Schlanger v. Seamans

PETITIONER:Schlanger
RESPONDENT:Seamans
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

Question

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 —

Potter Stewart:

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.

Potter Stewart:

For the Operation Bootstrap?

Herbert P. Schlanger:

Yes, sir.

Potter Stewart:

And you were at that — during the second interval you were therefore in a different status in a military point of view aren’t you on permissive temporary duty or something like that?

Herbert P. Schlanger:

Your Honor, the Government’s brief makes this distinction between a permanent assignment and a temporary duty assignment.

I was — I felt that having been issued the orders and having left Georgia under those orders, if I went any place except to Arizona State University to enroll in school and attend classes and get my degree that summer I would have been prosecuted as being AWOL.

There is a difference in that my permanent duty station in the AECP was Wright-Patterson Air Force Base, Ohio with duty that was on a State University and under Bootstrap, I was paying my own expenses, my permanent duty station was in Georgia and I was assigned for duty at Arizona State.

I think the distinction is minimal.

Certainly, the order has existed authorizing my travel to Arizona and attendance of the University.

Potter Stewart:

While one directed your travel and the other permitted your travel, is that right?

Herbert P. Schlanger:

Yes, sir but both were voluntary programs.

I had requested entrance.

I had applied for entrance in the Airman’s Education and Commissioning Program because I wanted both the degree and the commission.

Potter Stewart:

Which your claim on the merits is that that was a condition of your reenlistment?

Herbert P. Schlanger:

Yes, sir.

Potter Stewart:

But the second attendance at the University was one well, Operation Bootstrap but at your own expense?

Herbert P. Schlanger:

Yes, sir.

It was necessitated because there was no other way for me to get my degree prior to my discharge.

Thurgood Marshall:

Haven’t you got also a habeas corpus proceeding pending in Georgia now.

Herbert P. Schlanger:

No sir, no longer.

Thurgood Marshall:

No longer?

Herbert P. Schlanger:

That had been on appeal to the Fifth Circuit on an issue of exhaustion of remedies and all the remedies suggested by the Government have since been exhausted and I believe I submitted to the clerk papers from the Fifth Circuit containing an order entering a voluntary dismissal since the question of exhaustion is moot now.

Furthermore, if indeed this Court upholds the Government’s position concerning jurisdiction, the Fifth Circuit and the District Court for Georgia no longer have jurisdiction in the matter since I’ve been removed and reassigned to Iceland.

If on the other hand, the Court holds for my position contending that the District Court for Arizona does have jurisdiction and it should be properly be remanded to Arizona rather than Georgia since that was the first filed action and that is where the cause of action arose.

The Court of Appeals never reached the question that the District Court reached.

The District Court dismissed the action pointing out that there were no respondents restraining me of my liberty within the jurisdiction within the district.

The Court of Appeals simply affirmed on the basis of an earlier decision which held that a serviceman on leave voluntary had a place other than duty station is not in custody at that point.

The Government now brings — takes up this argument and argues that custody — you can be in custody since I was concededly in custody on the day I filed and that I can be lawfully in Arizona which I was on the day that I filed but that I was not in custody in Arizona under the meaning of 2241.

It is my conviction, Your Honors, that this makes an artificial distinction that I am not attacking Col. Baker or Dr. Seamans personally.

What I am attacking is the effects of their authority which are — manifest upon me wherever I am.

In this case, they were manifested upon me at a place I had been assigned for duty for the three months prior to my filing of the action that is in Arizona at the place which all of the actions which gave rise to the habeas corpus action occurred that is Arizona State University.

At which all the witnesses for a hearing if it should ever be held are present except those officers of the Air Force who might be needed to be called and at which any evidence outside of that under the control of the respondents is that is University records, professors records and things like this.

Herbert P. Schlanger:

I cannot see that there is any bar in the statute and indeed Ahrens v. Clark which Mr. Douglas — in which Mr. Douglas wrote the opinion — Mr. Justice Douglas wrote the opinion in 1948 held that it was the presence of the petitioner which was the threshold requirement to filing of the habeas corpus action.

In this case, it was the effects of Air Force authority on me in Arizona that I was contesting.

It was obviously custody since I was forced to return to Georgia.

Byron R. White:

Mr. Schlanger, in that connection straight me out on one fact.

Herbert P. Schlanger:

Yes, sir.

Byron R. White:

Had your leave expired when you instituted the habeas corpus?

Herbert P. Schlanger:

No, sir.

What happened was I filed the action – well, all of the indications in the affidavit of Lt. McDonald which appear in the appendix and are referred to it in the Government’s brief were made without any consultation with me in terms of what days I was attending school and what days were leave.

They’re substantially accurate but there is a two discrepancy.

However, when I filed the action it was on my next to the last day of leave.

I immediately called my Commander and requested an extension of leave which was verbally granted.

Subsequently, written orders were entered issued confirming that verbal extension of the leave.

There was no question that I was anywhere near being AWOL or running a fine line.

This was all done with the knowledge of my superiors in the Air Force, my immediate superiors.

Byron R. White:

The next question is the reason for your instituting the action in Georgia — in Arizona rather than Georgia and perhaps you’ve answered it, the presence of witnesses there in record?

