United States District Court, District of Columbia
A. HOWELL, CHIEF JUDGE.
pro se petitioner, Michael Fourte, is a Reserve
Naval Officer with 20 years of service in the United States
Navy, including over 16 years of active duty service. Pet.
for Writ of Habeas Corpus and Compl. for Declaratory and
Injunctive Relief (“Pet.”) ¶ 11, ECF No. 1.
Currently deployed in Africa on active duty orders,
id. ¶¶ 39, 44, Fourte seeks a writ of
habeas corpus requiring the respondent, Richard V. Spencer,
the Secretary of the Navy, to demobilize him, id. at
31, and restore him to his previous active duty assignment in
Washington, D.C., see Civil Case Form for Habeas
Petitions Under 28 U.S.C. § 2241 (“Habeas
Form”) at 8 (Request for Relief), ECF No. 1. According
to Fourte, he is entitled to this reassignment because he has
been unlawfully ordered to duty in Africa, in violation of a
Navy “directive . . . mandat[ing] that the Navy will
not involuntarily mobilize reservists with over 16 years of
active service without justification and a . . .
waiver.” Pet. at 1. For the reasons discussed below,
the pending habeas petition seeking a judicial order to
countermand a military deployment order and to reassign an
active duty Naval officer to a duty station in Washington,
D.C., crosses the boundaries of justiciability and is
previously filed a habeas petition, in the form of a
complaint, in this Court challenging the same allegedly
illegal military deployment order, and that petition was
transferred to the United States District Court for the
District of South Carolina (“D.S.C.”). See
Fourte v. Spencer, No. 18-cv-1847, Mem. & Order at
1- 6 (D.D.C. Aug. 10, 2018) (D.D.C. order transferring first
habeas petition to D.S.C. (“D.D.C. 2018 Transfer
Order”)). The petition was ultimately dismissed without
prejudice after the transfer. See Fourte v. Spencer,
No. 18-cv-2212, 2018 WL 3845136, at *1 (D.S.C. Aug. 12, 2018)
(D.S.C. Magistrate Judge's report recommending dismissal
of Fourte's first habeas petition (“D.S.C.
Magistrate's 2018 R&R”)); Fourte v.
Spencer, No. 18-cv-2212, 2018 WL 3829232, at *1-3
(D.S.C. Aug. 13, 2018) (D.S.C. Order and Opinion dismissing
Fourte's first habeas petition (“D.S.C. 2018
Dismissal Order”)). The relevant facts and procedural
history are set out below as context for resolution of the
Fourte's Deployment to Active Duty in Africa
is a Navy reservist, who has “over 16 years of total
active duty service.” Pet'r's Decl. Supp. Writ
of Habeas Corpus (“Pet'r's Decl.”) (Aug.
27, 2018) ¶ 3, ECF No. 1. On May 31, 2018, while
stationed on “active duty” at the Washington Navy
Yard in Washington, D.C., he was “ordered to active
duty” at a different “assignment in Africa”
to serve as an Officer in Charge of a military base for one
year. Id. ¶¶ 4, 6-7; Pet. ¶¶
15-16, 22. Within a week, on June 5, 2018, Fourte
“contacted the regional Judge Advocate General for
Region Mid-Atlantic Reserve Component Command” to
explain that “the [respondent] . . . needed a waiver
and justification in order to mobilize” him for the
Africa assignment because he would have over 16 years of
active duty service by the time of the assignment.
Pet'r's Decl. ¶¶ 8, 17. The next day,
Fourte was informed that the respondent planned to seek such
a waiver. Id. ¶ 9.
his chain of command, Fourte learned, on June 15, 2018, that
a “waiver had been approved, ” id.
¶ 12, and approximately one week later, he obtained a
copy of the waiver, id. ¶ 14; Pet. ¶ 30,
which had been issued on June 7, 2018, Pet., Ex. A,
Department of the Navy, Navy Personnel Command Waiver for
Partial Mobilization Orders for Michael Fourte (June 7,
2018), ECF No. 1-1. In compliance with “the Africa
orders, ” Fourte was “mobilized to active duty
involuntarily” on July 20, 2018, and he reported to
Fort Jackson in South Carolina for training. Pet.
¶¶ 39, 41.
