Laxer v. Cushman

• Decision Date: 19 June 1969
• Docket Number: Misc. Civ. No. 69-28J.
• Citation: 300 F. Supp. 920
• Parties: Private Gregory G. LAXER, Petitioner, v. Brigadier General J. H. CUSHMAN, Commanding General, Fort Devens, Massachusetts; and Hon. Stanley Resor, Secretary of the Army, Respondents.
• Court: U.S. District Court — District of Massachusetts

300 F. Supp. 920

Private Gregory G. LAXER, Petitioner, v. Brigadier General J. H. CUSHMAN, Commanding General, Fort Devens, Massachusetts; and Hon. Stanley Resor, Secretary of the Army, Respondents.

Misc. Civ. No. 69-28J.

United States District Court D. Massachusetts.

June 19, 1969.

COPYRIGHT MATERIAL OMITTED

Edward Rudnitsky, Boston, Mass., for petitioner.

Paul F. Markham, U. S. Atty., Stanislaw R. J. Suchecki, Asst. U. S. Atty., for respondents.

OPINION

JULIAN, District Judge.

Petitioner, a member of the United States Army in which he enlisted more than two years ago, brought this action seeking a writ of habeas corpus and various other declaratory, mandamus, and injunctive relief which, in effect, would result in his being discharged from the Army as a conscientious objector.

I.

At the time suit was filed on April 25, 1969, the petitioner was subject to military orders to report on May 12, 1969, to the United States Army Replacement Station at Oakland, California, for further assignment in Vietnam. Respondents' appearance and opposition to the petition were not filed, however, until the close of business on May 8, 1969, at which time respondents also filed a motion for summary judgment, a motion to dismiss for lack of jurisdiction, the complete record of the administrative proceedings in petitioner's case, and various other documents.

The Court conferred with counsel for both sides twice on Friday, May 9, 1969, after which, in order to ensure itself a reasonable opportunity to study all the papers in the case, the Court issued a ten-day temporary restraining order enjoining respondents from removing petitioner from this District. The respondents did not object thereto. During the ten-day stay both sides filed briefs on the questions of jurisdiction and exhaustion of administrative remedies. A hearing was held on May 19 on respondents' motions to dismiss and for summary judgment, at which time the temporary restraining order was continued until 5 p.m. E. D. T. on Thursday, May 22, 1969. Subsequent extensions, to enable the parties to submit additional information concerning the case, moved the expiration date of the temporary restraining order to 5 p.m. E. D. T. on Thursday, June 19, 1969.

II.

The petition alleges that petitioner Laxer enlisted in the Army on May 12, 1967, was trained as a "medic," and was assigned to work in a military hospital at Valley Forge, Pennsylvania. Petitioner alleges that as a result of his observing the wounded, he for the first time "became, by reason of religious training and belief, conscientiously opposed to participation in war in any form." Counsel for the parties agreed at the hearing that while he was assigned to Valley Forge petitioner received orders to report to Oakland, California, for shipment to Vietnam. The parties also agree that petitioner did not obey those orders but instead absented himself without authority from on or about October 22, 1968, until November 23, 1968, when he again came under the control of military authority at Fort Devens, Massachusetts, where he was prosecuted before a summary court-martial for having been absent without leave.

The parties also agree that on December 17, 1968, the petitioner filed an application for an administrative discharge as a conscientious objector. As required by Army Regulation 635-20,¹ petitioner was interviewed by an Army chaplain and by a psychiatrist. He was granted a hearing before an Army hearing officer. Petitioner appeared in person with counsel. On January 7, 1969, the hearing officer recommended disapproval of the application for discharge, as did the petitioner's unit commander on February 8, 1969. On March 27, 1969, petitioner's application was disapproved by order of the Secretary of the Army for the reason that petitioner's "objection to service is not based upon sincere religious beliefs and training."²

On April 18, 1969, petitioner was ordered to report on May 12 at Oakland for further assignment to Vietnam. This petition was filed one week later.

III.

At the outset respondents contend that this Court lacks jurisdiction to entertain this petition because petitioner, having been ordered to report to a new duty station in Oakland, California, is not within the control or "custody" of the respondent Brigadier General Cushman at Fort Devens in Massachusetts.

