Parisi v. Davidson – Oral Argument – October 20, 1971

Media for Parisi v. Davidson

Audio Transcription for Oral Argument – October 19, 1971 in Parisi v. Davidson

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Warren E. Burger:

Parisi against Davidson.

You may proceed whenever you are ready counsel.

Richard L. Goff:

Mr. Chief Justice may it please the Court.

Trying to pick up where we left off yesterday.

The government has pointed out in its brief that the various branches of the armed services have promulgated regulations, which provide for an elaborate administrative review machinery of conscientious objector application.

Now, in this case, the petitioner in cases like a petitioner has already completed an exhausted that elaborate administrative review of machinery.

It is important to focus on the fact that his habeas corpus petition challenges and seeks review of the validity of that administrative determination.

It is not a situation like was present in the Gusik case or the case of Noyd v. Bond, which the petitioner in habeas corpus.

And, the petitioner was brought to challenge and seek review of alleged invalidity or asserted errors in the military criminal proceedings which were pending against the petitioner.

Here, on the other hand, the petitioner asserts in Court a right to discharge of the conscientious objector, which right is independent of those criminal proceeding.

It is not depended on any invalidity of those proceedings.

But, rather it arises from the wrongful administrative denial of his application for discharges of conscientious objector without basis and fact.

So the government’s reliance on the exhaustion of court-martial that was required in Noyd v. Bond and in Gusik v. Shilder.

We believe it is completely inapplicable and I think the government itself recognized this only two years ago.

In a memorandum, which the Solicitor General submitted to this Court in the case of Craycroft v. Ferrall, a memorandum which we were not able to discover until yesterday that in clerk’s office.

But, in that particular case the department — the Solicitor General stated very specifically Department of Justice had determined to withdraw its support of the position previously urged in the brief in our position in Noyd v. McNamara that military judicial remedies must be exhausted before resort by a serviceman with conscientious objector claims to civilian courts.

Is there a reference to that in the governments brief?

Just to remember that.

Richard L. Goff:

I think the government’s brief, as I recall refers to the Craycroft situation as one in which the government at that time withdrew its insistence that — or any reliance on the proposition that a conscientious objector applicant must resort to the military correction boards before seeking review in a federal courts.

I would like to continue quoting, if I may from —

I want to be sure that we have what you are quoting from–if that is the one we want to look at later.

Richard L. Goff:

Well, I do not think it is in the appendix or in the appendix to the government’s brief Your Honor.

What it is in the memorandum of the Solicitor General in Craycroft v. Ferrall number 718 miscellaneous October 23, 1969 and in that memorandum the Solicitor General stated that nothing in this policy undermines the general rule urged by the government and adopted by this Court in Noyd v. Bond that military prisoners must ordinarily exhaust all available remedies within the particular service before seeking review on a habeas corpus petition in a federal civilian court.

Where is the — in what state is the administrative procedure application?

Richard L. Goff:

The application in this particular case, Your Honor.

For–

Richard L. Goff:

Parisi case?

Yes.

Richard L. Goff:

Well, in the Parisi case–

Is that been exhausted–

Richard L. Goff:

The administrative process has been completely exhausted.

Parisi had even exhausted the requirement for the Ninth Circuit was then imposing of also applying to the army board for correction of military records.

Yes, but beyond that he can go where?

Richard L. Goff:

Beyond that he can go nowhere within the administrative process and under accepted doctrine of the federal courts he has the right to come in to the court on habeas corpus to review the validity of that administrative denial.

On a conviction, he can go through the -–

Richard L. Goff:

On a conviction, the case is presently under submission for the court of military review.

From there he can go —

Richard L. Goff:

The conviction referring, he would have an appeal — I understand that there is not as a right, but at least to right to seek in appeal from the court of the military appeals.

And, the court of military appeals exercised sort of certiorari jurisdiction?

Richard L. Goff:

That is my understanding Your Honor, yes.

The Department of Justice did say, and this is the key point into this last memorandum.

It is simply our view shared by the Department of Defense that resort to Court’s Marshall should not be required before we do judicial review of a conscientious objector claim can be obtained.

Now, I recognized the right of the government to change its mind.

But, I really think they were right the first time, because I would submit that the exhaustion requirement, which they would now seek to impose, that is the demand exhaust military criminal proceedings against him.

In the first place serves none of the purposes, which underlie the exhaustion requirement, as it has been previously been developed by this Court.

The government has conceded that requiring resort to Court-martial remedy would not serve any purpose of allowing an administrative agency or the military tribunal to develop a fact record, to exercise administrative discretion, to apply any expertise to factual questions or even to special questions of military law.

Such was — as was also emphasized by this Court in Noyd v. Bond.

Furthermore, the requiring resort to Court-martial on this here, it is not necessary to avoid a judicial intrusion into — or judicial intrusion upon or preemption of an agency to which either congress or the military has confided the primary responsibility for deciding or reviewing the basic question, which is now being presented to the federal court.

The agency was responsible to decide that question.

That is the secretary of the army has already decided it and we now seek in federal court, the review of that particular determination, so there is no effort here to disrupt the administrative decision making scheme, which has been set up by the statute.

In fact, if the government were serious about the claim that exhaustion is necessary to avoid conflict with the military or to allow the military to correct its own errors.

Then, I would have thought that the government would have continued to insist that a serviceman appealed to the army board for correction of the military records after the secretary of the army has denied his claim for conscientious objection.

