Murphy v. Garrett

• Decision Date: 18 January 1990
• Docket Number: Civ. A. No. 89-1853.
• Citation: 729 F. Supp. 461
• Parties: Michael A. MURPHY, Plaintiff, v. H. Lawrence GARRETT, Secretary of the Navy; A.M. Gray, Commandant of the Marine Corps; W.E. Boomer, Commanding General Marine Corps, 4th Marine Division, Department of the Navy; Colonel Rex M. Williams, Deputy Director of Marine Reserve Support Center, Department of the Navy; Major Dennis Williams, United States Marine Corps Recruiting Center Pittsburgh, Department of the Navy; Richard Cheney, Secretary of Defense, and the United States of America, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

729 F. Supp. 461

Michael A. MURPHY, Plaintiff, v. H. Lawrence GARRETT,¹ Secretary of the Navy; A.M. Gray, Commandant of the Marine Corps; W.E. Boomer, Commanding General Marine Corps, 4th Marine Division, Department of the Navy; Colonel Rex M. Williams, Deputy Director of Marine Reserve Support Center, Department of the Navy; Major Dennis Williams, United States Marine Corps Recruiting Center Pittsburgh, Department of the Navy; Richard Cheney, Secretary of Defense, and the United States of America, Defendants.

Civ. A. No. 89-1853.

United States District Court, W.D. Pennsylvania.

January 18, 1990.

Philip A. Ignelzi, Samuel Cordes, Ogg, Jones, DiSimone & Ignelzi, Francis C. Rapp, Jr., Feldstein Grinberg Stein & McKee, Pittsburgh, Pa., for plaintiff.

Amy Reynolds Hay, Asst. U.S. Atty., Pittsburgh, Pa., Lt. Vincent Matanoski, JAGC, USNR, Lt. Ruth Thompson, JAGC, USN, Lt. (j.g.) Kris Henrichsen, JAGC, USNR Law Student Division, Office of the Judge Advocate Gen., Dept. of Navy, General Litigation Div., Alexandria, Va., for defendants.

OPINION

DIAMOND, District Judge.

Michael A. Murphy commenced this action against the Secretary of the Navy and various other defendants on August 31, 1989. On that day, Murphy also sought a temporary restraining order enjoining the defendants from ordering him to active duty in the military for the purpose of appearing before an investigation, pursuant to Article 32 of the Uniform Code of Military Justice ("U.C.M.J."), into court martial charges pending against him. See 10 U.S.C. § 832. We issued a temporary restraining order and scheduled a hearing on Murphy's motion for a preliminary injunction for September 8, 1989. At the conclusion of that hearing, we ordered further briefing focusing particularly on jurisdictional issues. We also ordered the parties to submit stipulations of facts.² By agreement of counsel, the temporary restraining order was ordered to remain in effect through the disposition of the motion for preliminary injunction. Plaintiff filed his amended complaint on September 25, 1989.

The court has reviewed the briefs and supplemental briefs filed by the parties, as well as the proposed stipulations and responses thereto. For the reasons set forth in this opinion, we will dissolve the temporary restraining order, deny the motion for a preliminary injunction, and dismiss the complaint.

I. Background

Murphy presently holds a commission as a Captain in the reserve component of the United States Marine Corps. On August 30, 1989, Lieutenant Gerald Pritsch of the Marine Corps informed Murphy that court martial charges were pending against him.³ Orders calling Murphy to active duty effective September 5, 1989, were sent to his residence in Pittsburgh, Pennsylvania. He then filed the present suit. All of the charges which form the basis of the court martial proceedings against Murphy arise from alleged conduct which occurred in this district, except for one charge which arises from alleged conduct in Cincinnati, Ohio.

While on active duty in the regular Marine Corps, Murphy served as the Operations Officer at the Pittsburgh Recruiting Station from June, 1985, until August, 1986. In August of 1986, Murphy commenced law studies at the University of Pittsburgh School of Law under the Marine Corps Funded Law Education Program ("FLEP"); he graduated in May of 1989.

During his first year of law school, Murphy requested permission to withdraw from the FLEP and to be assigned to his former post. His request was granted and he served as Executive Officer of the Pittsburgh Recruiting Station from June, 1987, until May of 1988. On May 30, 1988, Murphy was discharged from the regular Marine Corps and accepted his present commission as a Captain in the Marine Corps Reserve and was assigned to inactive duty.⁴

Murphy was transferred from the Selective Reserve to the Individual Ready Reserve on April 12, 1989. He was, therefore, detached from his Pittsburgh reserve unit and assigned to the Marine Corps Reserve Support Center in Overland Park, Kansas. On August 23, 1989, Major General W.E. Boomer, Commanding General of the 4th Marine Division, appointed Major S.L. Murray of the Marine Corps Air Station in New River, North Carolina, to conduct an Article 32 investigation into preferred court martial charges pending against Murphy. See 10 U.S.C. § 832. On August 30, 1989, as discussed above, Lieutenant Pritsch informed Murphy of the pending charges. Murphy presently is domiciled in this district.

