Ramirez Alvarado v. Saxby

• Decision Date: 25 February 1972
• Docket Number: Civ. No. 615-71.
• Citation: 337 F. Supp. 1324
• Parties: Edgardo E. RAMIREZ ALVARADO v. Colonel SAXBY, Comm. Off., Fort Buchanan — Armed Forces of United States.
• Court: U.S. District Court — District of Puerto Rico

337 F. Supp. 1324

Edgardo E. RAMIREZ ALVARADO v. Colonel SAXBY, Comm. Off., Fort Buchanan — Armed Forces of United States.

Civ. No. 615-71.

United States District Court, D. Puerto Rico.

February 25, 1972.

Olaguibeet López-Pacheco, Hato Rey, P. R., for plaintiff.

Wally de la Rose, Asst. U. S. Atty., San Juan, P. R., for defendant.

MEMORANDUM OPINION AND ORDER

FERNANDEZ BADILLO, District Judge.

Plaintiff, while being a member of the U. S. Army and stationed at U. S. Army Personnel Center, Overseas Replacement Station, Oakland, California, obtained leave from June 23, 1971 until July 2, 1971. On his arrival to Puerto Rico, plaintiff filed an application for Separation, Hardship or Reassignment. Said application was subsequently notified to his home base at USAOSREPLSTA, Oakland, California, for the appropriate determination. Plaintiff was attached to Third U. S. Army Group, Fort Buchanan, Puerto Rico, pending the results of the petition.¹ On July 15, 1971 Headquarters Third U. S. Army, Fort McPherson, Georgia, denied plaintiff's application for Separation, Hardship or Reassignment.

On August 12, 1971, Headquarters Third U. S. Army, Fort Buchanan, Puerto Rico, issued an amended order whereby plaintiff's previous effective order of July 21, 1971, with reporting date July 23, 1971, to the U. S. Overseas Replacement Station, Oakland, California, was changed to an effective date of August 12, 1971 and a reporting date of August 15, 1971.

Since August 15, 1971 through September 16, 1971, a period of more than thirty days, plaintiff was absent without official leave.²

Therefore, there can be no doubt that upon the filing of the complaint on August 20, 1971 plaintiff was absent without official leave, from his current base at that time in Oakland, California.

The temporary restraining order was filed and entered on September 8, 1971, also during plaintiff's absent-without-leave period.

An amended complaint was filed on September 16, 1971, alleging jurisdiction under 28 U.S.C. § 1331, because the action arose under the Constitution, specifically under the Fifth Amendment, under 28 U.S.C. § 1391(e) and (e) (4), Rule 65 of the Federal Rules of Civil Procedure, and 28 U.S.C. § 119.

The respondents filed on September 15, 1971 a motion to dismiss the complaint on the grounds of lack of jurisdiction if the complaint was considered by this Court as a habeas corpus and that the Court lacked jurisdiction over an injunctive action to compel an army officer to perform a discretionary duty.

Both parties having submitted their corresponding memoranda and evidence,³ this Court is fully advised in the premises and determines:

Jurisdiction is lacking as to the aspect of habeas corpus. The applicable statute would be under 28 U.S.C. § 2241, if we had jurisdiction. The controlling case is Schlanger v. Seamans, Jr., 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 25 (1971), where the Supreme Court has stated that under 28 U.S.C. § 2241, it is a necessary requirement that petitioner's custodian be within the reach of the district court, thus reaffirming United States ex rel. Rudick v. Laird, 412 F.2d 16 (2d Cir.1969), cert. den. 396 U.S. 918, 90 S.Ct. 244, 24 L.Ed.2d 197.

"By not filing the petition until he was A.W.O.L., petitioner faced a further strain upon any concept of custody by a command from which he was officially detached." Benítez-Manrique v. Micheli, 439 F.2d 1173 (1st Cir.1971). See United States ex rel. Rudick v. Laird, supra, 412 F.2d at pp. 20-21, where the Circuit Court established that a member of the Armed Forces who is voluntarily in a place other than an assigned post is not in custody in that place.

