JOSEPH S. LORD, III, District Judge.
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.
Armstrong submitted eight supporting letters with his six-page application for discharge as a conscientious objector. In December 1969, he was interviewed by a military chaplain, a military psychiatrist and an Army Lieutenant Colonel, in accordance with Army Regulation (AR) 135-25. On April 2, 1970, a Conscientious Objector Review Board met at Fort Benjamin Harrison, Indiana, and denied petitioner's application for discharge. He was notified of this decision May 12, the same day he received orders to report on July 5 to Fort Gordon, Georgia, for active duty. Armstrong requested respondent Wheeler, the acting commander of the U.S. Army Reserve Components Personnel Center at Fort Benjamin Harrison to reconsider his application for discharge, but that request was denied. On May 24, petitioner applied to the Army Board for Correction of Military Records seeking "correction" of the Conscientious Objector Review Board decision. No hearing has been held nor decision announced by that Board. Petitioner filed this action June 29.
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
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.
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.
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.
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 him, we hold that the petitioner is in custody within this district.
Rather than mandating a different result, the Rudick line of cases lends support to this conclusion. Although the court in Rudick refused to decide in what district a soldier on leave could seek habes [habeas] corpus relief, it indicated that it would have no difficulty allowing the action if he were suing while under Army control at either the active duty station from which he was coming (his prior station) or the station to which he was going (his subsequent station). 412 F.2d at 21. Two district court cases which reached the issue in dicta said a soldier on leave could petition for habeas corpus either in the district of his prior active duty station or in that of his subsequent station. Morales Crespo v. Perrin, supra, 309 F. Supp. at 205; Weber v. Clifford, 289 F. Supp. 960, 961 (D.C. Md. 1968).
The Army's contacts with Armstrong in Philadelphia from 1967 to the present make the city closely analogous to the duty station of a soldier on active duty. He could not have remained here without the approval of the Army. It was here that the Army exerted control over Armstrong. If there is any place in the country akin to the prior active duty station which the Rudick line of cases suggests would provide a proper jurisdictional basis for a habeas corpus station, it is Philadelphia.
Even though we find Armstrong to be in custody within this district, all jurisdiction problems are not settled. In order to hear a petition for habeas corpus, a court must have personal jurisdiction over a proper custodian of the petitioner. United States ex rel. Rudick v. Laird, supra, 412 F.2d at 21; Donigian v. Laird, supra, 308 F. Supp. at 452.
The respondent here contends generally that the court does not have jurisdiction over the defendants. If proper service of process were made pursuant to the Federal Rules of Civil Procedure or some other federal statute and if the respondents had sufficient contacts with this district to satisfy due process, then this court has personal jurisdiction over them.
Petitioner contends that we have jurisdiction over respondents by virtue of 28 U.S.C. § 1391(e) which provides in part:
"A civil action in which each defendant is an officer or employee of the United States or any agency thereof acting in his official capacity * * * may * * * be brought in any judicial district in which * * * the plaintiff resides * * *
"The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought."
Petitioner served the United States Attorney in this district with copies of the motions in this case personally and served the other three respondents and the Attorney General of the United States with similar copies by registered mail, return receipt requested.
There appears to be some disagreement as to whether § 1391(e), which is titled a "venue" statute, operates to expand the personal jurisdiction of the district court over employees and officers of the United States. The court in Rudick regarded § 1391(e) as solely a venue statute, and thus found that the respondents who were outside the district could not properly be served. 412 F.2d at 20, 21. The Second Circuit there apparently overlooked the service of process provisions of the subsection. It remedied this oversight in the recent case of Liberation News Service v. Eastland, 426 F.2d 1379 (C.A. 2, 1970), a suit seeking a preliminary injunction against the members and general counsel of a Senate subcommittee. There the court said of § 1391(e): "If the section were applicable, it would indeed supply both venue, since plaintiffs reside within the district, and jurisdiction over the persons of the Senators and their counsel." Id. at 1382.
It termed the purpose of the statute to be a broadening of the provisions on venue and service of process "so that when a superior officer residing in Washington was a necessary party the action could still be brought in the field, with personal jurisdiction over the superior obtainable by service of process by mail, * * *" Id. at 1384. See also, to the same effect, United States ex rel. Lohmeyer v. Laird, 318 F. Supp. 94 (D.C. Md. 1970); Metz v. United States, 304 F. Supp. 207, 209 (W.D. Pa. 1969); 2 J. Moore, Federal Practice, P4.29, at 1210-11, 1214-15 (2d ed. 1967); 4 Wright & Miller, Federal Practice and Procedure: Civil § 1107 at 416-21.
