Schmidt v. Laird
| Decision Date | 07 July 1971 |
| Docket Number | No. 961-Civ.,961-Civ. |
| Citation | 328 F. Supp. 1009 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | Ronald F. SCHMIDT v. Melvin LAIRD, Secretary of Defense of the United States et al. |
Thomas F. Loflin III, Spaulding & Loflin, Durham, N. C., for petitioner.
Warren H. Coolidge, U. S. Atty., Richard Bryan, Asst. U. S. Atty., Raleigh, N. C., for respondents.
This is a proceeding seeking habeas corpus and mandamus relief. The petitioner was and is a member of the United States Army who on or about December 4, 1970, submitted his request for discharge under Army Regulation 635-20 which was subsequently disapproved by the Department of the Army. On January 25, 1971, the petitioner while stationed on the military reservation at Fort Bragg, North Carolina, within this judicial district, was convicted by a court-martial of refusing to wear a uniform and was sentenced to confinement for a period of four months. After the convening authority reviewed and approved the court-martial trial and sentence, orders dated March 12, 1971, were issued directing the transfer on March 16, 1971, of the petitioner from Fort Bragg, North Carolina, to the Correctional Training Facility, Fort Riley, Kansas. It was stipulated by counsel for the petitioner and the respondents that the petitioner was transferred by means of military aircraft with a number of other prisoners to Fort Riley, Kansas, leaving prior to 9 o'clock A.M. on March 16, 1971, and arriving at Fort Riley, Kansas, later the same day.
The Complaint and Petition for Writ of Habeas Corpus were filed in this court on March 17, 1971.
It was stipulated by and between all of the parties that on 17th of March 1971, the petitioner was in the custody of the Commanding Officer, U. S. Army Correctional Training Facility, Fort Riley, Kansas. Further, it was stipulated between the parties that the petitioner has filed a second request for discharge as a conscientious objector under Army Regulation 635-20, said application being presently considered by military authorities in the chain of command. By stipulation the parties have also agreed that the petitioner submitted the following paper writing to an officer at the stockade at Fort Bragg, North Carolina, on March 14, 1971: ; that this request was denied and two days later pursuant to orders issued under the authority of the Commanding General, XVIII Airborne Corps and Fort Bragg, the petitioner was reassigned, and physically transported to the U. S. Army Correctional Facility, Fort Riley, Kansas. A hearing was held on May 19, 1971, based on the oral stipulations stated above, the Complaint and Petition for Writ of Habeas Corpus, respondents' Motion to Dismiss filed on March 26, 1971, petitioner's Response to respondents' Motion to Dismiss, and respondents' Memorandum of Law in reply to petitioner's Response to respondents' Motion to Dismiss.
The court does not have jurisdiction under 28 U.S.C. § 2241 to entertain a habeas corpus application in this case as no custodian is a resident of the district. Schlanger v. Seamans, 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971). The relevant facts in Schlanger, supra, are similar to this case. There the petitioner sought a release from the Air Force naming as respondents the Secretary of the Air Force, the commander of his unit in Georgia, and commander of an Air Force ROTC unit in Arizona. A suit was initiated in Arizona and only the last respondent, who had no control over the petitioner, was amenable to the court's process, while neither of the first two respondents were subject to the court's process nor were they residents of the judicial district where the suit was brought even though they did have custody and control over the petitioner. In affirming the denial of the application the Court said:
* * * The question in the instant case is whether any custodian, or one in the chain of command, as well as the person detained, must be in the territorial jurisdiction of the District Court. * * * (W)hile petitioner is within the territorial jurisdiction of the District Court, the custodian — the Commander of Moody AFB — is not. * * * Hence even if we assume that petitioner is "in custody" in Arizona in the sense that he is subject to military orders and control which act as a restraint on his freedom of movement (Jones v. Cunningham, 371 U.S. 236, 240 83 S.Ct. 373, 375, 376 9 L. Ed.2d 285), the absence of his custodian is fatal to the jurisdiction of the Arizona District Court.
