1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MICHAEL FOURTE, Petitioner,

v. RICHARD V. SPENCER, in his official capacity as Secretar y of the Navy and his successors in office, Respondent. Civil Action No. 18-2023 (BAH) Chief Judge Beryl A. Howell

MEMORANDUM OPINION The pro se petitioner, Michael Fourte, is a Reserve Naval Officer with 20 years of service in the United States Navy, inc luding over 16 years of active du ty service. Pet. for Writ of Habeas Corpus and Compl. for Decl aratory and Injunctive Relief (“Pet.”) ¶ 11, ECF No. 1. Currently deployed in Afri ca on active duty orders, id. ¶¶ 39, 44, Fourte seeks a writ of habeas corpus requiring the respondent , Richard V. Spencer, the Secret ary of the Navy, to demobilize him, id. at 31, and restore him to his prev ious active duty assignment in Washington, D.C., see Civil Case Form for Habeas Petitions Under 28 U.S.C. § 2241 (“H abeas Form”) at 8 (Request for Relief), ECF No. 1. Accordi ng to Fourte, he is entitled to this reassignment because he has been unlawfully ordered to duty i n Africa, in violation of a Na vy “directive . . . mandat[ing] that the Navy will not involuntarily mobilize reservists with over 1 6 years of active service without justification and a . . . waiver. ” Pet. at 1. For the reasons discussed below, the pending habeas petition seeking a judicial order to countermand a military dep loyment order and to reassign an active duty Naval officer to a du ty station in Washington, D.C. , crosses the boundaries of justiciability and is therefore dismissed.2 I. BACKGROUND Fourte previously filed a habeas petition, in the form of a com plaint, in this Court challenging the same allegedly illegal military deployment orde r, and that petition was transferred to the United States D istrict Court for the Distric t of South Carolina (“D.S.C.”). See Fourte v. Spencer , No. 18-cv-1847, Mem. & Order at 1– 6 (D.D.C. Aug. 10, 2018) ( D.D.C. order transferring first habeas pet ition to D.S.C. (“D.D.C. 2018 Tran sfer Order”)). The petition was ultimately dismissed without prejudice after the transfer. See Fourte v. Spencer , No. 18-cv-2212, 2018 WL 3845136, at *1 (D.S.C. Aug. 12, 2018) (D.S.C. Magistrate Judge’s report recommending dismissal of Fourte’s first habeas petition (“D.S. C. Magistrate’s 2018 R&R”)); Fourte v. Spencer , No. 18-cv-2212, 2018 WL 3829232, a t *1–3 (D.S.C. Aug. 13, 201 8) (D.S.C. Order and Opinion dismissing Fourte ’s first habeas petition (“D .S.C. 2018 Dismissal Order”)). The relevant facts and procedural history are set out below as context for resolution of the pending petition.
A. Fourte’s Deployment to A ctive Duty in Africa Fourte is a Navy reservist, who ha s “over 16 years of total act ive duty service.” Pet’r’s Decl. Supp. Writ of Habeas Corpus (“Pet’r’s Decl.”) (Aug. 27, 2 018) ¶ 3, ECF No. 1. On May 31, 2018, while stationed on “active duty” at the Washington Na vy Yard in Washington, D.C., he was “ordered to active duty” a t a different “assignment in A frica” to serve as an Officer in Charge of a military base for one year. Id. ¶¶ 4, 6–7; Pet. ¶¶ 15–16, 22. Within a week, on June 5, 2018, Fourte “contacted the regio nal Judge Advocate General for Region Mid-Atlantic Reserve Component Command” to expl ain that “the [respondent] . . . needed a waiver and justification in order to mobilize” him for the Africa assignme nt because he would have over 16 years of active duty service by t he time of the assignment. Pe t’r’s Decl. ¶¶ 8, 17. The next day, Fourte was informed that the re spondent planned to seek such a waiver. Id. ¶ 9.3 Through his chain of command, F ourte learned, on June 15, 2018, that a “waiver had been approved,” id. ¶ 12, and approximately one week l ater, he obtained a copy of the waiver, id. ¶ 14; Pet. ¶ 30, which had b een issued on June 7, 2018, Pet., E x. A, Department of the Navy, Navy Personnel Command Waiver for Partial Mobili zation Orders f or Michael Fourte (June 7, 2018), ECF No. 1-1. In compliance with “the Africa orders,” Fo urte was “mobilized to active duty involuntarily” on July 20, 2018, and he reported to Fort J ackson in South Carolina for training. Pet. ¶¶ 39, 41. The Navy has explained that that the position for which Fourte was chosen, Officer in Charge, is “[r]esponsible for t he overall safety, security, and well-being of the [base] and all troops therein.” Resp’t’s Res p. to Order to Show Cause (“Resp’ t’s Resp.”) at 5, ECF No. 9. The Navy advertised this position, but when no volunteers applied, the Navy ran a search within its database and Fourte was the only R eservist who satisfied each o f the position’s requirements.
