Jones v. Watkins, Civ. A. No. 76-1116

• Citation: 422 F. Supp. 1268
• Decision Date: 17 September 1976
• Docket Number: Civ. A. No. 76-1116,76-1117.
• Parties: Charles Max JONES v. James D. WATKINS, Chief of Naval Personnel, U. S. Navy, in his official capacity, et al. Paul Pullen SALTER v. James D. WATKINS, Chief of Naval Personnel, U. S. Navy, in his official capacity, et al.
• Court: U.S. District Court — Northern District of Georgia

422 F. Supp. 1268

Charles Max JONES v. James D. WATKINS, Chief of Naval Personnel, U. S. Navy, in his official capacity, et al.

Paul Pullen SALTER v. James D. WATKINS, Chief of Naval Personnel, U. S. Navy, in his official capacity, et al.

Civ. A. Nos. 76-1116, 76-1117.

United States District Court, N. D. Georgia, Atlanta Division.

September 17, 1976.

COPYRIGHT MATERIAL OMITTED

John William Brent, Robert Joseph Castellani, Brent, Castellani & Palmer, P. C., Atlanta, Ga., for plaintiff.

Sherman D. Johnson, Asst. U. S. Atty., Atlanta, Ga., for defendants.

ORDER

RICHARD C. FREEMAN, District Judge.

These are actions for federal habeas corpus relief, brought pursuant to 28 U.S.C. § 2241, by two inactive reservists in the United States Navy challenging the fact that they have been called up for active duty in violation of their contractual obligations to the Navy. The actions are presently before the court on (1) respondent's motion to dismiss for lack of jurisdiction, and on (2) petitioners' application for habeas corpus relief. An evidentiary habeas hearing was held by this court on September 1, 1976, and the court makes the following findings of fact and conclusions of law in connection therewith and consistent with this court's summary order entered September 10, 1976.

Before turning to the merits of the action, a brief review of the salient facts is warranted. Both petitioners are general surgeons who recently completed their residency at the Emory University Affiliated Residency Program in Atlanta, Georgia. After graduation from medical school, petitioners, recognizing their vulnerability to military service obligations, sought deferments from military service in order to complete essential residency training through a program known as the "Berry Plan", see 32 C.F.R. § 58. Under this program, a medical doctor receives a commission as a reserve officer and a deferment of active duty which enables the physician to complete his residency training without interruption by the draft or any active duty obligation. Both petitioners were enrolled in and accepted for a Group II Berry Plan deferment, whereby they would be called to active naval service at the completion of their residency training if there was a "need" for their services at that time. Both petitioners received notice that they were being called to active duty in July, 1976, and thereafter sought habeas corpus and injunctive relief from this court. The gravamen of their application for habeas corpus relief is their contention that there is no actual need by the Navy for their services as general surgeons at this time, and that the Navy, therefore, breached its obligations under their Berry Plan contracts. Additionally, petitioners contend that their Berry Plan contract is void ab initio since there is no statutory authorization for the Berry Plan or in the alternative that the contract is void for lack of consideration since the Berry Plan was implicitly tied to portions of the Selective Service System which are no longer in existence. The court will turn first to the question of jurisdiction.

JURISDICTION

Respondent has moved to dismiss the instant action on two jurisdictional grounds. First, it contends that federal habeas corpus jurisdiction does not lie in this district since petitioners are not in "custody" in this district. Secondly, respondent contends that petitioners' claims are premature and must be dismissed for lack of jurisdiction on account of petitioners' failure to exhaust their administrative remedies by failing to seek relief from the Board of Corrections of Naval Records, pursuant to 10 U.S.C. § 1552 and 32 C.F.R. § 723.

The federal habeas corpus statute, 28 U.S.C. § 2241, authorizes federal courts to grant the writ "within their respective jurisdiction." 28 U.S.C. § 2241(a). While the statute speaks in terms of "prisoners", 28 U.S.C. § 2241(c), it is well settled that that term should be liberally construed to encompass members of the armed services who have been unlawfully detained or confined. Eagles v. United States ex rel. Samuels, 329 U.S. 304, 312, 67 S.Ct. 313, 91 L.Ed. 308 (1946); Schlanger v. Seamans, 401 U.S. 487, 489, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971). Moreover, federal habeas corpus relief extends only to those "in custody under or by color of the authority of the United States." 28 U.S.C. § 2241(c)(1) (emphasis supplied).

