Polsky v. Wetherill

LEWIS, Chief Judge. This appeal is from an order of the United States District Court for the Western District of Oklahoma denying relief to petitioner-appellant by writ of habeas corpus. The case was first submitted to a panel of this court, such submission by stipulation being later vacated in favor of submission to the court en banc when it became clear that review of the ease on its merits and in its present posture would require the court to overrule its decision in Noyd v. McNamara, 378 F.2d 538, cert. denied, 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667. We decline to recede from the substance of our decision in Noyd. Appellant Polsky enlisted in the United States Army Officer Candidate Program on October 12, 1969, entered active duty on October 15, and was subsequently assigned to Officer Candidate School at Fort Sill, Oklahoma. He is presently stationed at Fort Sill. On April 23, 1970, Polsky applied for discharge from the Army as a conscientious objector and his application was duly processed under applicable Army regulations. AR 653-20. Polsky’s application was ultimately disapproved by the Secretary of the Army, such disapproval being premised, in substance, on an administrative determination that Polsky was, in fact, a sincere conscientious objector but that his beliefs in such regard had not crystallized during military service but were existent at the time of Polsky’s voluntary enlistment. Assuming support for this factual determination it is not disputed that Polsky would not be entitled to discharge under existent Army regulations. On August 4, 1970, Polsky filed his petition for a writ of habeas corpus in the district court alleging an unlawful restraint within the military because the administrative decision had no support or basis in fact and had been reached through unfair administrative procedures amounting to a denial of due process. The trial court rejected both contentions on the merits and this appeal followed.1 In Noyd this court was asked to review and determine the validity of a military assignment to particular duty. We held that civilian courts lacked jurisdiction over military matters still within the ambit of military process. Other circuits have held otherwise and the Supreme Court has recognized the conflict but left it unresolved. Noyd v. Bond, 395 U.S. 683, 685 n.l, 89 S.Ct. 1876, 23 L.Ed.2d 631. Again, in Craycroft v. Ferrall, 397 U.S. 335, 90 S.Ct. 1152, 25 L.Ed.2d 351, the Supreme Court acknowledged the conflict among the circuits and remanded that case to the Ninth Circuit for specific consideration of the question. In Craycroft, and by departmental directive, the United States has indicated it will no longer press the position that originally persuaded this court to render its decision in Noyd. The case at bar not only contains the basic issue we considered in Noyd but would require extension of civil federal [134] court jurisdiction beyond questions of statutory interpretation and matters containing overtones of constitutional impact into the general field of review of military administrative decisions for a determination of whether such decisions are factually capable of support. We cannot but predict a gloomy outlook for the pragmatic future of both the military and the civil federal judiciary if such be the required procedure. And we are not persuaded to the contrary by cases giving consideration to Selective Service procedures such as Oestereich v. Selective Serv. Bd., 393 U.S. 233, 89 S. Ct. 414, 21 L.Ed.2d 402. The subject matter of Selective Service cases of this nature simply do not involve persons admittedly lawfully within the military service and thus subject to day by day military control and procedures. We recognize, of course, the harshness of any procedure that requires any person to expose himself to the potential of a court martial or a civilian criminal prosecution as a prerequisite to a judicial determination of claimed rights. Congress can easily remove such dilemma by appropriate legislation for the subject matter we here consider, relief from military service because of conscientious objection, does not involve a constitutional right. And if present judicial power exists to review or consider the validity of military administrative decisions such as the one in the case at bar by way of habeas corpus we would deem the Court of Military Appeals to be the appropriate forum in the first instance. That court has, however, denied or refused its jurisdiction to issue the writ prior to the actual institution of court martial proceedings. Mueller v. Brown, 40 C.M.R. 246; United States v. Snyder, 40 C.M.R. 192. The judgment of the district court is reversed and the case remanded to that court with instructions to dismiss for lack of jurisdiction. In order to allow the parties full opportunity to pursue available remedies further, the restraining order heretofore entered by this court shall continue in effect for 30 days after the filing of this opinion. Thereupon, unless otherwise ordered, the restraining order shall be dissolved without further order and the mandate shall then issue forthwith. Footnotes [1] We recognize that the court below and the parties did not purposely disregard the jurisdictional impact of Noyd but reached the merits for understandable but extraneous reasons,