Navy has explained that that the position for which Fourte
was chosen, Officer in Charge, is “[r]esponsible for
the overall safety, security, and well-being of the [base]
and all troops therein.” Resp't's Resp. to
Order to Show Cause (“Resp't's Resp.”) at
5, ECF No. 9. The Navy advertised this position, but when no
volunteers applied, the Navy ran a search within its database
and Fourte was the only Reservist who satisfied each of the
position's requirements. See id., Ex. E., Decl.
of Quinton S. Packard, Commander, Navy Reserve Forces Command
(“Packard Decl.”) (Aug. 10, 2018) ¶¶ 4,
5, 8, ECF No. 9-5. Specifically, Fourte was the “first
fully-qualified Sailor on the list of the top 10 qualified
Sailors to fill this position, ” and the only officer
who satisfied the “command experience
requirement” and held the required security clearance.
Id. ¶ 8.
believes that the waiver paperwork for the Africa deployment
was “non-compliant” because the Navy “did
not . . . conform to the [Navy's] own procedures for
waivers” in Chief of Naval Operations Instruction
1001.27. Pet. ¶¶ 25-26. For example, in
his view, the Navy originated the waiver in the wrong office,
id. ¶¶ 56-64, did not include a
justification in the waiver for selecting Fourte as the
“only qualified” reserve member for the Africa
assignment, id. ¶ 66, included an incorrect
endorsement, id. ¶¶ 80-84, failed to
obtain Fourte's signature to verify his total active duty
service time, id. ¶¶ 56-64, 85-90, and
prepared the waiver in the wrong format, id.
Navy offered Fourte an “opportunity to present his
objections” to the waiver paperwork to a Special Cases
Board, but he rejected this offer. Resp't's Resp. at
6; Packard Decl. ¶ 9. Instead, Fourte “attempted
to resolve this matter with the [respondent] by utilizing
[his] chain-of-command and separately by filing a formal
Complaint of Wrongs under Article 1150 of the Navy
Regulations.” Pet'r's Decl. ¶ 18. Fourte,
who has a law degree, retained counsel for his Article 1150
complaint, which was filed on July 16, 2018. Pet.
¶¶ 14, 38.
Fourte's First Habeas Petition
Fourte's Article 1150 complaint was pending, id.
¶ 42, and before his deployment to Africa,
Pet'r's Decl. ¶ 26, he filed his first habeas
petition in this Court on August 7, 2018. Compl. for
Declaratory and Injunctive Relief (“First Habeas
Petition”) at 1, Fourte v. Spencer, No.
18-cv-1847 (D.D.C. Aug. 7, 2018), ECF No. 1. This First
Habeas Petition sought a declaration of his mobilization as
unlawful, arguing that the Navy violated the Administrative
Procedure Act (“APA”), 5 U.S.C. § 706,
because the waiver “did not comply with [the
Navy's] own directives and decision processes and did not
justify why [Fourte] is the only qualified candidate.”
Id. On the same day, he also filed a motion for a
preliminary injunction to enjoin the Navy from enforcing its
mobilization orders. Mot. for Prelim. Inj. at 1, 3,
Fourte v. Spencer, No. 18-cv-1847 (D.D.C. Aug. 7,
2018), ECF No. 2. The action was transferred, sua
sponte, because at that time, Fourte was stationed at
Fort Jackson in South Carolina, and as a result, jurisdiction
over the petition was appropriately placed in the District of
South Carolina. See D.D.C. 2018 Transfer Order at
4-6 (citing Rooney v. Sec'y of the Army, 405
F.3d 1029, 1032 (D.C. Cir. 2005)).
D.S.C.'s Dismissal of Fourte's First Habeas
the action was transferred, a magistrate judge in South
Carolina recommended, on August 12, 2018, that the district
court dismiss Fourte's action. See D.S.C.
Magistrate's 2018 R&R, at *1. This recommendation was
adopted, and the district court denied Fourte's motion
for a preliminary injunction and dismissed his habeas action
without prejudice. See D.S.C. 2018 Dismissal Order,
at *1. Specifically, the D.S.C. 2018 Dismissal Order
concluded that Fourte's claim was not justiciable because
“a civilian court is not permitted to review an
internal military decision unless a service member
demonstrates . . . (1) ‘an allegation of the
deprivation of a constitutional right, or an allegation that
the military has acted in violation of applicable statutes or
its own regulations,' and (2) an ‘exhaustion of
available intraservice corrective measures, '”
id. at *2 (quoting Williams v. Wilson, 762
F.2d 357, 359 (4th Cir. 1985)). That court concluded that