author: Mr. Justice CLARK:

text:
    Mark AVRECH, Appellant, v. The SECRETARY OF the NAVY.
    No. 71-1841.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 5, 1972.
    Decided March 20, 1973.

      Dorian Bowman, New York City, and David Rein, Washington, D. C., for appellant.
    Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Michael A. Katz and James F. McMullin, Asst. U. S. Attys., for appellee.
    Before Mr. Justice CLARK, and WRIGHT and WILKEY, Circuit Judges.

       Mr. Justice Tom C. Clark, United States Supreme Court, Retired, sitting by designation pursuant to 28 U.S.C. § 294(a) (1970).

   Mr. Justice CLARK:

Appellant, Mark Avrech, brought this suit seeking a declaration that his 1969 court-martial conviction was constitutionally invalid under the First and Fifth Amendments and an order that the conviction be expunged from his military record and that he recover all pay and benefits lost by reason of the conviction. Avrech was convicted of violating Article 134 of of the Uniform Code of Military Justice, known as the “General Article,” which imposes criminal sanctions on “all disorders and neglects to the prejudice of good order and discipline in the armed forces” and “all conduct of a nature to bring discredit upon the armed forces.” More specifically, Avrech was charged with attempting to publish and publishing a statement disloyal to the United States, with design to promote disloyalty and disaffection among the troops. After pleading not guilty, he was acquitted of publishing but found guilty of attempting to publish the statement. He complains that the language of Article 134 is unconstitutionally vague and over-broad under the Fifth Amendment in that the Article did not give him fair notice that his contemplated statement was forbidden; he also urges that his statement was protected free speech under the First Amendment. The District Court upheld his conviction. We reverse on the Fifth Amendment ground.

1. Background of the Prosecution:

Avrech enlisted in the Marines in 1967 and was sent to Vietnam in February, 1969, with the rank of private first class. While stationed at Danang and on night duty with the group supply of-, fices, Avrech typed up a stencil criticizing American involvement in Vietnam. It stated:

“I’ve been in this country now for 40 days and I still don’t know why I’m here. I’ve heard all the arguments about communist aggression and helping the poor defenseless people. I’ve also heard this three years ago. The entire Vietnamese Army will switch to a pacification role in 1967 and leave major fighting to the American troops. (Statement of South Vietnamese Foreign Minister, L. A. Times, Nov. 18, 1966.) It seems to me that the South Vietnamese people could do a little for the defense of their country. Why should we go out and fight their battles while they sit home and complain about communist aggression. What are we cannon fodder or human beings? If South Vietnam was willing to go it on their own back in 1964 what the hell is the matter with them now? The United States has no business over here. This is a conflict between two different politically minded groups. Not a direct attack on the United States. It’s not worth killing American boys to have Vietnam have free elections. (Former Vice President Richard M. Nixon, L. A. Times, December 31, 1967.) That was our present leader of this country and now he has the chance to do something about the situation and what happens. We have peace talks with North Vietnam and the V.C. That’s just fine and dandy except how many men died in Vietnam the week they argued over the shape of the table? Why does this country think that it can play games with peoples lives and use them to fight their foolish wars, I say foolish because how can you possibly win anything like a war by destroying human lives. Human lives that have no relation at all to the cause of the conflict. Do we dare express our feelings and opinions with the threat of court-martial perpetually hanging over our heads ? Are your opinions worth risking a court-martial? We must strive for peace and if not peace then a complete U.S. withdrawal. We’ve been sitting ducks for too long. ***** *SAM* ”

Sometime thereafter Avrech asked his immediate superior, Corporal William R. Jackson, who was operating the mimeograph machine in their office, to duplicate the statement or permit him to do so. When Jackson inquired as to the content of the stencil, Avrech replied: “If I tell you that you won’t let me run it off.” Jackson then refused. Later Avrech let Jackson read the stencil; the latter reproached Avrech and subsequently turned it over to a superior officer. This prosecution folllowed.

Avrech was sentenced to confinement at hard labor for one month, reduction in rank, and forfeiture of pay for three months. The Commanding Officer suspended the confinement but the remainder of the sentence was sustained by the Staff Judge Advocate and the Judge Advocate General of the Navy. On June 26, 1970, Avrech received a bad conduct discharge after a second and unrelated special court-martial conviction for having stolen a camera from the Navy Exchange. The Navy Court of Military Review, in ordering the discharge, took into account Avrech’s conviction here under attack.

The District Court granted the Government’s motion for summary judgment, holding that Avrech’s statement was not protected by the First Amendment and that Article 134 provides a sufficiently definite warning as to the proscribed conduct and a sufficiently ascertainable standard of guilt to survive the constitutional vagueness challenge.

