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