See id. , Ex. E., Decl. of Quinton S. Packar d, Commander, Navy Reserve Forces Command (“Packard Decl.”) (Aug. 10, 2018) ¶¶ 4, 5, 8, ECF No. 9-5. Spe cifically, Fourte was the “first fully-qualified Sailor on th e list of the top 10 qualified Sail ors to fill this position,” and the only officer who satisfied the “comm and experience requirement” and held the required security clearance. Id. ¶ 8. Fourte believes that the waiver paperwork for the Africa deploy ment was “noncompliant” because the Navy “did not . . . conform to the [Navy ’s] own procedures for waivers” in Chief of Naval Ope rations Instruction 1001.27. 1 Pet. ¶¶ 25–26. For example, in his view, the

1 Notably, Fourte uses the Navy’s waiver process as a sword in hi s habeas petitions, when the actual purpose of the waiver process is to shield the Navy from inadvertent, u nnecessary spending. Na vy Reserve officers accumulating eighteen years of ac tive-duty service obtain “sanc tuary” status, which protects them from involuntary release from active duty before the completion of twenty years of service and thereby guara ntees active-duty status until crossing the twenty-year thr eshold for regular active-dut y, as opposed to lower non-regular, retirement pay. See 10 U.S.C. §§ 6323, 6 327(a), 12646(a). As the respondent explai ns, “inadvertently allowing Reservists to enter4 Navy originated the waiver in the wrong office, id. ¶¶ 56–64, did not include a j ustification in the waiver for selecting Fourte as t he “only qualified” reserve mem ber for the Africa assignment, id. ¶ 66, included an incorrect endorsement, id. ¶¶ 80–84, failed to obtain Fourte’s signature to verify his total active duty service time, id. ¶¶ 56–64, 85–90, and prepared the waiver in the wrong format, id. ¶¶ 91–98. The Navy offered Fourte an “opportu nity to present his objectio ns” to the waiver paperwork to a Special Cases B oard, but he rejected this offer. Resp’t’s Resp. at 6; Packard Decl. ¶ 9. Instead, Fourte “attemp ted to resolve this matter w ith the [respondent] by utilizing [his] chain-of-command and separately by filing a formal Compla int of Wrongs under Article 1150 of the Navy Regulations.” Pet’r’s Decl. ¶ 18. Fourte, wh o has a law degree, retained counsel for his Article 1150 com plaint, which was filed on July 16, 2018. Pet. ¶¶ 14, 38.