2. History and Components of Article 134:

We need not pause to detail the history of Article 134. Its antecedents go back to British military sources prior to American Independence. In this country the Constitution entrusted to the Congress the power “to make Rules for the Government and Regulation of the land and naval Forces,” Article I, § 8, Cl. 14. In 1950, pursuant to this grant, the Congress adopted the Uniform Code of Military Justice. Article 134 of the Code includes three clauses which prohibit (1) “all disorders and neglects to the prejudice of good order and discipline in the armed forces;” (2) “all conduct of a nature to bring discredit upon the armed forces;” and, (3) crimes and offenses not capital (this last clause not being here in issue). The General Article is the American version of an older provision of military law known by the British as the “Devil’s Article.” A distinguished commentator and leading authority in the field, William Hough, made no attempt to define the “disorders” proscribed in the Article’s antecedents, only characterizing them as acts that “more usually take place under circumstances unconnected with duty and are esteemed disorderly or insubordinate conduct.” The Practice of Courts-Martial (1825) at 634. Hough’s examples of “disorders” included habitual insubordinate language and conduct at the mess, drunkenness, abusing and striking a sentry on duty, and adultery with the wife of a soldier. Id. at 642. Hough defined “neglect” to mean “neglecting to observe standing orders and regns., or, those orders which are issued and intended to be carried into immediate execution or shortly after.” Id. at 633. His examples of “neglect” included keeping the books in a negligent manner, not reporting infectious diseases to the proper authority, and allowing government goods to be stolen. Id. at 641. The second clause of Article 134, prohibiting “all conduct of a nature to bring discredit upon the armed forces,” was originally enacted for the “single purpose” of subjecting retired enlisted men to court-martial punishment for conduct similar to that proscribed under Article 133 for retired officers. Both clauses have been expanded beyond recognition and now encompass the residue of offenses that have sprung up with what were thought to be the necessities of disciplining the ever-increasing population of the armed forces. While the United States Court of Military Appeals has held that conduct condemned by the General Article must be “directly and palpably — as distinguished from indirectly and remotely —prejudicial to good order and discipline,” United States v. Holiday, 4 USCMA 454, 456 (1954), the Article now encompasses over seventy specific offenses. The listed offenses range from “abusing a public animal” to “disloyalty to the United States” with such offenses as dishonorably failing to pay a debt, straggling, pandering, and assault with intent to commit murder in between. This crazy quilt of offenses is patched together in the Manual for Court-Martial, issued as an Executive Order of the President under Article 36 of the Code, which authorizes the President to prescribe “procedure, including modes of proof, in eases before courts-martial.” The latest manual, promulgated by an Executive Order of the President, is dated June 19, 1969 and known as Manual for Courts-Martial, United States, 1969 (Revised edition). The military forces have “amplified” (to use a word employed in the Government’s brief) the General Article by including in Appendix 6 — Forms for Charges and Specifications — the seventy-odd charges described above. The Executive Order “prescribing” the Manual has saving clauses covering prior investigations, trial after arraignment or other actions begun before its effective date. A further proviso excludes “any act done or omitted prior to the effective date of this manual which was not punishable when done or omitted.”

3. The Theory of the Armed Forces:

(1) The Government argues that the Article 134 language here under scrutiny has acquired a core of settled and understandable content through long tradition and the listing of specific offenses in the Manual. United States v. Frantz, 2 USCMA 161 (1953). In the Frantz case the Court of Military Appeals assumed that civilian vagueness standards apply to the military but concluded that the Article had achieved a meaning sufficiently settled and definite to overcome the vagueness claim. The Government also points to Dynes v. Hoover, 20 How. 65, 15 L.Ed. 838, 61 U.S. 65 (1858), holding that a military law provision comparable in scope to the General Article was not subject to abuse because the nature of the proscribed conduct and its punishment were “well known by the practical men in the navy and army.” At 82. And, Winthrop, Military Law and Precedents (2d Edition 1920), in speaking of military custom, includes those service-wide practices which have prevailed for a long period of time and which are “well defined, equitable and uniform in application.” At 42-43.

We believe, however, that today Article 134 gives no fair warning of the conduct it proscribes and fails to provide any ascertainable standard of guilt to circumscribe the discretion of the enforcing authorities. Interpretation of the General Article through the Manual to proscribe some seventy explicit offenses, rather than evidencing settled and understandable meaning, indicates just the contrary. For example, not until 1951 did the disloyalty charge prosecuted here become a badge of infamy within reach of the Manual. And even Frantz, supra, did not crystallize the phantom offenses that could be included within Article 134, for we find' the 1969 edition of the Manual continues to expand their number. Indeed, the only apparent purpose of Article 134 is to act as a catch-all for varied types of unforeseen misconduct not otherwise covered by the Code. Though servicemen may be instructed on the meaning and proper applications of Article 134, the Article’s development demonstrates that its coverage has no limits. At most, instruction could only inform servicemen of the specific conduct deemed punishable under the Article in the past and of the fact that comparable misconduct may likewise be punished. And often this would not shed much light on the peculiar facts involved in the act under scrutiny since even conduct listed in the Manual must be found prejudicial to good order and discipline or service discrediting. United States v. Gittens, 8 USCMA 673 (1953). Nor can we approve the practice under Article 134 of judicially creating new offenses by analogizing them to previously recognized offenses under that Article. See Everett, Article 134, Uniform Code of Military Justice — A Study in Vagueness, 37 North Carolina L. Rev. 142, 152-153, 157-158 (1959). For example, the acceptance of money for transporting passengers in a government vehicle, conduct not mentioned in the Manual under Article 134, has been 'analogized to graft and bribery (three year offenses). United States v. Alexander, 3 USCMA 346 (1953). The Supreme Court recently condemned the “punishment by analogy” approach in Papachristou v. City of Jacksonville, 405 U.S. 156, 168-169, 92 S.Ct. 839, 846, 31 L.Ed.2d 110 (1972): “Such crimes [derived by analogy], though long common in Russia, are not compatible with our constitutional system.”