But, as we know in Craycroft the government expressly conceded that such appeal was not necessary and followed the Brooks versus Clifford decision, which held that you require a petitioner to undergo the delay some four months going to that kind of a board would work really intolerable interference with his right to come into Court and have access to the Court on habeas corpus for swift review of the validity of the administrative denial of its conscientious objection claims.

Finally, I would like to point out that the exhaustion requirements was the government lives assert here would operate in a very random hit or miss and rather discriminatory manner.

For example, obviously resort to Court-martial on this would not be required in those cases and we sited some in our brief as examples, where after the administrative denial of the conscientious objector application is taken place, the military itself chooses not to insist on ordering a man to a new duty assignment or revokes pending orders.

So, that the man can come into Court and present his habeas corpus petition.

Nor would be applicable where in cases, and we have also cited examples, where although a military defense had been committed and the military and its discretion decides not to press the charges.

Furthermore, the government has conceded that it would be applicable under its standard only in those cases where the Court-martial might be willing to entertain the defense.

And this results in some rather perverse distinction because apparently means that the right of quick federal review on habeas corpus would be available to the man who jumps the gun and commits the military offense, before his application for field discharge has been finally processed and denied, but would not be available to the man who waits until after it is denied and then commits this offense.

Similarly, if apparently would be available to the man who disobeys a simple order, such as to put on your uniform or to cut the weeds behind the post building.

Richard L. Goff:

But, apparently would not be available and the writ would be suspended as to someone who disobeys a more serious order, such as to go to Vietnam.

And what it all boils down to, I think is that the army’s denial of the application could be completely without basis in fact.

Totally wrongful and the man would have a clear right to come into Federal Court on habeas corpus to get released and yet a military commander, by subsequently giving that man an order of a particular kind.

Apparently, a rather major kind and then going ahead and prosecuting a man for the disobedience of that order, could effectively bring about a suspension of the right to go to Federal Court.

But, now, of the course, the man could obey the order and then apparently he would not — his right would not be suspended.

I think that only demonstrates another perverse aspect of the exhaustion requirement which the government seeks to require.

Namely that operates most harshly on those whose conscientious objector convictions are most sincere, because in this case for example if Parisi has been willing to compromise, what he felt were his conscientious objector beliefs and obeyed this particular order, then under the government’s position and under the Court of Appeals position he would been able to come into Court and according to both the Court of Appeals and the government it seems quite likely in this record that he would have received a relief on the merit that he was seeking.

Well, this order was totally consistent, I understand with the tentative conclusion at least of the Ninth Circuit Justice.

Justice Douglas that such an order would not put him any closer to acting military activities, is that correct?

And he would not — he knew that.

Richard L. Goff:

That is correct and it is consistent with those tentative conclusions.

But, I think that if we were to say, first of all what we were trying to do at that particular time was to get either the District Judge or the Circuit Justices or Justice Douglas to exercise discretionary power to grant temporary injunctive relief, which obviously depends on several factors such as the likelihood of success on the merits, of balancing the conveniences in determination, whether there is other adequate relief and to say, that our failure to get that relief before there had been any kind of determination on the merits of his conscientious objector claim, should later operate in effect to bar him from getting into Court to review the merits of that claim.

I think would be totally anomalous, I think Justice Douglas in his own decision said, if it were clear that applicant would win on the merits or further protective order at this time would be appropriate.

Well, it was not clear at that time.

But, I submit that the failure to get temporary relief should not operate.

First, to bar the man from eventually coming into Court and having his claim as conscientious objector determined on the merits.

Furthermore–

It caused me a little bit trouble here that this disobedience of an order, was something separate and apart from his conscientious objector claims.

At least in the tentative view of those members of the judiciary who had said his moving him to Vietnam to continue this holy non military activity in the army, that was not inconsistent with his conscientious objector claim and not — no different from his caring on the same basic non military activity with the army here state side.

Richard L. Goff:

You Honor, I realized that those with the tentative conclusions of the justices who passed on the application, I would submit that no one other than Mr. Parisi himself could finally make the determination as to whether that order did in fact violate his conscientious objector beliefs.

He has stated in an application —

But if the order had been, what if the order had been totally unrelated to any conceivable claim of conscientious objection, such as could pick up that toothbrush or could have that cigarette butt.

Richard L. Goff:

Well, apparently in that case the government would concede that since the defense of conscientious objection or wrongful denial of conscientious objector application would not be entertained by the Court-martial, that the man would have a perfect right to come into federal court and have the administrative denial of his application reviewed.

Well, in the mean time there were — let us assume my kind of case and there was a prosecution for willful failure to disobey a lawful order.

Then, if he won in the United States District Court on habeas corpus then he could never be prosecuted for that because he could be a civilian.

Richard L. Goff:

Alright, all I am suggesting Your Honor is that the basic thing that (Voice Overlap)

I wonder– I would like to appreciate an answer to my question in your own way —

Richard L. Goff:

I would give you an answer for that question.

The basic thing that we think that a man has the right to under any circumstances, regardless of the pending military criminal proceedings against him is a right to immediate review in the federal court of the wrongfulness or the validity of the administrative denial of his conscientious objector application.

Now, if the Court does make the incrimination, if the application would deny that basis in fact, then we would say that the question of what kind of relief the District Court is to grant after having made that determination and if the Court for example would have found that it is quite clear that an order to a new duty assignment would not had been given to the man, had the military originally granted his application, as it should have done, then I think it would be quite arguable to District Court that the right of discharge ought to be recognized and should cut across in the military criminal prosecution.