B. Fourte’s First Habeas Petition While Fourte’s Article 1150 complaint was pending, id. ¶ 42, and before his deployment to Africa, Pet’r’s Decl. ¶ 26, he filed his first habeas petiti on in this Court on August 7, 2018. Compl. for Declaratory and Injunc tive Relief (“First Habeas Pet ition”) at 1, Fourte v. Spencer , No. 18-cv-1847 (D.D.C. Aug. 7, 2018), E CF No. 1. This First Ha beas Petition sought a declaration of his mobilization as unlawful, arguing that the N avy violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, because the waiver “did not comply with [the Navy’s] own directives and decision pro cesses and did not justify why [ Fourte] is the only qualified candidate.” Id. On the same day, he also filed a motion for a preliminary inj unction to enjoin

‘sanctuary’ status can present a significant windfall for the o fficer, but also an unexpected expense for the Navy.” Resp’t’s Resp. at 3. The waiver process affords the Navy an opp ortunity to review a Navy Reserve officer’s accumulated active duty time befo re the issuance of orders to a void inadvertently allowing the Reservist to enter “sanctuary” status, with the con comitant expense for the Navy o f regular active-duty retirement pay. See Resp.’t’s Resp., Ex. C., Chief of Naval Operations Instruction 1001.27 ¶¶ 1, (5)(f), ECF No. 9-3 (explaining that the waiver process “establishes policy and procedures . . . to ensure all entry into sanctuary or earnin g of a regular retirement is the result of planned actions nece ssary to meet the needs of th e Navy”).5 the Navy from enforcing its mobilization orders. Mot. for Prel im. Inj. at 1, 3, Fourte v. Spencer , No. 18-cv-1847 (D.D.C. Aug. 7, 2018), ECF No. 2. The action wa s transferred, sua sponte , because at that time, Fourte was stationed at Fort Jackson in S outh Carolina, and as a result, jurisdiction over the petition w as appropriately placed in the District of South Carolina. See D.D.C. 2018 Transfer Order at 4–6 (citing Rooney v. Sec’y of the Army , 405 F.3d 1029, 1032 (D.C. Cir. 2005)).
C. D.S.C.’s Dismissal of Fourt e’s First Habeas Petition After the action was transferred, a magistrate judge in South C arolina recommended, on August 12, 2018, that the district c ourt dismiss Fourte’s actio n. See D.S.C. Magistrate’s 2018 R&R, at *1. This recommendation w as adopted, and the district court denied Fourte’s motion for a preliminary injunction and di smissed his habeas action wi thout prejudice. See D.S.C. 2018 Dismissal Order, at *1. Specifically, the D.S.C. 2018 Dismissa l Order concluded that Fourte’s claim was not justiciable because “a civilian court is not perm itted to review an internal military decision unless a service member demonstrates . . . (1) ‘an all egation of the deprivation of a constitutional right, or an allegation that the military has ac ted in violation of applicable statutes or its own regulations,’ and (2) an ‘exhaustion of available in traservice corrective measures,’” id. at *2 (quoting Williams v. Wilson , 762 F.2d 357, 359 (4th Cir. 1985)). That court concluded tha t Fourte had failed to satis fy either requirement. Id. at *2–3. Fourte’s motion for reconsideration was also denied. Fourte v. Spencer , No. 18-cv-2212, 2018 WL 3980209, a t *1–3 (D.S.C. Aug. 21, 2018) (“D.S.C. 2018 Order De nying Reconsideration”).6 D. Fourte’s Pending Habeas Petition After his deployment to Afri ca, Fourte filed the pending petiti on for a writ of habeas corpus in this Court. See generally Pet. 2 This second petition contai ns nearly identical allegations to those in the fir st habeas petition. Fourte agai n alleges that the Navy violated the APA by failing to comply with its p rocedures for issuing a waiv er and did not include a justification for choosin g him in the waiver. See Pet. ¶¶ 45–98 (alleging AP A violations in seven counts because, in Fourte’s view , the Navy did not process his waiver paperwork correctly). Although the instant petition also c ontains Fifth Amendment Due Process claims, these new claims are predicated on the same arguments that the waiver was not prepared in compliance with the Navy’s procedures. See Pet. ¶¶ 99–137 (alleging Due Proce ss violations in three count s, based on allegations that the wa iver was not processed properly , and that Fourte disagrees with how the respondent and respondent ’s counsel described, in the D .S.C. action, the Navy’s justification for choosin g to deploy him to Africa). Following the Court’s issuance of an Order to Show Cause, see Order Directing Respondent to Show Cause, ECF No. 4; see also Min. Order (Nov. 1, 2018) ( directing Fourte to file any reply), the respondent responded to the petition, and Fourte filed a reply, see generally Resp’t’s Resp.; Pet’r’s Reply to R esp’t’s Resp. (“Pet’r’s Reply ”), ECF No. 11. The petition for a writ of habeas corpus is now ripe for resolution.