Herbert P. Schlanger:

Yes, sir.

I really feel that should a hearing be held any place else in any district except Arizona and should we ever have to get to the substantive issues of whether I was cutting classes, whether cutting classes demonstrates a lack of officer potential, whether the proceedings did follow Air Force Regs that it will be necessary to call these witnesses, without them I cannot prove my case.

Byron R. White:

Of course, even if you were venued in Georgia maybe the case could be transferred to Arizona?

Herbert P. Schlanger:

Well sir, the way I understand 1404 (a) which is what I assume is being referred to Arizona would have to have had jurisdiction originally.

It would have to have been able to have been brought in Arizona in order for it to be transferred by the Georgia Court to Arizona and yet if this Court now finds that Arizona could not have jurisdiction because I was not permanently stationed there, then it could not be transferred.

The concern with this kind of question seems to me to be more a question of venue as Mr. Justice Blackmun has pointed out than really a question of jurisdiction.

I don’t think that there is any question but that I was in custody and within the jurisdiction lawfully and a for a purpose connected with my service that district is not incidental to either the action or my military duties.

Potter Stewart:

Mr. Schlanger?

Herbert P. Schlanger:

Sir.

Potter Stewart:

You are now stationed in Iceland or supposed to be?

Herbert P. Schlanger:

On the Air Forces bookkeeping, yes sir.

I was transferred to Iceland on the 5th of January.

Potter Stewart:

If you were, let’s assume you were physically now in Iceland —

Herbert P. Schlanger:

Yes, sir.

Potter Stewart:

— and wanted to bring this kind habeas corpus action where under your theory could bring it?

Herbert P. Schlanger:

I believe unfortunately, Your Honor that I could only bring it in the District of Columbia.

Potter Stewart:

Only there because that’s where the Secretary of the Air Force is?

Herbert P. Schlanger:

Well, apparently Your Honor that it’s been held by this Court never directly but at least implicitly that the District Court for the District of Columbia has jurisdiction over American citizens outside any other District Courts and therefore the District of Columbia would be a proper district.

I would like to see, Your Honor an eventual development of habeas corpus so that a petitioner could file either in a district in which he is feeling the effects of the custody or in which —

Potter Stewart:

Or you’d be appealing the effects of the custody in Iceland?

Herbert P. Schlanger:

Yes sir, there is no doubt about that.

Potter Stewart:

And that’s no U.S. district there?

Herbert P. Schlanger:

Yes sir, but for purposes of habeas corpus that would be the District of Columbia.

But in civil litigation it appears that following International Shoe.

The courts have developed a Fairness Doctrine or Contract Theory and where we extend this right to civil litigants.

I really cannot see that it would be of tremendous inconvenience to any party to extend it to military petitions for habeas corpus.

Here we are relatively free to travel at certain times when we are off duty or when we are on leave.

There are incidents which occur such as my removal from the program in Arizona, which if the military is allowed to remove me at their will or whim, thus depriving that Court of jurisdiction we are sanctioning what is in essence forum shopping by the military.

I really do not believe sir that it was coincidence that following my removal for civil rights activities from Arizona State University.

I was assigned to Southern Georgia with all due respect to the South sir.

I feel that the Government felt that any further proceedings would be looked upon more dimly in the Middle District for Georgia than perhaps in the Southern District of New York.

Potter Stewart:

On the other hand, if one should accept your theory all the way if you had a week’s leave you could just look around with any one of the 50 States and fly up to North Dakota and bring your habeas corpus action up there?

Herbert P. Schlanger:

No sir, I don’t believe so.

I think that the Judge Wyzanski from Massachusetts had a case similar to the one you described where a gentleman from Indiana came wandering in to Massachusetts with nothing but a suitcase and a petition.

Potter Stewart:

Right.

Herbert P. Schlanger:

In McCabe v. Secretary of the Air Force and Judge Wyzanski looked at the facts and circumstances of the case and said, “You have no contacts in this district.

This is the first time you’ve ever been in Massachusetts.

You have no reason for filing it here.

Go elsewhere.”

I feel that the District Courts are more than competent to decide whether there is sufficient contact between the district and the issues involved in the case.

Potter Stewart:

Of course, International Shoe contact has to do with personal service, as you know.

Herbert P. Schlanger:

Yes, sir.

But that was sent —

Potter Stewart:

What test, what limits would you put on? Would you just leave it on the discretion of the district judge?

Herbert P. Schlanger:

I would say sir that broadly for those people contesting their induction let’s say which I am not, this is an enlistment, but their induction is conscientious objectors for instance.

Herbert P. Schlanger:

Much of their evidence to prove their claims might in fact be whether a local draft board is.

If a person is inducted in New York City and then sent to Fort Benning, Georgia the army may hold a hearing and it may just be perfunctory as it happen in several cases.

If he is then forced to bring the action in Georgia, he has the choice of either expending huge sums to transport his witnesses down to Georgia if indeed they are willing to come or not in fact not being able to demonstrate that he has a basis in fact for his claim, which would preclude his winning his action.

Potter Stewart:

So you say he should at least be able to file his habeas corpus action in a place where he lived when he was inducted, isn’t it?

Herbert P. Schlanger:

Yes sir, because that is the district with the most significant impact on the facts of the case.

