# Strait v. Laird/Dissent Rehnquist

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Rehnquist
[p346] MR. JUSTICE REHNQUIST, dissenting.
The Court today emasculates Schlanger v. Seamans, 401 U.S. 487 (1971), by permitting habeas corpus when the custodian against whom the writ must run is not within the forum judicial district. It stretches the concept of custody beyond anything contained in any of our previous decisions, and permits the federal courts through habeas corpus to exercise broader review of military administration than has ever been permitted. I therefore dissent.

## I

The facts of this case are indistinguishable in any material respect from Schlanger v. Seamans, supra. Petitioner was assigned to the Reserve Officer Components Personnel Center at Fort Benjamin Harrison, Indiana. His dealings with the Army consisted of several requests for delay in commencing active duty, all of which were addressed to and granted by his [p347] commanding officer at Fort Benjamin Harrison, and an application for discharge as a conscientious objector, which was also submitted to the Indiana command. Although petitioner was interviewed by a chaplain, psychiatrist, and another Army officer at Fort Ord, California, each of whom made recommendations about petitioner's application, petitioner was not subject to military orders from any command in California nor did any California command rule upon his application. The preliminary processing accomplished by the interviews was forwarded to petitioner's commanding officer at Fort Benjamin Harrison, who convened a review board to pass upon the application. Following the board's recommendation, petitioner's commanding officer denied the requested discharge. Nothing in the record before us indicates that petitioner has ever been subject to the orders of any Army officer or command in California. What little control the Army imposed upon petitioner emanated from his commanding officer in Indiana.
Only last Term, this Court held in Schlanger, that a district court has jurisdiction to issue a writ of habeas corpus under 28 U.S.C. § 2241, to a military custodian, only where a commanding officer or other custodian in the chain of command is found within the judicial district. Because Schlanger had been assigned to a command in Georgia, and no official in Arizona controlled his activities, the District Court of Arizona had no habeas jurisdiction. Attempting to reconcile Schlanger with this case, the Court today says:
   "In Schlanger the only 'custodian' of the serviceman was in Moody AFB, Georgia. While there were army officers in Arizona, there were none to whom the serviceman was reporting and none who were supervising his work there, though he was on active duty. Moreover, the servicemen in [p348] that case was in Arizona only temporarily for an educational project.
   "In the present case California is Strait's home. He was commissioned in California. Up to the controversy in the present case he was on reserve duty, never on active duty, and while he had gone east for graduate work in law, California had always been his home. Fort Ord in California was where he processed his application for conscientious objector discharge and where hearings were held. It was in California where he had had his only meaningful contact with the Army; and his superiors there recommended his discharge as a conscientious objector." Ante, at 343.
But there were no officers in California to whom this petitioner was reporting, and "none who were supervising his work there." His control by the Army has heretofore consisted only of requests for delayed commencement of active duty, and for discharge. All such requests were addressed to and decided by his commanding officer in Indiana. His "meaningful contact" with the Army was not in California, but Indiana. His interviews with staff officers at Fort Ord neither constituted them "superiors" nor did it bring them within petitioner's chain of command. No officer or command in California had authority to provide the relief requested by petitioner. Under the principle enunciated in Schlanger, the Northern District of California lacked jurisdiction to issue habeas corpus for want of a custodian within the district. Emphasizing that petitioner brought this habeas corpus suit in the district where his home is cannot cure that defect, cf. Rudick v. Laird, 412 F. 2d 16 (CA2 1969). We deal not with the provisions of a venue statute, but with the established requirement that the petitioner's custodian be within the [p349] district. Petitioner's presence in his home State to take the bar examination, after a three-year absence while attending law school, affords him no more support than did Schlanger's presence in Arizona.
The Court substitutes the approach of Arlen v. Laird, 451 F. 2d 684 (CA2 1971), for its Schlanger rule. Arlen, incorrectly concluding that Schlanger reserved the question presented here, held that the type of contacts between the commanding officer and the reservist that have been found to support state jurisdiction over non-residents under cases like McGee v. Int'l Life Ins. Co., 355 U.S. 220 91957), and Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945), would also suffice for habeas jurisdiction. To adopt Arlen is to abandon Schlanger. But the reasons given by the Second Circuit in Arlen do not support a result in that case different from Schlanger. Arlen noted that Government counsel were adequately available in any judicial district, and the records could be forwarded from petitioner's command to the forum district. The same could have been said of Schlanger. Moreover, the Government can assert that Indiana would be the appropriate forum, for the actions of which petitioner complains were taken by the commanding officer and his advisory board at Fort Benjamin Harrison and presumably the proper witnesses for this litigation were there. These factors would be appropriately considered in a determination as to venue or forum non conveniens but they are not a substitute for the actual presence of a custodian, which Schlanger held was required by statute.