2 A “district court has jurisd iction over a hab eas petition ‘on ly if it has jurisdiction over’ the petitioner’s custodian.” Rooney , 405 F.3d at 1032 (quoting Rumsfeld v. Padilla , 542 U.S. 426, 442 (2004)). The Supreme Court has “relaxed [this] district of confinement rule when ‘American citizens confined oversea s (and thus outside the territory of any district court) have sought relief in habeas c orpus,’” Padilla , 542 U.S. at 447 n.16 (quoting Braden v. 30th Judicial Circuit Court of Ky. , 410 U.S. 484, 498 ( 1973)), allowing such “petitioner[s] to na me as respondent a supervisory official and file the petition in the district wher e the respondent resides,” id. Accordingly, the instant habeas petition is appropriately filed in this Court, now that Fourte is currently deployed overseas and the respondent is a supervisory official residing in Washington, D. C. See Pet. ¶ 2.7 II. LEGAL STANDARD A serviceman who seeks a declar ation that “orders calling him t o active duty are invalid,” in fact seeks “from the federal courts [] a writ of habeas corp us.” Rooney , 405 F.3d at 1031 (internal quotation marks omitte d). Indeed, “the writ of habea s corpus has long been recognized as the appropriate remedy for servicemen who claim to be unlawf ully retained in the armed forces.” Parisi v. Davidson , 405 U.S. 34, 39 (1972); see also Strait v. Laird , 406 U.S. 341, 351 (1972) (concluding that a reservi st called to active duty is “i n custody” for habeas purposes under 28 U.S.C. § 2241). “[H]abeas corpus is [the petitioner’s ] exclusive remedy,” because “a party who can petition for a writ of habeas corpus may not inst ead seek a declaratory judgment.” Rooney , 405 F.3d at 1031; see also Monk v. Sec’y of the Navy , 793 F.2d 364, 366 (D.C. Cir. 1986) (explaining that a petitione r “may not avoid the requirem ent that he proceed by habeas corpus by adding a request for r elief that may not be made in apetition for habeas corpus”). A writ of habeas corpus is an “extraordinary remedy,” Bousley v. United States , 523 U.S. 614, 621 (1998), and “[o]rderly government requires that the ju diciary be as scrupulous not to interfere with legitimate [military] matters as the [military] must be scrupulous not to intervene in judicial matters.” Blevins v. Orr , 721 F.2d 1419, 1421 (D.C. Cir. 1983) ( second and third alterations in orig inal) (quoting Orloff v. Willoughby , 345 U.S. 83, 94 (1953)).
III. DISCUSSION Fourte alleges that the waiver permitting his mobilization to a ctive duty in Africa is invalid because the Navy failed t o follow its own procedures wh en issuing the waiver in his case. Pet. at 1. Regardless of the m erits of this allegation, Fourte ’s claims are dismissed for two reasons. First, Fourte’s requested relief—demobilization and r eassignment within the Navy by judicial decree—cannot be afford ed, and as a result, his claims must be dismissed as non-8 justiciable. Second, even if th e requested relief could be aff orded, Fourte has not exhausted his intraservice remedies, which is required before his claims may be raised in federal court. Each of these reasons is discus sed in more detail below.