Richard L. Goff:

On the other hand, if the District Court found that the man disobeyed an order which the Court–or which the army could have given to him, even while they were processing him out, is the distinction that suggested by the government by itself also, I might add–then the Court might well say, the right to discharge shall be recognized.

But, it shall be subject to the military prosecution against him.

Intervening military prosecution?

Richard L. Goff:

I think that is a perfectly sensible resolution of this particular problem.

I think our brief discusses also, the fact that in addition to the government’s failure to show any compelling government interest, supporting the suspension of the right to habeas corpus in this case, they have also completely failed to show either an available or adequate remedy to seek the kind of relief the petitioner does seek in the District Court and for the reason stated in brief and today in oral arguments, we respectfully request that the decision of the Ninth Circuit be reversed and the case be remanded.

So, the petitioner finally can have his day in Court on the merits of his claim.

Mr. Goff, would you have the same argument if the crime he was accused of, the military crime, he had committed was stealing a car or murder?

Richard L. Goff:

Yes, I would Your Honor.

I would make the same argument that the right to come into Court, to have the Court review the wrongfulness of the denial of the discharge application should be recognized right now.

And, that the question of what to do about that prosecution for stealing the car is the question which pertains to the relief of the District Court is going to grant.

I think that the Ninth Circuit is quite clearly recognized that in its recent Bacher v. Makimer (ph) of the McNamara case, cited in our reply brief which said that even if the right to discharge would not be immediate that the Court should immediately review the underlying claim of the wrongfulness of denial of conscientious objector application and then under the habeas corpus statute should impose the case–

Presumably conviction of a — for such a crime would mean a discharge anyway and dishonorable?

Richard L. Goff:

Well, I think at the right starting Court of course is the right to – -an order directing the army to discharge and has the conscientious objector.

Yes, but he has committed a crime which is unrelated to the conscientious objector.

Richard L. Goff:

I think again, this is a kind of question that the Court could get into determining what relief to give a man.

I think that as the Ninth Circuit had said the Court shall make the basic determination on the merits and shall then dispose off the case on just as required.

I think that we can allow our District Judges to adopt appropriate remedies to take into account these varying circumstances which might come up.

The basic right to review is what we seek in this Court.

Warren E. Burger:

Thank you Mr. Goff.

Mr. Bray.

William Terry Bray:

Mr. Chief Justice and may it please the Court.

At the outset let me emphasize that the government’s position does not attempt to support the denial of petitioner’s right for review in the civilian courts at some point in time, the question rather is when should that review occur.

Specifically, the question is whether the District Court erred in the exercise of its discretion by deferring action on the petitioner’s habeas corpus claim pending the completion of military judicial proceedings, where those proceedings had before them the very issue which had been presented in the habeas corpus proceeding and where it was reasonably to be expected that the military not only would pass on that, but that if it accepted the petitioner’s position, the petitioner would receive all of the relief, which he sought in the District Court.

This, we think brings into play the traditional doctrine of exhaustion of military remedies which this Court explained both in Gusik and later in Noyd versus Bond and that the decision below is quite appropriate and should be affirmed.

Warren E. Burger:

Well, the administrative remedy had been exhausted?

William Terry Bray:

That is correct.

However, at the time the administrative remedies were exhausted and when the habeas corpus action came before the District Court for its action on the merits.

The petitioner had committed a Court-martial offense and that offense was inextricably caught up with his claim to be a conscientious objector and indeed the military has always taken the position in this case that that order would be an unlawful order and thus, he would not be subject to Court-martial.

If he were improperly denied his conscientious objector application would be a (Voice Overlap) process.

Mr. Bray, what if instead of the — an order to go Vietnam, the violation of an order to go to Vietnam, what if the military prosecution had been as my brother White suggested before, stealing the money from a fellow soldier, what would your position be, and if otherwise everything was as it is in this case?

William Terry Bray:

There would be no need then to stay the habeas corpus action, with respect to essentially collateral review of the administrative determination by the military.

Because the military system itself would not be engaged in collateral review of that same decision.

That really is what we are saying is happening here.

The military judiciary–

What would be the result in my hypothetical–?

William Terry Bray:

The result if he were convicted of murder —

No, just, had there been a conviction and it was on appeal, as I say all the other fact as they are in this case except that the offense which he was charged was stealing, was larceny rather than violation of an order to go Vietnam.

William Terry Bray:

The position of the military is that if the civilian courts ordered his discharge from the army, he would be discharged immediately.

Even if he were under Senate’s confined convention.

What would your position be in my hypothetical case with respect to the timing of the habeas corpus hearing in the federal district court?

All it is that outside of your argument, that the only issue here is one of timing, is one of plan.

William Terry Bray:

It could be heard immediately without any waiting at all for the proceedings in the military system.

Well, now in this case as I understand it, according at least to the tentative view of the Circuit Justice and of the others who passed on, this order was not inconsistent with his claim of conscientious objection and so, to that extent it is equivalent in law to the offense of stealing and it is unrelated to his claim of conscientious objection.

That is what Mr. Justice Douglas in effect held tentatively at Circuit Justice.

William Terry Bray:

As a tentative matter however, our position is that the determination is not final at that point and further that the lawfulness of the order is not premised strictly on whether or not the order conflicts with his conscientious objector status, but, rather whether the order was given as a direct result of the denial of that conscientious objector status.

