Switkes v. Laird

• Citation: 316 F. Supp. 358
• Decision Date: 02 July 1970
• Docket Number: No. 70 Civ. 2362.,70 Civ. 2362.
• Parties: Daniel A. SWITKES, Petitioner, v. Melvin LAIRD, individually and as Secretary of Defense of the United States, and Stanley S. Resor, individually, and as Secretary of the Army of the United States, Respondents.
• Court: U.S. District Court — Southern District of New York

316 F. Supp. 358

Daniel A. SWITKES, Petitioner, v. Melvin LAIRD, individually and as Secretary of Defense of the United States, and Stanley S. Resor, individually, and as Secretary of the Army of the United States, Respondents.

No. 70 Civ. 2362.

United States District Court, S. D. New York.

July 2, 1970.

COPYRIGHT MATERIAL OMITTED

Peter Weiss, Morton Stavis, New York City, for petitioner.

Whitney North Seymour, Jr., U. S. Atty., for respondents; John F. McHugh, Asst. U. S. Atty., of counsel.

WYATT, District Judge.

This is an application for a writ of habeas corpus (28 U.S.C. §§ 2241, 2242) and a motion for a preliminary injunction (Fed.R.Civ.P. 65).

The factual situation assumed for purpose of decision is made to appear solely from papers submitted by petitioner. For respondents, there is only a memorandum of law.

Petitioner Switkes is a member of the armed services of the United States, a Captain in the Army, a physician whose specialty is psychiatry. He is said to be "under orders to report for shipment to Vietnam and is required to report to Travis Air Force Base at Fairfield, California, for that purpose on June 12, 1970."

The relief sought by this application and motion is the immediate discharge of Switkes from the armed services or, in the alternative, enjoining respondents from compelling him "to go to Indochina."

The application for a writ of habeas corpus must be denied for want of jurisdiction. The motion for a preliminary injunction must be denied for want of sufficient merit.

Switkes registered in 1960 with the Selective Service System, Local Board 41 in Brooklyn. He was then 18 years old. No claim was made to conscientious objector status.

He graduated from Massachusetts Institute of Technology in 1962 and from Albert Einstein Medical School in 1967. He was a member of the "Berry Plan", wherein induction is deferred for persons training as doctors who, after completion of such training, can enter the Army as doctors with the rank of Captain or higher.

Switkes was an intern at Cook County Hospital in Chicago in 1967 and part of 1968.

In November 1967 he resigned from the "Berry Plan" and on December 1, 1967 filed with his Local Board a claim to be a conscientious objector. He and an uncle appeared before the Local Board which on March 26, 1968 denied the claim and stated, among other things, that Switkes "does not sincerely hold the beliefs he sets forth". There was an appeal but the State Appeal Board affirmed the denial by the Local Board of the claim to be a conscientious objector.

For part of 1968 and into 1969 Switkes was a resident in psychiatry at Kings County Hospital in Brooklyn.

He was ordered to report for induction, did so, and on September 17, 1969 was inducted and was then assigned to the Army.

In the first instance, Switkes was sent to Fort Sam Houston in Texas for a basic training course for doctors.

From a time in October 1969 to May 20, 1970 he was assigned to the Mental Hygiene Clinic at Ireland Army Hospital at Fort Knox, Kentucky.

Orders were issued placing Switkes on leave from May 20, 1970 and directing that he report on June 12, 1970 to Travis Air Force Base at Fairfield, California, for shipment to Vietnam by June 15.

While on leave status, Switkes came to New York where he has his residence and domicile. He has been here to the present time.

On June 1, 1970, Switkes went to the Army Base at Fort Hamilton, New York, and attempted to apply for release from the Army on the ground that he was a conscientious objector. He was advised that while a person (such as he) is between duty assignments he may not apply for release as a conscientious objector but must apply when he arrives at his new duty station.

On June 6, 1970, Switkes filed in this Court a document entitled "Petition for a Writ of Habeas Corpus and Complaint for Injunctive Relief". Apparently this is intended to combine in a single proceeding an application for the ancient writ of habeas corpus and a civil action for a declaratory judgment and for injunctive relief. It would seem that habeas corpus, while a proceeding civil in nature, is by its nature and by its history different from and separate from a civil action. The propriety of the combination here effected seems thus to be questionable as a matter of procedure. For purposes of present decision, however, it is assumed that the combination is appropriate.

The two respondents are, respectively, the Secretary of Defense and the Secretary of the Army.