Moreover, the old authorities cited bear little weight. Not only has the General Article been expanded beyond recognition, but the greater percentage of our armed forces are today non-career personnel. They are draftees or enlisted personnel with little military experience. Even the “old soldiers” themselves say that the language in Article 134 judged by the void-for-vagueness eases is “unduly indefinite.” Wiener, Are the General Military Articles Unconstitutionally Vague? 54 ABA Journal 357, 363 (1968). Furthermore, the highest of judicial authority in the Army recommends the abolition of Article 134 because “we can't defend our use of it in this modern world. It probably could not withstand a ‘vague and indefinite’ attack in the Supreme Court.” Kenneth J. Hodson (Chief Judge, United States Army Court of Military Review), “Perspective, The Manual for Courts-Martial, 1984,” 57 Military Law Review 1, 12 (1972). These two officers, the former a distinguished constitutional authority as well as a World War II colonel in the Judge Advocate General’s Department, and the latter, himself a renowned former Judge Advocate General as well as the present Chief Judge of the Army’s highest court, speak both impressively and authoritatively. And the opinions of the Military Court of Appeals add more weight to this conclusion. It has held repeatedly that the Manual does not limit or confine Article 134. The Manual is not exhaustive of Article 134 misconduct; its crazy quilt of offenses does not cover Article 134’s bed. See, e.g., United States v. Sadinsky, 14 USCMA 563 (1964). Further, the inclusion of specific conduct in the Manual specifications does not necessarily mean the conduct is punishable under the Article. United States v. Alexander, 12 USCMA 26 (1960). The Court of Military Appeals has held that it is reversible error for the court-martial law officer not to instruct that acts charged under Article 134 must be found either to have prejudiced good order and discipline or have discredited the armed forces, even though the charges against the accused track the language of a Manual specification. United States v. Gittens, supra. In United States v. Smith, 13 USMCA 105, 119 (1962), the Court held that Congress never delegated the power to make substantive rules by way of the Manual and that the Manual was intended merely to serve as a substitute for legal research facilities insofar as it includes rules of substantive law. In the same year the court refused to permit the use of an erroneous instruction on self-defense, though prescribed by the Manual; since it was a matter of substantive law rather than procedure, the Manual did not control. United States v. Acosta-Vargas, 13 USMCA 388. These cases demonstrate it is neither necessary nor sufficient that a serviceman’s conduct fit a Manual specification in order for him to incur criminal liability under Article 134. Nothing could point more accusingly to the vagueness of Article 134 than for the Court of Military Appeals to say that in the final analysis, the Manual is but a mini-digest of the roving character of Article 134, whose vague and indefinite language is absolutely controlling. Clearly the broad net of Article 134 will catch an accused though the Manual does not.

(2) Nevertheless, the Government says the clear knowledge of Avrech that his actions might lead to a court-martial shows that he had fair warning that Article 134 prohibited his proposed action. We find the law to the contrary. The fear, if any, which Avrech had that his action might lead to his court-martial does not demonstrate that he knew his actions were covered by Article 134. Nor does it provide a substitute for the Article’s vague and indefinite language. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). There the Court found “it irrelevant that petitioners at one point testified that they had intended to be arrested,” since “the record is silent as to what petitioners intended to be arrested for •x- * Whether a statute affords “fair warning . . . must be made on the basis of the statute itself and the other pertinent law, rather than on the basis of an ad hoc appraisal of the subjective expectations of particular defendants.” At 355-356, n. 5, 84 S.Ct. at 1703-1704.

(3) The Government says further that civilian standards of specificity do not apply to the military. We have concluded that they do. Indeed, the Court of Military Appeals assumed in Frantz, supra, that civilian standards applied and found “the conceivable presence of uncertainty” in the first two clauses of Article 134. However, it found that the Article had acquired the “core of a settled and understandable content of meaning” that established standards “well enough known to enable those within . . . [its] reach to correctly apply them.” 2 USMCA at 163. As we have noted, we disagree with this conclusion. Other military courts have also recognized the applicability of civilian vagueness standards. In United States v. Howe, 17 USMCA 165, 178-179 (1967), the Court accepted the application of general Supreme Court standards in civilian cases without indicating any departure from those standards in the name of military necessity. Likewise, we follow the view of the United States Air Force Board of Review in United States v. McLeod, 18 CMR 814 (1954) and the Coast Guard Board of Review in United States v. Barker, 26 CMR 838 (1958). Both applied the requirements of the Fifth Amendment to military courts-martial.

It is true that the Supreme Court originally adopted a hands-off policy towards courts-martial. As late as 1950 the Court quoted with approval re Grimley (United States v. Grimley), 137 U.S. 147, 150, 11 S.Ct. 54, 34 L.Ed. 636 (1890), that “the civil courts exercise no supervisory or correcting power over the proceedings of a court-martial . The single inquiry, the test, is jurisdiction.” Hiatt v. Brown, 339 U.S. 103 at 111, 70 S.Ct. 495 at 498, 94 L.Ed. 691 (1950). However, in the same year, in a unanimous opinion by Mr. Justice Douglas, the Court stated that if a court-martial denies a defendant the opportunity to raise a defense then it has no jurisdiction to find guilt. Whelchel v. McDonald, 340 U.S. 122, 124, 71 S.Ct. 146, 95 L.Ed. 141 (1950). Three years later in Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), Chief Justice Vinson in an opinion joined by three other members of the Court, stated that federal courts are empowered to hear a denial of due process by the military, if the latter has refused to hear such claims or has misapplied constitutional requirements. Justices Black and Douglas dissented because they thought the military had misapplied civilian due process standards. Finally, Mr. Justice Black in Reid v. Covert, 354 U.S. 1, 37, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), said the applicability of the Bill of Rights to the military was “as yet . not . . . clearly settled.” And in O’Callahan v. Parker, 395 U.S. 258, 265-266, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969) the Court through Mr. Justice Douglas posed the query whether Article 134 satisfies the standards of vagueness developed by civilian courts, but he did not pause to answer.

The question, however, seems settled in this Circuit by Kauffman v. Secretary of the Air Force, 135 U.S.App.D.C. 1, 415 F.2d 991, 997 (1969), where the court said:

“We hold that the test of fairness requires that military rulings on constitutional issues conform to Supreme Court standards, unless it is shown that conditions peculiar to military life require a different rule.”