Potter Stewart:

Well, then would you confront it to the district with the most significant impacts on the case?

Herbert P. Schlanger:

I am searching for some way to simply say I would like to be fair and equitable.

Potter Stewart:

I don’t mean to be.

Herbert P. Schlanger:

Yes, sir.

Potter Stewart:

I was examining you but undoubtedly you thought a great deal more about this case than we have so far and —

Herbert P. Schlanger:

Yes, sir.

Well, I’ve been grappling with the same question at what point do you say you can’t file.

I would say that where the context of the district — within a district are immaterial to the case then it’s obviously shouldn’t be brought there.

If the contexts are crucial to the case then that is obviously a permissible district and as in most of the rest of the law there is a small gray area in between which I think should be left to the discretion of the District Courts individually, yes sir.

Your Honor, I would, unless the Court has some further questions on this issue, I would like to reserve the rest of my time for rebuttal.

Warren E. Burger:

Very well Mr. Schlanger.

Herbert P. Schlanger:

Thank you Your Honor.

Warren E. Burger:

Mr. Solicitor General?

Erwin N. Griswold:

May it please the Court.

This is an important, though from some points of view a somewhat exotic case.

It is important because it involves the writ of habeas corpus.

The importance of which and its proper preservation and utilization cannot be exaggerated, and it is exotic because the present case seems so foreign to the true function of the writ.

It reminds of the course I once took in advance equity from Professor Chaffee where we learn much about bills of interpleader and then we learn more about another bill called a bill in the nature of a Bill of Interpleader but perhaps this case can be better understood if it is thought of as a case involving an application in the nature of habeas corpus rather than habeas corpus itself.

We recognize of course that habeas corpus is not limited now as it once was to persons who are actually imprisoned.

It has been made available to persons whose liberty is significantly restraint and thus has been held applicable to persons who are denied admission to the country to persons on parole or probation and to service matters.

I think I might say please say though that there has never been a serviceman case like this one in the history of the writ or its analogs.

It is important to get the facts clearly.

Sergeant Schlanger was not hijacked or impressed.

He was not inducted into the service as he himself alleges in his petition in the District Court, paragraph – page 4 of the appendix.

He enlisted in the Air Force on December 9, 1965 for a period six years, a period which has not expired.

Erwin N. Griswold:

He makes no claim of conscience and does not suggest that he is entitled to discharge under any regulation of the Department of Defense or of the Air Force as is the case for example of the man who seeks discharge on the basis of conscientious objection to participation in war in any form.

There is a specific regulation that provides a procedure that says that such a man is entitled to a discharge.

He does allege a breach of contract but I suggest that it is a distortion of the great writ to say that it can appropriately be used to review the military determinations involved here.

As a petitioner alleged, he reenlisted in the Air Force for the purpose entering the Airman’s Education and Commissioning Program and he was pursuant of that program assigned to the Arizona State University in a program designed to lead to a degree.

He entered the University in December 1965 with his tuition paid and received an enhanced Air Force salary.

He continued in this program until June 1968 when he was removed from the program by his superior officers for failure to attend classes regularly.

He was then reassigned to Moody Air Force Base in Georgia where he returned in July 1968.

It is important to note that if there had been a breach of contract and if that breach of contract was for some reason now unknown sufficient to relieve him of his responsibilities to the Air Force that had occurred by June or July 1968.

All of the events of which the petitioner complains whatever their effect may be occurred before July 1968.

The petitioner then returned to Georgia where as far as we know he performed well in the duties which were assigned to him in May 1969 nearly a year after the events of which he complains and in pursuant to his application to the Air Force, he was given an opportunity to return to Arizona State University for the approximately two months needed to complete his work for a degree.

This was under what is called Operation Bootstrap which is a voluntary program.

He went at his own expense on what is called permissive TDY.

TDY being Air Force is for Temporary Duty.

This means that he was not ordered to go, he was permitted to go.

He could have terminated his participation in Operation Bootstrap and returned to his permanent duty station at any time.

The petitioner did go to Arizona State University.

He completed the work for his degree and he received it.

This was on August 22, 1969.

He still had four days of leave available.

Potter Stewart:

What degree did he receive?

Erwin N. Griswold:

What?

Potter Stewart:

What degree did he receive?

Erwin N. Griswold:

I do not know Mr. Justice?

Potter Stewart:

Bachelor of Science of Mathematics, sir.

Erwin N. Griswold:

Bachelor of Science, Mr. Schlanger advises me.

He still had four days of leave available plus a day of travel for Georgia.

The last day of leave as I figured would have been August 26 and August 27th would have been the day assigned for travel to the base in Georgia.

It was on August 27th that he filed a petition for habeas corpus in the United States District Court for the District of Arizona.

On September 15, 1969 his 15 days of leave was retroactively extended to 45 days so as to avoid carrying him an absent without leave status after August 27.

He advises us today that that was pursuant to telephonic arrangements made at the time and as far as I know, that is entirely accurate though it is not in the record.

Erwin N. Griswold:

The 45-day expired on September 27, 1969 but he actually returned to Moody Air Force Base on September 21, 1969.

It is significant I think that thereafter he filed a petition for habeas corpus in the Middle District of Georgia.