II. Discussion

A. Habeas Corpus Jurisdiction

A petitioner may challenge the legal authority under which he is detained or under which his freedom is restricted by a writ of habeas corpus. Indeed, any challenge to a fact or condition of confinement seeking an order which would provide for a prisoner's release is properly treated as a habeas case. Monk v. Secretary of Navy, 793 F.2d 364 (D.C.Cir.1986); Johnson v. Hardy, 601 F.2d 172 (5th Cir.1979). Monk, which involved a challenge to a Marine Corps court martial, held that:

In adopting the federal habeas corpus statute, Congress determined that habeas corpus is the appropriate federal remedy for a prisoner who claims that he is "in custody in violation of the Constitution ... of the United States" ... This specific determination must override the general terms of the declaratory judgment and federal question statutes.

793 F.2d at 366. Monk then held that the action was filed in the wrong district since the petitioner's custodian was not within the jurisdiction of the court. The court also rejected petitioner's argument that the Secretary of the Navy was his "custodian" for habeas purposes. See also Jarrett v. Resor, 426 F.2d 213 (9th Cir.1970) (where plaintiff sought declaratory and mandamus relief in order to avoid difficult jurisdictional problems which might arise if styled as a habeas corpus petition, district court properly characterized plaintiff's case as one for habeas corpus and dismissed it for jurisdictional defect).⁵

Murphy's action is styled as one seeking declaratory and injunctive relief and damages. Nevertheless, he challenges the authority under which the Marine Corps may order him to active duty for an investigation and restrict his liberty. Such cases are cognizable under the federal habeas corpus statute. See, e.g., Hammond v. Lenfest, 398 F.2d 705 (2d Cir.1968); Santos v. Franklin, 493 F.Supp. 847 (E.D.Pa. 1980). Furthermore, any declaration or judgment in Murphy's favor would be based upon our holding that his activation was illegal. If Murphy receives such relief, "the additional relief of immediate release" from military custody as an active duty Marine "would follow automatically since, in a second action for a writ of habeas corpus, the prior judgment would have res judicata effect." Monk, 793 F.2d at 366. Thus, we hold that the appropriate remedy is habeas corpus and Murphy's complaint should be treated accordingly.⁶

Under 28 U.S.C. § 2241(c)(1), a person held in custody by the United States may seek habeas relief. The statute, in pertinent part, provides:

(a) Writs of habeas corpus may be granted by ... the district courts ... within their respective jurisdictions....

(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 ...

. . . . .

28 U.S.C. § 2241. The Court of Appeals for the Third Circuit has recognized that "it is well settled that habeas relief ordinarily is available to a person who claims he is being unlawfully detained by the military." Bowman v. Wilson, 672 F.2d 1145, 1156 (3d Cir.1982).

In analyzing a habeas petition:

... the court is confronted with a threshold question whether the petitioner is "in custody" for purposes of establishing the subject matter jurisdiction of the court.

Meck v. Commanding Officer, 452 F.2d 758, 760 (3d Cir.1971). Petitioners who are "unlawfully detained, restrained, or confined in the service," Meck, 452 F.2d at 760, meet this requirement. See, e.g., Schlanger v. Seamans, 401 U.S. 487, 489, 91 S.Ct. 995, 997, 28 L.Ed.2d 251 (1971). Courts have held, and we agree, that reservists ordered to active duty meet this test.

For example, in Hammond v. Lenfest, 398 F.2d 705, 710-712 (2d Cir.1968), the Second Circuit held that a reservist ordered to report for active duty is "in custody" for habeas purposes notwithstanding the fact that he had not reported for duty and was under no physical restraint. The court recognized the flexibility of the writ "to achieve its grand purpose — the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty." 398 F.2d at 711, quoting Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). Thus, the restraint on the petitioner's liberty by the military's assertion of authority over him was sufficient to satisfy the custody requirement without his having first to report for active duty.

Similarly, Santos v. Franklin, 493 F.Supp. 847, 851 (E.D.Pa.1980), held that "the activation of petitioner from the ready reserve to active military service satisfies the jurisdictional requirement of `custody'." The late Judge Weber of this court reached the same conclusion in Hayes v. Secretary of the Army, 465 F.Supp. 646, 647 (W.D.Pa.1979). Judge Weber held that the petitioners, active duty servicemen stationed in Oklahoma on holiday leave in this district, were in custody here, emphasizing "that the change in classification from reserve to active status occurred when the Petitioners were within the District on the basis of conduct which occurred here." Thus, "it was within this District that the increased restraints of active duty were first imposed." Id. Murphy's situation is the same; he has been ordered into active duty "on the basis of conduct which occurred here." Furthermore, he has been present within this district at all...