Well, any violation in the service would be direct or indirect result of the army’s refusal to let him out.

He would not be in the army to receive an order to pick up a cigarette if he had been released as a conscientious objector, would he?

William Terry Bray:

That is not quite right, because even if he were granted his application as administrative matter, there would still be a period of time during which he would be processed for a discharge, and during that period of time he is subject to the type of order which we say would not be the type that would delay civil proceedings.

He would have to wear a uniform during that period of time.

He would have to clean up his quarters during that period of time.

He would have to cit the grass if told to do so during that period of time.

That is the distinction we think between the two.

The Court of Military Appeals, highest Military Court has held that the type of order which is subject to challenge on the ground that the administrative proceeding was without basis and fact, is one that grows directly out of and is based on the administrative decision.

No change in duty station, that if the type of order that he is involved here, would ever be given —

Except I wonder if he should try to interpose the defense of — as he did in this court-martial proceeding and it was disallowed, because the trial Court held that there was a basis and fact for the administrative decision.

Not allowing his conscientious objector claim, but I suppose on appeal, it could very well be argued that this not a relevant defense to this order anyway since it is already been held by this one member of this Court in a tentative way that the order was quite consistent with his conscientious objector claim.

And therefore, disobedience of the order, he cannot justify disobedience of the order on the basis of his conscientious objection.

William Terry Bray:

Whether or not the order was within the confines of his conscientious scruples is not the test.

The test rather is whether the order grew out of the denial of the application and even though it maybe completely consistent as the judiciary — the civilian judiciary has tentatively decided with his claim to be a conscientious objector.

Nevertheless, it is subjected to being defended on the basis that it would not have been given, but for this administrative decision and that administrative decision is without basis and fact.

Thurgood Marshall:

(Inaudible) in that case he had put in no defense in the court-martial?

William Terry Bray:

If he put in no defense in this case, our position generally I think would be that there should be an opportunity for him to do so, once it is beyond the point where it could be brought into the military proceedings then, there would be no exhaustion required beyond that point.

That would mean at the very least that a decision would have to be rendered by the court-martial, given an order that could be challenged on this ground for such as the order —

Thurgood Marshall:

If he had not put in any defense, would he still be barred from the habeas corpus?

William Terry Bray:

Until the point in time when he was unable to put in that defense, yes.

Thurgood Marshall:

No, this is not unable, he just said I will not put in any defense, then how can you say that grows out of the order?

Grows out of the seal business.

William Terry Bray:

What grows is out of the seal business is–

Thurgood Marshall:

How could you say if then, he puts in no defense?

William Terry Bray:

What grows out of it if his refusal to obey the order.

Now, he chooses not the defend his disobedience of the order on that ground, then after the court-martial has handed down its judgment against him.

Then, the civilian courts could go forward with it and indeed I might point out that that is essentially–

(Inaudible) the military conviction?

William Terry Bray:

That conviction, yes they could if they found that the order there was one that grew out of (Voice Overlap)

So, you are merely saying the defendant then has the choice of the forum.

William Terry Bray:

No, I am not suggesting that.

You can either putting his defense in the military court, which is he then — it must be exhausted there or he can forgo the defense and take the risk and go to the federal court, which defends that aside his court-martial conviction.

William Terry Bray:

It could, now that would bring up I think the different question whether because he had willfully failed to raise a possible remedy within the military system, he should be barred from bringing it into the civilian courts.

That is not our case and that is not my position at this point in time.

Frankly, I do not know what position would be of the government if that situation should be presented.

Our position is that he has defended in this case and indeed the issue not only was argued to his court-martial.

But was–or is before the court of military review and he is defending the lawfulness of his order on the ground that it was directly a result of the administrative denial and the collateral attack on that administrative denial on the basis in fact test is before the military tribunals.

That we think is the traditional circumstance in which this Court has approved the lower courts in their awaiting the outcome of the military decision before going forward on the precise issue that is involved before the military?

This of course essentially is grounded on considerations of comity.

The Court has frequently stated that civilian court should not intervene, if there is an available remedy within the military court system and if that remedy might provide the relief which the petitioners is seeking in the civilian courts.

The reason of course is that the petitioner may well be successful in the military courts and in that event it would be absolutely no need for the civilian courts to get involved at all, thus avoiding any needless friction between the two separate judicial systems.

Further, this is not, at this point in time, a situation where the civilian court has said they cannot act on this matter.

It rather, truly is more on only of timing.

In this case, the issue is involved in the military proceedings, the court-martial proceedings, which are in the Military Judicial Courts and decision there on precisely the same standard as is supplied in the civilian courts can be expected.

And, the decision below only is to await that decision before it goes forward.

Byron R. White:

Would you have the same position as there has been though — the military offense until he has exhausted his administrative remedies on military and is entirely habeas corpus and the petition is gone to hearings, then he commits an offense and a court-martial proceeding begins.

William Terry Bray:

Our position there I believe Mr. Justice White, would be that he can go ahead and get heard and decide in the–

Byron R. White:

Well, in this difficult traditional argument about comity between —

William Terry Bray:

That is right, that is it all it is at this point in time.

That is all it is ever been.

Byron R. White:

Whether it is just sort of — whoever gets there first or conservation of judicial resort —

William Terry Bray:

Principally, that is what involved.

We believe there are some additional factors involved but that is the basic one, which was before this Court in Gusik and Noyd versus Bond.