It is true that this proviso excepts from Supreme Court standards those situations where conditions peculiar to military life require a different rule. However, the trial court apparently found no such conditions present in this case since it applied Supreme Court standards. None have been shown here. Moreover, as General Hodson points out, other Articles are available to cover the offenses now punished under the General Article, e.g., Articles 92 and 128, which would serve the military just as well. 57 Military Law Rev., 1, 12. The Government, however, questions the application of Supreme Court standards to military personnel stationed in a combat zone. We readily understand its apprehension, but the argument is beside the point because there are Articles other than Article 134 that fully and satisfactorily govern combat situations. Two Articles, 92 and 99, come to mind. They punish failure to obey any lawful order or regulation and misbehavior before the enemy, respectively. As General Hodson so clearly says: “We don’t really need” Article 134. It is purely and simply a housekeeping device and the specific conduct which it has been held to prohibit can be as effectively controlled through the utilization of other Articles of the Code. It therefore appears to us that there is no valid military justification for suspending the application of the constitutional right of fair warning to Article 134. It follows that the General Article must fall.

Reversed.

      . The jurisdiction of the District Court is not questioned here nor is the existence of a case or controversy. We find botli jurisdiction and justiciability present.

      . Article 134, General Article, 10 U.S.C. § 934:
      “Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.”
      The third clause, referring to crimes and offenses not capital, is not in issue in this case. References in the opinion to Article 134 or the General Article are meant to encompass only the first two clauses.

      . Maximum punishments under the Uniform Code are fixed in the Manual for Courts-Martial by Executive Order of the President. Article 134 punishments run from 20 years imprisonment and dishonorable discharge for assault with intent to commit murder or rape to one month’s imprisonment and forfeiture of two-thirds of one month’s pay for, e. g., appearing in an unclean uniform. The offense charged here carries a three year maximum sentence. See Table of Maximum Punishments, Manual for Courts-Martial, 1909.

      . The availability of effective, and we might add, preferable alternatives to punishing disloyal statements under Article 134 is evidenced by the companion cases of United States v. Daniels, 19 USCMA 529 (1970), and United States v. Harvey, 19 USCMA 539 (1970). Harvey indicates that disloyal statements are subject to punishment under 18 U.S.C. 2387 as well as Article 134. Daniels holds that conviction under Sec. 2387 requires “ ‘a clear and present danger that the activities in question will bring about the substantivo evils’ delineated in the statute [insubordination, mutiny, refusal of duty, etc.]” In contrast, Article 134 merely requires a finding that the statement was prejudicial to good order and discipline or service discrediting. In view of the Harvey court’s recognition of the vagueness problems involved — i. e., “Words by themselves may not always reveal their character . . . The Vietnam war has evolved a vast outpouring of written and oral comment. The language of many of the comments is poised on a thin line between rhetoric and disloyalty to the United States.” (at 544) — we doubt the military would consider itself prejudiced if forced to rely on Sec. 2387, incorporating as it does a “clear and present danger” test.


source: Caselaw Access Project

author: WILKEY, Circuit Judge:

license: Public Domain

text:
    Calvin Morgan BISSETTE, and Frances T. Bissette, for themselves and for all others similarly situated, v. COLONIAL MORTGAGE CORPORATION OF D. C., Appellant.
    No. 72-1742.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 1, 1973.
    Decided April 12, 1973.
    Joseph V. Gartlan, Jr., Washington, D. C., for appellant.
    Benny L. Kass, Washington, D. C., for appellees.
    Before McGOWAN and WILKEY, Circuit Judges, and ROBERT VAN PELT, Senior United States District Judge for the District of Nebraska.

       Sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   WILKEY, Circuit Judge:

This case arises on appeal from the District Court’s grant of summary judgment for the Bissettes (husband and wife) on their complaint seeking damages and a declaration that Colonial Mortgage Corporation of D. C. violated the Truth in Lending Act. The trial court, 340 F.Supp. 1191, explicitly refused to make any finding as to when a contractual relationship between plaintiffs and defendants arose. Therefore, its precise and only holding was that Truth in Lending Act disclosures made at the time of “settlement” or “closing” in a home purchase and mortgage transaction come too late to satisfy the Act’s requirements, even if no contractual relationship between the borrower and lender was established prior to that time. We disagree, reverse the grant of summary judgment, and remand for a further determination on an essential factual issue.

In June of 1970 Mr. and Mrs. Calvin Bissette signed an agreement to purchase a house from the Ardon Corporation, contingent on procurement of adequate financing. On 9 September 1970 they met with an officer of Colonial Mortgage for the purpose of discussing the necessary loan. At that time they filled out an application for FHA insurance. On 23 November 1970 Colonial Mortgage notified the Bissettes that FHA had issued a firm commitment to insure suitable financing. Whether at that time Colonial Mortgage committed itself to issue the loan is hotly debated, and was not resolved by the District Court’s disposition of the case. After entering into a pre-possession agreement with Ardon, the Bissettes moved into the house on 2 December 1970. Finally, on 23 December 1970, “closing” or final settlement took place. At that time full Truth in Lending Act disclosures were made and the mortgage instruments were executed.

Assuming, as we must, that no contractual relationship arose between the Bissettes and Colonial Mortgage prior to closing, there was no violation of the Act’s requirements as to timing of disclosure. The Truth in Lending Act, at 15 U.S.C. § 1639(b), provides:

Except as otherwise provided in this part, the disclosures required by subsection (a) of this section shall be made before the credit is extended, and may be made by disclosing the information in the note or other evidence of indebtedness to be signed by the obligor. [Emphasis'added.]

Any lingering ambiguity in the statute is eliminated by the relevant regulations, promulgated by the Federal Reserve Board under its authority to interpret and implement the Act. Regulation Z clearly set forth the requirement that disclosure must be made “before the transaction is consummated.” 12 C.F.R. 226.8(a). Section 226.2(cc) further clarifies the timing requirement:

The transaction shall be considered consummated at the time a contractual relationship is created between a creditor and a customer irrespective of the time of performance of either party.

