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decided: March 23, 1971.



Douglas, J., delivered the opinion of the Court, in which Burger, C. J., and Black, Brennan, White, Marshall, and Blackmun, JJ., joined. Harlan, J., concurred in the result. Stewart, J., dissented.

Author: Douglas

[ 401 U.S. Page 487]

 MR. JUSTICE DOUGLAS delivered the opinion of the Court.

The sole question in this case is whether the District Court for the District of Arizona had jurisdiction to entertain on the merits petitioner's application for a writ of habeas corpus. He is an enlisted man who was accepted in the Airman's Education and Commissioning Program, an officer training project, and was assigned to

[ 401 U.S. Page 488]

     Wright-Patterson Air Force Base (AFB), Ohio, "with duty at Arizona State University" for training. While studying in Arizona and before completion of the course, he was removed from the program, allegedly for engaging in civil rights activities on the campus.

While he was seeking administrative relief through command channels, he was reassigned to Moody AFB, Georgia, to complete the remainder of his six-year re-enlistment in a noncommissioned status. After exhausting those remedies he was given permissive temporary duty to attend Arizona State for study, this time by his superiors at Moody AFB under a different program called Operation Bootstrap, and at his own expense.*fn1

Thereafter*fn2 he filed his application for habeas corpus in Arizona alleging that his enlistment contract had been breached and that he was being detained unlawfully. The District Court denied the application. The Court of Appeals affirmed on the basis of Jarrett v. Resor, 426 F.2d 213. The case is here on a petition for certiorari which we granted. 400 U.S. 865.

The respondents to this suit are the Secretary of the Air Force, the Commander of Moody AFB, and the Commander of the AF ROTC program on the Arizona State campus. The last respondent was the only one of the

[ 401 U.S. Page 489]

     three present in Arizona and he had no control over petitioner who concededly was not in his chain of command, since petitioner was not in the AF ROTC program, but in Operation Bootstrap. The commanding officer at Moody AFB in Georgia did have custody and control over petitioner; but he was neither a resident of the Arizona judicial district nor amenable to its process.

It is true, of course, that the commanding officer at Moody AFB exerted control over petitioner in the sense that his arm was long and petitioner was effectively subject to his orders and directions. There are cases which suggest that such control to establish custody may be adequate for habeas corpus jurisdiction even though the control is exercised from a point located outside the State, as long as the petitioner is in the district or the State. Donigian v. Laird, 308 F.Supp. 449. For reasons to be stated, we do not reach that question.

The procedure governing issuance of the writ is provided by statute. The federal courts may grant the writ "within their respective jurisdictions." 28 U. S. C. § 2241 (a). While the Act speaks of "a prisoner" (28 U. S. C. § 2241 (c)), the term has been liberally construed to include members of the armed services who have been unlawfully detained, restrained, or confined. Eagles v. Samuels, 329 U.S. 304, 312. The Act extends to those "in custody under or by color of the authority of the United States." 28 U. S. C. § 2241 (c)(1). The question in the instant case is whether any custodian, or one in the chain of command, as well as the person detained, must be in the territorial jurisdiction of the District Court.

In Ahrens v. Clark, 335 U.S. 188, we held that it was not sufficient if the custodian alone be found in the jurisdiction where the persons detained were outside the jurisdiction*fn3

[ 401 U.S. Page 490]

     and that jurisdiction over the respondent was territorial.*fn4 The dissent in that case thought that the critical element was not where the applicant was confined but where the custodian was located; that if the custodian were in the territorial jurisdiction of the District Court, then appropriate relief could be effected.

Whichever view is taken of the problem in Ahrens v. Clark, the case is of little help here. For while petitioner is within the territorial jurisdiction of the District Court, the custodian -- the Commander of Moody AFB --

[ 401 U.S. Page 491]

     is not. In other words, even under the minority view in Ahrens v. Clark, the District Court in Arizona has no custodian within its reach against whom its writ can run. Hence, even if we assume that petitioner is "in custody"*fn5 in Arizona in the sense that he is subject to military orders and control which act as a restraint on his freedom of movement (Jones v. Cunningham, 371 U.S. 236, 240), the absence of his custodian is fatal to the jurisdiction of the Arizona District Court. Cf. Rudick v. Laird, 412 F.2d 16, 21.

Had petitioner, at the time of the filing of the petition, been under the command of the Air Force officer assigned

[ 401 U.S. Page 492]

     as liaison officer at Arizona State to supervise the Education and Commissioning Program, we would have a different question. We do not reach it nor do we reach any aspects of the merits, viz., whether, if petitioner be right in contending that his contract of enlistment was breached, habeas corpus is the appropriate remedy.


MR. JUSTICE HARLAN concurs in the result.




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