How about res judicata, generally speaking that is a doctrine that is inapplicable to habeas corpus, as we both know, but the defense to the court-martial is not a habeas corpus and let us assume that it was determined by the Court of the Military Appeals that the defense is invalid, because there was a basis in fact for the administrative denial of his conscientious objector claim.

Now, that would be in a case between the United States and–that between the United States Army and this man, Parisi.

Now, could have that any res judicata effect in a subsequent habeas corpus hearing in the federal district courts?

William Terry Bray:

The policy of the military, as stated that we think, properly stated in the regulation in our appendix.

When a civilian court determines that a serviceman was improperly denied discharge without a basis and fact, the military system will discharge him on that ground, regardless of the outcome of the military litigation.

So this is the opposite —

William Terry Bray:

No, I am saying that even if there were —

A final determination.

William Terry Bray:

A final determination from the Court of Military Appeals and then the civilian courts held that he was entitled to discharge — the military would discharge.

Indeed, the Goguen decision that also is reproduced in our appendix, involved a very similar circumstance where the claim had been denied through the court of military review and was pending in the Court of Military Appeals when the civilian court acted and the Court of Military Appeals dismissed the suit on the ground that the issue had been decided by the civilian courts and a fellowship therefore be discharged.

It was in my case, I am assuming a prior determination by the Court of the Military Appeals that there is a basis in fact.

William Terry Bray:

The same result would follow, the servicemen would be discharged on the basis of the civilian court’s order.

And, how about — would the army interpose the defense to the habeas corpus action and he sort of reached to a counter defense?

William Terry Bray:

That has not been — either their policy as stated by the regulation or their policy in practice.

They have processed the discharge properly in those circumstances.

Well, I am talking about that conviction in our case, the Parisi’s case, there has been a conviction.

Let us assume now it is affirmed on appeal all the way up and upon a finding that there was in fact, a basis for denying his conscientious objector claim.

Now, you say this case involves only a matter of plan, a matter of timing.

So now, the federal habeas corpus proceeding goes forward in the federal district court with the army command and say, “Mr. District Judge we have a defense to this action, because it has been determined by the highest military authority that there was a basis in fact for denying this man discharge.”

William Terry Bray:

They have not done that and as a matter of their —

(Inaudible)

William Terry Bray:

Could they do that?

What is the function of habeas (Inaudible)

William Terry Bray:

There suppose could be an argument made that once that the two systems are completely autonomous and once a decision has been made in the military system, it cannot be reviewed in the civilian courts, at all.

We do not make that argument in this case.

(Inaudible)

William Terry Bray:

That is correct.

William J. Brennan, Jr.:

It only reads that point –Is the government suggesting that habeas would not be available —

William Terry Bray:

Absolutely not Mr. Justice Brennan that is a–

William J. Brennan, Jr.:

I would think that you admit frankly, you could not make that argument.

William Terry Bray:

We certainly have not and we would not–

Why do you even suggest that it might –?

Alright now, —

William Terry Bray:

I do not mean to suggest that it is about my client.

The position of the government is that even though a decision had been handed down by the Court of the Military Appeals, the highest Court that would not be binding in the subsequent habeas corpus action in the district court, the civilian district court.

And, that the Court then could order, could find that there was no basis in fact, in order of discharge and if the army would properly discharge the fellow on that basis.

This is where you abduct your theory and tomorrow the man could exhaust every military administrative procedure on a serial claim and loses, and notifies that he is going for habeas, all you have to do is to transfer him to Vietnam.

William Terry Bray:

I do not think that is right for — let me explain to you, this case I think indicates what the remedy should and would be in that circumstance.

The military man is not going to be subjected to orders that — or should not be subjected to orders, which are inconsistent with his claimed status.

Here, the District Court tried to protect him on that basis and entered a protective order barring the army from ordering him to do things of a greater degree than what he was doing.

Psychological counseling.

He was going to Vietnam to be a psychological counselor and the civilian judiciary by the Ninth Circuit and by the Circuit Justice determined that was no greater burden on him than what he had been doing in California.

And thus, refused to stay the order.

If on the other hand, he was given an order to use an example to go take a rifle training or something of that sort —

Thurgood Marshall:

Your only point of denying the federal court jurisdiction on habeas corpus is of the fact that he has been questioned, right?

William Terry Bray:

That is right.

Now, it is not a denial–

Thurgood Marshall:

So, that is if in the future any time somebody wants to go on to federal court, is through court-martial, is that right?

William Terry Bray:

Mr. Justice Marshall let me suggest —

Thurgood Marshall:

I hope you do not mean that.

William Terry Bray:

That is not what I mean.

Thurgood Marshall:

You should not.

William Terry Bray:

For two reasons, first of all, the army — there are means of challenging the army’s order before he is subjected to court-martial just as the petitioner here attempted to do and then unilaterally, on his own, he decided that the order could not be obeyed by him and did not obey it.

After the civilian courts had an opportunity to review it and refused to stay it.

Secondly, the order involved here is one that grew directly out of the army’s denial of his application.

They would not have transferred him to Vietnam or anywhere else for that matter.

If so long as that application was pending.

Thus the order itself is inextricably caught up in the claim and for that reason he can defend it.

And, for that reason the military courts have decided to accept a collateral challenge to a administrative determination within the military and consider whether or not that administrative action has any basis in fact.