A. Fourte’s Request for Reassignme nt of His Naval Duties by Judici al Decree Is Not Justiciable Fourte requests a writ of habeas corpus that would (1) “require [e] the respondent to demobilize” him, (2) “declar[e] that the Africa mobilization or ders are unlawful,” see id. at 31 (Demand for Relief), and (3) “re store” Fourte “to [his] previou s duty” assignment at the Washington Navy Yard i n Washington, D.C., see Habeas Form at 8 (Request for Relief); see also Pet’r’s Reply at 26. In effect , then, Fourte asks the Court, in the form of a writ of habeas corpus, to countermand and revise his active duty orders issued by the Navy and issue a new order assigning him to another duty station. The law is well-s ettled, however, that a writ of habeas corpus cannot be used t o “revise duty orders as to one l awfully in the service.” Orloff , 345 U.S. at 94.
In Orloff v. Willoughby , a doctor in the Army request ed, through a peti tion for a writof habeas corpus, “judicial revie w of his assignments to duty.” Id. at 92. The Supreme Court ruled that it was beyond the Court’s power, by habeas corpus, “to det ermine whether specific” nonmedical tasks were appropriat ely assigned to the doctor, becaus e “judges are not given the task of running the Army,” and “[e]ac h doctor in the Army cannot be entitled to choose his own duties.” Id. at 92–93. Thus, while habeas corpus may be used “to determine whether one has been lawfully inducted and is ther efore within the jurisdictionof the Army and subject to its orders,” id. at 94, the Court made clear th at “it is not within the power o f this Court by habeas corpus to determine whether specific assignments to duty fall w ithin the basic c lassification of petitioner,” id . at 93. Since “[n]othing appears to convince us that he is he ld in the Army9 unlawfully, and, that being the cas e,” the Court declined to ex ercise jurisdiction, observing doing so “would be a disruptive force as to affairs peculiarly within the jurisdiction of the military authorities.” Id . at 94–95. Just like the doctor in Orloff , Fourte is here requesting rev ision of his active duty orders, a purpose for which a writ of ha beas corpus may not be issued. He attempts to distinguish Orloff , claiming he is not “lawfully i n the service,” because in his view, the Navy did not follow its procedures in securi ng a waiver to order him to active duty in Africa. See Pet’r’s Reply at 22 (quoting Orloff , 345 U.S. at 94). Notwithstandin g this assertion, Fourte conc edes that he is a reservist, id. at 1, that the Navy may recall reservists to active duty, see id. at 8 (“It is undisputed that the military may recall reservists.”), and that he seeks t o remain on active dut y orders, albeit in a different locati on that he prefers, id. at 26 (requesting restoration to his premobilization assignment in Washington, D.C.) . Thus, despite being lawfully in Naval service and subject to the Navy’s orders, Fourte is aski ng the Court to interfere with military matters by finding the Secretary’s decisionmaking proces s in issuing the deployment or der to him to be unjustified and incorrect, and thereby to have this Court substitute its judgme nt for that of the Secretary. This is contrary to the instruction in Orloff

. Moreover, following Orloff ’s guidance, the D.C. Circuit ha s explained “[t]he Constitution vests ‘[t]he complex, subtle, a nd professional decisions as to the composition, training, equipping, and control of a military force’ exclusively in the legislative and executive branches.” Kreis v. Sec’y of the Air Force , 866 F.2d 1508, 1511 (D.C. Cir. 1989) (quoting Gilligan v. Morgan , 413 U.S. 1, 10 (1973) and citing Orloff , 345 U.S. at 93–94). Consistent with this teaching, the D.C. Circuit has re peatedly ruled that “military personnel decisions” are “nonjusticiable” when “grant[i ng] such relief would require” a court to “second-guess the10 [military’s] decision about how best to allocate military perso nnel in order to serve the security needs of the Nation.” Id. at 1511; see also, e.g. , Wilson v. James , No. 15-5338, 2016 WL 3043746, at *1 (D.C. Cir. May 17, 2016) (affirming non-justicia bility of review of a “disciplinary action re primand[ing]” a serv iceman for failing t o give superior officer the “dignity and respect