This petition was denied by the District Court.

Sergeant Schlanger took an appeal to the Fifth Circuit Court of Appeals but that appeal was recently dismissed on his own motion.

As far as I know, it is still pending before the United States District Court for the District of Georgia.

The issue on which the Court previously decided the case that of exhaustion of administrative remedies as Sergeant Schlanger says is now disposed of.

That does not mean that the habeas corpus petition is not still pending on the — for hearing in the District Court in Georgia.

Potter Stewart:

There was some talk that we have been supplied with something with respect to those proceedings and I don’t seem to have it personally perhaps my brothers too.

Erwin N. Griswold:

I believe it was filed with the clerk by Sergeant Schlanger.

A copy was furnished to us. He did move for dismissal of the appeal in the Fifth Circuit Court of Appeals on the ground that it was moot because the administrative remedies had in the interval been exhausted on the further ground that he had been transferred to Iceland so that in some way the Georgia Court had lost jurisdiction, though I do not believe that is true if it had jurisdiction when the proceeding began and the Fifth Circuit Court of Appeals did dismiss the appeal from the District Court’s decision on Sergeant Schlanger’s motion.

Potter Stewart:

And the District Court’s decision had been to deny the application for failure to exhaust administrative remedies?

Erwin N. Griswold:

The District Court’s decision had been to deny the application for failure to exhaust administrative remedies.

If that Court is now satisfied that the administrative remedies have been exhausted, the petition is still pending before the District — Middle District of Georgia.

Potter Stewart:

Or in any event a new petition could be filed?

Erwin N. Griswold:

Or a new application could be filed.

Potter Stewart:

Or not and now that he is in Iceland, could it be?

Erwin N. Griswold:

It might be doubtful whether a new application could be filed in the Middle District of Georgia but the one which is pending there is undoubtedly remains within the jurisdiction of the Georgia Court.

Warren E. Burger:

But he could always file in the District of Columbia if there is some infirmity in the Georgia Procedure.

Erwin N. Griswold:

He could file in the District of Columbia, I believe Mr. Chief Justice if he is outside of the United States.

If he is within the United States, it would still be our position that he could not file under the District of Columbia unless there were some contact with the District of Columbia.

Warren E. Burger:

I am assuming that his presence in the United States now is by the grace of the Air Force for letting him come here to present his case?

Erwin N. Griswold:

Yes, Mr. Chief Justice by the grace of the Air Force and that the request of the Solicitor General’s office.

Potter Stewart:

I suppose he could file over there that day, couldn’t he?

He is here.

He is here in (Voice Overlap).

Erwin N. Griswold:

He certainly can file but whether the District Court or the District of Columbia has jurisdiction and that situation I would not want to be completely clear on but I suspect it has if his orders — if he is no longer under any duty to report to the base in Georgia.

If he is under a duty to report to the base in Georgia, then I would contend that the jurisdiction is in Georgia.

In preserving the great writ for it is all important function and extending it to new areas in the light of modern conditions, it is important I submit that it not be diluted by being used to review all the varied controversies which may arise between the Armed Forces and their members.

Historically, there can be no doubt that the writ of habeas corpus had clear geographical limitations.

There must be a body within the jurisdiction of the court and there must be a person likewise within the jurisdiction of the court who could produce that body.

Erwin N. Griswold:

Habeas corpus you have the body.

Those conditions are lacking here.

It is true that Sergeant Schlanger was physically within the jurisdiction of the Arizona Court on the day he filed his petition but in our view he was not in custody there and there was no one in Arizona having jurisdiction over him and he did not allege that there was.

The relevant allegation is on page 3 of the appendix, paragraph 4 of the petition the Honorable Robert Seamans Jr., Secretary of the Air Force and Colonel Homer Baker Commander Moody Air Force Base Georgia are the persons who are at present unlawfully restraining applicant of his liberty as it is more particular — more fully particularized herein.

Then he goes on to say Colonel Rederick was the ROTC Commander at ASU and there is no doubt that Colonel Rederick was the ROTC Commander at ASU but there is no allegation that he had or was exercising any authority over Sergeant Schlanger.

And I think the nature of the issue was quite clearly in the petitioner’s petition in this Court when he said that the question presented was, does a District Court lack the power to inquire into the lawfulness of restraint exercise over a petitioner within its district when the person responsible for the restraint is in another state?

And that we submit is the situation which is involved here.

Moreover, Sergeant Schlanger was not ordered to be in Arizona.

He was there in a permissive status by his own choice, for his own purpose and was on leave when the petition was filed.

No one was confining or restraining in Arizona.

He was free to go to California or Ohio or any place else, Mexico on his way back to Georgia as long as he got back to Georgia by the time specified.

Hugo L. Black:

Solicitor General, in respect to the question of venue, do you claim that the writ doesn’t matter at all?

Erwin N. Griswold:

Yes, Mr. Justice.

It seems to me that this is not an appropriate case for the exercise of the writ.

This is essentially a contract controversy, a controversy relating to the internal operation of the military.

It may be that Sergeant Schlanger has a cause of action under the Tucker Act in the Court of Claims or in some United States District Court.