In other words, this court has no custodian within its reach against whom its writ can be spent. In this case, the custodian, the Commanding Officer of the United States Army Correctional Training Facility, Fort Riley, Kansas, was not within the territorial jurisdiction of this court on March 17, 1971, when the petition for Writ of Habeas Corpus was filed. Accordingly, the petition for writ of habeas corpus must be dismissed for want of jurisdiction under Schlanger, supra.
The petitioner has also urged that this court has jurisdiction under 28 U.S.C. § 1361, to grant the same relief petitioner seeks under habeas corpus, that is, his discharge from the United States Army as a conscientious objector. However, mandamus is not the appropriate remedy to review the exercise of discretion. The "duties which fall within the scope of mandamus are legal duties of a specific, imperative, and ministerial character * * *" 52 Am.Jur.2d Mandamus § 76 (1970). Furthermore, courts in their discretion will usually refuse to issue a writ of mandamus, where other appropriate remedies are available. Petitioner may seek relief by a habeas corpus proceeding, although not in this jurisdiction, and therefore, this court in its discretion would decline to issue a writ of mandamus, even assuming it were an appropriate remedy.
The petitioner also contends that this court has jurisdiction under 28 U.S.C. § 1361 to order the petitioner returned to Fort Bragg, North Carolina (within the Eastern District of North Carolina), claiming that the Army's reassignment of petitioner was improper as it was contrary to the provisions of Paragraph 6c of Army Regulation 635-20.1
It has long been an accepted principle of law that before a court will exercise its mandamus powers, there must be an exhaustion of available administrative remedies. In Bolger v. Marshall, 90 U.S.App.D.C. 30, 193 F. Supp. 37 (1951), a former Woman's Army Corps member sought, by means of mandamus, vacation of her discharge and restoration to her former status. The court held that a failure to exhaust her administrative remedies precluded the court's exercise of its mandamus powers. See also Muerer v. Ryder, 137 F.Supp. 362 (E.D.Pa.1955).
I am of the opinion that the court ought not to exercise jurisdiction in this case because the petitioner has not exhausted his available military remedies. Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950); Noyd v. Bond, 395 U.S. 683, 89 S.Ct. 1876, 23 L.Ed.2d 631 (1969); Hammond v. Lenfest, 398 F.2d 705 (2nd Cir. 1968); Parisi v. Davidson, 435 F.2d 299 (9th Cir. 1970); Schatten v. United States, 419 F.2d 187 (6th Cir. 1969); and United States ex rel. Chaparro v. Resor, 298 F.Supp. 1164 (D.S.C.1969). It has long been accepted that applicants for relief from civil courts must exhaust the available remedies in the military system. Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950); Hammond v. Lenfest, 398 F.2d 705 (2nd Cir. 1968); Parisi v. Davidson, 435 F.2d 299 (9th Cir. 1970); In re Kelly, 401 F.2d 211 (5th Cir. 1968); Schatten v. United States, 419 F.2d 187 (6th Cir. 1969), where it was recognized by the court that military remedies are available under Article 138, Uniform Code of Military Justice (10 U.S.C. § 938); and United States ex rel. Chaparro v. Resor, 298 F.Supp. 1164, 1167 (D.S.C.1969) where Judge Russell, under circumstances where Federal habeas corpus was sought by a serviceman, said that the court's ...
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Silverthorne v. Laird, Civ. A. No. SA-71-CA-173.
...discharge. Carter v. Seamans, 411 F.2d 767 (5 Cir. 1969); Feliciano v. Laird, 426 F.2d 424, 427 (2d Cir. 1970); Schmidt v. Laird, 328 F. Supp. 1009 (E.D.N.C.1971). The courts have no more expertise in deciding if a soldier is mentally fit for service than they do in deciding if they are phy......