United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 24, 2005 Decided May 3, 2005

No. 04-5004

RICHARD C. ROONEY,

APPELLANT

v.

SECRETARY OF THE ARMY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 02cv00450)

Christopher D. Wiest argued the cause and filed the brief

for appellant.

R. Craig Lawrence, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Kenneth L.

Wainstein, U.S. Attorney, and Michael J. Ryan and Gary Corn,

Assistant U.S. Attorneys.

Before: EDWARDS, ROGERS, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.
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GARLAND, Circuit Judge: Major Richard Rooney seeks a

declaratory judgment that his obligation to the Army terminated

when the Army discharged him in February 2002, and that the

Army’s subsequent revocation of his discharge on the ground

that it was procured by fraud was unlawful. The district court

granted the Army’s motion for summary judgment, and Rooney

appealed. We conclude that a petition for a writ of habeas

corpus is the exclusive avenue of relief for Rooney, and that the

Western District of Texas rather than the District of Columbia

is the appropriate forum. We therefore vacate the district court’s

decision and judgment for lack of jurisdiction.

I

The facts of this case are fully set forth in the district court’s

opinion, 293 F. Supp. 2d 111 (D.D.C. 2003), and we recount

them only briefly here. When Rooney graduated from the

United States Military Academy in 1991, he had a five-year

active duty service obligation to the Army. He elected to

postpone his service and pursue a medical education under the

Armed Forces Health Professional Scholarship Program. In

exchange for the Army’s payment of his tuition and expenses,

Rooney agreed to an additional eight-year service obligation.

He further agreed that his time in medical school would not

count toward fulfilling his active duty requirement.

Rooney began his active duty service when he entered the

Army Medical Corps upon his graduation from medical school

in 1995. He spent the next several years as a resident in

orthopedic surgery at various military hospitals. In September

2000, Rooney applied to participate in the Army’s Nonfunded

Graduate Medical Education Program (NGMEP), which

temporarily releases Army doctors from active duty into the

reserves to allow them to train at civilian institutions. NGMEP

fellows must, however, return to active duty upon completion of

their training to serve for the length of their remaining service
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obligation. Rooney was selected to participate in the program,

and the Army released him from active duty to begin his

NGMEP fellowship on August 31, 2001. 

What happened next is hotly disputed by the parties, but

both sides agree on the following. Before relocating to San

Diego for his fellowship, Rooney filed an application for

disability compensation with the Department of Veterans

Affairs. He also initiated the formal process for obtaining a

discharge from the Army. On January 7, 2002, after a series of

communications, Rooney sent the Army a letter of resignation.

On February 5, the Army issued an order honorably discharging

him. On February 15, however, when it realized that Rooney

still had an outstanding active duty service obligation, the Army

issued an order revoking the February 5 discharge. A cover

letter accompanying the order stated: “Due to an administrative

error a discharge order was published on you however, it has

been revoked.” Letter from Lydia Wesley to Maj. Richard

Rooney, Feb. 15, 2002.

On March 11, 2002, Rooney filed suit in the United States

District Court for the District of Columbia, seeking a declaratory

judgment pronouncing the February 5 discharge effective and

voiding the Army’s subsequent effort to revoke it. On

September 12, 2002, the district court vacated the February 15

order revoking Rooney’s discharge, on the ground that Army

regulations do not permit revocation solely for administrative

error. Mem. Op., No. 02-450, at 1 (D.D.C. Sept. 12, 2002). At

the same time, the court noted that the Army “may well have

had on February 15, or may now have, a basis for revoking

[Rooney’s] discharge” on the ground that it was obtained under

fraudulent circumstances. Id. at 12. The court gave the Army

eleven days either to submit a record of the evidence of fraud

known to it as of February 15, 2002, or to issue a new revocation

order based on the current record. Id.
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The Army opted to issue a new order, and on September 20,

2002, it again revoked Rooney’s discharge and ordered him to

report for active duty at Fort Hood, Texas by September 25,

2002. The memorandum prepared by the commanding officer

who ordered the revocation stated: “Rooney engaged in an

intentional and protracted pattern of fraudulent

misrepresentations and omissions to the Army in an intentional

effort to obtain a discharge and thereby avoid his nearly eight

year contractual service obligation.” Mem. from Col. Elton

Bruce, U.S. Army Reserve Personnel Command, for the Record

(Sept. 19, 2002). On September 23, Rooney sought a temporary

restraining order, which the district court denied. Thereafter,

Rooney reported for duty at Fort Hood. 

On October 15, 2002, Rooney filed an amended complaint

seeking a declaratory judgment that “his February 5, 2002

discharge is valid, effective, and irrevocable” and that the

revocation order was unlawful. Am. Compl. at 6. The district

court granted the Army’s motion for summary judgment, finding

it “overwhelmingly clear that the Army relied upon substantial

evidence of fraud in revoking Rooney’s discharge,” and holding

that the revocation was consistent with the relevant statutes,

regulations, and constitutional provisions. 293 F. Supp. 2d at

130. Rooney now appeals.

II

Rooney contends that the Army’s revocation of his

discharge without a hearing violated Army regulations, the

Uniform Code of Military Justice, and the Due Process Clause

of the Fifth Amendment to the Constitution. The relief he seeks

is a declaration that “his February 5, 2002 discharge is valid,”

and that the Army’s “attempted revocation thereof and orders

calling him to active duty are invalid and of no force or effect.”

