Smith v. Campbell, 71-1443.

• Decision Date: 01 December 1971
• Docket Number: No. 71-1443.,71-1443.
• Parties: Alvin G. SMITH, Petitioner and Appellant, v. Capt. James M. CAMPBELL, Commanding Officer, U. S. Naval Schools Command, Mare Island, Vallejo, California, et al., Respondents and Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

450 F.2d 829 (1971)

Alvin G. SMITH, Petitioner and Appellant, v. Capt. James M. CAMPBELL, Commanding Officer, U. S. Naval Schools Command, Mare Island, Vallejo, California, et al., Respondents and Appellees.

No. 71-1443.

United States Court of Appeals, Ninth Circuit.

October 11, 1971.

As Modified December 1, 1971.

Ezra Hendon (argued), of Franck, Hill, Stender, & Hendon, Berkeley, Cal., for petitioner and appellant.

Brewster Q. Morgan, Asst. U. S. Atty. (argued), Dwayne Keyes, U. S. Atty., Sacramento, Cal., for respondents and appellees.

Before HAMLEY and KILKENNY, Circuit Judges, and FERGUSON,^* District Judge.

FERGUSON, District Judge.

This case presents the question whether a petition for writ of habeas corpus must be dismissed for lack of jurisdiction when at the time the petition was filed the petitioner and his custodian were both within the territorial jurisdiction of the district court, but the petitioner was involuntarily removed from the district after the filing of the petition and his present custodian is subject to the process of the court. The district court held that it must. We reverse.

In January, 1970, appellant, an active duty member of the United States Navy, was ordered to report to a duty station in Australia, after first completing additional technical schooling at Mare Island Naval Station, Vallejo, California. On February 13, 1970, appellant, while stationed at Mare Island, applied to the Navy for a discharge by reason of conscientious objection. Appropriate administrative hearings and interviews were held and the necessary reports filed.

The petition sets forth in full what is alleged to be the complete administrative records of the request for discharge. By its motion to dismiss, appellees must concede the truthfulness of the allegations. Delesdernier v. O'Rourke & Warren Company, 305 F.2d 929 (5th Cir. 1962). The records uniformly state that appellant's beliefs were sincerely held and recommended discharge. In fact, every person that interviewed him, as well as his commanding officer, recommended that he was sincere and should be discharged. Nevertheless, when the application and supporting recommendations of the officers were referred to the Chief of Naval Personnel, he disapproved the application. In this respect the record is similar to that in Rastin v. Laird, 445 F.2d 645 (9th Cir. 1971), where Judge Trask, for the court, directed that a writ be issued if the Navy did not grant a discharge.

Appellant's application was denied by the Navy on October 9, 1970. Having exhausted his administrative remedies, he immediately filed a petition for habeas corpus in the Northern District of California. However, because Mare Island was in the territorial jurisdiction of the Eastern District of California, that petition was dismissed by the northern district for lack of jurisdiction. He then filed the instant petition in the eastern district on October 29, 1970. On that same day, the district court denied an application for a temporary restraining order and took under submission the request for an order to show cause. Jurisdiction in the district court was predicated upon 28 U.S.C. § 2241. A petitioner is in "custody" within the meaning of that section when he is held in military service contrary to a valid claim of conscientious objection. Johnson v. Laird, 435 F.2d 493, 496 (9th Cir. 1970). While exhaustion of military judicial remedies is not required for inservice conscientious objector cases, Quinn v. Laird, 421 F.2d 840 (9th Cir. 1970), exhaustion of administrative remedies is required. Johnson v. Laird, supra.

Pursuant to orders, appellant reported to Travis Air Force Base on November 1, 1970, and was transported by military aircraft to Australia on the following day. On November 4, 1970, the district judge signed an order to show cause. Appellees subsequently moved to dismiss for lack of jurisdiction. The court granted the motion, reasoning that "at the time of the motion and hearing thereon, there was no longer any respondent having custody of petitioner who is within the territorial limits of the Eastern District or subject to the process of the Court".

In reaching this conclusion, the district court relied upon Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), citing Ex parte Endo, 323 U.S. 283, 65 S.Ct. 208, 89 L.Ed. 243 (1944). In Jones, a state prisoner, while on parole, left the territorial confines of the court. The Supreme Court held that the district court had not lost jurisdiction, since the members of the parole board with control over the petitioner were still within the district. It cited Endo for the proposition that a district court does "not lose its jurisdiction when a habeas corpus petitioner is removed from the district so long as an appropriate respondent with custody remains". 371 U.S. at 243-244, 83 S.Ct. at 377.