It is well settled that servicemen who, like petitioner, seek administrative discharge from the military are under sufficient restraint of their liberty so as to be "in custody" within the meaning of 28 U.S.C. § 2241. Hammond v. Lenfest, 1968, 2 Cir., 398 F.2d 705, 710-711 and cases cited; Brown v. McNamara, 1967, 3 Cir., 387 F.2d 150, 152, cert. denied sub nom. Brown v. Clifford, 1968, 390 U.S. 1005, 88 S.Ct. 1244, 20 L.Ed.2d 105. The narrower question of which duty station has control over petitioner raises more difficult problems, see United States ex rel. Rudick v. Laird, 412 F.2d 16 (2 Cir., April 23, 1969), which require a fuller record than that here presented before this Court will conclude that it lacks jurisdiction.³

The respondents' argument, at its strongest, is that the petitioner is in custody, if anywhere, in California. The Court, however, cannot overlook the facts that petitioner is actually in this District; that he was never in California; and that he is presently under the military control of the respondents in this District. It is immaterial that he is not physically confined.

"Besides physical imprisonment, there are other restraints on a man's liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus."

Jones v. Cunningham, 1963, 371 U.S. 236, 240, 83 S.Ct. 373, 376, 9 L.Ed.2d 285.

The Army authorities in this case claim the authority to subject petitioner to their orders and supervision, including the authority to transport him from Massachusetts to California, by force if necessary.⁴ The fact that a court order was necessary to prevent such a removal has been considered persuasive evidence of "custody" within the meaning of 28 U.S.C. § 2241. Hammond v. Lenfest, supra, 398 F.2d at 711.⁵

I rule, therefore, that there is jurisdiction in this Court to entertain this petition.

IV.

Respondents next argue that this Court should dismiss the petition because, prior to instituting this action, petitioner failed to exhaust all administrative remedies then available to him within the Army.

It is well settled that the doctrine of "exhaustion of administrative remedies" applies to cases involving complaints by military personnel and requires them, before coming to civil courts, to exhaust all available military remedies. Gusik v. Schilder, 1950, 340 U.S. 128, 131-132, 71 S.Ct. 149, 95 L.Ed. 146; In re Kelly, 1968, 5 Cir., 401 F.2d 211; Minasian v. Engle, 1968, 9 Cir., 400 F.2d 137; Noyd v. McNamara, 1967, D.Colo., 267 F.Supp. 701, 706, aff'd, 1967, 10 Cir., 378 F.2d 538, cert. denied, 1967, 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667. This is a sound rule, founded upon notions of judicial economy and, more importantly, upon a judicial respect for the principles of separation of powers under our form of government. As the Supreme Court warned in Orloff v. Willoughby, 1953, 345 U.S. 83, 93-94, 73 S.Ct. 534, 540, 97 L.Ed. 842:

"Judges are not given the task of running the Army. The responsibility for setting up channels through which * * * grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters."

Thus, if in fact petitioner Laxer has not exhausted his available military remedies, this Court should, absent extraordinary circumstances, decline to hear the case until the military authorities have been given "every reasonable opportunity" to consider his complaints. Craycroft v. Ferrall, 1969, 9 Cir., 408 F.2d 587, 595.

The respondents argue that available military remedies were not exhausted in two respects. They first assert that the petitioner failed to request reconsideration of his application for discharge by reason of conscientious objection, citing paragraph 5 of Army Regulation 635.20.⁶ That paragraph, however, specifically provides that subsequent applications for discharge on grounds which are "substantially the same as a previous application disapproved by Headquarters, Department of the Army," should be returned to the applicant "without action." There is no mention made in paragraph 5 or elsewhere in Army Regulation 635.20 of any procedure for requesting "reconsideration" of earlier denials of applications for discharge on conscientious objection grounds. Nor does the case of Noyd v. McNamara, supra, 267 F.Supp. 701, cited by respondents, suggest any such procedure. It is difficult to see, therefore, how petitioner's failure to request reconsideration can fairly be deemed a failure to exhaust available administrative remedies.

The second arrow to respondents' bow, however, is the claim that petitioner has failed to exhaust available military remedies in that he has not yet applied to the Army Board for Correction of Military Records to correct an error or to remove an injustice. 10 U.S.C. § 1552; 32 C.F.R. § 581.3.

That Board, like similar boards established for the other military services pursuant to section 207 of the Legislative Reorganization Act of 1946, 10 U.S. C. § 1552, is composed of civilian personnel in the Department of the Army broadly empowered to determine "the existence of an error or an injustice" and to make recommendations to the Secretary of the Army after applicant has exhausted all administrative remedies afforded...