I know of no basis whatever for his suggestion that because of a breach of contract, if there is one he is entitled to discharge from the Air Force.

Hugo L. Black:

How do you force that down if he is not in custody?

Erwin N. Griswold:

No, that he is in custody and rightfully in custody and that a breach of contract would not entitle into a release from custody.

Potter Stewart:

Of course that question is not before us, that’s the merits of his habeas corpus action.

Erwin N. Griswold:

That is the question on the merits but arises on the face of the petition and is I submit a further ground to support the judgment of the District Court in dismissing the petition.

Now it is true that District Court dismissed it for lack of jurisdiction and that was affirmed by the Ninth Circuit Court of Appeals but I should think that by general demurrer it could be found that the petition itself does not state a cause of action even if there were jurisdiction and we are entitled to present any grounds which will support the judgment of the court below.

Potter Stewart:

Although this is something not — this isn’t a question that you pose in your brief?

Erwin N. Griswold:

No, Mr. Justice it’s not directly stated in the brief.

Potter Stewart:

And that does go the merits of his application for habeas corpus?

Erwin N. Griswold:

Yes, Mr. Justice.

Potter Stewart:

And concerning here was that —

Erwin N. Griswold:

But only being the case the court.

Potter Stewart:

— (Voice Overlap) in jurisdiction, are we?

Erwin N. Griswold:

Only in case of the court found there was jurisdiction.

Erwin N. Griswold:

It was — be our position that the judgment ought nevertheless to be affirmed because it does not state a cause of action properly sounding in habeas corpus.

The case here is very much like that in Jarrett against Resor, a decision of the Ninth Circuit Court of Appeals on which the decision below is based.

In the Jarrett case, an officer went to Berkeley California on leave.

While there he sought habeas corpus naming no respondents in the district although they were within other districts in California.

The court held that being on leave, Jarrett was not under restraint, he was under orders to go to Vietnam but he was at the time on leave.

He was not in the district under orders and it held that there was no jurisdiction to grant habeas corpus.

We recognize fully that the great writ should be kept flexible.

Cases have already have arisen or a serviceman is overseas and habeas corpus jurisdiction has been found in the District of Columbia and when the relevant service secretary has made the respondent, and it is possible to conceive a situation where a man is stationed in a place where he has no commanding officer.

Some remote island in Alaska or something of that kind but that is not this case for the petitioner here was not stationed in Arizona.

He went there at his own request, at his own expense and for his own purpose.

The habeas corpus statute requires that the applicant be in custody within the district in no true or substantive sense was the petitioner here in custody in Arizona on the day he filed his petition after his education was over and he was on leave.

Thurgood Marshall:

The Solicitor General, he didn’t have to report to anybody in Arizona any military person?

Erwin N. Griswold:

No person whatever Mr.–

Thurgood Marshall:

No supervision?

Erwin N. Griswold:

No supervision, Mr. Justice.

Thurgood Marshall:

Well, how did they found out that he didn’t attend classes?

Erwin N. Griswold:

That’s at a different time.

When he was there under the Airman’s training program before 1968, he was there under orders and he was under an obligation to report and they apparently did not like the way he acted and they removed him from that program.

He then went back to Georgia and a year later, he came back to Arizona at his expense at his own request on leave to complete his education under a different program Operation Bootstrap.

Thurgood Marshall:

So that even if there was a possibility could bring habeas on the first case you say that is certainly not true in the second.

Erwin N. Griswold:

Yes, Mr. Justice that is precisely our position, this might have been a different case had habeas corpus been brought in 1968 although I would still say as I suggested to Mr. Justice Stewart that this is not the kind of issue that ought to be under taken to be resolved in habeas corpus.

It’s crucially important that the habeas corpus power be protected and that it remain fully available for its proper purposes but is equally true that the habeas corpus power should not be converted into a means of general review of intra-military decisions as this Court pointed in our Orloff against Willoughby that and I quote, “would be a disruptive force as to affairs peculiarly within the jurisdiction of the military authorities.”

In this case, Sergeant Schlanger was admittedly enlisted for a period of six years.

That was more than five years ago.

During that period, he has received a college education and nearly all of which was at public expense including his salary.

Since he filed this petition for habeas corpus, he has been on leave status from December 9, 1969 much of it by order of the United States Court of Appeals until July 8, 1970 when Mr. Justice Black refused to continue his leave that was for a period of nearly seven months.

Shortly after this Court granted the writ of certiorari, he was again granted various periods of leave and finally, he was granted leave on December 25th until the present time for nearly two months.

Thus there have been more than 9 months and nearly 10 months of leave connected with this case.

Sergeant Schlanger was ordered to Iceland in January and as I have indicated that was deferred at the request to my office until after the hearing today.

By great energy and persistence, Sergeant Schlanger has held the Air Force at bay for nearly nineteen months.

Erwin N. Griswold:

It may be that this is not within the legitimate purpose and function of the great writ of habeas corpus.

Even if it be held that it is not a perquisite to habeas corpus jurisdiction that there would be someone within the district who has custody of the petitioner, it is still our contention that the District Court here properly held that it did not have jurisdiction of this petition.

Habeas corpus petitions are not avenues to advisory opinions.

It still remains a constitutional truism that federal courts have jurisdiction only over cases or controversies.