In Schlanger v. Seamans, supra, the Supreme Court held that the presence of a habeas corpus petitioner's custodian or one in his chain of command within the territorial jurisdiction of the district court was the sine qua non of federal habeas corpus jurisdiction. Id. at 491, 91 S.Ct. 995. Thus, the authority of a federal district court to grant the writ "within its respective jurisdiction" is subject to a two-pronged limitation (1) that the petitioner must himself be located within the territorial jurisdiction of the issuing court and further that (2) the petitioner's custodian must also be present within the court's territorial jurisdiction. United States ex rel. Rowland v. Cleary, 397 F.Supp. 395, 397 (E.D.Wis.1975).

In Strait v. Laird, 406 U.S. 341, 92 S.Ct. 1693, 32 L.Ed.2d 141 (1972) the Supreme Court clarified the jurisdictional prerequisites that it had set up in Schlanger, noting that:

the jurisdictional defect in Schlanger, however, was not merely the physical absence of the Commander of Moody AFB from the District of Arizona, but the total lack of formal contacts between Schlanger and the military in that district.

Id. at 341, 92 S.Ct. at 1695.

Thus, in Strait v. Laird, the Supreme Court adopted the reasoning of the Second Circuit in Arlen v. Laird, 451 F.2d 684 (2d Cir. 1971), in which that court held that jurisdiction of a habeas corpus action filed by an unattached and inactive reservist could be predicated upon the petitioner's contacts with the military in that district and that such contacts were sufficient to support a finding that petitioner's commanding officer was present in that district. The court, accordingly, rejected the government's contention that the nominal commander of all inactive reservists was not physically present within the jurisdiction, stating:

Quite unlike a commanding officer who is responsible for the day to day control of his subordinates, the commanding officer of the Center is the head of a basically administrative organization that merely keeps records of unattached reservists. To give the commanding officer of the Center "custody" of the thousands of the reservists throughout the United States and to hold at the same time that the commanding officer is present for habeas corpus purposes only within one small geographical area is to ignore reality.

Id. at 687. See also, Eisel v. Secretary of the Army, 155 U.S.App.D.C. 366, 477 F.2d 1251, 1256-57 (1973); Donigan v. Laird, 308 F.Supp. 449, 453 (D.D.C.1969). In sum, at least with respect to inactive and unattached reservists, territorial jurisdiction may be grounded upon a finding that the commanding officer is present in the district because of a petitioner's formal and significant contacts with the military in the district in which habeas corpus relief has been sought.

Respondent contends, however, that in contrast to the factual situation in Strait, the petitioners herein have shown only casual and insignificant contacts with the military in this district, and that the only meaningful contacts that petitioners have had with the military were with the Bureau of Medicine and Surgery of the Department of the Navy in Washington, D. C. hereinafter the "Bureau". Before turning to the merits of this argument, a brief review of the jurisdictional facts is warranted.

Petitioner Salter is a native of Alabama, attended and graduated from College in Virginia, and graduated from the Medical School of the University of Alabama in 1971. Thereafter, Salter did his internship and residency in Atlanta, Georgia. In 1971, petitioner Salter processed his application to be enrolled in the Berry Plan through a Navy recruiting office in Macon, Georgia, and was commissioned as a naval reserve officer in Georgia, with the attendant oath of that office being administered to him in Atlanta, Georgia. Since that time his contact with the Navy has been in the form of correspondence between petitioner and the Bureau in Washington, D. C., including his most recent attempts to procure an administrative discharge from the Navy which were directed to the Bureau. Petitioner's orders to report to active duty were sent to him at his home in Atlanta, Georgia, although it is now evident that since the time of instituting this action petitioner has returned to Alabama to engage in the practice of general surgery with his father.

Petitioner Jones attended and graduated from college in North Carolina and medical school in New York. Since July, 1971, he has resided in Atlanta, while completing his internship and residency. His application for enrollment in the Berry Plan was processed through the recruiting office in Macon, Georgia, and he was commissioned in Georgia. Petitioner Jones' orders to report to active duty were sent to him in Atlanta, and his formal contacts with the military have been limited to a stream of correspondence with the Bureau in Washington, D. C., including his application for administrative discharge. He is currently engaged in the practice of general surgery in this district.

At the outset, this court notes that petitioners' formal contacts with the military in the State of Georgia are somewhat tangential when compared to those the Supreme Court found determinative of the jurisdictional question in Strait. Thus, in Strait, the Supreme Court noted that Strait was a reserve officer who had never been on active duty, that California was his "home" and that he received his commission in California. Moreover, the court noted that petitioner applied for his release from his military obligations as a...