It is no longer subject to doubt that in order for a district court to have jurisdiction to entertain on the merits an application for a writ of habeas corpus seeking discharge from the armed services, both the person detained and his custodian must be in the territorial jurisdiction of the district court. Schlanger v. Seamans, 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971). The question presented is when does that jurisdiction attach—at the time of the filing of the petition, as contended by the appellant, or at a subsequent time when the court issues an order based upon the petition, as contended by appellees. It is agreed that at the time the petition was filed, both the petitioner and his immediate commanding officer were within the territorial limits of the district court, but when the district court issued its order to show cause why the writ should not be granted, the petitioner and his immediate commanding officer were both in Australia.

As stated in Cooper v. Reynolds, 77 U.S. (10 Wall.) 308, 19 L.Ed. 931 (1870):

"It is as easy to give a general and comprehensive definition of the word jurisdiction as it is difficult to determine, in special cases, the precise conditions on which the right to exercise it depends. This right has reference to the power of the court over the parties, over the subject-matter, over the res or property in contest, and to the authority of the court to render the judgment or decree which it assumes to make." 77 U.S. at 316.

It is generally accepted that in civil cases, jurisdiction is measured at the time the action is filed, and subsequent events cannot divest the court of that jurisdiction. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938). This rule is consistent with a concern for both practicality and fairness. Mullen v. Torrance, 22 U.S. (9 Wheat.) 536, 6 L.Ed. 154 (1824). In Metcalf v. Watertown, 128 U.S. 586, 9 S.Ct. 173, 32 L.Ed. 543 (1888), the Court held that jurisdiction in diversity of citizenship cases is determined at the time the action is commenced. However, "Though habeas corpus is technically `civil', it is not automatically subject to all the rules governing ordinary civil actions. See Harris v. Nelson, 394 U.S. 286 89 S.Ct. 1082, 22 L.Ed.2d 281". Schlanger v. Seamans, 401 U.S. 487, n. 4 at 490, 91 S.Ct. at 997.

In regard to habeas corpus matters, the courts have uniformly followed the rule regarding jurisdiction that is followed in civil cases. In Schlanger v. Seamans, supra, the Supreme Court based its ruling of lack of jurisdiction upon the facts as they existed at the time the action was filed. Furthermore, Justice Douglas stated: "Had petitioner, at the time of the filing of the petition, been under the command of the Air Force officer assigned as liaison officer at Arizona State to supervise the Education and Commissioning Program, we would have a different question". (Emphasis added.) 401 U.S. at 491-492, 91 S.Ct. at 998.

In Bishop v. Medical Superintendent, 377 F.2d 467 (6th Cir. 1967), the court held that the district court was correct in dismissing the petition for writ of habeas corpus for not stating a cause of action, but was in error for dismissing it for lack of jurisdiction. In that case the petitioner, a patient at a state mental hospital within the Western District of Michigan, filed his habeas corpus petition with the district court for the western district. Subsequently, the petitioner was transferred to a hospital within the Eastern District of Michigan. The district court held that it no longer had jurisdiction. The court of appeals held: "We conclude that this latter ruling of the court is in error. The District Court for the Western District of Michigan, having jurisdiction of the action at the time the petition was filed, did not lose jurisdiction when the appellant was subsequently transferred to the Ypsilanti State Hospital in the Eastern District of Michigan." 377 F.2d at 468.

In Harris v. Ciccone, 417 F.2d 479 (8th Cir. 1969), Justice Blackmun (then Judge Blackmun) stated that a transfer of a petitioner from Missouri to Pennsylvania did not defeat the jurisdiction of the District Court for the Western District of Missouri. 417 F.2d 479 n. 1 at 480. The court reaffirmed the ruling in its prior per curiam opinion in Holland v. Ciccone, 386 F.2d 825 (8th Cir. 1967), that, "Having had jurisdiction when the petition was filed, the retransfer of the petitioner did not destroy that jurisdiction". 386 F.2d at 827.

Finally, in Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948), the Court, in discussing Ex parte Endo, 323 U.S. 283, 65 S.Ct. 208, 89 L.Ed. 243 (1944), stated:

"In that case petitioner at the time suit was instituted was within the territorial jurisdiction of the habeas corpus court but had subsequently been removed to a different district and circuit. We held, in conformity with the policy underlying Rule 45(1) of the Court, 28 U.S.C.A. following section 354, that jurisdiction of the District Court was not defeated in that manner, no matter how proper the

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