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UNITED STATES EX REL. ARMSTRONG v. WHEELER

December 2, 1970

UNITED STATES ex rel. Christopher Fairbairn ARMSTRONG
v.
H. W. WHEELER, LTC, AGC, Acting Commander, U.S. Army Reserve Components Personnel Center, Fort Benjamin, Harrison, Indiana, Stanley Resor, Secretary of the Army, Melvin Laird, Secretary of Defense


Joseph S. Lord, III, District Judge.


The opinion of the court was delivered by: LORD, III

Petitioner seeks a writ of habeas corpus ordering his discharge from the Army as a conscientious objector.

 Christopher F. Armstrong, the petitioner, joined the Army's Reserve Officer Training Corps (ROTC) while an undergraduate at Washington and Lee University. He was commissioned a Second Lieutenant in the U.S. Army Reserve in June 1967, upon graduating from college. He was then placed on inactive status and approved for educational delay of his active duty, so that he could attend graduate school. In May 1968, the Army further approved the petitioner for educational delay until June 1969. The Army approved Armstrong's transfer from the Armor to the Military Police branch of the service in April 1969. On June 29, 1969, petitioner notified the Army that he was applying for discharge as a conscientious objector. His formal application was filed August 11, 1969.

 Since being commissioned, Armstrong has earned a Master's Degree in Criminology at the University of Pennsylvania and has held several jobs related to this specialty. He worked in Philadelphia, in this judicial district, from February 1969 through the time this petition was filed. He resides in Philadelphia and is a doctoral candidate in sociology at the University of Pennsylvania here.

 Consideration of petitioner's claim raises two main issues:

 (1) Does this court have jurisdiction to consider this petition?

 (2) If this court can hear petitioner's claim, was there any basis in fact for the decision of the Army Conscientious Objector Review Board denying his request for discharge as a conscientious objector?

 I. DOES THE COURT HAVE JURISDICTION?

 The power to hear habeas corpus petitions is granted to federal district courts by 28 U.S.C. § 2241, which provides in part: "Writs of habeas corpus may be granted by * * * the district courts * * * within their respective jurisdictions." This provision has been construed to require that a petitioner be "in custody" within a district before that district court can hear the case. See, e.g., Ahrens v. Clark, 335 U.S. 188, 68 S. Ct. 1443, 92 L. Ed. 1898 (1948); United States ex rel. Rudick v. Laird, 412 F.2d 16 (C.A. 2), cert. denied, 396 U.S. 918, 90 S. Ct. 244, 24 L. Ed. 2d 197 (1969).

 It is settled that retention of a reservist in the Armed Forces is a sufficient restraint on liberty to constitute such "custody." See Hammond v. Lenfest, 398 F.2d 705 (C.A. 2, 1968); Donigian v. Laird, 308 F. Supp. 449 (D.C. Md. 1969); Koster v. Sharp, 303 F. Supp. 837 (E.D. Pa. 1969). Therefore, Armstrong is in custody within the meaning of 28 U.S.C. § 2241(c)(3). Respondent urges, however, that Armstrong is not in custody within this district. That issue is not so settled, but we believe Armstrong is in custody here.

 This case is almost identical to Donigian v. Laird, supra, in which Judge Edward Northrop, in a forthright and thoughtful opinion, concluded that the court did have jurisdiction to adjudicate the habeas petition of a reservist who had been commissioned on graduating from college and placed on inactive status in order to pursue graduate study. Donigian had been a student within the district where he brought suit. Like Armstrong, Donigian had received orders to report for active duty *fn1" before he filed his petition.

 The facts here are also very similar to those in Nason v. Secretary of Army, 304 F. Supp. 422 (D.C. Mass. 1969). There, the petitioner had been appointed a First Lieutenant in the Army Reserve under the "Berry" Plan for physicians. He was being deferred from active duty pending the completion of his residency training and, like Armstrong, was attached to no particular reserve unit when he sought discharge as a conscientious objector. The court in Nason held that where the petitioner was a reservist following a course of medical training in Massachusetts with the express approval of the Army Reserve Components Personnel Center at Fort Benjamin Harrison, he was in custody in Massachusetts, and thus the court had jurisdiction to hear his habeas corpus petition. *fn2"

 Respondent's argument that Armstrong is not in custody within this district rests mainly on the line of cases stemming from United States ex rel. Rudick v. Laird, supra, which interpret 28 U.S.C. § 2241 to require the petitioner to be both physically present and "detained or held in custody" within a district before that district court can hear his case. Id. 412 F.2d at 20; Jarrett v. Resor, 426 F.2d 213, 217 (C.A. 9, 1970). In both Rudick and Jarrett, the courts dismissed the petitions of soldiers on active duty who sought habeas corpus relief in districts where they were on leave between active stations.

 We need not disagree with the holdings on this point of Rudick, Jarrett and the several cases which have dismissed soldiers' habeas petitions for want of jurisdiction on the authority of Rudick,3 for those cases are factually distinguishable. The petitioner here is in a very different situation than were Rudick and Jarrett. Armstrong was not on leave, briefly visiting this district, when he filed this petition: with the exception of eight months spent working in New York and New Jersey, he has worked, studied and resided in Philadelphia continuously since June 1967. The Army has had substantial contacts with Armstrong here. Only with the express approval of the Reserve Components Personnel Center could he delay his active duty in order to study and work here. The same Center received and ruled on petitioner's intraservice transfer requests. The petitioner was interviewed by Army officers in regard to his conscientious objection in this district. It was here that he received his orders to report to Georgia for active duty. *fn4" None of these factors alone makes it clear that Armstrong was in custody here. Together, however, they show unequivocally that whatever control the Army has exerted over reservist Armstrong has been exerted over him in this district. *fn5"

 Since the case law clearly treats a reservist retained in the service against his will as "in custody" within the meaning of 28 U.S.C. § 2241(c)(3), see, e.g., Hammond v. Lenfest, supra, and since a reservist must be in custody where the Army is exerting control over ...


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