## II

[p350] While I am satisfied that the Ninth Circuit correctly applied Schlanger and ordered dismissal of the habeas corpus petition for want of a custodian within the district, the analysis of the Court in reaching the opposite conclusion highlights what is for me the more substantial issue of whether petitioner was in the custody of anyone.
The Court believes that petitioner's commanding officer was merely a record center, and says that the realistic approach is to rule that such a record center is present in all States where there are reservists over whom it has custody. I believe that where the control exercised over petitioner is so attenuated as to require the contacts between himself and his commanding officer to be weighed for a jurisdictional nexus, the problem is not where the custodian may be found, but whether the petitioner is in custody at all. The most realistic approach is to recognize that custody as a prerequisite for habeas corpus simply does not exist for an unattached reservist who is virtually under no restraints upon where he may live, work, or study, and whose only connection with the Army is a future obligation to enter active duty. This Court has recognized that a person on active duty with the armed forces is sufficiently "in custody" to invoke habeas corpus. Eagles v. Samuels, 329 U.S. 304 (1946); Schlanger v. Seamans, supra; Parisi v. Davidson, 405 U.S. 34 (1972). Aside from ruling that release from active to inactive duty does not moot a habeas proceeding,, however, the Court has never considered whether a future obligation to commence Army duty is a sufficiently severe restraint to support habeas jurisdiction.
Habeas corpus is a powerful remedy to be wielded promptly in cases where restrictions on individual liberty [p351] are substantial. The requirement of custody is a primary parameter for preserving the great writ for appropriate situations. It is undefined by statute, but depends upon the severity of restraint upon liberty that is involved. Jones v. Cunningham, 371 U.S. 236 (1963); Developments in the Law–Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1073 (1970).
Notions of custody have changed over the years. In 1885, this Court held that a military order restricting a serviceman to the confines of the District of Columbia did not place him in custody. Wales v. Whitney, 114 U.S. 564 (1885). Recent decisions dealing with non-military petitioners have admittedly broadened the concept of custody. Jones v. Cunningham, supra; Carafas v. LaVallee, 391 U.S. 234 (1968). Jones held that a parolee was in custody because he was restricted to the community of his parole, needed special permission to undertake some activities such as driving an auto, and was subject to prompt reincarceration with only administrative proceedings if he violated parole conditions. In Carafas a convicted felon who was neither in prison nor on parole was held to be "in custody" because the disabilities of his conviction prevented him from engaging in many types of businesses, voting at any state election, or serving as a labor official or juror.
But even if this nonmilitary standard were to be applied to petitioner, it is difficult to place him in that class of persons laboring under substantial restraints for whom habeas corpus is reserved. By his own admission, petitioner "has not been subject to military orders, reserve meetings or summer active duty." From all that appears in the record, petitioner is free to go anywhere he desires or to engage in any activity he chooses, and is not subject to any Army control until he commences active duty. His situation is indistinguishable from a prospective inductee, who is not considered to [p352] be in custody for habeas corpus purposes until after induction. DeRozario v. Commanding Officer, 390 F. 2d 532 (CA9 1967). Neither precedent nor the raison d'être of the writ sanctions the result reached in this case. Petitioner would be in "custody" only when he reported to Fort Gordon, Georgia, pursuant to his orders, and only then would he be entitled to bring habeas corpus.