Finally, Federal Reserve Board Public Information Letters, which may not be legally binding but should be treated as persuasive, incorporated this view and stated that the time of consummation or contract should be analyzed on the basis of local law.

The District Court passed by the plain import of the statute and regulations, went instead to what it considered the overall legislative purpose, devised its own implementing rules as to how to carry out that purpose (this Congress and the Board had already done), and found a violation because the legislative purpose of allowing comparison shopping for credit would be frustrated if disclosure was not made prior to closing. The Bissettes seek to support this approach by arguing that this “remedial” Act should be liberally construed. However, “liberal construction” and interpretation based on legislative purpose can only go so far. Where the meaning of the statute and regulations is clear, a contrary reading would become destruction of the statutory scheme, as administered by the Board.

The statute and regulations provided a clear and discernible line by which lenders could measure the time of required compliance — certainly a welcome instance of clarity in the midst of otherwise complex and difficult provisions. In essence, the Bissettes urge that the borrower’s inability, as a practical matter, to shop around should trigger the lender’s disclosure obligation. If that were the case, the time for compliance would not only be uncertain but different in every case. Furthermore, a home buyer can insist on a clear prior contractual commitment from the lender. Since that would elicit disclosure in precisely those cases where the consumer desired to stop shopping and took steps to solidify the deal, the applicable regulation does not, contrary to the District Court’s assumption, inevitably lead to the frustration of the statute’s purpose.

We of course agree that it would be preferable, from the consumer’s vantage point, to require disclosure well before the final formalities. Indeed, the Federal Reserve Board now apparently shares that view. On 27 July 1972 the Board proposed an amendment to Regulation Z which would require disclosure to home buyers “not less than 10 business days before the date on which the customer executes the note or other evidence of debt.” Of course, the very necessity for a proposed “amendment” implies that the Board feels no disclosure is required prior to the date of closing (or an earlier contract) under current law. As the press release announcing the proposed amendment shows by its own description of current practice, affected creditors uniformly accepted the plain meaning of the applicable regulations. While urging earlier disclosure, the Board nowhere indicated that this industry practice constituted a violation of the provisions currently in effect.

We hasten to note that our holding in this case would not operate to invalidate the proposed amendment, should it be promulgated. The Board has broad power to implement the Act, power dele: gated to it by a Congress which was uncertain as to the refinements potentially required to implement successfully its novel statutory scheme. 15 U.S.C. § 1604 provides that

The Board shall prescribe regulations to carry out the purposes of this subchapter. These regulations may contain such . . . provisions as in the judgment of the Board are necessary or proper to effectuate the purposes of this subchapter .... [Emphasis added.]

It should be noted that the Board’s solution, unlike that of the District Court, cures the major objection to the Bissettes’ suggested reading of the statute —since the 10-day requirement would provide a clear and ascertainable measurement of the time for compliance. The fact that the Board might prospectively alleviate the chaos caused by the District Court’s decision lends little support to the court’s conclusion, for the resulting uncertainty was very real to Colonial Mortgage in the context of this transaction. In short, the Federal Reserve Board is empowered within limits to change its regulations and amplify the Act; but the District Court could not properly ignore the law applicable to these parties as it plainly stood when this case arose.

We hold that the applicable and binding regulations merely required disclosure at any time prior to the existence of a contractual relationship between borrower and lender. Since the District Court made no finding on the essential issue of when such a contract arose, we must remand for that determination and for further proceedings consistent with this opinion.

Reversed and remanded.

      . 15 U.S.C. § 1601 et seq. The court also denied defendant-appellant’s motion for summary judgment. Decision on whether or not to certify the case as a class action was held in abeyance pending resolution of the summary judgment motions.

      . 15 U.S.C. § 1601 of the Act states that it is the “purpose of this subchapter to assure a meaningful disclosure of credit terms so that the customer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” (Emphasis added.) Plaintiffs argue that disclosure is not “meaningful” unless it occurs at a time when comparison shopping for credit is still possible for the consumer as a practical matter. They have chosen an interpretation of “meaningful” which connotes effectiveness of result. As a purely linguistic matter, the word “meaningful” appears, more precisely, to connote effectiveness of communication — especially since a prime statutory goal was to eliminate the confusion generated by numbers which, because based on different computations, could not be easily juxtaposed to judge their relative desirability. However, since the general section setting forth legislative goals neither constitutes an operative section of the statute nor prevails over the specific provisions, as clarified by regulations, we refrain from the pursuit of a metaphysical analysis of the “meaning” of “meaning.”

      . See Gardner & North Roofing & Siding Corp. v. Board of Governors of Federal Reserve System, 150 U.S.App.D.C. 329, 464 F.2d 838 (1972).

      . Colonial Mortgage protested that any disclosure requirement before closing would be impossible to meet because the actual terms of credit would not be settled until that time. Although we are not faced with that issue here,' an absence of absolute certainty on terms appears to pose no insurmountable problems because approximations are allowable where exact amounts are unavailable at the time disclosures must be made. See 12 C.F.R. § 226.6(f).


author: PER CURIAM:

text:
    FIDELITY VOICES, INC., et al., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, WNJR Radio Co., a partnership, Intervenor.
    No. 72-1434.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 12, 1973.
    Decided April 13, 1973.
    Benedict P. Cottone and David Meyers, Washington, D. C., for appellants.
    Gregory M. Christopher, Counsel, F. C. C. with whom John W. Pettit and Joseph A. Marino, Associate Gen. Counsel, F. C. C., were on the brief for appellee.
    John P. Bankson, Jr., Washington, D. C., with whom William M. Barnard, Washington, D. C., was on the brief, for intervenor, WNJR Radio Co.
    Before LEVENTHAL and ROBB, Circuit Judges, and WILLIAM J. JAMESON, Senior United States District Judge for the District of Montana.