due his office”); Schamburg v. White , 63 F. App’x 526, 526 (D.C. Cir. 2003) (review of denial of promotion was non-justiciable); Cargill v. Marsh , 902 F.2d 1006, 1007 (D.C. Cir. 1990) (denying writ of mandamus to compel Army to reassign peti tioner within the Army). For example, in Kreis , the D.C. Circuit reviewed an Air Force Major’s request for a retroactive promotion in the military, based on the claim that his military record contained inaccuracies that prejudiced his promotion application. Kreis , 866 F.2d at 1510. The D.C. Circuit affirmed the district cour t’s dismissal of the Air Forc e Major’s request for a promotion “by judicial decree” as “nonjusti ciable,” reasoning that the co urt was “not competent to compare” the Air Force Major with “other officers competing for such a promotion,” a task “unsuitable to the judicial branch.” Id. at 1511. Here, similar to the request for a promotion in Kreis , Fourte seeks, by judicial decree, reassignment of his duties, see Pet’r’s Reply at 26, based on his a ssertion that he is not the “only qualified candidate in the entire reserve force” for the Africa assignment, Pet. at 1; id. ¶ 27. As in Kreis , Fourte’s challenge to the Navy’ s justification for his deploy ment “falls squarely within the realm of nonjusticiable military personnel decisions.” Kreis , 866 F.2d at 1511. Indeed, the pending petition has put the Navy i n the position of having to justify its personnel action regarding Fourte, namely that F ourte’s position, Officer in Cha rge, is “[r]esponsible for the overall safety, security, and we ll-being of the [base] and all troops therein,” Res p’t’s Resp. at 5,11 and Fourte was chosen as the onl y qualified Reservist after the Navy advertised this position and had no volunteers, see Packard Decl. ¶ 4. Fourte was the “first fully-qualified Sail or on the list of the top 10 qualified Sailors t o fill this position,” and the only officer who satisfied the “command experience requirement” and held the required security clearance. Id. ¶ 8; see also Resp.’t’s Resp. at 16–17. Fourte hi mself touts his qualificati ons for the position to which he was deployed, stating that he has “served on active duty longer tha n 95% of his peers of equal rank,” is one of “few candidates” with a “JD, MBA, and large-scale cor porate financial experience,” and has previously been chose n by the Navy for overseeing a “DO D-wide Congressionally mandated financial audit.” Pet . ¶¶ 12–14. The Navy’s choice o f Fourte as the most-qualified Reservist for the Officer in Cha rge position, therefore, is uns urprising, and is well beyond this Court’s power to “second-guess” t he Navy’s “decision about how best to allocate military personnel in order to serve the s ecurity needs of the Nation,” a task “unsuitable to the judicial branch.” Kreis , 866 F.2d at 1511. Faced with Orloff , Kreis , and their progeny, Fourte switche s gears and claims he is not challenging the Navy’s choice t o deploy him, but rather the pro cess by which the Navy obtained a waiver to order him t o active duty in Africa. See Pet’r’s Reply at 8 (explaining the issue is not “who” the Navy mobilized, but “how” Fourte was mobilized). Claims requiring the “ court to determine only whether the [military’s] decision making process was deficient,” and not whether a military personnel decision “was correct,” have been found to be justiciable. Kreis , 866 F.2d at 1511. For example, a court may consider a “more modest request ” to review “the reasonableness” of the military’s decision not to correct a ser viceman’s military record. Id. Nonetheless, Fourte’s recharact erization of his claims as merel y challenges to the Navy’s12 waiver process cannot save his habeas petition. He has not sou ght any remedy for the alleged deficiencies he identified in t he Navy’s process for ordering h im to active duty by, for example, requesting re-processing of his waiver paperwork. See generally Pet. Instead, far from a “modest request” to have his wa iver paperwork reprocessed, Kreis , 866 F.2d at 1511, Fourte asks the Court to interfere with the Navy’s personnel decisions and order that he be reassigned within the Navy to active duty in Washi ngton, D.C. Fourte’s claims fo r relief, therefore, are not justiciable, and accordingly, must be dismissed.