On June 5, 1970, Switkes obtained from Judge McGohey an order requiring respondents to show cause why a preliminary injunction should not issue. This was before the application for habeas corpus was filed or the civil action commenced. The order to show cause recites that the "petition" was filed on June 5; according to the Clerk's stamp the petition was filed on June 6.

On June 9, 1970, when the order to show cause was returnable, argument was heard. Because of the upcoming June 12 date for Switkes to report in California for shipment to Vietnam, a temporary restraining order was filed, without objection by respondents, restraining defendants from moving the plaintiff, or ordering his presence outside the Southern District of New York, pending determination of the motion. On June 19, 1970, the temporary restraining order was extended for ten days.

Application for a Writ of Habeas Corpus

The combination petition and complaint begins with a preamble, followed by eleven numbered paragraphs, followed by "Count I" and five other counts, and then a prayer for relief.

Presumably the habeas corpus writ is sought on the basis of everything contained in the combination pleading (see para. 10).

The initial difficulty is that there seems no jurisdiction in this Court to entertain an application by Switkes for habeas corpus.

The writ of habeas corpus is to inquire into the causes of restraint of a person. A district court has jurisdiction to issue the writ and to make such inquiry where the applicant is "confined or restrained" within the territorial limits of its jurisdiction. Ahrens v. Clark, 335 U.S. 188, 190, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948); 28 U.S.C. § 2241(a).

No superior officer of Switkes is within this district and he is not "confined or restrained" here. When the petition was filed, he was in this district voluntarily and according to the petition (para. 2) was "on leave and authorized to be any place within the United States".

Neither respondent is in this district. The situation seems to be the same as that in United States ex rel. Rudick v. Laird, 412 F.2d 16 (2d Cir.), cert. denied, 396 U.S. 918, 90 S.Ct. 244, 24 L.Ed.2d 197 (1969).

Rudick on March 4, 1969 applied to this Court for habeas corpus. Rudick had left Fort Ord, California, on leave under orders to report on March 9, 1969 at Oakland, California, for shipment to Vietnam. Rudick was a resident of New York. The respondents were the same as those here. The Court of Appeals held that there was no jurisdiction to consider the application. The Court described as "unusual" an argument that Rudick, wherever he might be, was in custody of the Secretary of Defense and of the Secretary of the Army. The Court decided that these officials could not be "found" in this district nor could anyone be found here who could be the commanding officer of Rudick. The Court further held that no one having custody of Rudick was within this district "nor is such person within reach of the District Court's process" (412 F.2d at 21). The conclusion then was that there was no jurisdiction.

While not explicitly stated in the opinion, the Court must have found 28 U.S.C. § 1391(e) inapplicable. That section provides, among other things, that a "civil action" against an "officer" of the United States may "except as otherwise provided by law" be brought in the district where "the plaintiff resides" and delivery of the summons and complaint may be made by certified mail beyond the territorial jurisdiction of the district court. A habeas corpus proceeding is not believed to be a "civil action" as those words are used in 28 U.S.C. § 1391(e). While habeas corpus is often said to be "civil", the Supreme Court has said that this label is "gross and inexact" and that "the proceeding is unique". Harris v. Nelson, 394 U.S. 286, 293-294, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969). Moreover, the provisions of 28 U.S.C. § 2241 authorizing the district courts to grant the writ "within their respective jurisdictions" would seem to be an instance of "otherwise provided by law" within the meaning of 28 U.S.C. § 1391(e).

In Liberation News Service v. Eastland, 426 F.2d 1379 (2d Cir. 1970), our Court of Appeals said that where applicable Section 1391(e) "would indeed supply both venue * * * and jurisdiction over the persons * * *". This was said, however, in the context of an ordinary civil action and did not suggest any change in the Rudick result for habeas corpus proceedings.

Motion for a Preliminary Injunction

There are six separate counts, each based on a different claim, and it will make for better understanding if they are discussed separately.

Jurisdiction of the claims in the civil action is said to rest on the existence of federal questions (28 U.S.C. § 1331) and diversity of citizenship (28 U.S.C. § 1332). The jurisdictional amount is averred and would appear to be present, according to Berk v. Laird, 429 F.2d 302 (2d Cir. 1970).

Count I

The claim here is that induction of Switkes was unlawful because there was "no basis in fact" for classifying him as other than a conscientious objector. 50 App.U.S.C. § 460(b) (3)

The cited statute provides that there shall be no judicial review of local board classification except as a defense to a criminal prosecution. It has been determined (citing from a Senate Report) that Congress did not thereby intend to suspend the writ of habeas corpus as a means after induction to challenge the classification of the local...