Winck v. England

• Decision Date: 21 April 2003
• Docket Number: No. 02-12136.,02-12136.
• Citation: 327 F.3d 1296
• Parties: David M. WINCK, Jr., Petitioner-Appellee, v. Gordon R. ENGLAND, Honorable, Julian E. Sallas, Lieutenant, Richard G. Hoffman, Captain, John Ashcroft, Mac Cauley, Respondents-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

327 F.3d 1296

David M. WINCK, Jr., Petitioner-Appellee, v. Gordon R. ENGLAND, Honorable, Julian E. Sallas, Lieutenant, Richard G. Hoffman, Captain, John Ashcroft, Mac Cauley, Respondents-Appellants.

No. 02-12136.

United States Court of Appeals, Eleventh Circuit.

April 21, 2003.

E. Roy Hawkens, Anthony John Steinmeyer, Dept. of Justice/Civ. Appellate Div., Washington, DC, for Respondents-Appellants.

Daniel G. Sayer, Chadwick A. Griffon, Mobile, AL, for Petitioner-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

BIRCH, Circuit Judge:

This appeal presents the question whether a military service member must exhaust all intraservice administrative remedies before applying for a writ of habeas corpus seeking discharge from the military under the terms of his or her enlistment contract. The district court granted relief and ordered the service member discharged from the military after construing the contract in his favor. Because Winck has not exhausted his intraservice military remedies, we REVERSE and REMAND with instructions to dismiss the petitioner's application without prejudice.

I. BACKGROUND

The petitioner, David M. Winck, Jr., enlisted in the Navy under the exceptional student provisions of the Nuclear Propulsion Officer Candidate ("NUPOC") program, executing the NUPOC Service Agreement ("enlistment contract") on 18 June 1999. He was then ordered to active duty while he completed his final year of college. In December 1999, while still in college, Winck signed an "Addendum Page for Service Agreements." In the Addendum, he acknowledged that Officer Candidate School ("OCS") was "a physically and mentally challenging program," and agreed that "[i]f entering the program from civilian life ... [, i]n the event ... [he] request[ed] disenrollment prior to acceptance of a commission, [he would] be discharged from the Naval Service," but, "[i]f entering the program from an enlisted status ... [he would] be obligated to serve the terms of the previous enlistment contract." R1-1, Ex. A at 10. In this case, those terms "required [him] to serve two years on active duty in an enlisted status if disenrolled from the NUPOC Program for any reason other than physical." Id., Ex. A at 2.

In May 2000, Winck received orders to report to OCS. After reporting, he signed an "Administrative Remarks" form with essentially the same language as the Addendum regarding disenrollment, with the exception that entering the program from enlisted status expressly included special programs such as NUPOC. The following month, Winck voluntarily disenrolled from OCS and requested discharge from the Navy under the terms of his enlistment contract. The Navy advised him, however, that he must serve out the two-year enlisted term required by the original Service Agreement, and subsequently assigned him to the U.S.S. Hue City, a guided missile cruiser to be deployed in January 2002 for extended operations in the Persian Gulf. Winck then filed this habeas petition, arguing that the term "program" in the Addendum referred to NUPOC and not OCS, and that since he entered NUPOC from civilian life, he was entitled to discharge. Because the Navy did not raise exhaustion as an issue, the district court assumed, without so finding, that Winck had exhausted all available intramilitary remedies, and granted the petition on its merits after construing the contract in Winck's favor.

II. DISCUSSION

A. Waiver of the Exhaustion Doctrine

On appeal, the Navy raises exhaustion for the first time, arguing that Winck had first sought relief neither from the Board for Correction of Naval Records ("BCNR"), created pursuant to 10 U.S.C. § 1552 "with broad remedial authority to correct any error or remove any injustice identified by a service member" upon approval by the Secretary of the Navy, Appellant's Br. at 16, or from his superior officer pursuant to Article 138 of the Uniform Code of Military Justice, 10 U.S.C. § 938. Winck urges us, however, to deem the issue waived because the Navy failed to raise it below both in its response to the habeas petition and in its motion to reconsider. The Navy responds that "exhaustion in the special military context is in the nature of a jurisdictional requirement," and, therefore, may be raised at any time. Appellant's Br. at 12. As a threshold issue, we determine whether exhaustion in this context is jurisdictional and, therefore, incumbent upon us to consider.

