Parisi v. Davidson

• Citation: 435 F.2d 299
• Decision Date: 03 December 1970
• Docket Number: No. 25773.,25773.
• Parties: Joseph PARISI, Appellant, v. Major General Phillip B. DAVIDSON et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

435 F.2d 299 (1970)

Joseph PARISI, Appellant, v. Major General Phillip B. DAVIDSON et al., Appellees.

No. 25773.

United States Court of Appeals, Ninth Circuit.

December 3, 1970.

Richard L. Goff, San Francisco, Cal. (argued), Douglas M. Schwab, San Francisco, Cal., for appellant.

Steven Kazan (argued), Asst. U. S. Atty., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for appellees.

Before HAMLEY, ELY, and CARTER, Circuit Judges.

ELY, Circuit Judge:

This is an interlocutory appeal, under 28 U.S.C. § 1292(b), from an Order of the District Court, staying habeas corpus proceedings brought under 28 U.S.C. § 2241 until trial and final determination of court-martial charges then lodged against the appellant.

The complex history of the case is set out in detail in the margin.¹ Briefly, Parisi is an army private who alleges that his application for discharge as a conscientious objector was denied by the army without a basis in fact for the denial. His petition was first presented to the District Court in November, 1969, but proceedings were stayed pending his administrative appeal to the Army Board for Correction of Military Records ABCMR.² A partial preliminary injunction also issued, prohibiting Parisi's assignment to any duties which required materially greater participation in combat activity or training than was being required of him in his then duties.

Before the ABCMR's decision, however, Parisi was ordered to Viet Nam, where he was to perform noncombatant duties similar to those which had been assigned to him and which he had been performing in this country. After unsuccessful attempts to win a stay of his redeployment order both from our court and from the Circuit Justice, Parisi chose, with all attendant risks, to disobey a military order to enplane for Viet Nam. Charges were then immediately filed against him, under U.C.M.J. art. 90, for failure to obey a lawful order.

Prior to the date set for court-martial, the ABCMR notified Parisi that it had ruled against his appeal. The District Court promptly ordered the Government to show cause why a writ should not then issue. In its return, the Government, requested the stay Order in question, on the grounds that to permit concurrent federal court proceedings would constitute an unwarranted interference with the military court system.

The question is not an easy one, but we have concluded that habeas proceedings were properly stayed pending the final conclusion of Parisi's military trial and his appeals therefrom.

The military, no less an agency of the federal government than the federal court system, has the equal responsibility to act consistently with the Constitution and laws of the United States.³ While civilian courts are available to correct, in a proper case, abuses by military authorities,⁴ they must be careful to avoid unwarranted interference with internal military matters.

"Judges are not given the task of running the Army. The responsibility for setting up channels through which such 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 interfere in judicial matters."

Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953). Thus, there is the general rule that:

"Habeas corpus petitions from military prisoners should not be entertained by federal civilian courts until all available remedies within the military court system have been invoked in vain."

Noyd v. Bond, 395 U.S. 683, 693, 89 S. Ct. 1876, 1882, 23 L.Ed.2d 631 (1969).⁵

Parisi does not argue the wisdom and correctness of the exhaustion of administrative remedies doctrine as applied to military proceedings. He strenuously contends, however, that the doctrine was improperly applied in the court below.

First, Parisi argues that the doctrine applies only to administrative, not judicial remedies. The risk of imprisonment and dishonorable discharge inherent in military judicial proceedings, he claims, renders it unfair to require one first to assert his claims as defenses at a military trial before being able, successfully, to initiate habeas proceedings in a federal civilian court.

In support of this argument, Parisi relies, primarily, upon Crane v. Hedrick, 284 F.Supp. 250 (N.D.Cal.1968). There, it appears that the district judge expressly rejected Government contentions that a claim of wrongful detention in the military by an inservice conscientious objector must first be raised as a defense to court-martial, noting that

"if the Government\'s contentions were to prevail, the only way one in petitioner\'s position could raise his constitutional claims of wrongful detention would be by first committing a crime and facing the possibility of imprisonment."

