UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Hospital, Appellee 1967.CDC.174
Bazelon, Chief Judge, and Danaher, Burger, Wright, McGowan, Tamm, Leventhal and Robinson, Circuit Judges, sitting en banc. Danaher, Circuit Judge [concurring in the result]. Burger, Circuit Judge (concurring).
Appellants in these two cases are patients at St. Elizabeths under civil commitment. Each appeals from a dismissal by the District Court, after hearing, of his habeas corpus petition. We reverse and remand in each case for a new hearing before a different judge.
Appellant Dobson, in addition to claiming eligibility for immediate release -- a question which was heard and decided adversely to him -- raised a variety of other issues. The trial court did not regard any of these as justiciable. Since one of them was an alleged denial of the right to treatment, reversal and remand for a new hearing is required in any event. *fn1 21 D.C.Code § 562 (Supp. V., 1966); and see Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451 (1966).
In such new hearing, we regard the issue of eligibility for release as also open for a fresh inquiry and determination, since we are not satisfied that its resolution was founded upon an adequate hearing. We do not address ourselves specifically to the matters referred to in Note 1 (supra) since we are content to leave their disposition to the judge presiding at the new trial. We note only that some of them would appear to be intimately related to, and perhaps a part of, the central issue of the adequacy of treatment; and that, to the extent this is so, they are inevitably implicated in the trial of that issue.
It has been urged upon us in this appeal that the habeas corpus petition should not have been entertained at all, much less made the occasion of a hearing, because appellant did not first pursue the administrative remedy which Congress has expressly provided in 21 D.C.Code § 546 (Supp. V., 1966). This court has heretofore indicated its belief that such
In his pro se petition, appellant Stultz asserted only that he was being improperly held in the maximum security ward and should be tranferred to another place within the hospital. This issue, which the trial judge had not regarded as justiciable in Dobson, was nevertheless made the subject of an evidentiary hearing which ended with a ruling by the judge that, even though he had no jurisdiction, he would deny the relief sought on the merits. Being unconvinced that, under these circumstances, there has been a meaningful hearing and resolution of the claim advanced, we reverse and remand for a new hearing.
On appeal it was alleged for the first time that there had been a denial of appellant's right to treatment. 21 D.C.Code § 546 (Supp. V., 1966); and see Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451 (1966). Our remand contemplates that this issue may be raised in the District Court if appellant so elects. With respect to the exhaustion of administrative remedies, we note that appellee's return to the writ appears to have raised this question, but that the writ was nonetheless directed to issue. We have suggested above in Dobson the substantiality we attribute to this question; and, as in our remand in that case, we direct that the parties shall be free upon this remand to take such action as they deem fit with respect to this issue, with the court making such disposition of it as it thinks warranted in the circumstances which obtain here. *fn3
The judgments are reversed and the cases remanded for further proceedings ...