Scaggs v. Larsen/Opinion of the Court

This is a phase of review of the action of respondents in ordering movant to active duty in the United States Army Reserve for a period of approximately 17 months beyond the term of his enlistment contract. His enlistment expires in September 1969. He was directed in January 1969 to join a unit of the Ready Reserve and attend regular drills. If his allegations are to be believed, he made a diligent effort to comply but was rejected, since his enlistment period would expire in September 1969. Up until that time he had met all the requirements of the Army Ready Reserve. He claims that the order thereafter entered requiring him to serve about 17 months beyond the end of his enlistment contract was punitive and unauthorized.

He therefore filed a petition for habeas corpus with the District Court complaining that the crucial step taken when he was ordered to active duty was taken without notice and an opportunity to be heard in violation of procedural due process and also was in violation of the terms of his enlistment contract. The District Court denied the petition, and that decision is presently awaiting review by the Court of Appeals. Scaggs seeks by this motion release from military custody pending that review.

He rests on 28 U.S.C. s 2241 to support his claim that the District Court has jurisdiction of the habeas corpus action.

It has been argued in other cases that the word 'custody' indicates that s 2241 does not reach cases where military authority is being contested by civilians at a pre-induction stage or by servicemen not yet convicted of an offense who entered the Armed Forces 'voluntarily.' I take the opposed view, though the question has not been authoritatively decided. However that may be, s 2241 is not a measure of the constitutional scope of the guarantee in Art. I, s 9, of the Constitution that: 'The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.'

The Great Writ was designed to protect every person from being detained, restrained, or confined by any branch or agency of government. In these days it serves no higher function than when the Selective Service Boards (Oestereich v. Selective Service System Local Bd., 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402) or the military act lawlessly. I conclude, in other words, that in spite of the prejudice that exists against review by civilian courts of military action, habeas corpus is in the tradition of Oestereich wherever lawless or unconstitutional action is alleged.

As stated, the gravamen of the complaint in this case is that the critical steps forcing petitioner to serve beyond his enlistment contract were taken without notice and opportunity on his part to be heard. The statute makes no provision for a hearing. Neither did the statute in Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616, authorizing the deportation of aliens. But the Court said that constitutional requirements made a hearing necessary.

Neither deportation nor a military order to active duty is in form penal. But the requirement that a man serve beyond his enlistment contract may be as severe in nature as expulsion from these shores. At least the issue presented is substantial and should be resolved.

It is hereby ordered that petitioner be, and he is hereby, released on his own recognizance from any and all custody of the United States Army or the United States Army Reserve, and from compliance with the orders heretofore issued, requiring that he report for active duty at Fort Ord, California, on July 27, 1969. This order shall remain in effect until a determination of the cause on the merits by the Court of Appeals.