Am. Compl. at 6. In other words, Rooney claims that he is “in

custody in violation of the Constitution or laws . . . of the United
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States,” 28 U.S.C. § 2241(c)(3). Although he does not use the

term in his complaint, what he seeks from the federal courts is

a writ of habeas corpus. See Parisi v. Davidson, 405 U.S. 34, 39

(1972) (“[T]he writ of habeas corpus has long been recognized

as the appropriate remedy for servicemen who claim to be

unlawfully retained in the armed forces.”); Schlanger v.

Seamans, 401 U.S. 487, 489 (1971) (same). And as we have

previously held, a party who can petition for a writ of habeas

corpus may not instead seek a declaratory judgment. LoBue v.

Christopher, 82 F.3d 1081, 1082 (D.C. Cir. 1996); Monk v.

Secretary of the Navy, 793 F.2d 364 (D.C. Cir. 1986). Rooney’s

declaratory judgment action must therefore be treated as a

habeas petition.

In a Notice of Supplemental Authority filed after oral

argument, Rooney concedes that “as respects claims that simply

challenge the fact of confinement, habeas is the remedy.”

Second Notice, No. 04-5004, at 1 (Mar. 2, 2005). He contends

that declaratory relief is nonetheless appropriate because his

claims involve “significant property concerns” (in an honorable

discharge and benefits that might stem therefrom) and “do not

touch on the fact of confinement.” Id. That assertion is contrary

to the position taken in Rooney’s briefs. See, e.g., Appellant’s

Br. at 11 (“Major Rooney’s interest implicates core liberty

interests that go beyond . . . a paycheck in his pocket.”). It is, in

any event, incorrect. If Rooney receives a declaratory judgment

that the discharge was valid and the revocation invalid, “release

. . . would follow automatically since, in a second action for a

writ of habeas corpus, the prior judgment would have res

judicata effect.” Monk, 793 F.2d at 366. It thus does “not

matter that he ha[s] not asked for release.” LoBue, 82 F.3d at

1083. Nor may Rooney “avoid the requirement that he proceed

by habeas corpus by adding a request for relief that may not be

made in a petition for habeas corpus.” Monk, 793 F.2d at 366.

Accordingly, habeas corpus is Rooney’s exclusive remedy. See

id. (citing Preiser v. Rodriguez, 411 U.S. 475, 490 (1973)); cf.
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1

Indeed, we think it likely that Rooney was “in custody” for

purposes of the habeas statute when he filed his initial complaint in

March 2002, since at that point the Army considered him a reservist

Heck v. Humphrey, 512 U.S. 477 (1994) (holding that a state

prisoner may not challenge the constitutionality of his

conviction in a suit for damages under 42 U.S.C. § 1983). 

The problem for Rooney is that, because his declaratory

judgment action must be treated as a habeas petition, it must also

be dismissed for lack of jurisdiction. As the Supreme Court

reminded us just last Term, a district court has jurisdiction over

a habeas petition “only if it has jurisdiction over” the

petitioner’s custodian. Rumsfeld v. Padilla, 124 S. Ct. 2711,

2722 (2004) (citing 28 U.S.C. § 2241(a) (providing that federal

district courts are limited to granting habeas relief “within their

respective jurisdictions”)). And while the United States District

Court for the District of Columbia may have jurisdiction over

the Secretary of the Army, that fact does not help Rooney

because the petitioner’s “immediate custodian, not a supervisory

official who exercises legal control, is the proper respondent.”

Padilla, 124 S. Ct. at 2720; see Monk, 793 F.2d at 369 (“[F]or

purposes of the federal habeas corpus statute, jurisdiction is

proper only in the district in which the immediate, not the

ultimate, custodian is located.”). 

Since September 30, 2002, nearly a month before he filed

his challenge to the second revocation of his discharge, Rooney

has been an active duty officer, physically located at Fort Hood,

Texas. During this time, he undoubtedly has been in the custody

of the Army for habeas purposes, see Parisi, 405 U.S. at 39;

Oestereich v. Selective Serv. Sys. Local Bd., 393 U.S. 233, 235

& n.5 (1968), and his “immediate custodian” has been the

commanding officer at Fort Hood, see Schlanger, 401 U.S. at

490-91 (1971); Monk, 793 F.2d at 369.1 The District Court for
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in the NGMEP subject to military orders and obligated to return to

active duty when his fellowship ended. Cf. Strait v. Laird, 406 U.S.

341 (1972) (concluding that a reservist called to active duty is “in

custody” for habeas purposes); Eisel v. Secretary of the Army, 477

F.2d 1251 (D.C. Cir. 1973) (same); Bohnert v. Faulkner, 438 F.2d 747

(6th Cir. 1971) (granting reservist’s habeas petition). But we need not

resolve that question because this appeal only concerns Rooney’s

challenge to the Army’s second revocation of his discharge, which he

presented for the first time in the amended complaint that he filed after

reporting to Fort Hood. Nor do we think it dispositive that the district

court’s September 2002 order purported to “retain jurisdiction of this

case,” Order, No. 02-450, at 2 (D.D.C. Sept. 12, 2002), since the

district court cannot by decree grant itself jurisdiction. See Kokkonen

v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“Federal

courts are courts of limited jurisdiction. They possess only that power

authorized by Constitution and statute, which is not to be expanded by

judicial decree.”) (citations omitted).

the District of Columbia does not have jurisdiction over that

officer. See Schlanger, 401 U.S. at 490-91 (1971); Monk, 793

F.2d at 371. Rather, as the government indicated in its brief and

agreed at oral argument, the federal district court with

jurisdiction over Fort Hood is the United States District Court

for the Western District of Texas, and that is where Rooney

must file his petition for a writ of habeas corpus.

III

For the foregoing reasons, the decision and judgment of the

district court are vacated for lack of jurisdiction.

So ordered.