Williams v. Rogers

• Decision Date: 28 September 1971
• Docket Number: No. 71-1249.,71-1249.
• Citation: 449 F.2d 513
• Parties: Bernard WILLIAMS, Appellant, v. William P. ROGERS, Secretary of State, et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

449 F.2d 513 (1971)

Bernard WILLIAMS, Appellant, v. William P. ROGERS, Secretary of State, et al., Appellees.

No. 71-1249.

United States Court of Appeals, Eighth Circuit.

September 28, 1971.

COPYRIGHT MATERIAL OMITTED

Bruce B. Bair, Vogel, Bair & Brown, Mandan, N. D., for appellant.

Robert E. Kopp, Atty., L. Patrick Gray, III, Asst. Atty. Gen., Harold O. Bullis, U. S. Atty., Walter H. Fleischer, Atty., Dept. of Justice, Washington, D. C., for appellees.

Before HEANEY and STEPHENSON, Circuit Judges, and NEVILLE, District Judge.

STEPHENSON, Circuit Judge.

This case arises under the Military Bases in the Philippines Agreement,¹ hereinafter called "the Agreement." It has its genesis in the inadvertent transfer of Staff Sergeant Bernard Williams, an enlisted member of the United States Air Force, from Clark Air Base, the Philippines, to Minot Air Force Base, North Dakota, in November 1969. The transfer was in direct violation of Paragraph 5 of Article XIII of the Agreement in that the custody of Sergeant Williams had been entrusted by Philippine authorities to an authorized Air Force representative pending the trial of himself and two fellow airmen in the Court of First Instance of Pampanga and Angeles City, Fifth Judicial District, Branch IV, the Philippines, for the forcible abduction of Pelagia Malquisto, a 23-year old, unmarried, female Philippine national. We quote paragraph 5 in the margin.²

The Air Force, at the urging of the Deputy Secretary of Defense, sought, in March 1970, to reassign Sergeant Williams to his previous organization in the Philippines. Thereupon, on April 8, 1970, Sergeant Williams instituted the present action against the Secretary of State, the Secretary of the Air Force, the Commander of the 810th Strategic Aerospace Division and the Base Commander of Minot Air Force Base in the District of North Dakota. He asked that the defendants be enjoined from transferring him to the Philippines. The complaint contains no specific allegation of jurisdiction.

Chief Judge Register issued a temporary restraining order April 8, 1970, and, on May 22, 1970, after hearing, a preliminary injunction enjoining the Air Force from returning Sergeant Williams to the Philippines pending a final determination on the merits. The defense, in February 1971, moved for summary judgment. Chief Judge Register, on May 10, 1971, ruled that the record disclosed no triable issues of material fact, sustained the motion for summary judgment, and ruled that Sergeant Williams was eligible for an immediate transfer to the Philippines.³

There is little dispute about the basic facts. Sergeant Williams, in August 1969, was arraigned in the Court of First Instance on the criminal charge of forcible abduction with attempted rape. Accordingly, and pursuant to paragraph 5 of Article XIII of the Agreement, the custody of Sergeant Williams was entrusted by Philippine authorities to Raymond L. Hodges, Lieutenant Colonel, United States Air Force, Chief, International Law Section. Lieutenant Colonel Hodges certified in writing that Sergeant Williams "will be held ready to appear before a duly constituted investigation or a competent court of the Republic of the Philippines at such times and places as required * * *." A plea of not guilty was entered and trial proceedings commenced. These proceedings were in progress at the time of Sergeant Williams' transfer.

From the record before us it is revealed that the transfer was occasioned by a failure of communications between Sergeant Williams' detachment at Clark Air Base and his parent organization at Springfield, Virginia. Appropriate Air Force Regulations⁴ require deferral of the permanent change of station of any airmen under charges and awaiting trial by Philippine criminal courts for a period of 6 months from the date such charges are preferred. When an airman is charged by Philippine authorities with the commission of a crime the procedure usually is for his detachment to place him on "Administrative Hold" so as to alert upper echelon personnel that he is not to be transferred. It is the deviation from this procedure which led to issuance by Sergeant Williams' parent organization of permanent change of station orders to return him to the United States for normal reassignment, notwithstanding the fact that Air Force officials had given a custody certificate to the Philippine authorities in accordance with paragraph 5 of Article XIII.