B. Fourte’s Claims Are Barred For F ailure to Exhaust Intraservice Remedies Even if Fourte’s claims were justiciable under Orloff , Kreis , and their progeny, he has failed to show that he exhausted h is intraservice remedies because he has failed to present his objections to the waiver to the Special Cases Board, and his ha beas petition is barred, as a result. As the D.S.C. 2018 Dismissal Order concluded, exhaustion of int raservice remedies, including presentation o f objections to the Special Cases Board , is required for Fourte’s claims to be reviewed in federal court. See D.S.C. 2018 Dismissal Order, at *3. 3 Indeed, “a court should

3 The D.S.C 2018 Dismissal Order ruled that Fourte’s First Habe as Petition was “not justiciable” because exhaustion of intraservice remedies is required, and, although Fourte “ha[d] a pending action under Article 1150 of the Navy Regulations,” he “failed to utilize an opportunity to present any personal issues with the deployment . . . to the Special Cases Board.” D.S.C 2018 Dismissal Order, at *3; see also D.S.C. 2018 Order Denying Reconsideration, at *3 (denying Fourte’s motion for reconsidera tion because he had “not exhausted his intraservice remedies”). The respondent corr ectly points out that this exha ustion requirement may not be re-litigated here because of issue preclusion, sin ce “(1) the same issue was ‘con tested by the parties and submitted for judicial determination in [a] prior case, ’ (2) the issue was ‘actually a nd necessarily determined by a court of competent jurisdiction in that prior case,’ and (3) preclusion does not r esult in ‘basic unfairness to the party bound by the first determination.’” Scahill v. District of Columbia , 909 F.3d 1177, 1181 (D.C. Cir. 2018) (alterations in original ) (quoting Yamaha Corp. of Am. v. United States , 961 F.2d 245, 254 (D.C. Cir. 1992)); see also Resp’t’s Resp. at 7 (citing Martin v. DOJ , 488 F.3d 446, 454 (D.C. Cir. 200 7)). Fourte only contests th e third requirement, arguing that preclusion would be unfair to h im, because the D.S.C. 2018 Dism issal Order dismissed his first action “without prejudice,” and as a result, he has not yet had the opportunity to litigate the merits of his claims. Pet’r’s Reply at 3. Issue preclusion, however, applie s to “threshold jurisdictional issues,” Nat’l Ass’n of Home Builders v. EPA , 786 F.3d 34, 41 (D.C. Cir. 2015), such as the exhaustion requiremen t on which D.S.C. already ruled. Even though the D.S.C. 2018 Dismissal Order’s dismissal for failure to exhaust did not “adjudicate the mer it[s],” the decision did “adjudicate the court’s jurisdiction,” and the pending petition “cannot command” re-consideration of the same issue unless Fourte shows that he has s ince “cured” the original juri sdictional defect. Id. (internal quotation marks omitted) (quoting GAF Corp. v. United States , 818 F.2d 901, 912 & n.72 (D.C . Cir. 1987)). Fourte still has not13 not review internal military affairs in the absence of . . . ex haustion of available intraservice corrective measures,” Bois v. Marsh , 801 F.2d 462, 468 (D.C. Cir. 1986) ( internal quotation marks and citation omitted), because “[c]ivilian courts must, a t the very least, hesitate long before entertaining a suit which asks the court to tamper with the established relationship between enlisted military personnel and their superior officers ,” id. (internal quotation marks omitted) (quoting Chappell v. Wallace , 462 U.S. 296, 300 (1983)); see also New v. Cohen , 129 F.3d 639, 641 (D.C. Cir. 1997) (stating t he “basic principle of comity” that “service members subject to military discipline must exhaust their military reme dies before seeking collateral review in federal court”). Here , Fourte still has not presente d his waiver objections to the Special Cases Board, and his deci sion to forego this intraservi ce remedy bars him from bringing the instant claims in federal court. See Resp’t’s Resp. at 6; Packard Decl. ¶ 9. 