That of course is precisely the issue which he is presenting to the civilian courts now by means of habeas corpus and we think the military court should be able to go forward.

There are — I think some other reasons that involved here besides the comity alone, which suggest letting the military system run its course before the Court below acts as it has done.

Warren E. Burger:

Before you get to that, Mr. Bray.

Could he lawfully be transferred, once a habeas corpus proceeding had commenced?

William Terry Bray:

Subject to that Court’s control, yes sir just as what happened here.

Warren E. Burger:

But without that court’s control, he could not be transferred to Vietnam after he started the habeas corpus proceeding, could he?

William Terry Bray:

I believe he could.

There is nothing that would prevent the military from transferring him wherever it is all fit, so long as its — either its regulations did not prohibit and they would not in that circumstance to my knowledge.

Warren E. Burger:

But, the rules have something to say about that, about transfers, certainly by the criminal case is generally.

William Terry Bray:

Well, of course here the petitioner sought to have his transfer stayed, because he was concerned that the Courts would loss jurisdiction, which would seem to me to imply that he did not have anything other than a Court order to keep him from being transferred.

The Court refused to stay it on the ground one that army agreed to bring him back into the Judicial District if he won on appeal and further under the protective order that the Court is previously in.

He has been ordered to be transferred to Florida or some other place, without any increase in (Inaudible) and he refused that orders and then the army that he was court-marshaled, whether that would be the (Inaudible)?

William Terry Bray:

The army’s position is that no duty station transfer will be ordered —

In just a matter of–

William Terry Bray:

To a CO.

It is just a matter of military law.

William Terry Bray:

That is right.

Is it a regulation or–?

William Terry Bray:

It is a regulation.

Well, may I ask you Mr. Bray.

William Terry Bray:

Yes, sir.

I guess for federal detention, the habeas remedy is available, not alone for constitutional denial for those who have the violation to Federal Laws, then how they affect (Inaudible).

Have you suggested that the habeas remedy would be available to — after he had exhausted the administrative remedies and the court-martial remedy and all of that, would be available, at that point in time, to review this.

Now, what would be the claim in habeas, that the determination and court-martial has violated a constitutional right or a statute–the Federal Statute, what would it be?

William Terry Bray:

The claim would be the same as has been made at this point in time that is that the administrative determination was without basis in fact and that the order which in sued and for which disobedience of which he was convicted, grew directly out of that.

Well, I know — what did that stem from, it, must be a basis in fact or a denial of conscientious objector.

Is that constitutional or is that –?

William Terry Bray:

Yes, the claim is that without a basis in fact he has been denied Due Process of law and that has been accepted in the Courts, at this point in time, but we are not disputing it here.

What is the source of the setting aside the court-martial conviction that the CO claim is sustained, is that a fact — I guess that was basically the court-martial enforcing a military regulation.

William Terry Bray:

That is correct, the court-martial’s attitude is that if the order grew out of the administrative denial and that is without basis in fact then the order itself–

Well, is that regulation to enforce a statute —

William Terry Bray:

I would presume it would, yes sir.

The regulation is binding on the military statute.

What handle under the federal habeas corpus then bring the suit?

William Terry Bray:

Speaking of course for petitioner here, but my understanding of his position is and this has been accepted in the Courts generally that the denial of administrative remedy available within the military that does not have basis in fact is a denial of the due process.

That is a constitutional claim that entitles to him to have it set aside.

But, we have not as I say I challenged that in this Court or elsewhere at this point in time.

The other aspects of this, which indicate to us that the district court below was quite proper in awaiting the outcome, of course are tied up in the fact that this is a court-martial proceeding that the petitioner did on his own decide to disobey an order that he had received prior approval at least in the sense of refusing to stay it by the civilian system.

And, that this goes to the very heart of what a military system is all about and the obedience and duty that are necessary to that system.

The military should be able to go forward with its disciplinary actions and try to decide the issue itself.

Further, the underlying issue of course is the administration of the army’s regulations.

The military law that is involved in this case, while the military courts do not have any peculiar expertise with respect to the basis in fact test.

A test that it will be applied in the collateral review of the administrative determination, they do, we submit, have expertise with regard to the military generally and the military’s administration of its regulations and thus, might well be able to bring knowledge to bare on this questions, as well as give guidelines that might promote uniformity within the military itself or the administration of this regulation.

All of which suggests that the military be allowed to go forward.

Further, we are not persuaded by the petitioner’s arguments that there has been a wrongful denial here and such that it should be set aside.

First, let me emphasize that this is not a question.

This is not a case in which the court-martial proceedings had not been brought when the habeas corpus action came before the Court for its action.

Here, the petitioner had disobeyed the order and the court-martial was imminent at the time the district court considered the habeas corpus petition on its merits.

While the Court have previously stated its consideration of it that had been in terms of letting the administrative proceedings run their course and that was a matter, separate and apart from the court-martial itself.

Now, this of course distinguishes this case from the Second Circuit’s case of Hammond versus Lenfest.

And, our policy is in agreement with the Hammond position.

That is that where they are no court-martial proceedings pending, there is no exhaustion required within the military tribunals.

That is shown in our appendix, I believe it is at page 61 and that is our policy position on this that we will not require that, but we consider the two cases significantly different.

William Terry Bray:

Secondly, the delay involved in this case of course is inherent in the exhaustion doctrine itself.

The whole purpose of it as a part of this case is merely to postpone, the action by the civilian courts, until such time as the military has a chance to clean its own house if that is required.

