LOCATION: Charlotte-Mecklenburg School District
DOCKET NO.: 5481
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Ninth Circuit
CITATION: 401 US 487 (1971)
ARGUED: Feb 22, 1971
DECIDED: Mar 23, 1971
Facts of the case
Media for Schlanger v. Seamans
Audio Transcription for Oral Argument - February 22, 1971 in Schlanger v. Seamans
Warren E. Burger:
Mr. Schlanger, you may proceed whenever you’re ready.
Herbert P. Schlanger:
Thank you Mr. Chief Justice and may it please the Court.
This case comes to you on writ of certiorari to the Court of Appeals for the Ninth Circuit to review its affirmance of the District Court of Arizona’s dismissal of my petition for writ of habeas corpus for lack of jurisdiction over the respondents.
The question presented is whether a District Court lacks the power to inquire into the lawfulness of restraints exercised over a petitioner who is present in its district when the persons responsible for those restraints are elsewhere.
Stated in other words, can a petitioner be in custody and within the jurisdiction of a District Court but not be in custody within the jurisdiction?
After 18 months of litigation, the allegations contained in my petition for writ of habeas corpus remain uncontroverted.
Those are that I enlisted over eight years ago in United States Air Force and in 1965 reenlisted for a period of six years in order to enter the Airman’s Education and Commissioning Program and obtain a commission.
At that time, I was assigned for duty to Arizona State University and enrolled there under the AECP.
I attended the University from January 1966 until June of 1968, ten weeks before my scheduled graduation at which time I was summarily removed purportedly for having demonstrated a lack of officer potential by cutting some classes.
But in fact, as alleged in my petition, I was removed because of my participation in the formation and leadership of the Arizona State University Civil Rights Board, a group which sought to quiet and adjudicate ethnic and racial grievances arising on campus by working with the University and city officials.
The removal was unlawful both substantively and that it violated First and Fifth Amendment rights and procedurally and then it violated regulations and due process requirements of the Fifth Amendment.
While attempting to obtain a hearing or reinstatement or administrative remedy, I was reassigned to Moody Air Force Base in Georgia and was relieved of duty as an Officer Trainee.
I was denied access to the evidence that was used against me.
I requested but was denied a hearing.
I requested but was denied a discharge first, by the Chief of Staff of the Air Force and later by the Air Force Board for Correction of Military Records and by the Secretary of the Air Force Dr. Seamans.
During this entire period of course, I was performing my duties as an enlisted man at Moody Air Force Base and was promoted twice, first to sergeant then to staff sergeant both noncommissioned officer ranks.
In May of 1969, I requested a temporary duty assignment to return to Arizona State University so that I might complete my degree requirements for Bachelors Degree in Mathematics in the summer session since I was only ten weeks away from my degree.
Since I had apparently satisfied my superiors that I was doing my job in an outstanding manner, I was reassigned to Arizona State.
The orders said that I was to be assigned for 70 duty days and was permitted 15 days leave in conjunction with that temporary duty assignment.
After completion of my schooling in Arizona while I was still Tempe pursuant to those orders, I filed the instant action for habeas corpus.
It was immediately dismissed by the Court without issuance of the show cause order and reconsideration was denied.
I then appealed to the Ninth Circuit and returned to Georgia to continue my duties.
I requested expeditious action and in December 1969 the Court of Appeals scheduled the argument.
I argued the case while on leave for Moody and the case was remanded to the District Court for issuance of a show cause order.
When it became apparent that the District Court would not regain jurisdiction prior to my removal to Georgia, Judge Browning of the Ninth Circuit entered an injunction.
The Air Force immediately terminated my pay and allowances an act which I consider unlawful but which is not of issue at this time.
The second period of attendance at the University was under a program quite different from the first one, was it not?
Herbert P. Schlanger:
Yes, sir it was.
For the Operation Bootstrap?