A case or controversy requires two parties both of whom are properly before the court.

Here there is only one party before the Court in Arizona and that is Sergeant Schlanger.

The Secretary of the Air Force and Colonel Homer Baker are the only persons alleged to be restraining the petitioner of his liberty and neither one is within the District of Arizona.

District Courts do not have nationwide jurisdiction in habeas corpus and there are manifest reasons why Congress has never provided that they should have such jurisdiction.

There is the problem of transportation and there is the problem of forum shopping.

If there is jurisdiction in Arizona in Sergeant Schlanger’s case, then any serviceman on leave can file a petition for certiorari in any court he chooses by simply going there or perhaps by filing such a petition by mail or through local counsel.

That seems obviously undesirable and in no senses it required by any legitimate concern to make the great writ available when it is needed.

There is of course Section 1391 (e) of Title 28 which provides for nationwide service of process on government officers in civil actions.

We would contend first the Section 1391 (e) does not apply to habeas corpus that it was not intended to apply the habeas corpus and need not be found to apply the habeas corpus to keep that writ effective.

Even if Section 1391 (e) does apply in habeas corpus it is not applicable here since the cause of action did not arise Arizona and since it appears clearly on the face of the petition that Sergeant Schlanger is not resident in Arizona that is domicile there which is the proper construction of that word in the statute as a number of courts have held.

And finally, we would contend that even if there is jurisdiction in Arizona this a case which should be transferred to the Middle District of Georgia or to the District of Columbia.

Sergeant Schlanger suggests that the witnesses and the evidence are in Arizona but that simply highlights the fact that this is essentially a breach of contract suit not a habeas corpus matter and as a breach of contract suit, it is very clear that there is no jurisdiction in the District Court in Arizona under this petition.

Unless this case is brought to a conclusion, it is obvious that there will be endless further proceedings.

The court below is correct in holding that the District Court for Arizona does not have jurisdiction and its judgment should affirmed.

Potter Stewart:

When does the petitioner’s present enlistment expire?

Erwin N. Griswold:

When?

Potter Stewart:

Some time this year?

When does his enlistment expire, some times in this year?

Erwin N. Griswold:

Well, it would have expired in 19– late in 1971 except that there is provision that when certain types of permissive leave are granted such as that for which he went to the University of Arizona in 1969 not only is that added on but triple is added on so that I understand that somewhat more than a year still remains on his enlistment but I do not know the exact time of expiring.

Warren E. Burger:

Thank you Mr. Solicitor General.

Mr. Schlanger you have about 12 minutes left.

Herbert P. Schlanger:

Thank you Your Honor, I hardly know where to begin in rebuttal Your Honor.

I was not expecting an attack on the subject matter of the petition at this point.

I have been advised by Mr. Reynolds that that was not going to be a subjects of the brief or argument.

However, I’ll get to that —

Warren E. Burger:

Who’s Mr. Reynolds?

Herbert P. Schlanger:

The Assistant Solicitor General, sir who briefed the case.

Warren E. Burger:

I see.

Herbert P. Schlanger:

Initially sir, Mr. Griswold now hold claims that I was not in custody at the time the petition was filed and I would like to respectfully call your attention to page 12 of the Government’s brief at which the Government asserts that under 28 U.S.C 2241 he as clearly “in custody” in the United Stats Force at the time he sought habeas corpus relief.

Warren E. Burger:

I think you must have misunderstood him.

I did not understand him to say, the Solicitor General say that you were not in custody for purposes of jurisdiction but only that he was questioning the existence of the use of the writ for this purpose.

Herbert P. Schlanger:

No, sir.

That was the initial part of the argument.

Later in the argument I believe that the Solicitor General did say that in response to a question that he did not think that I was in custody at the time I filed the case.

However, I would like to call the Court’s attention to —

Warren E. Burger:

As he was directing that to the period when you were on leave free from military discipline and free from any obligation to report.

Herbert P. Schlanger:

Yes sir, that’s the time at which I filed the case.

Warren E. Burger:

But he wasn’t questioning the military duty as a basis for the writ.

But only that you were not reporting to anyone and not on military duty, that on leave at your own request to attend school.

Herbert P. Schlanger:

Yes, sir.

But I, the way I understood the Solicitor General’s point was that habeas corpus would not lie at such a time because of the tenuous nature of restraints at that particular point in time and the restraints were only potential to be imposed when I had to return to Georgia and yet in the brief they can see that it was properly filed since I was in custody under the statute.

But I think that that really is clearly.

I think the more important question is on subject matter jurisdiction which at least I would like to clear up a little bit.

It is claimed that exercise of this Court’s jurisdiction or District Court’s jurisdiction in cases of this nature would dilute the writ — would distort its purpose.

I would like to point out that in Orloff v. Willoughby which the Government cites in support of this position.

The Court said that they would not interfere in military duty assignments and I concur wholeheartedly, I do not think that it is a proper judicial function to determine what assignment a man in the military should be put to work in.

However Your Honor, the Air Force could you use me as whatever they wanted.

They could have kept me as an Aircraft Instrument Repairman if they had commissioned me.

I might have been the only 2nd Lieutenant Aircraft Instrument Repairman in the Air Force but it would have been lawful.

