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WEBER v. UNITED STATES

August 19, 1968

Petition of PFC Michael P. WEBER, USMCR Serial Number 2182992
v.
The UNITED STATES of America: General Leonard J. Chapman, Jr., USMC, Commandant, United States Marine Corps: LCDR W. G. Murphy, USN, Commanding Officer, Navy Brig, Philadelphia Navy Yard, Pennsylvania



The opinion of the court was delivered by: WEINER

 WEINER, District Judge.

 Relator, Michael P. Weber, seeks a writ of habeas corpus to discharge him from active duty with the United States Marine Corps and to restore him as a member of the United States Marine Corps Reserves, attached to the tenth motor transport battalion, USNCR, Philadelphia, Pennsylvania.

 On May 4, 1966, Weber enlisted in the United States Marine Corps for a period of six (6) years of which six months was to be on active duty. The contract of enlistment, inter alia, provided that he could not be ordered to active duty without his consent except in time of war or when in the opinion of the President a national emergency exists or when otherwise prescribed by law, and that he may be required to perform active duty during such periods. He also signed a document titled, "Statement of Understanding upon enlistment". The relevant part thereof explained that as a reservist he would be deferred from induction through Selective Service System as long as his participation was satisfactory; that he would be required to attend at least 90% of scheduled drills and not more than seventeen (17) days active duty per year; that upon failure to perform duties as required, he could be ordered for forty-five (45) days of active duty or have his draft deferment cancelled and have a priority induction into service through Selective Service System; that he is liable to call for active service in time of national emergency or that he may be required to serve at such other times as the law may require.

 On March 15, 1967, the Marine Corps changed its drill requirements to permit no absences unless excused. On March 9th and 10th, 1968, Weber failed to attend four drills. He was then given an opportunity to make them up which he refused. Concluding that absence from drills and refusal to make them up was tantamount to "unsatisfactory participation" he received orders to report for active duty for a period of seventeen months. *fn1" Ignoring said order, relator was placed under confinement and now seeks relief in the nature of a declaratory judgment, declaring the active duty orders to be void and unlawful. He argues that when he enlisted the legal contractual extent of his ready reserve requirement was to satisfactorily participate in at least 90% of scheduled drills during each year and serve on active duty not more than 17 days during each year. It is not disputed that relator had complied with the 90% requirement. He contends, therefore, that the government is bound by the enlistment contract and the statement of understanding.

 The Government argues that no writ of habeas corpus should issue. Questioned is the jurisdiction of the court over the subject matter and if the change in drill requirements was a valid exercise of military authority.

 The federal district courts have jurisdiction to grant a writ of habeas corpus to one who establishes that he is "in custody under or by color of the authority of the United States * * *." 28 U.S.C. § 2241(c)(1). More particularly, habeas corpus is available to determine whether the governmental agency under whose authority relator is being held as the requisite jurisdiction to do so, Eagles v. United States ex rel. Samuels, 329 U.S. 304, 311, 67 S. Ct. 313, 91 L. Ed. 308 (1946); accord, United States ex rel. Weidman v. Sweeney, 117 F. Supp. 739 (E.D.Pa.1953) (Clary, J.).

 Defendant's argument that this court has no jurisdiction over this petition for habeas corpus relief until relator exhausts certain internal administrative remedies confuses the law in the post-induction area with that of several neighboring but distinct domains.

 Habeas corpus is an extraordinary remedy, and is generally reserved for those situations where other relief is not practically available. Hence, this court would have no jurisdiction to entertain an application for a writ of habeas corpus prior to the relator's actual induction, e.g., Moskowitz v. Kindt, 273 F. Supp. 646, 648 (E.D.Pa.1967), and the cases there cited. Another situation which limits the availability of this type of relief is analogous to the law governing collateral attack in federal court of state convictions: where a relator has been convicted by a court-martial, he must first exhaust his remedies under the Uniform Code of Military Justice before applying to a federal district court for a habeas corpus writ, Gorko v. Commanding Officer, 314 F.2d 858, 860 (10th Cir.1963), Gusik v. Schilder, 340 U.S. 128, 71 S. Ct. 149, 95 L. Ed. 146 (1950).

 Luftig v. McNamara, 252 F. Supp. 819 (D.C.1966), cited by the government, is inapposite. Therein, the court had to consider a motion for a preliminary injunction instituted by a member of the United States Army. The underlying question in Luftig was whether the courts had any power to enjoin the Commander in Chief of the Army and Navy of the United States against carrying on a war or stationing a member of the Armed Forces in some particular area. Orloff v. Willoughby, 345 U.S. 83, 92, 94, 73 S. Ct. 534, 97 L. Ed. 842 (1953), is likewise inapposite, since the petitioner was not in custody and the issue therein was whether one lawfully inducted into the Army may, through habeas corpus proceedings, obtain a judicial review of his assignments to duty.

 Relator herein seeks the classic determination for which the great writ of habeas corpus has always served as a vehicle: whether his detention is in accordance with, or contrary to, the law. For this purpose an inductee in the position of relator may apply to the federal district court for a hearing to determine whether or not the writ should issue, 50 U.S.C. App. § 460(b)(3), as amended, Pub.L. No. 90-40, § 1(8)-(10), 81 Stat. 104, 105 notwithstanding, see Moskowitz, supra 273 F. Supp. at 648; accord, Brown v. McNamara, 387 F.2d 150 (3d Cir., November 24, 1967) - (by implication).

 Relator's contention that the increase in the requirement of attendance at scheduled drills from 90% to 100% constituted a violation of his enlistment contract and thereby violated the due process clause of the Fifth Amendment to the Constitution of the United States is without merit. His further argument that he may not be ordered into active service for more than forty-five (45) days is also without merit.

 The increase in scheduled drills operated entirely within the limits of the enlistment contract. It contemplated the right to regulate the percentage of scheduled drills providing it did not violate minimum requirements fixed by Congress.

 We concur with the opinion of Dooling, J. as set forth in Winters v. United States, 281 F. Supp. 289 (E.D.N.Y.1968); aff'd 390 F.2d 879 ...


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