4 Fourte correctly notes that in the D.C. Circuit, the exhaustion requirement does not apply if exhaustion would be “futile” or lead to “irreparable harm.” Bois , 801 F.2d at 468; see also Pet’r’s Reply at 4; Pet’ r’s Decl. ¶¶ 24, 25. Although Fourte m ay not relitigate this issue here because the D.S.C. 2018 Dismissal Order already ruled that exhaustion is required, Fourte nevertheless does not qualify for either exception to exhaustio n. Fourte states his belief that submitting objections to the Special Cases Board would be futil e because such review is for “personal matters and not violatio ns of federal regulations by the Navy,” but the declaration on

exhausted his intraservice remedies, as discussed in this secti on, and therefore, his petition is barred on this ground as well. 4 The petitioner states that the Navy “completed its investigat ion” in response to his Article 1150 complaint, concluding the petitioner could not bring that complaint becaus e it was filed against a serviceman who was not “superior in rank or position.” See Decl. Supp. Pet’r’s Reply (“Pet’r ’s Reply Decl.”) (Nov. 17, 201 8) ¶ 55, ECF No. 11-1. This fact does not establish that Fourte has exhausted h is intraservice remedies, h owever, because Fourte has not availed himself of the intraservice remedy that the Navy of fered to him, which was to present his objections to the Special Cases Board.14 which he relies for that asserti on explains that S pecial Cases Board requests may be broader, reaching “legal” issues, stating this avenue of administrative review is “available to Sailors who have significant personal, leg al, . . . or other issues that co uld affect their mobilization, or require special consideration.” See Pet’r’s Reply at 3 (citing Pack ard Decl. ¶ 9). Thus, Fourte ha s advanced “no reason . . . to suggest t hat the Board lacks the p ower to provide [Fourte] with complete relief or that it woul d not fairly consider all [his] claims.” Bois , 801 F.2d at 468. Fourte’s contention that he will be irreparably harmed if he is required to exhaust intraservice remedies fares no better. See Pet’r’s Decl. ¶ 27(c). Fourte argues that exhaustion creates irreparable harm for hi m because exhaustion lengthens t he time he will be deployed abroad. He concedes, however, t hat he is not challenging the N avy’s authority or decision to deploy him to Africa. Pet’r’s R eply at 8. Rather, the alleged wrong is in “how” the Navy processed his waiver paperwork, id. , and Fourte has not shown any i rreparable harm stemming from the alleged paperwork errors. If Fourte succeeded on the merits of his challenges to the Navy’s waiver process, the Na vy, for example, could reprocess t he waiver for his Africa assignment, and the alleged harm w ould be fixed. Exhaustion of intraservice remedies does not create irreparable harm for Four te, and is required, as the D.S .C. 2018 Dismissal Order already ruled. Fourte still has not exhaus ted his intraservice remedie s, and, accordingly, his habeas petition is dismissed. 5

5 The respondent argues that Four te’s claims should also be dis missed because Fourte has failed to state a claim under the APA and Due Process Clause of the Fifth Amendme nt. See generally Resp’t’s Resp. These arguments need not be discussed further because the petition is dismissed on several other grounds.15 IV. CONCLUSION For the reasons discussed above, F ourte’s Petition for a Writ o f Habeas Corpus, ECF No. 1, is dismissed. An Order consiste nt with this Memorandum Opin ion will be entered contemporaneously.

Date: January 28, 2019

__________________________ BERYL A. HOWELL Chief Judge