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June 26, 2004.

GORDON ENGLAND, Secretary of the Navy, Respondent.

The opinion of the court was delivered by: RICHARD ROBERTS, District Judge


Petitioner Darnell E. Blackmon, a Lieutenant Commander in the United States Naval Reserve on active duty, requests a writ of habeas corpus restraining respondent, the Secretary of the Navy, from deploying petitioner for duty in Afghanistan. Petitioner alleges that respondent's deployment order is unlawful because it is in contravention of Naval regulations exempting from deployment service members with a disqualifying medical condition which he purports to have, and because petitioner should have been exempt from duty as a conscientious objector. Respondent moves to dismiss the petition, arguing that the court lacks jurisdiction over the matter because the petitioner named the incorrect respondent in an improper jurisdiction. A hearing and oral argument was held on June 25, 2004. Because the Secretary of the Navy is not the proper respondent for this habeas petition and habeas relief for petitioner is not available in this district, respondent's motion to dismiss will be granted.


  Petitioner has been a Naval Reserve member for over 15 years and is obligated under contract to serve until July 2007 with the Naval Reserve. (Amended Petition for Writ of Habeas Corpus ("Am. Pet.") at Ex.13 ¶ 5; Ex. 14.) On May 1, 2004, petitioner requested consideration for resignation from service, citing as reasons his moral objection to conflict, the Navy's failure to pay him for drill weekends in a timely fashion, a decreased quality of life that would result from mobilization, hardship to his career as an orthopedic surgeon, and preparation for an Orthopedic Board Examination scheduled for July 9, 2004. (Id. at Ex.13.) On May 7, 2004, the Commander, Navy Personnel Command ("COMNAVPERSCOM"), located in Millington, Tennessee, ordered petitioner to report to the Naval Reserve Center in Tulsa, Oklahoma ("NMCRC Tulsa") for involuntary active duty as an orthopedic surgeon. (Id. at ¶ 11; Ex.4; Respondent's Opp'n to Petitioner's Application for Temporary Restraining Order ("Respondent's Opp'n") at Ex.2.) COMNAVPERSCOM ordered the Commanding Officer of the NMCRC Tulsa to begin the screening and mobilization process for petitioner to be deployed to Afghanistan. (Id.) Petitioner reported on May 10, 2004 to the NMCRC Tulsa for screening where he discussed with a medical corpsman a shoulder injury he sustained in 1987 and which was aggravated in the past three years. (Am. Pet. ¶¶ 9, 10, 12.) After numerous medical examinations, petitioner subsequently informed the Commanding Officer for NMCRC Tulsa that petitioner believed — and that his doctors had confirmed — that he was not fit to deploy under Navy regulations. (Am. Pet. ¶¶ 12-15.)

  The petitioner requested exemption from mobilization by letter to the Chief of Naval Personnel through his Commanding Officer at the NMCRC Tulsa on May 10, 2004. (Am. Pet. ¶ 29.) The Commanding Officer convened an informal Special Cases Board to hear petitioner's request for exemption and recommended to the Naval Personnel Command ("NAVPERSCOM") that petitioner's reporting date be delayed for 60 days. NAVPERSCOM rejected the recommendation and ordered petitioner to report on June 2, 2004 to the Navy Mobilization Processing Site ("NMPS") in Norfolk, Virginia for screening, and to the Naval Reserve Center in Columbus, Georgia on June 6 for ultimate deployment to Afghanistan on June 14, 2004. (Id. ¶ 30; Respondent's Opp'n ¶¶ 7-9; Ex.2.) Petitioner reported to the NMPS where a Navy doctor found him fit for duty as an orthopedic surgeon. (Am. Pet. ¶ 19.) Another examination by another Navy physician on June 4, 2004 concluded that petitioner's shoulder condition rendered him non-deployable. (Id. ¶ 20.)

  On June 7, 2004, petitioner transferred for processing to his current station, namely, Fort Benning, Georgia, a staging area for deployment overseas. (Id. ¶ 21.) There, he is on active duty and under the administrative control of the Naval Reserve Center in Columbus, Georgia. A Fort Benning Army orthopedic surgeon examined petitioner's shoulder and concluded that petitioner was "unable to perform full effort except for brief or moderate periods." (Id.) Petitioner alleges that his command contacted the Army doctor to change petitioner's status to deployable, and that on June 10, 2004, his status was changed to deployable. (Id. ¶ 24.)

