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Isenbarger v. Farmer

November 29, 2006

DANIEL W. ISENBARGER, PETITIONER,
v.
KENNETH L. FARMER, JR., RESPONDENT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Petitioner, a Lieutenant Colonel in the United States Army, seeks a writ of habeas corpus ordering respondent to discharge him from the United States Army on or before June 30, 2007, and to remove from his record all references to a purported extension of his active duty service obligation ("ADSO") to June 30, 2010. Petitioner contends that the Army unlawfully extended his term of active duty based on retroactive application of a Department of Defense regulation to his contract. In response to an order from this Court to show cause why the writ should not issue, respondent notified the Court that petitioner's ADSO was subject to further review by the Army and has been restored to the original June 30, 2007 date. Respondent accordingly contends that the alleged unlawful extension is not ripe for adjudication and, in the alternative, that the relief requested is not authorized by the habeas statute, 28 U.S.C. § 2241, absent present unlawful custody and exhaustion of administrative remedies.

The Court concludes that there is no case or controversy at this time as to the lawfulness of petitioner's future custody and, thus, no subject matter jurisdiction over the application for writ of habeas corpus. To the extent that petitioner seeks to remove any remaining references to the incorrect ADSO calculation from his military records, the proper forum is the Army Board for Correction of Military Records ("ABCMR").

BACKGROUND

Petitioner is assigned as a medical officer in Interventional Cardiology at Walter Reed Army Medical Center in Washington, D.C. and was deployed in Iraq in support of Operation Iraqi Freedom until October 2006. Pet'r's Application for Writ of Habeas Corpus ("Pet.") ¶ 4; Resp't's Response to Order to Show Cause ("Resp't's Br.") at 2. Petitioner currently has an ADSO with the Army until June 30, 2007. Decl. of Major Terry G. Owens ("Owens Decl.") ¶ 3 (Resp't's Br. Ex. 1). The ADSO is based on petitioner's participation in graduate medical education ("GME") at the fellowship level. Resp't's Br. at 2; Owens Decl. ¶ 3.

Petitioner's initial ADSO was incurred pursuant to a Health Professions Scholarship Program contract signed on July 15, 1986. Pet. ¶ 9. Pursuant to the terms of the contract, he committed to a four-year ADSO in exchange for payment of medical school tuition and expenses. Id. and Ex. 1. At that time, the standards governing the duration of petitioner's ADSO were set forth in the 1981 version of Department of Defense Directive 6000.2, "Minimum Terms of Service and Active Duty Obligations for Health Service Officers." Pet. ¶ 10. In 1988, the Department of Defense revised the directive, increasing the ADSO for time spent in military-sponsored GME programs. Id. ¶ 11. The directive provided that it shall not be applied to change an ADSO entered into in writing before April 1, 1988. Id. (citing 1988 Dep't of Defense Directive 6000.2 ¶ G).

In 1991, petitioner graduated from medical school and entered on active duty. Pet. ¶ 14. He later had additional opportunities to receive GME through various fellowship programs, conditioned upon a further ADSO commitment. Id. ¶¶ 16-24. In three separate instances, in 1996, 2001, and 2004, the Army applied the 1981 version of Department of Defense Directive 6000.2 to recalculate the ADSO petitioner would incur in exchange for his participation in cardiology and interventional cardiology GME fellowship programs. Id. ¶¶ 16, 20, 23. Petitioner agreed to participate in two of these programs, which resulted in extensions of his ADSO according to the 1981 directive. Owens Decl. ¶ 3; Pet. ¶¶ 19, 22. Petitioner signed his most recent training agreement with the Army on January 15, 2004. Pet. ¶ 22 and Ex. 4. In accordance with the terms of that agreement, his ADSO was adjusted to terminate on June 30, 2007. Pet. Ex. 4 ("Should you accept this training, your new ADSO upon successful completion will end on June 30, 2007.").

On January 20, 2006, the U.S. Army Office of the Surgeon General requested that the Chief, Personnel Services Branch, U.S. Army Human Resources Command, "correct" petitioner's ADSO to June 30, 2010. Resp't's Br. at 2; Owens Decl. ¶ 4. The change was based on an interpretation of Department of Defense Directive 6000.2. Pet. ¶ 28; Owens Decl. ¶ 4. In response to the request, petitioner's ADSO was adjusted to read June 30, 2010 in the Total Officer Personnel Management Information System ("TOPMIS") and the Medical Operating Data System ("MODS"). Resp't's Br. at 2; Owens Decl. ¶ 5. Petitioner was notified of the change through a memorandum from Major Terry G. Owens dated March 9, 2006. Pet. ¶ 26. In relevant part, the memorandum stated:

A review of your active duty service obligation (ADSO) for training was conducted by this office. This review indicated a misrepresentation of DoD instruction, Medical Manpower and Personnel, June 30, 1997, 6000-13, para 6.6.3.1. and para 6.6.3.2 whereby, your ADSO of 30 June 2007, should actually read 30 June 2010. . . . . . . Although you signed a training agreement obligating you until 30 June 2007, it is amended by this notification. If you believe your obligation is still incorrect, you may submit to the Army Board for Correction of Military Records (ABCMR) for their adjudication.

Pet. Ex. 5.

On May 3, 2006 petitioner objected to the Army's effort to extend his ADSO to June 30, 2010. Pet. ¶ 53. He then filed this suit a month later, seeking a writ of habeas corpus requiring the Army to discharge him on June 30, 2007 and to remove from his record all references to the extension of his ADSO from June 30, 2007 to June 30, 2010. Id. ¶ 57. By declaration dated June 28, 2006, the Army notified the Court and petitioner that, "after further review," the U.S. Army Human Resources Command had decided to return petitioner's ADSO to the original date. Owens Decl. ¶ 6. Pursuant to this decision, petitioner's ADSO was returned to June 30, 2007 in the TOPMIS and MODS databases, and thus his ADSO expires on the original date of June 30, 2007. Id.

STANDARD OF REVIEW

In response to the order to show cause why the writ should not issue, respondent contends that the Court lacks subject matter jurisdiction over the petition because the claims are not ripe and the jurisdictional prerequisite of unlawful custody is lacking. Respondent also contends that petitioner has failed to exhaust his administrative remedies. In effect, then, respondent requests dismissal of the petition, and hence it is appropriate to apply the standards of review applicable to motions to dismiss under Rules 12(b)(1) and 12(b)(6). See Khalid v. Bush, 355 F. Supp. 2d 311, 317 n.6 (D.D.C. 2005). "[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Leatherman v. Tarrant Cty. Narcotics and Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). A plaintiff's factual allegations must be presumed true, and plaintiff also must be given every favorable inference that may be drawn from the allegations of fact. Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, a court need not accept as true "a legal conclusion couched as a factual allegation," nor inferences that are unsupported by the facts set out in the complaint. Trudeau v. Federal Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court --petitioner here -- bears the burden of establishing that the court has jurisdiction. See US Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000); see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (a court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority"); Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). "'[P]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure ยง 1350 (2d ed. 1987)). Additionally, a court may consider material other than the allegations of the complaint in determining whether it has jurisdiction to hear the case, so long as it still accepts the factual ...


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