If a mistake has been made and to pass on the same issue that is before the civilian courts.

The underlying issue of the validity of the administrative determination, whether or not the petitioner is a conscientious objector of course is very much alive.

It is not conceded by us at this point in time and it is not conceded on this record that he is entitled to his conscientious objector claim.

That is still a matter before competent tribunals, all be it military ones at this point in time in our judgment.

Just as it was at the time the stay was denied by Mr. Justice Douglas in December of 1969.

Finally, the delay which a petitioner has gone through here is something which we do not find particularly burdensome on him, because, the order of District Court of course, has been enforced throughout this period, he could not have been subjected to government — I beg your pardon, military duties any greater than his psychological counseling duties at the time this all started.

Further–

Where is he now?

William Terry Bray:

Where is he now?

He is at home now, to my knowledge.

At least he is not on any military reservation precinct to orders.

He has finished serving his confinement which was remitted partially and his own excess leave status, which means that he is outside of the military in present time, although subject to its jurisdiction, until such time as the decision from the military tribunals is final.

They are getting paid?

William Terry Bray:

Is he getting paid?

I do not believe if he is getting paid.

This excess leave status does not count, is not charged against him as leave time.

It is not credited against his service in the military and I would understand from that he is not paid during the time either.

There would have been means, whereby he could have gotten out of confinement during his time, had he sought to do so.

The records, we have been able to check, indicate that he did not seek to do so.

Although, the standard on which he would have done so, is essentially a discretionary one up to his commanding officer both wherever he is held in confinement.

As well as, the convening authority so long as it has jurisdiction over it.

Yet he could have applied for that and did not.

In any event, as I say the confinement is not what he was complaining of, it was rather activities inconsistent with the CO claim.

Lastly, if I can mention briefly, we do think of course that there are remedies within the military system for petitioner, both with respect to the consideration of the issue, which he has brought before the Court.

We think it is beyond doubt that issue will be considered in the military tribunals as it has so far been considered.

It was considered on the merits by the court-martial itself, while that authority found that it was — that the administrative denial was not an abuse of discretion.

We think it has — for all practical purposes, which essentially the same is the basis in fact and it is very clear that the Court before which the appeal is now pending, the Court of military review will consider on that test.

On what test?

William Terry Bray:

On the basis and fact test.

The Goguen decision, which is in our appendix, very clearly states that–

I am not clear at all about that, I assumed you have covered it from your brief, but I miss something, I have been looking for — the military standard of conscientious objector and our decision in (Inaudible).

William Terry Bray:

It is covered in our brief and also covered in the Goguen decision which is reproduced as appendix D at our brief and the base, the test, which the military will apply, this has been a developing area, the regulations themselves are very recent origin having coming into being in 1962.

But, the test has developed and it is very clear now that the test that will be applied is a basis and fact test, exactly the same as that applied in the civilian courts.

That is the holding of Goguen that it will —

William O. Douglas:

There is nothing in the record I see is on page 40, in the appendix, that is the letter from the alleged General, Major — that has a flavor of different kind of a test.

William Terry Bray:

Let me refer you to page 39, as well Mr. Justice Douglas and particularly that footnote.

While the court-martial itself —

Warren E. Burger:

Is page 39 of the brief or —

William Terry Bray:

Yes, sir I am sorry.

Are you referring to the appendix?

I am referring to our brief at pages 39 and 40.

While the court-martial itself stated that it would consider this as not being an arbitrary unreasonable abuse of discretion, as we say there, we do not think that really is any different from a basis and fact test and in any event that is the matter which undoubtedly will be corrected if any error would be committed there by the court of military review, which is fully competent to correct this, since is really a legal decision.

That is a certiorari jurisdiction?

William Terry Bray:

No, no.

The court of military review is a mandatory review and that is where (Voice Overlap)

On conscientious objector?

William Terry Bray:

Yes, well it has chosen — it had stated that it will review conscientious objector claims, also as a mandatory matter and that is where the case is now.

That the certiorari type jurisdiction is in the Court of Military Appeals, the third step in the proceedings.

But the Goguen decision, in our appendix, is a court of military review.

The same Court before which he now has his appeal pending and it is clear from that decision that the test will be precisely the same as that applied on the civilian courts.

Lastly, we think that the he will, as a practical matter, receive the relief.

He is requested in the district court.

If he wins in the military courts, he will be discharged.

We think that not only as a matter of our regulations, but also as a matter of the Court’s supervisory powers in any event the District Court here has retained jurisdiction only until the court-martial is final.

That would occur when the decision — when a filed decision is reached in the military tribunals and at that point in time if he has not gotten the relief he wishes, surely the District Court would grant it to him.

(Inaudible)

William Terry Bray:

Yes, sir.

(Inaudible) puzzled about, what kind of habeas this is?

This is certainly not 2225.

William Terry Bray:

As I say, I am not sure what kind of habeas it is by virtue of the fact that the petitioner — that is the petitioner’s case.

My understanding of the basis on which this was brought in the Court is — that he has been denied Due Process of law, because the administrative determination is without basis and fact.

The reason I asked is 2255 requires a selective procedure under that section —

William Terry Bray:

It is not a 2225–

In any Court by the Congress.

William Terry Bray:

Counsel advises that the action was brought under section 2241.

That is the original habeas?

William Terry Bray:

Yes, sir.

Why the military court established (Inaudible)?