It is true, as the Navy points out, that our opinion in Hodges v. Callaway, 499 F.2d 417, 419 & n. 5 (5th Cir.1974), raised exhaustion sua sponte, referring to it as a "jurisdictional problem." However, "[w]hat we really determine is a judicial policy akin to comity," Mindes v. Seaman, 453 F.2d 197, 199 (5th Cir.1971), that is, a "judicial abstention doctrine." Meister v. Tex. Adjutant General's Dep't, 233 F.3d 332, 339 (5th Cir.2000), cert. denied, 532 U.S. 1052, 121 S.Ct. 2194, 149 L.Ed.2d 1025 (2001). As such, "we view the requirement of exhaustion as ... based on principles of comity and not as an imperative limitation of the scope of federal habeas corpus power." In re Kelly, 401 F.2d 211, 213 (5th Cir.1968) (per curiam).

In fact, we have consistently distinguished our subject-matter jurisdiction from these prudential considerations. For example, while we have squarely held that courts have jurisdiction over "applications for habeas corpus brought by persons in confinement by the military," United States ex rel. Berry v. Commanding General, 411 F.2d 822, 824 (5th Cir.1969), "[b]efore entertaining [such] an application..., we have required, on principles of comity, the exhaustion of the procedures of the military justice system." Id. Similarly, "`judicial concern over inappropriate intrusion' into military matters ... has led [us] to decline review" of those matters, though we "generally have jurisdiction." Rucker v. Secretary of the Army, 702 F.2d 966, 969 (11th Cir.1983) (citation omitted); see also Woodard v. Marsh, 658 F.2d 989, 992 (5th Cir. Unit A Sept.1981) ("[A] federal district court should not review every such decision, even if it has subject matter jurisdiction.").

The Supreme Court has espoused a similar distinction. Because civilian courts have jurisdiction "to review the judgment of a court-martial in a habeas corpus proceeding," the Court's "initial concern is not whether the District Court has any power at all to consider [those habeas] applications[, but] rather ... the manner in which the Court should proceed to exercise its power." Burns v. Wilson, 346 U.S. 137, 139, 73 S.Ct. 1045, 1047, 97 L.Ed. 1508 (1953). Again in Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975), having already established that subject-matter jurisdiction existed for the district court to permanently enjoin impending court-martial proceedings against an Army captain, id. at 739-40, 95 S.Ct. at 1304, the Court concluded that a "question of equitable jurisdiction [remained], a question concerned, not with whether [a] claim falls within the limited jurisdiction conferred on the federal courts, but with whether consistently with the principles governing equitable relief the court may exercise its remedial powers." Id. at 754, 95 S.Ct. at 1311.

We have also expressly concluded that exhaustion "is not a jurisdictional bar to habeas relief" when seeking release from state custody pursuant to 28 U.S.C. § 2254. Esslinger v. Davis, 44 F.3d 1515 1524 n. 33 (11th Cir.1995).¹ Our consideration whether judicial review is appropriate in the military context is animated by the same principles of comity arising in the § 2254 setting. See discussion infra note 3. For this reason, we apply an abuse of discretion standard in reviewing a district court's refusal, for lack of exhaustion, to take jurisdiction of a habeas petition brought by a member of the armed forces convicted by special court-martial. See Doyle v. Koelbl, 434 F.2d 1014, 1015 (5th Cir.1970) (per curiam).²

Having found the military exhaustion requirement prudential, and not jurisdictional, Winck now urges us to reject the Navy's allegation that he failed to exhaust intraservice military remedies out-of-hand because it was raised for the first time on appeal. We decline to do so, emphasizing the importance of the doctrines of abstention and exhaustion, as well as their application to the military context. In Schlesinger, for example, the Court sua sponte sought supplemental briefing on "`exhaustion of remedies, and ... the propriety of a federal district court enjoining a pending court-martial proceeding.'" 420 U.S. at 743-44, 95 S.Ct. at 1306. Similarly, in the context of a habeas petition for release from state custody, the Court held that, while an "appellate court is not required to dismiss for non-exhaustion notwithstanding the State's failure to raise it," neither is it "obligated to regard the State's omission as an absolute waiver of the claim." Granberry v. Greer, 481 U.S. 129, 133, 107 S.Ct. 1671, 1674, 95 L.Ed.2d 119 (1987). Recognizing that "there are some cases in which it is appropriate for an appellate court to address the merits of a habeas corpus petition notwithstanding the lack of complete exhaustion," id. at 131, 107 S.Ct. at 1674, the Court nevertheless counseled its lower counterparts to "determine whether the interests of comity ... will be better served by addressing the merits forthwith or by requiring a series of additional ... proceedings before reviewing the merits of the petitioner's claim." Id. at 134, 107 S.Ct. at 1675; see also Esslinger, 44 F.3d at 1524 ("[C]ircumstances may counsel that [a] district court raise sua sponte a procedural bar to relief that the state has `waived,'" such as the exhaustion requirement in 28 U.S.C. § 2254.).³

Accordingly, our decision whether to mandate exhaustion when raised first on appeal is within our discretion. Here, Winck has...