However, what were discussing here is a status difference between that of an enlisted man and that of a commissioned officer which I was entitled to expect under the program for which I reenlisted.

Failing to commission me, I submit entitles to a discharge just an entitled Dr. Nelson in Nelson v. Peckham where the Fourth Circuit ordered him discharge because the Army refused to commission him.

Following this Court’s decision in Orloff, the Congress revised the Doctor’s Draft Act to require commissioning of doctors drafted under its provisions and the Army did to Dr. Nelson what it did to Dr. Orloff and that they just refused to commission him and still held him.

He brought habeas corpus and he won.

There was another case which I don’t have the site off in California citing Nelson v. Peckham.

It is not unusual to — it is not unusual to contest status differences.

Admittedly, this is the first case I have seen of an enlistment status question but I don’t think as the fact that I enlisted dilutes my claim anymore.

Herbert P. Schlanger:

If the Air Force did in fact unlawfully changed my status then the contract is void and there is absolutely no basis in fact for the custody now being exercised over me.

Your Honors, I submit that habeas corpus is the proper vehicle to challenge a breach and void enlistment contract.

Going to the jurisdictional issue, it seems to me there is a contradiction in the Government’s position.

On the one hand, they say that the District Court for Arizona lacks jurisdiction because there is no respondent within the District.

On the other hand, they maintained that the District Court in Georgia retains jurisdiction even though there is no respondent within the district now.

Colonel Baker, I submit sir, is no longer a proper respondent since he is no longer in any way shape or form controlling or having custody of me.

I was relieved from assignment to his unit.

Potter Stewart:

I think what the Solicitor General said was that your original petition if it remained there would still be a good petition even though you’ve subsequently been moved.

Herbert P. Schlanger:

Even though there remains no respondent in the district?

Potter Stewart:

I think the Solicitor General did not suggest that it was all that clear that you could now file a petition in Georgia.

Herbert P. Schlanger:

No sir, even on the point that that one is still pending.

Let’s assume that argument for the moment.

Colonel Baker has no control over me, he is now in the same position that Colonel Rederick was at the time that I filed the petition.

He’s an officer in the United States Air Force.

He is commanding a military unit at a place which I have been stationed.

He has no direct control over me.

My Commander in Iceland, I filed a motion with the clerk to amend my petition for habeas corpus and presumably for certiorari also to add my Commander in Iceland as the respondent.

He and Dr. Seamans have the custody now but the question comes down to when we have the nature of custody.

Thurgood Marshall:

Aren’t you really arguing that there was a breach of contract but the Solicitor General said you are arguing?

Herbert P. Schlanger:

Yes, sir that underlies the habeas corpus petition that gave rise to the action.

Thurgood Marshall:

What else do you have other than an alleged breach of contract?

Herbert P. Schlanger:

To raise my habeas corpus on sir?

Thurgood Marshall:

Yes, sir.

Herbert P. Schlanger:

Nothing at all, sir.

Basically, there are a number of reasons why the contract I contend the contract was breached.

Thurgood Marshall:

Do you think that you want to establish a precedent that if being enlist and is in commission as sergeant that he has a breach of contract action which he can bring by habeas corpus?

Herbert P. Schlanger:

Your Honor, I would I think if enlistment is anything but Carte Blanche to the military.

If promises to induce the military — an enlistment into military are to mean anything then we have to guard against are arbitrary use of power by the military authorities should we give them license —

Thurgood Marshall:

If you grant all of that as habeas corpus the proper vehicle to attack it.

Herbert P. Schlanger:

Yes sir, I believe so.

Thurgood Marshall:

But suppose the Air Force promise that you could go to school for three months and they only let you go for two months that would void the enlistment?

Herbert P. Schlanger:

No, sir.

I think what —

Thurgood Marshall:

Would it?

Why is it a different view?

Herbert P. Schlanger:

Because in my case sir we have a status difference.

Upon my reenlistment, orders which designated me an officer trainee became effective and the statute under which the Air Force Institute of Technology operates provides for training — professional training and education of officers.

It says nothing about enlisted men.

Now obviously, something happened to my status at my reenlistment.

It was something different from just that of a plain old ordinary enlisted man who happens to be a nice guy so they decided to send me to school.

Your Honor, I reenlisted so that I might make the Air Force a career.

Thurgood Marshall:

Could they have prevented you from going the second time?

Herbert P. Schlanger:

Yes, sir.

That was a wholly discretionary decision on their part.

Thurgood Marshall:

So they let you go?

Herbert P. Schlanger:

Yes, sir.

That was a local decision.

Thurgood Marshall:

And then they revoked this.

Herbert P. Schlanger:

The second time?

Thurgood Marshall:

Yes.

Herbert P. Schlanger:

No, sir.

The second time when I was going at my expense I was allowed to complete my degree requirements.

Thurgood Marshall:

And then what happened that violate the contract?

Herbert P. Schlanger:

The contract had already been violated, sir.

It had been violated while I was in school the first time under the Airman’s Education and Commissioning Program.

Thurgood Marshall:

Then why didn’t you bring habeas then?

Herbert P. Schlanger:

Because at that point there was an impediment to filing.