284 F.Supp. at 253.

However, assuming, arguendo, the correctness of Crane, the case is distinguishable. Crane was a sailor who deserted his ship after his application for conscientious objector discharge was administratively denied, but before formal charges were brought against him in military court. We note the reasoning, on similar facts,⁶ of Judge Kaufman in Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968):

"Although the government maintains that Hammond should present his claim as a defense to a court martial, it fails to explain wherein lies his power to convene the court martial that is supposedly to judge him. And, as Professor Jaffe posits, where `one must at his risk await such further enforcing procedure as the agency chooses to initiate * * * the exhaustion doctrine is inapplicable; the person has no remedy.\' Jaffe, The Exhaustion of Administrative Remedies, 12 Buff.L.Rev. 327, 329 (1963)."

398 F.2d at 714.

This reasoning is inapposite to Parisi's case, for when the District Court issued the Order here challenged, charges had then already been filed against Parisi by the military authorities, the tribunal that was to judge him had already been convened, and the trial itself was imminent. Parisi was not under the burden of being required to commit a further military "crime" in order to provide himself with a forum. He had already done the act alleged to be unlawful. Thus, we cannot see that either Crane or Hammond supports Parisi's argument.⁷

In Gann v. Wilson, 289 F.Supp. 191 (N.D.Cal.1968), an inservice conscientious objector was granted habeas relief during the pendency of his Article 90 court-martial for failure to obey orders which were given after administrative denial of his application for conscientious objector discharge. But Gann relied solely on Crane and Hammond, supra, and we think that such reliance was misplaced.⁸

Here, the District Court relied upon In re Kelly, 401 F.2d 211 (5th Cir. 1968), wherein the Fifth Circuit upheld a stay order on facts very similar to those before us.⁹ Parisi attempts to distinguish Kelly, arguing that there, habeas was invoked after formal court-martial charges were lodged, whereas he sought habeas before he committed the disobedience leading to the military charges against him.¹⁰ However, Parisi's November 1969 petition was prematurely filed under our rule in Craycroft v. Ferrall, 408 F.2d 587 (9th Cir. 1968), vacated and remanded, 397 U.S. 335, 90 S.Ct. 1152, 25 L.Ed.2d 351 (1970). When the ABCMR ruled in March 1970, satisfying the administrative exhaustion requirement, Parisi renewed his petition, as was proper, but he, at that time, was already facing court-martial. Thus, he is in the same position as was Kelly in the Fifth Circuit.

We are not blind to the possible moral dilemma that Parisi faced. We cannot quarrel with the proposition that disobedience based on the dictates of religious conscience is based on "an obligation, superior to that due the state, of not participating in war in any form." United States v. Seeger, 380 U.S. 163, 172, 85 S.Ct. 850, 857, 13 L.Ed.2d 733 (1965). However, the District Court's injunction was reasonable and afforded ample protection for Parisi's religious scruples. Three judges of our court and our Circuit Justice found that the military order for Parisi's redeployment did not, in the circumstances, violate the District Court's protective order. While Parisi may honestly have disagreed, that disagreement cannot be held to have justified his unilateral determination to defy his military superiors, not to mention the federal judges who had considered and rejected his claim. Were every soldier dissatisfied with some phase of national policy or military effort allowed to exercise similar discretion, necessary military discipline would collapse. Had Parisi bided his time, it appears, on the record before us now, that he likely would have obtained the relief he sought from the District Court. If the fruits of his impatience are bitter, he has only himself to blame for their production.

A serviceman facing court-martial should not be permitted habeas relief in a federal court during the pendency of his military trial and appeals therefrom, except, perhaps, when it might appear that no military tribunal to which he has recourse is capable of granting an appropriate remedy.

In possible anticipation of this qualified conclusion, Parisi argues that the relief he sought in the District Court is in fact elsewhere unavailable. This argument is based on two grounds. First, Parisi asserts that denial of an application for conscientious objector discharge without a basis in fact is not recognized as a defense to an Article 90 court-martial. Second, he argues that even if his claim were a good defense, and established to the satisfaction of the military court, the only remedy he could there expect would be acquittal, not the honorable discharge that might be ordered by a...