At the time the complaint was filed, no respondent was within the jurisdiction of this Court that could be considered plaintiff's immediate commanding officer because plaintiff was absent without leave from the U. S. Overseas Replacement Station, Oakland, California. The commanding officer of this last military base is his custodian upon whom this Court lacks jurisdiction.

Having disposed of the argument as to habeas corpus jurisdiction we shall consider plaintiff's argument that jurisdiction is justified under 28 U.S.C. § 1361, pursuant to a mandamus, in that the respondents did not comply with their own regulation. Plaintiff alleges that the Army did not follow Army Regulation 635-200, paragraph 6-8(b) (1).⁴ See Feliciano v. Laird, 426 F.2d 424 (2 Cir.1970).

This contention is defeated by the fact that said regulation was changed as a result of an interim change to the Army Regulation which on June 1971 eliminated the mandatory requirement of forwarding to the State Director of Selective Service an application which did not contain conclusive evidence upon which to base a clear-cut decision.⁵

The change to Army Regulation 635-200, paragraph 6-8(b) (1) is not a published change to which A.R. 310-3, paragraph 3-13, refers to. A reading of paragraph 3-13 establishes that the requirement for an effective date to be shown in the heading only applies to Army Regulations and published changes thereto. The controlling paragraph on interim changes through electrical means, normally referred to as "message change" is contained in paragraph 1-12 of AR-310-3, which reads in its pertinent part as follows:

"1-12 Interim Changes to DA publications. a. Changes to DA publications will be published as numbered changes, except in rare instances where instructions must be disseminated immediately and a published change could not reach users before a mandatory required date. Under the most urgent circumstances, interim changes may be transmitted by means of an electrical message. * * *"

"* * * b. If a message is justified (a above), prepare the message change in the format of a published change, i. e., the exact language of the paragraph or subparagraph being changed will be concluded in the message. It is not necessary to include unchanged portions of a looseleaf page. The message will be identified as a change to the publication. * * *"

A complete reading of paragraph 1-12, demonstrates that there are three situations under which an Army Regulation can be modified: (1) revision of the whole regulation, (2) a published change to a regulation, and (3) an interior message change through electrical means.

The present situation involves an interior change which was transmitted through an electrical message, that is, DA message change 221 5052 June 1971, exhibit XXI, for defendants, which does not require what is contained in paragraph 3-13 as applicable to published changes to Army Regulations.⁶

Plaintiff further contends that no notice of Army Regulation 635-200 purported amendment had been published in the Federal Register in violation of said requirement, pursuant to 5 U.S. C. §§ 553, 551 and 552. This has been decided against plaintiff in the case of Pifer v. Laird, 328 F.Supp. 649 (D.C. 1971), where Chief Judge Oliver J. Carter stated at page 652:

"Plaintiff further contends that even if the regulation does exist and was validly promulgated it nonetheless is void because it was not published in the Federal Register pursuant to the Administrative Procedure Act 5 U.S.C. § 552 and the Federal Register Act, 44 U.S.C. § 1501 et seq. These contentions are without merit. The Federal Register Act (44 U.S.C. § 1505(a)) specifically exempts from the publication requirements `* * * those not having general applicability and legal effect or effective only against Federal agencies or persons in their capacities as officers, agents, or employees thereof:' The Administrative Procedure Act excludes from its publication requirement those matters that are: `related solely to the internal personnel rules and practices of an agency.' (5 U.S.C. § 552(b) (2)).

Manifestly the army's regulations relating to discharge for conscientious objection are internal personnel matters within the meaning of the above exceptions. * * *"

Having settled the matter of the interim change to AR 635-200, we must finally determine if the Government owed plaintiff any ministerial duty. The U. S. Army was not required to forward plaintiff's application to the Director of the Selective Service; it owed no...