Disclosure of this error immediately induced the Republic of the Philippines to register a strongly worded protest with the United States Embassy in Manila. The Court of First Instance, the Honorable Ceferino S. Gaddi, delayed the trial of Williams and his fellow airmen pending Williams' return and entered an order holding Colonel Averill Holman, Commander, Clark Air Base, and Lieutenant Colonel Hodges in contempt for their failure to produce Sergeant Williams as promised in the custody certificate.⁵

With these facts and this complaint before us, we raise on our own the important question of federal court jurisdiction. We do so because of our obligation to satisfy ourselves as to our own jurisdiction and that of the District Court. Jackson v. Kuhn, 254 F.2d 555, 559-560 (8 Cir. 1958).

The two unpublished memorandum opinions of Chief Judge Register do not reveal the subject matter jurisdictional basis upon which he relied in reaching the merits of this dispute. This perhaps is because the question has not been heretofore raised, briefed or argued.

There is no specific allegation of subject matter jurisdiction in the complaint.⁶ There is only the general allegation that "the defendants, who are all representatives of the Executive Branch of Government of the United States, in attempting to illegally extradite and illegally transfer the plaintiff, a citizen of the United States of America, to the Phillippines sic, are acting in deprivation of the civil rights, privileges and immunities of the plaintiff as secured by the Constitution and Laws of the United States." This language, with its reference to civil rights, privileges and immunities, would seem to indicate reliance upon the cause of action created by 42 U.S.C.A. § 1983. If a claim properly has been stated under § 1983, then 28 U.S. C.A. § 1343 confers original jurisdiction on the District Court.

§ 1983, of course, creates the remedy to redress a deprivation, under color of State law, of any right, privilege or immunity secured by the Constitution and laws of the United States. That statute, however, is directed by its very terms to State wrongdoing, and there are specific holdings and other observations which indicate that it reaches State action only. See, for example, Wheeldin v. Wheeler, 373 U.S. 647, 652, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963); Long v. Parker, 390 F.2d 816, 819 (3 Cir. 1968); Norton v. McShane, 332 F.2d 855, 862 (5 Cir. 1964), and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 276 F.Supp. 12, 13-14 (E.D. N.Y.1967), aff'd 409 F.2d 718 (2 Cir. 1969), rev'd on other grounds, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We note, also, Mr. Justice Harlan's statement in Bivens that neither § 1983 nor § 1343 is supportive of federal jurisdiction over a claim for damages against federal officers acting under color of their authority. 403 U.S., at 398, N. 1, 91 S.Ct. 1999.⁷

The principles that the Federal courts are courts of limited jurisdiction, possessing only the power that the Congress expressly has conferred upon them by statute, Lockerty v. Phillips, 319 U.S. 182, 187, 63 S.Ct. 1019, 87 L.Ed. 1339 (1943); that parties cannot waive lack of subject matter jurisdiction whether by express consent or by conduct, Chicago, Burlington & Quincy Railway Co. v. Willard, 220 U.S. 413, 421, 31 S.Ct. 460, 55 L.Ed. 521 (1911); and that where jurisdiction does not exist the court, whether trial or appellate, shall dismiss the action sua sponte, Louisville & Nashville R. R. Co. v. Mottley, 211 U. S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908), are all well established and, of course, have general application here. Nevertheless, and although the issue here has caused us some distress, we feel that Chief Judge Register was correct in reaching the merits of this dispute. We say this because of our conviction that, on the basis of these facts, a properly drafted complaint could have invoked the judicial power entrusted the District Court by 28 U.S.C.A. § 2241(c) (3).⁸

§ 2241(a) empowers a United States District Court to issue writs of habeas corpus on behalf of persons within its jurisdiction. § 2241(c) (3) expressly makes the writ available to test the validity, under the Constitution, laws or treaties of the United States, of executive, judicial or private restraint, detention or confinement. Peyton v. Rowe, 391 U.S. 54, 58, 88 S.Ct. 1549, 20 L.Ed. 2d 426 (1968). Our focus here, then, is on the nature of the illegality alleged and the type of restraint, if any, imposed.

The complaint asserts a deprivation of rights assured by the Constitution, laws and treaties of the United States. Such an allegation, we feel, is sufficient for the purposes of the statute. And, since it is no longer necessary to be under actual physical restraint in order to obtain habeas relief, our task in this regard is only to determine whether there are imposed upon Sergeant Williams "conditions which significantly confine and restrain his freedom." Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963). See also Carafas v. LaVallee, 391 U.S. 234, 237-240, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968).

From a careful study and analysis of Sergeant Williams' present posture it seems at once apparent that the attempt of the Air Force to return him to the Philippines has subjected him to certain restraints distinguishable from those shared by his fellow servicemen generally. The Air Force, of course, claims the right to assert plenary jurisdiction over Sergeant...