       Sitting by designation pursuant to § 28 U.S.C. 294(d).

   PER CURIAM:

This is an appeal from an order of the Federal Communications Commission granting Intervenor, WNJR Radio Co., interim authority to operate radio station WNJR, Newark, New Jersey. The facts are presented in detail in the Commission’s orders and may be summarized as follows. In 1968, the FCC refused to renew the license of WNJR. Thereafter, nine individual parties filed applications to take over permanent operation of the station. These applications were docketed for comparative hearings. During their pendency, the City of Newark was granted temporary authority to keep WNJR on the air on an emergency basis. Recognizing that the City was prepared to operate the station only as a stop-gap until December 31, 1971, and that further interim measures would be needed, the FCC announced that it would accept applications for interim operating permits, and sought to encourage participation from among the would-be regular licensees.

Although various individual applications for interim authority had previously been filed, it was not until December 6, 1971, that the first joint application — filed by WNJR Radio Co.— was accepted for filing. On December 13, a joint interim application was lodged with the Commission by North Jersey Radio, Inc., a group composed of two of the Appellants, one of whom had previously filed an individual application for interim authority. The next day two others among the Appellants (Fidelity Voices, Inc. and Sound Radio, Inc.) filed objections to the WNJR Radio proposed joint agreement. On December 15, the Commission adopted an order (issued December 21) granting interim operating authority to Intervenor, under the terms of the WNJR Radio agreement. No mention was made of the competing application of North Jersey Radio. This was later dismissed as moot, by a letter from the Commission dated December 28. Appellants’ petition for reconsideration was denied on April 12, 1972.

This court is concerned with various aspects of the pending case, and their possible impact in combination with each other. They may be identified as follows:

1. We are concerned over the procedural stance of a “withdrawal” by the individual station upon the filing of a later joint application. The Commission determined that the applications of the three companies combined to form WNJR Radio Co., which were filed individually, had vitality as individual applications for purposes of measuring the date on which favorable action could be taken. If their joining together in an application of WNJR Radio Co. had been taken as an abandonment of the individual applications, the Commission would obviously have been acting improperly in granting such application less than 30 days after the acceptance for filing of the joint application. Yet the FCC seems to have reflected a quite different procedural premise when it disposed of the application filed by North Jersey Radio, Inc., even though it was still pending as an individual application in December, on the ground that it had been “withdrawn” by the request to be combined with another application.

2. We are concerned whether the Commission has really focused on the point raised by petitioners in objecting to the provision of the intervenor group, WNJR Radio Co., that the employees of the previous licensee must be retained unless dismissed for cause. Several of these employees had committed themselves to and identified themselves with particular applicants for permanent operating authority who had joined in WNJR’s application for a temporary authorization. The FCC, on reconsideration, sought to soften the problem by stating that these employees would only have the same rights as other employees, and that there was a general disposition to keep on board the employees who had been operating for the previous licensee.

The FCC does not seem to have focused at all upon the substantial problem on the merits identified by petitioners before us — that this protection against dismissal except for cause must be considered in combination with provisions of the WNJR partnership agreement that no new partner adhering to the group can bring in talent. This raises a question whether the agreement was truly “open-ended” within the meaning of our prior decision on interim authority.

3. In essence petitioners were objecting that the structure of the WNJR agreement was not truly open-ended, because it invited new members into the organization only upon an assumption that the operation would be conducted by nine key employees being identified with two of the applicants. Petitioners raised the question why there was any need for those employees to be “frozen in” in this manner. Although petitioners had no present intention that any of these employees be removed, they wish to be on equal comparative status, and claim this special freezing, and security for employees having long term identification with particular applicants, is likely to raise problems. This point requires consideration.

4. We appreciate that the FCC was acting under the impetus of a need for urgent action, since the City of Newark was proposing an almost immediate withdrawal from the support of this station. However, it does not expressly appear that the FCC gave consideration to the alternative of 90-day authorizations, as an emergency matter, such as it later provided in the Green County case.

* * *

In sum, a substantial question on the merits was not considered by the FCC, which acted on the basis of a procedural ground that is flawed by other action of the FCC in the proceeding, that on its face seems to reflect a divergent approach. In the interest of justice, 28 U.S.C. § 2106, we remand for further consideration of the interim authority issue. We do not necessarily say that an evidentiary hearing is required. But certainly an appropriate procedure for presentation of the issues must be adopted. Whether that proves to involve presentation of evidence, or appropriately may be handled in some other way, is for consideration in the first instance by the Commission.

Reversed and remanded.

      . 32 F.C.C.2d 758, 23 P & F Radio Reg.2d 424 (1971), reconsideration denied, 34 F.C.C.2d 923, 24 P & F Radio Reg.2d 123 (1972).

      . Communications Act of 1934, § 309(b) (1), 47 U.S.C. § 309(b)(1); 47 CFR § 1.580.

      . WNJR Radio Co. Partnership Agreement, ¶ 27:
      [T]he following persons, each of whom is a principal in an Inactive Partner, shall be retained and employed in the respective positions they occupied as employees of the prior licensee of WNJR . . . and neither the Managing Partner nor the General Manager of the station shall discharge
      any of these persons from their respective positions without cause shown. No other person who is or becomes a principal in an Inactive Partner shall be employed at the station.

      . Beloit Broadcasters, Inc. v. FCC, 125 U.S.App.D.C. 29, 365 F.2d 962 (1966). See Community Broadcasting Co. v. FCC, 107 U.S.App.D.C. 95, 274 F.2d 753 (1960).

      . Green County Broadcasting Co., 36 F.C.C.2d 74, 24 P & F Radio Reg.2d 966 (1972).