  Blackmon filed his petition for a writ of habeas corpus here on June 11, 2004 under 28 U.S.C. § 2241 (2000) naming the Secretary of the Navy as the respondent. Respondent moves to dismiss, arguing that he is not petitioner's immediate custodian within the meaning of the habeas statute and that the court lacks jurisdiction over the petition. Respondent contends that the "custodian of an active duty servicemember, such as petitioner, is the immediate officer in his chain of command who has control over him." (Respondent's Opp'n at 8.) Petitioner opposes, arguing that the respondent, acting through his agents at the Bureau of Medicine and Surgery ("BUMED") located in the District of Columbia, "implement[ed] the selection process that led to Petitioner's orders to deploy." (Petitioner's Opp'n to Respondent's Mot. To Dismiss at 6.) Because BUMED reviewed and nominated petitioner for deployment to Afghanistan, found petitioner uniquely situated to perform active duty in Afghanistan, and is responsible for "adjudicat[ing] the recall and mobilization to active duty [of] approximately 7,000 Naval reservists" (Respondent's Opp'n Ex.2 at ¶ 2), petitioner contends that the Secretary of the Navy — acting through his BUMED agents — controlled and commanded his deployment orders, making the Secretary of the Navy the proper respondent in his case. Petitioner stated in oral argument that BUMED did not issue the deployment order and conceded that BUMED could not issue the order requiring petitioner to deploy.


  Under 28 U.S.C. § 2241, a person who is "in custody in violation of the Constitution or laws or treaties of the United States" may apply for a writ of habeas corpus in district court. 28 U.S.C. § 2241(c)(3). Writs of habeas corpus may be granted by the district courts within their respective jurisdictions, id. at § 2241(a), for "members of the armed services who have been unlawfully detained, restrained or confined." Schlanger v. Seamans, 401 U.S. 487, 489 (1971). A writ of habeas corpus "shall be directed to the person having custody of the person detained." 28 U.S.C. § 2243; see also Eisel v. Sec'y of the Army, 477 F.2d 1251, 1253 (D.C. Cir. 1973).

  Armed forces detainees may be classified on a scale of types of custody which can determine who the proper custodian is and in which judicial district habeas relief would be available. In the case of traditional prisoner petitioners, "when there is only one custody and one physical custodian[,]" the custodian is the warden at the physical detention site where the petitioner is being held. al-Marri v. Rumsfeld, 360 F.3d 707, 712 (7th Cir. 2004) (finding that the Secretary of Defense was not the proper respondent for a writ of habeas corpus brought by an enemy combatant held in South Carolina and dismissing petition for lack of jurisdiction). In those cases, "[f]or the purposes of the federal habeas corpus statute, jurisdiction is proper only in the district in which the immediate, not the ultimate, custodian is located" or where the petitioner is incarcerated. Monk v. Sec'y of the Navy, 793 F.2d 364, 369 (D.C. Cir. 1986).

  However, when "custody takes a form other than physical detention — for example, parole or an obligation to report for military service — it is necessary to identify as a `custodian' someone who asserts the legal right to control [w]hat is being contested in the litigation." al-Marri, 360 F.3d at 711. With service members petitioning to separate from the military, this circuit recognizes a distinction between members on active duty and those on inactive duty for the purposes of identifying the proper respondent. In Eisel v. Sec'y of the Army, the court noted that the concept of custodianship in the traditional sense is associated with petitioners on active duty with unit assignments or on leave of absence "since the custodian is not an object of speculation as with the inactive reservist. In short, the nature of the custodian [with those maintaining contacts with the military through a chain of command, like an active duty officer, is] similar to the traditional definition of that term." 477 F.2d 1251, 1263 (D.C. Cir. 1973). The proper respondent in those circumstances, therefore, is a petitioner's commanding officer.

  On the other end of the scale, Eisel recognized that inactive reservists disconnected from any base or any one commander who petitioned for separation faced the "practical impossibility of obtaining . . . jurisdiction" over a custodian. Id. at 1262. The court noted that inactive reservists, unlike active duty members, have no custodians that
exercise[] any real control over the petitioners. The commanders of the record centers and the bases to which petitioners have been ordered to report have never had anything to do with the denial of the requests for release. The record centers' commanders have been mere shadows through which others worked and the relationship of the base commanders is at best potential. By like token, the civil service Secretaries' relationship to the petitioners is extremely remote.
Id. at 1262. At base, the court found that it was the "bureaucracy" that denied the separation petitions for the inactive reservists. Id.

  Eisel therefore rejected as too narrow the respondents' contention in that case that the Secretary of the Navy and the Air Force were not proper respondents because they were not the "immediate custodians" of the petitioners who sought discharge from the inactive reserves as conscientious objectors. 477 F.2d at 1258. "Nowhere does [§ 2241] speak of an `immediate custodian' or intimate that an action must necessarily be instituted in the location of such an `immediate custodian,' even if it were possible to grant substance to the vague concept of `immediate custodianship.'" Id.

  However, the court also acknowledged that "[a]ccepting . . . the nature of the inactive reservists' custody and his custodian does not mean . . . that he may choose his forum by simply appearing personally in a jurisdiction, thereby bringing his mental jailer along with him." Id. at 1263. Eisel therefore created the rule*fn1 that where an inactive reservist's custodian is unidentifiable, the petitioner's home or domicile would serve as the proper jurisdictional forum for a habeas challenge. Id. at 1265. Thus Eisel suggested that the first step in this functional analysis would be to determine whether the court had jurisdiction over the matter based on the petitioner's contacts*fn2 — namely, whether it was his place of domicile — and the second, to name a ranking military officer who could be found in that forum jurisdiction. In describing who could be named as the proper respondent, the court described "the officer who signed the order denying the petitioner ...

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