I had to at least attempt to exhaust my administrative remedies prior to filing and I considered that my administrative remedies were exhausted in November of 1968 when the Chief of Staff of the Air Force denied my discharge and request for hearing.

Thurgood Marshall:

Well, could it also have ended by your reenlistment?

Herbert P. Schlanger:

Pardon sir?

Thurgood Marshall:

Could it also have ended by your reenlistment?

Couldn’t your administrative remedy have stopped when you reenlisted?

Herbert P. Schlanger:

No, sir.

I have reenlisted in 1965.

Thurgood Marshall:

Yes.

Herbert P. Schlanger:

And then the alleged breach occurred in June of 1968.

My remedies from that breach were not exhausted until after I was removed from Arizona and assigned to Georgia.

Thurgood Marshall:

Right.

Herbert P. Schlanger:

And so what we are faced with is the question of whether the military authorities can take action which gives rise to a claim for habeas corpus then remove the serviceman from that jurisdiction prior to as being able to initiate action because of some impediments or other.

Thurgood Marshall:

Well, I think thee Solicitor disagrees with that.

He hasn’t agreed that you’ve ever had a right of habeas corpus?

Herbert P. Schlanger:

Yes sir, but assuming that we did have habeas jurisdiction, subject matter jurisdiction.

I cannot truly imagine sir any other theory under which to bring this case.

I am not saying that the Air Force has to make me an officer certainly if they made an officer, I would probably, it would suitable adjustments and payments and rank I would probably be required to drop the action and serve out my enlistment because every application I’ve made has been the alternative, either a discharge or reinstatement in commissioning.

However, we are talking about a status difference and if the Air Force within itself refuses to even grant me a hearing at any time which they have for three years now on my claims that I was unfairly eliminated from this program, unlawfully eliminated and denied the status of a commissioned officer for which I had reenlisted, I can see no other theory under which to bring it than habeas corpus which challenges unlawful restraints by governmental authorities.

Your Honor, if you have no further questions–

Hugo L. Black:

May I ask you exactly —

Herbert P. Schlanger:

Yes, sir.

Hugo L. Black:

— what is it you’re after?

Herbert P. Schlanger:

At this point, sir I would like to be discharged from the Air Force.

I cannot see that even if the Air Force commissioned me, I could make it a career successfully after the publicity that has been attending to the case and very truthfully since my initiation of the proceedings, I discovered that I have hopefully some aptitude for the law and would like to make the law a career.

Thurgood Marshall:

And when you get a relief from the Army for breach of contract?

Herbert P. Schlanger:

Sir?

Thurgood Marshall:

Is your basis that Government has breached its contract with you?

Herbert P. Schlanger:

That under law is it that at the moment that contract for under which I was reenlisted is void.

Thurgood Marshall:

Which part of it was breached?

Herbert P. Schlanger:

The entire contract since it was a contract based upon my —

Thurgood Marshall:

What did they agree to do that they have not done?

Herbert P. Schlanger:

Commission me, sir.

Thurgood Marshall:

Commission?

Herbert P. Schlanger:

Yes, sir.

Thurgood Marshall:

And you want to get that tried in habeas corpus?

Herbert P. Schlanger:

Yes, sir.

I think the Government conceded in Orloff v. Willoughby that had he been entitled to a commission.

This would have been a proper action in habeas corpus but then they denied that he was entitled to a commission and the Court agreed with him.

The facts in this case since we have no evidence on entitlements under the enlistment agreement, since we’ve never been able to have an evidentiary hearing remain from my allegations in the petition that is that I was entitled, sir.

Thurgood Marshall:

Do you think that is the only way you could bring a suit against the Government by habeas corpus?

Herbert P. Schlanger:

In this particular action?

Thurgood Marshall:

The breach of contract?

Herbert P. Schlanger:

In this particular action to affect my release from custody?Yes sir, I do.

Thurgood Marshall:

To affect your release from custody?

Herbert P. Schlanger:

Yes sir.

To affect, to force–

Thurgood Marshall:

You mean if they breach any part of a contract with you, you can get out of the Army completely?

Herbert P. Schlanger:

No sir, not any part.

The material central point which goes to my status on that point, I think when the Air Force refuses to honor the central part of the contract, I think that yes sir, I am entitled to asked to be discharged.

Potter Stewart:

Either — and you’ve asked in the alternative either they make you an officer or they let you out.

Herbert P. Schlanger:

Yes, sir.

Potter Stewart:

Is that correct?

Herbert P. Schlanger:

Yes, sir.

Potter Stewart:

And you don’t want money damages?

Herbert P. Schlanger:

I have been thinking about it of late with the expenses [Laughter].

But no sir as far as the record is concerned I have up until this point I have never asked.

Potter Stewart:

I’ll be surprised this lawsuit goes you don’t want money damages.

Herbert P. Schlanger:

Yes, sir.

Potter Stewart:

You want either to be commissioned or let go.

Herbert P. Schlanger:

Yes sir and I contend that the courts have no power to order my commissioning.

Potter Stewart:

Right.

Herbert P. Schlanger:

Yes, sir.

Thank you, Your Honors.

Warren E. Burger:

Thank you Mr. Schlanger, Mr. Solicitor General.

The case is submitted.