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UNITED STATES EX REL. NORRIS v. NORMAN

March 12, 1969

UNITED STATES OF AMERICA EX REL. VERNON LEON NORRIS, PETITIONER,
v.
CAPTAIN R.J. NORMAN, COMMANDING OFFICER, NAVAL ADMINISTRATIVE COMMAND, GREAT LAKES NAVAL TRAINING CENTER, GREAT LAKES, ILLINOIS; JOHN CHAFEE, SECRETARY OF NAVY; MELVIN LAIRD, SECRETARY OF DEFENSE; GREAT LAKES NAVAL TRAINING CENTER, GREAT LAKES, ILLINOIS; DEPARTMENT OF THE NAVY, WASHINGTON, D.C., RESPONDENTS.



The opinion of the court was delivered by: Parsons, District Judge.

MEMORANDUM OPINION

Vernon Leon Norris, claiming indigency and appearing pro se, filed his petition in this Court for issuance of a writ of habeas corpus ordering the appropriate United States Navy authorities to release him from their custody. In due course, respondents, by the United States Attorney, filed a return. The issue is whether petitioner is a member of the United States Navy. The return to the petition questioned neither the sufficiency of the petition nor the jurisdiction of the Court.

On February 20, 1969, after a review of some undisputed documents and inquiry into petitioner's financial status, the Court appointed civilian counsel to represent petitioner here.

At a further hearing on the same date, respondents stated that there was no issue as to the sufficiency of the petition or the jurisdiction of the Court and acknowledged that petitioner had exhausted whatever administrative remedies may have existed for determination of his claim.

Accordingly, the Court held that it had jurisdiction of the cause and ordered that any military proceeding with relation to the trial of the petitioner for allegedly being improperly absent from the United States Navy be held in abeyance pendente lite. The Court also recommended that petitioner be transferred to a non-disciplinary barracks. Finally, the Court set a plenary evidentiary hearing for March 3, 1969.

On that date, petitioner and respondents each announced their readiness to proceed. The Court received testimonial and documentary evidence on March 3, 4 and 5. With the cooperation of counsel, the witnesses and of the various Naval personnel assisting the respondents' counsel the Court was able to continue with its hearings until well into the evenings so as to expedite resolution of the matter.*fn1

Before summarizing the Court's conclusions of law and fact, preliminary comment is appropriate. The Court wishes to compliment the Navy personnel involved in this proceeding. Each conducted himself with the directness and courtesy typifying that great service. They have done the Navy proud and deserve its commendation. Secondly, the Court fully recognizes that the case before it is unusual and wishes to emphasize that the following discussion must be read in light of that unique factual situation.

I.

As already noted, respondents expressly conceded the jurisdiction of the Court prior to the evidentiary hearing. Nonetheless, in their motion for judgment at the close of petitioner's case, they urged that the Court did not have jurisdiction because petitioner had not exhausted his administrative remedies.*fn2 Despite respondents' earlier concession that any administrative remedies had been exhausted, the Court has examined the respondents' later contrary contention and finds it to be without merit.

In the first place, respondents have failed to inform the Court what if any adequate administrative remedy exists for a purported enlistee to question his military status vel non. The evidence in the instant case indicates that the petitioner repeatedly sought to question his military status within the military framework and was repeatedly advised that nothing could be done. The uncontradicted evidence is that high-ranking personnel attempted to set administrative machinery in motion to determine whether petitioner should be separated from the service, but were advised that a court order was required for separation. This information was relayed to the petitioner by the military authorities. It was only after receiving such advice, and after his attempts at varying levels of command to obtain administrative determination of his claim, that petitioner resorted to this Court as advised by his military counsel.

Under such circumstances, it would be manifestly unfair once again to relegate petitioner to a perhaps non-existent administrative machinery to determine his claim, particularly since the claim itself denies all military jurisdiction over him. Moreover, at no time prior to or during the hearings did respondents suggest that this case be held in abeyance pending administrative consideration of petitioner's claims, or give any assurance to the Court that any such determination could be speedily had.

Indeed, it may be inferred from statements made by respondents' counsel as well as from the already referred to statements made to petitioner, that the Navy itself desired the matter to be handled by either a military or civilian court rather than administratively.

It was of course possible for petitioner to test the question of whether he was in the military service by interposing an appropriate motion in the court martial proceeding that had been instituted against him for an unauthorized absence. However, one who denies all military authority over him need not submit to the military criminal judicial system to test that claim before contending in a civilian court that he is a civilian. This is true particularly when, as here, the initial determination in such a court martial would be made by a court composed of military officers who are neither lawyers nor judges. A court martial is neither a prerequisite nor a bar to petitioner's invoking the habeas corpus jurisdiction of this Court. Hammond v. Lenfest, 2d Cir., 398 F.2d 705, 714.

Likewise, although not raised by respondents, the Court has sua sponte considered whether habeas corpus is an applicable procedure, testing in that consideration whether petitioner is in sufficient "custody" to authorize resort to the writ even though he is not in prison. 28 U.S.C. § 2241.

At the time he brought the petition, Norris was under restraint both because the Navy was asserting jurisdiction and physical control over him allegedly against his will and because in the exercise thereof the Navy had placed him in a special category of a disciplinary nature. This was absolved only as a result of the already mentioned Court recommendation to transfer him to non-disciplinary barracks.

We conclude that a petitioner who challenges the legality of his membership in the armed services by writ of habeas corpus, though he is performing duty and service customarily performed under such membership, is ...


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