## III

There is yet another shortcoming in petitioner's claim to habeas corpus.
Unlike those who are covered by the Military Selective Service Act, 50 U.S.C. App. § 451 et seq., there is no statutory right afforded petitioner and other voluntary members of the armed services to be discharged as conscientious objectors. Under Department of Defense Directive 1300.6 the armed forces will approve administrative discharges on a discretionary basis. By assuming that habeas corpus review of the exercise of this discretion is proper, the Court and the courts of appeals applying the same standards of review called for under § 6 (j) of the Military Selective Service Act, 81 Stat. 104, as amended, 85 Stat. 351, have failed to recognize well-established limitations upon habeas corpus in military cases, and the also well-established [p353] restriction upon reviewing the administration of the armed services.
A district court has power to grant a writ of habeas corpus only where a prisoner "is in custody in violation of the Constitution or laws or treaties of the United States" or "is in custody under or by color of the authority of the United States." Petitioner has voluntarily assumed a reserve officer's commission and there is no indication from the record that his present obligation violates either the Constitution or laws of the United States. Nor is he restrained under any color of authority of the United States that cannot be traced to legitimate statutory authorization. Our inquiry should go no further.
In Burns v. Wilson, 346 U.S. 137 (1953), the Court reiterated the rule that the scope of habeas corpus has always been narrower in military cases than when a prisoner is in civil custody. That case permitted review of a court-martial conviction for claimed violations of constitutional due process where the military justice system had failed to fully consider such claims. Except for constitutional violations, however, relief is proper only if the military had no jurisdiction to take the action complained of.
Lack of jurisdiction to review requests for administrative discharge has similarly been well established. In Orloff v. Willoughby, 345 U.S. 83 (1953), the Court refused to review a military-duty assignment or to order a discharge on the ground that the petitioner there had been unlawfully treated, recognizing that military discretion is not subject to review in the courts. See also Noyd v. McNamara, 378 F. 2d 538 (CA10 1967) (refusal to order assignment to nonobjectionable duties or accept resignation of conscientious objector); United States ex [p354] rel. Schonbrun v. Commanding Officer, 403 F. 2d 371 (CA2 1968) (no habeas corpus or mandamus jurisdiction to review denial of hardship discharge request); Antonuk v. United States, 445 F. 2d 592 (CA6 1971) (no jurisdiction to review promotions).
It is said that jurisdiction is established to review military exercise of administrative discretion where the promulgated procedures are not followed. Authority for this proposition is stated to be Service v. Dulles, 354 U.S. 363 (1957), and Vitarelli v. Seaton, 359 U.S. 535 (1959). Although the principles of those cases might not carry over undiminished to the military services, some lower courts have assumed that they do. Reviewing an administrative decision for conformity to regulations, however, would afford no relief to petitioner in this case. If his application for discharge was processed as required by DOD Directive 1300.6 the Army has fulfilled its responsibility regardless of whether its ultimate conclusion corresponds to the decision that a court of law would make. In this case the provisions of DOD Directive 1300.6 were applied to petitioner by Army Regulation 135-25. It requires submission of a form request by petitioner, subsequent interviews with a chaplain, medical officer, and an "O-3" hearing officer, consideration of the application by a board of recommendation, and finally action by petitioner's commanding officer. All these procedures were followed in petitioner's case. The Army acted within its jurisdiction in denying the request.
[p355] Habeas corpus will issue where a person is held in custody under color of federal authority, or in violation of the Constitution or laws of the United States. 28 U.S.C. §§ 2241 (c)(1) and (c)(3). There is no question that the Army had jurisdiction over petitioner at least to the limited extent discussed above in reference to the issue of custody. There is also no question that the Army is under no statutory command to discharge petitioner before the expiration of his contracted period of military service. Acting in accordance with its own procedures, it has chosen not to do so. For me, this ends the permissible scope of habeas corpus inquiry.
THE CHIEF JUSTICE, MR. JUSTICE BRENNAN, and MR. JUSTICE POWELL join Part I of this dissent and on that ground would affirm the judgment of the Court of Appeals.

## Notes

* ↑ "The Supreme Court reserved decision on this precise question, 401 U. S., at 489, 491 n. 5... and cited, apparently with approval, Donigian v. Laird, 308 F. Supp. 449 (D. Md. 1969)," 451 F. 2d, at 686. But the cited portions of Schlanger dealt only with the question of custody, and not with the separate jurisdictional requirement that a custodian be present within the judicial district.
* ↑ Gillette v. United States, 401 U.S. 437, 440 n. 2 (1971).
* ↑ Most of the circuits have permitted habeas corpus review of an application for discharge under DOD 1300.6. E.g., United States ex rel. Sheldon v. O'Malley, 137 U.S. App. D.C. 141, 420 F. 2d 1344 (1969); Bates v. Commander, 413 F. 2d 475 (CAI 1969); Hammond v. Lenfest, 398 F. 2d 705 (CA2 1968); Brown v. McNamara, 387 F. 2d 150 (CA3 1967); United States ex rel. Brooks v. Clifford, 409 F. 2d 700 (CA4 1969); Brown v. Resor, 407 F. 2d 281 (CA5 1969); Packard v. Rollins, 422 F. 2d 525 (CA8 1970); Sertic v. Laird, 418 F. 2d 915 (CA9 1969). This Court has considered petitions for habeas corpus under DOD 1300.6 in Craycroft v. Ferrall, 397 U.S. 335 (1970), and Gillette v. United States, 401 U.S. 437 (1971).
* ↑ 28 U.S.C. § 2241 (c)(3).
* ↑ 28 U.S.C. § 2241 (c)(1).
* ↑ "[W]e cannot review the merits of appellant's present claim that the Air Force in the case at bar did not comply with its own regulations in regard to appellant. Such a claim must indeed be strained to contain an overtone of constitutional invalidity giving rise to immediate judicial review of its application." Noyd v. McNamara, 378 F. 2d 538, 540 (CA10 1967).
* ↑ E.g., Antonuk v. United States, 445 F. 2d 592 (CA6 1971); Smith v. Resor, 406 F. 2d 141 (CA2 1969).