discharge from the Army as a conscientious objector. Eisel was interviewed in Massachusetts by Army representatives to determine if he should be released, and most of his negotiations with the military took place while he was residing there. At some point after these initial contacts Eisel moved to New York, where he currently resides.

While Eisel's application was still pending he was ordered to report for active duty in Virginia. This order was enjoined by a District Court in Massachusetts and subsequently by the U.S. District Court here. (The Massachusetts action was dismissed on petitioner's motion.) As a result Eisel has never reported to his station in Virginia, and has never physically been in that state.

B. Appellant Gelber

Appellant Gelber was commissioned in the United States Air Force Reserve in October 1966 and like Eisel has been on inactive status since then. Gelber's records were stored in Denver, Colorado, although he has never been physically located in Denver.

Gelber lived for most of his period as an inactive reservist in Cambridge, Massachusetts, and it was there that he petitioned for release from the military as a conscientious objector. Gelber was interviewed by the Air Force in Massachusetts, although in the course of seeking his release he or his attorney corresponded with Air Force personnel in such diverse places as Colorado, Virginia, Washington, D.C., and Texas. During this entire period and up to the present Gelber has lived in Cambridge, Massachusetts.

Upon being ordered to report for active duty in Alaska (with a stop-off in Texas), Gelber sought and obtained in the District of Columbia a preliminary injunction against the order. Thus, Gelber has never physically been present in either Colorado, Texas, Alaska, or the District of Columbia.

II. Contentions of the Parties

Federal habeas corpus law provides that a habeas action "shall be directed to the person having custody of the person detained."¹ Appellants Eisel and Gelber allege that the person "having custody" of them and causing them to be "detained" are the respective Secretaries of the Army and Air Force. Since these "custodians" are officially located in the District of Columbia, appellants argue that Washington is the proper place to seek habeas relief.

The Government vigorously contests the theory that the civilian Secretaries of the Army and Air Force are in any relevant sense the "custodians" of appellants. It contends that only the "immediate custodian" of a petitioner is amenable to a writ of habeas corpus. The Government argues that Gelber's "immediate custodian" is the commander of the record center in Colorado where his records were located prior to being called to active duty. Ironically, with regard to Eisel, the Government argues that the "immediate custodian" is not the commander of the record center in Indiana but rather the commander of the installation in Virginia where Eisel has been ordered to report. The Government offered no real explanation of why the commander of the record center would be the "immediate custodian" of one of the appellants but not of the other.

The District Court declined to hold that the civilian Secretaries of the Armed Services were the "custodians" of Gelber and Eisel. In so doing, the trial judge accepted the Government's contention that only the "immediate custodian" was a proper party to a habeas action and that the action could only properly be brought in the jurisdiction where this "immediate custodian" is physically located. Sensing an inherent contradiction in the Government's contention that the commander of the records center was the "immediate custodian" of one of the petitioners but not the other, the District Judge attempted to be consistent; he held that the "immediate custodians" of appellants Eisel and Gelber were the respective commanders of the records centers where their records were located prior to their being called to active duty.

III. The Proposed Tests

We sympathize with the trial court's attempts to reach the truth through the morass of conceptual contradictions and non sequiturs that abound in this area of the law. We likewise believe that his determination that this action should not be maintained in the District of Columbia was correct. We would prefer not to base our decision, however, upon a determination as to whether the service Secretaries are the "immediate custodians" of the appellants. Where inactive reservists may or may not bring habeas actions is better determined by analyzing the policies for and against allowing an action in a particular jurisdiction, rather than by the blind incantation of words with implied magical properties, such as "immediate custodian."

In determining the most feasible jurisdiction in which to permit habeas actions by inactive reservists, there are at least six distinct interests which should be considered.² First, the forum should be close to the records of the case and to the witnesses who may have to appear. Second, the choice should promote a fair distribution of habeas cases among the District Courts rather than concentrating the burden on a few. Third, the forum should be one before which it is convenient for the petitioner to appear. Fourth, it should be a forum convenient for the Government. Fifth, and perhaps most important, the forum should be one that is easily determined; the rule for determining its location should be clear and unquestionable. Sixth, to the extent possible, there should be a single, exclusive forum in order to prevent forum shopping among alternatives. It is easy to see that these interests may at times be conflicting and that a rule fulfilling all of them perfectly would be difficult if not impossible to formulate. We believe, however, that the best solution will result from a careful evaluation and weighing of these competing considerations.

Our method of analysis is reinforced by the very recent decision of the Supreme Court in Braden v. 30th Judicial Circuit Court of Kentucky (1973).³ There the Court held that the petitioner, imprisoned in Alabama but subject to a detainer issued by a Kentucky court for an offense charged there, was "in custody" within the meaning of 28 U.S.C. § 2241 (c) (3) for purposes of habeas corpus to require a speedy trial in Kentucky. While emphasizing the importance of the location of the custodian in this criminal case, the Court employed practical considerations in determining where an action would lie:

In terms of traditional venue considerations, the District Court in the Western District of Kentucky is almost surely the most desirable forum for the adjudication of the claim. (Footnote omitted.) It is in Kentucky, where all of the material events took place, that the records and witnesses pertinent to petitioner\'s claim are likely to be found. And that forum is presumably no less convenient for the respondent, the Commonwealth of Kentucky, than for the petitioner. The expense and risk of transporting the petitioner to the Western District of Kentucky, should his presence at a hearing prove necessary, would in all likelihood be outweighed by the difficulties of transporting records and witnesses from Kentucky to the district where petitioner is confined.

(Footnote omitted.) Indeed, respondent makes clear that "on

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