      . Commission counsel at oral argument concluded that the case was mooted because the petitioners seeking review had agreed to merge, contingent upon FCO acceptance for filing of their merger j)etition, and that this has been agreed to by the FCC. We think this matter should also be considered in the first instance by the FCC. Offhand we see no reason why an open-ended interim authority agreement that was put in a form acceptable to, say, 9 companies, would be mooted because three of these companies had decided to merge. The invitation of WNJR for others to join its agreement would presumably extend to a merged company, as well as to thi'ee individual companies. And the merged company would have the same right to an unslanted structure as the merging companies had. These are only preliminary reflections. The matter must await focusing in the light of the FCC’s consideration.


text:
    Leo M. EISEL, Appellant, v. SECRETARY OF THE ARMY. Gary S. GELBER, Appellant, v. SECRETARY OF THE AIR FORCE.
    Nos. 71-1943, 71-1944.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 19, 1973.
    Decided March 28, 1973.

      David Rein, Washington, D. C., for appellants.
    James B. McMahon, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, James F. Flanagan, and Ruth R. Banks, Asst. U. S. Attys., were on the brief, for appellees.
    Before McGOWAN, TAMM and WILKEY, Circuit Judges.
   WILKEY, Circuit Judge:

Appellants in this case are two members of the “inactive reserve” of the United States Army and Air Force who voluntarily joined the Armed Forces, but who were permitted to complete their educations before beginning tours of active duty. Prior to entering active duty appellants allegedly became conscientious objectors and under the appropriate military regulations sought release from their military obligations. The Army and Air Force denied appellants’ requests for discharge, whereupon appellants petitioned the U.S. District Court for the District of Columbia for a writ of habeas corpus to obtain their releases from the military. The District Judge issued preliminary injunctions to prevent appellants from being required to report for active duty; this injunction has remained in effect pending disposition of this appeal and appellants have never reported for active duty. After hearing argument the trial court dismissed the petitions on the ground of lack of jurisdiction, since appellants’ respective “immediate custodians” were not located in the District of Columbia.

We agree that the District Court lacked jurisdiction to grant appellants’ petitions. Our conclusion is not, however, based upon a finding that appellants’ “immediate custodians” are not present in the District of Columbia. Indeed, we find that the concept of “immediate custodianship” is largely irrelevant to determining which particular federal court may entertain habeas petitions brought by inactive reservists.

I. Background

A. Appellant Eisel

Eisel was commissioned as an officer in the United States Army Reserve in June 1964. He was allowed to continue his education and was never attached to an active unit of the military. For bookkeeping purposes Eisel’s records were kept at a records center in Indiana, although he was never stationed there or physically present in Indiana. During this period of inactive status Eisel lived several places in the United States and for a time in New Zealand.

While living in Cambridge, Massachusetts, and while still on inactive status, Eisel applied for discharge from the Army as a conscientious objector. Eisel was interviewed in Massachusetts by Army representatives to determine if he should be released, and most of his negotiations with the military took place while he was residing there. At some point after these initial contacts Eisel moved to New York, where he currently resides.

While Eisel’s application was still pending he was ordered to report for active duty in Virginia. This order was enjoined by a District Court in Massachusetts and subsequently by the U.S. District Court here. (The Massachusetts action was dismissed on petitioner’s motion.) As a result Eisel has never reported to his station in Virginia, and has never physically been in that state.

B. Appellant Gelber

Appellant Gelber was commissioned in the United States Air Force Reserve in October 1966 and like Eisel has been on inactive status since then. Gelber’s records were stored in Denver, Colorado, although he has never been physically located in Denver.

Gelber lived for most of his period as an inactive reservist in Cambridge, Massachusetts, and it was there that he petitioned for release from the military as a conscientious objector. Gelber was interviewed by the Air Force in Massachusetts, although in the course of seeking his release he or his attorney corresponded with Air Force personnel in such diverse places as Colorado, Virginia, Washington, D.C., and Texas. During this entire period and up to the present Gelber has lived in Cambridge, Massachusetts.

Upon being ordered to report for active duty in Alaska (with a stop-off in Texas), Gelber sought and obtained in the District of Columbia a preliminary injunction against the order. Thus, Gelber has never physically been present in either Colorado, Texas, Alaska, or the District of Columbia.

II. Contentions of the Parties

Federal habeas corpus law provides that a habeas action “shall be directed to the person having custody of the person detained.” Appellants Eisel and Gelber allege that the person “having custody” of them and causing them to be “detained” are the respective Secretaries of the Army and Air Force. Since these “custodians” are officially located in the District of Columbia, appellants argue that Washington is the proper place to seek habeas relief.

The Government vigorously contests the theory that the civilian Secretaries of the Army and Air Force are in any relevant sense the “custodians” of appellants. It contends that only the “immediate custodian” of a petitioner is amenable to a writ of habeas corpus. The Government argues that Gelber’s “immediate custodian” is the commander of the record center in Colorado where his records were located prior to being called to active duty. Ironically, with regard to Eisel, the Government argues that the “immediate custodian” is not the commander of the record center in Indiana but rather the commander of the installation in Virginia where Eisel has been ordered to report. The Government offered no real explanation of why the commander of the record center would be the “immediate custodian” of one of the appellants but not of the other.

The District Court declined to hold that the civilian Secretaries of the Armed Services were the “custodians” of Gelber and Eisel. In so doing, the trial judge accepted the Government’s contention that only the “immediate custodian” was a proper party to a habeas action and that the action could only properly be brought in the jurisdiction where this “immediate custodian” is physically located. Sensing an inherent contradiction in the Government’s contention that the commander of the records center was the “immediate custodian” of one of the petitioners but not the other, the District Judge attempted to be consistent; he held that the “immedite custodians” of appellants Eisel and Gelber were the respective commanders of the records centers where their records were located prior to their being called to active duty.