Switkes v. Laird, 316 F. Supp. 358 (S.D.N.Y. 1970), decided after the Second Circuit opinion in Liberation News Service v. Eastland, supra, tried to reconcile that case with Rudick on the grounds that a habeas corpus action is not a "civil action" within the meaning of § 1391(e), and thus that section would apply to actions for injunctions, but not to habeas corpus actions. The court in Switkes based its conclusion on the Supreme Court's characterization of a "civil" label for habeas corpus as "gross and inexact." Switkes v. Laird, supra, citing Harris v. Nelson, 394 U.S. 286, 293-294, 89 S. Ct. 1082, 22 L. Ed. 2d 281 (1969). In so concluding, however, the court apparently overlooked the Supreme Court's statement in the previous sentence: "It is, of course, true that habeas corpus proceedings are characterized as 'civil.'" Harris v. Nelson, supra, at 293, 89 S. Ct. at 1087.
Since habeas corpus is generally termed a "civil" action and since it was the apparent intent of Congress to "facilitate review by the Federal courts of administrative actions"
(precisely the situation presented here), the phrase "civil actions" in § 1391(e) should be read to include habeas corpus actions.
Having found a statutory grant of personal jurisdiction, we must still establish that one or all of the respondents is a proper custodian of Armstrong and has sufficient contacts with this district to satisfy due process. In Donigian v. Laird, supra, the court held that it did not have jurisdiction over Secretaries Laird or Resor, although its ground for so holding were unclear. 308 F. Supp. at 452.
It did rule that the Commander of the Army Reserve Components Personnel Center was the only real custodian of the petitioner. Since all Army dealings with Armstrong appear to have been directed by that Center, we hold that its commander, respondent Wheeler, is a proper custodian. Having found a proper custodian, who has been properly served under 28 U.S.C. § 1391(e), we need not decide whether Secretaries Laird and/or Resor are proper custodians, an issue which has inspired differing opinions. Compare, e.g., Donigian v. Laird, supra, with Silberberg v. Willis, 306 F. Supp. 1013 (D.C. Mass. 1969).
Colonel Wheeler is constitutionally subject to this court's jurisdiction if he has sufficient contacts with this district such that the maintenance of the suit does not offend traditional notions of fair play. Cf. Calagaz v. Calhoon, 309 F.2d 248 (C.A. 5, 1962). By virtue of his contacts with petitioner, Colonel Wheeler has satisfied this test.
We therefore hold that we have personal jurisdiction over respondent Wheeler, as well as subject matter jurisdiction over the petitioner's custody within this district and that we have jurisdiction to hear petitioner's complaint.
There are strong policy reasons favoring this holding. If petitioner were not allowed to maintain his habeas corpus action in this district, he and others similarly situated throughout the country would have to seek discharge by habeas corpus in the district of Colonel Wheeler's official residence. The control of inactive reservists such as Armstrong has been centralized for the convenience of the Army. It would hardly comport with the increasingly broad scope of habeas corpus, see Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963), to hold that the Army, merely by assigning a soldier to a central, rather than local, command, can dissipate his right to habeas relief where he is under its control. Since records are readily transferable, since no witnesses are necessary where, as here, the determination is to be made from the record, and since the Army has legal representatives in every judicial district in the persons of United States Attorneys, there seems little practical reason to require all habeas actions to be brought in the one district where the Army central command is located.
II. DID THE DECISION OF THE ARMY CONSCIENTIOUS OBJECTOR REVIEW BOARD HAVE ANY BASIS IN FACT?
The scope of judicial review of military orders is very limited: we must let stand the Army Conscientious Objector Review Board's denial of Armstrong's application for discharge unless that denial had no basis in fact. United States ex rel. Brooks v. Clifford, 409 F.2d 700, rehearing denied 412 F.2d 1137 (C.A. 4, 1969); Bates v. Commander, First Coast Guard District, 413 F.2d 475 (C.A. 1, 1969); Hammond v. Lenfest, supra ; Koster v. Sharp, 303 F. Supp. 837 (E.D. Pa. 1969). The standard by which petitioner's in-service claim was to be judged was, according to Department of Defense regulations,
the same as that for judging the conscientious objection of Selective Service System registrants under the Selective Service Act, 50 U.S.C.A. § 456(j):
"Nothing contained in this title * * shall be construed to require any person to be subject to combatant training and service who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. As used in this subsection, the term 'religious training and belief' does not include essentially political, sociological, or philosophical views, or a merely personal moral code. * * *"