William Terry Bray:

Yes sir, they are certainly are.

On the basis of 2225 —

William Terry Bray:

The articles reproduced in our appendix that established these courts.

Articles 66 and 67 as military courts and these are holdings to that fact.

Well, why is habeas corpus — I am just — I am not judging in the — but on page 55 it is said that application for an habeas corpus will not be entertained unless, the 2255 — the 2255 remedy has been sought in the Court would sentence those —

William Terry Bray:

Well, this is not an attack on the court-martial.

This is an attack on the administrative determination and our position is that the collateral attack on the administrative determination is pending in the military courts in connection with a court-martial proceeding.

And, that comity as well as other consideration suggests that the civilian courts not act until that is completed.

This is a habeas corpus.

I appreciate you are being asked in a way to speak for your brother on the other side.

But, I assume this is brought under Title 28, the United States Code 2241.

William Terry Bray:

That is correct.

Am I advised by counsel?

Thank you very much.

Warren E. Burger:

Thank you Mr. Bray, Mr. Goff you have one minute to enlarge that a little bit, I will give you three, if you need it.

Richard L. Goff:

Thank Your Honor.

Counsel has said that the only question here is when can petitioner get access to the federal court on habeas corpus to review his claim.

The petitioner on May 22, 1969 first submitted to the army his application for a discharge of the conscientious objector.

The processing of that application continued until November 1969 when it was denied.

It was after that the petitioner tried to come into federal court and secure the swift, prompt adjudication of the legality of the contention which is contemplated by the habeas corpus statute.

Richard L. Goff:

The delay is incident to requiring resort to the court-martial process would be several months before trial for in this case.

Several months until such time, the court of military review can review the case.

I realize at that time, it is perhaps more in this case than it usually be.

But, in many cases cited by the governments, the delay has been at least a year from the court-martial until review by the Court of military review and in our view and of course, beyond that to the Court of military Appeals and only if the Court of Military Appeals point if it all can the petitioner ever get the discharge, which he seeks in the federal court promptly.

And, it is very doubtful in our view that if he ever did get a discharge.

Administrative discharge is result of the court-martial process.

What would you say those times of the administrative procedure through this Office of the Secretary has been completed by what date?

Richard L. Goff:

In this case those procedures were completed by November 1969.

On what basis is the habeas —

Richard L. Goff:

The habeas was filed almost immediately, but that was suspended, because under the —

Yes, I trying to get the date.

Richard L. Goff:

The habeas was filed late in November 1969.

Now, when was the order — disobedience of which he was court-martialed?

Richard L. Goff:

That was in December of 1969.

After the filling of the habeas corpus?

Richard L. Goff:

After the filling of the habeas corpus petition.

So, there is the habeas petition then which pending when the order was issued, he disobeyed the order and then the court-martial proceedings.

Richard L. Goff:

That is correct and it was not until the denial by the Army Board for correction of military records, that under the Ninth Circuit’s view at that time, he was able to comeback in the federal court to seek review on the merits and it was that time he was meant by the Government’s stay in motion.

The suspension was because that he had not gone to the board for correction —

Richard L. Goff:

At that time and until very recently in their Bacher versus Makimer (ph) opinion, the Ninth Circuit required the serviceman, even after denial by the Secretary of the Army to go on appeal to the Army Board for correction.

Now, before the proceedings before that board had been completed that the order was issue and he disobeyed it.

Richard L. Goff:

That is correct, Your Honor.

And so while that was pending before the board for correction of military regulation —

Richard L. Goff:

That is correct, because ironically the military regulation (Voice Overlap)

Had the court-martial begun before that board had completed its proceeding?

Richard L. Goff:

I think the charges had been lodged and the petitioner was incarcerated into stockade.

The trial did not occur–incidentally the trial did not occur until after district court’s order in this case, so certainly at the time of the district court’s order, the petitioner was not at that time advancing this defense in the court-martial proceeding.

I think it would have been extremely imprudent for him to fail to do so, under to the terms of district courts order.

But again, the whole possibility–

Was very–the military proceeding had begun —

Richard L. Goff:

The charges had been preferred.

The trial took place shortly after District Court’s order staying these particular proceeding.

When was the court-martial conviction?

Richard L. Goff:

Court-martial conviction, as I recall would be April of 1970.

1970?

Richard L. Goff:

That is correct.

And it is still pending on the military court review, there has been a great deal of delay there why?

Richard L. Goff:

There has been some delay, Your Honor is the result of extension in the time sought by petitioner’s counsel.

We do not represent, but he does have other counsel, who had sought extensions.

But, even absence of those extensions, it seems to us just looking at many cases, the government had decided, an 11 to 12 month delay is not unusual at all.

And, we think that that kind of delay is completely inconsistent with the purpose of the writ of habeas corpus.

Yes, but the — and these extension is sought by the petitioners counsel, who ought to understand, there is not — different counsel for what on what grounds or for what —

Richard L. Goff:

I understand that the extensions were sought on the ground that he simply had not any time yet to complete the brief and to present it to the Court.

That Court is not being asked to stay — pending the determination of this case, is it or is not it?

Richard L. Goff:

No is not.

The case is under submission, petitioner’s counsel did waive oral argument, so the case is under submission I think for two months and the letter in the appendix estimates that September at least — I am sorry as of an earlier time, two to four months delay could be expected.

Warren E. Burger:

Thank you Mr. Goff, Mr. Bray.

The case is submitted.