III. The Proposed Tests

We sympathize with the trial court’s attempts to reach the truth through the morass of conceptual contradictions and non sequiturs that abound in this area of the law. We likewise believe that his determination that this action should not be maintained in the District of Columbia was correct. We would prefer not to base our decision, however, upon a determination as to whether the service Secretaries are the “immediate custodians” of the appellants. Where inactive reservists may or may not bring habeas actions is better determined by analyzing the policies for and against allowing an action in a particular jurisdiction, rather than by the blind incantation of words with implied magical properties, such as “immediate custodian.”

In determining the most feasible jurisdiction in .which to permit habeas actions by inactive reservists, there are at least six distinct interests which should be considered. First, the forum should be close to the records of the case and to the witnesses who may have to appear. Second, the choice should promote a fair distribution of habeas cases among the District Courts rather than concentrating the burden on a few. Third, the forum should be one before which it is convenient for the petitioner to appear. Fourth, it should be a forum convenient for the Government. Fifth, and perhaps most important, the forum should be one that is easily determined; the rule for determining its location should be clear and unquestionable. Sixth, to the extent possible, there should be a single, exclusive forum in order to prevent forum shopping among alternatives. It is easy to see that these interests may at times be conflicting and that a rule fulfilling all of them perfectly would be difficult if not impossible to formulate. We believe, however, that the best solution will result from a careful evaluation and weighing of these competing considerations.

Our method of analysis is reinforced by the very recent decision of the Supreme Court in Braden v. 30th Judicial Circuit Court of Kentucky (1973). There the Court held that the petitioner, imprisoned in Alabama but subject to a detainer issued by a Kentucky court for an offense charged there, was “in custody” within the meaning of 28 U.S.C. § 2241(c)(3) for purposes of habeas corpus to require a speedy trial in Kentucky. While emphasizing the importance of the location of the custodian in this criminal case, the Court employed practical considerations in determining where an action would lie:

In terms of traditional venue considerations, the District Court in the Western District of Kentucky is almost surely the most desirable forum for the adjudication of the claim. (Footnote omitted.) It is in Kentucky, where all of the material events took place, that the records and witnesses pertinent to petitioner’s claim are likely to be found. And that forum is presumably no less convenient for the respondent, the Commonwealth of Kentucky, than for the petitioner. The expense and risk of transporting the petitioner to the Western District of Kentucky, should his presence at a hearing prove necessary, would in all likelihood be outweighed by the difficulties of transporting records and witnesses from Kentucky to the district where petitioner is confined. (Footnote omitted.) Indeed, respondent makes clear that “on balance, it would appear simpler and less expensive for the State of Kentucky to litigate such questions [as those involved in this case] in one of its own Federal judicial districts.”

A. Washington, D.C.

Adopting this functional approach to the problem compels the conclusion that appellants should not be permitted to seek habeas relief in the District of Columbia. Eisel and Gelber are not and never have been residents of the District of Columbia. Their only significant contacts with the military have occurred elsewhere. While there are numerous representatives of the military in the District of Columbia, there is no reason to believe that the military operations in Washington are of any more relevance to appellants than to any other inactive reservist or for that matter to any member of the military, active or inactive.

In short, appellants’ relationship to the military located in the District of Columbia, including the various civilian Secretaries, is no different from that of any other member of the military. Thus, if we were to permit Gelber and Eisel to proceed in the District, we would be compelled to permit any inactive reservist, and perhaps any member of the military, the same privilege. It is unclear how many reservists are in situations similar to that of appellants or how many of them might be expected to seek release from service by petition of habeas corpus. Undoubtedly, the number of both groups could be expected to fluctuate, with relatively large numbers seeking release during the time bullets are flying and few seeking release when playing soldier looks more fun.

Whatever may be the actual number, it is probable that under some conditions the number could be quite large. Such an influx could seriously overburden an already busy court system. This problem would be compounded by the substantial fluctuations that could be expected between times of peace and war, since it would be difficult for the Congress to ameliorate the burden by creating more judgeships for an influx that could well be short-lived.

An even more compelling reason not to permit this suit is that it may often be inconvenient for habeas petitioners to retain counsel and come to Washington in order to seek release from the military. While it may be most expedient for Eisel and Gelber to bring their action in the District of Columbia, this, of course, would not be universally true. The burden of seeking relief in Washington, D.C., could, for example, be overwhelming for an inactive reservist located in Montana or Alaska.

Appellants have suggested that this problem could be avoided by making the District of Columbia an alternative location for habeas petitions by inactive reservists. Although it was not clear where else appellants felt that an action might be brought, the implication was that in actions such as this a petitioner would have a choice of seeking a writ in either Washington or some other presumably more convenient location. Indeed, under a recent Supreme Court decision it seems clear that a certain class of inactive reservists — a class which appears to include appellant Gelber — has already been granted the right to bring an action elsewhere than in the District of Columbia. Necessarily then, in at least some situations, Washington would be merely an alternative to bringing an action in another jurisdiction. While this proposal may solve the problem of inconvenience, it creates another which is at least as troublesome, since alternative jurisdictions would almost certainly lead to forum shopping by reservists.

It is also unlikely that Washington would necessarily be close to the records and witnesses in a typical inactive reservist situation. Reservists seeking discharge as conscientious objectors are always interviewed by, the military personnel in the petitioner’s area of residence; the testimony of these interviewers could be critical in some cases. Likewise, the testimony of ministers, employers, teachers, and other acquaintances could play an important role in a proceeding. Locating jurisdiction for all reservists in any one place, including Washington, would necessarily inconvenience witnesses located elsewhere.

For these reasons we find that Eisel and Gelber should not be permitted to maintain these actions in the District of Columbia.

B. The Record Centers

While locating the forum in Washington has distinct disadvantages, establishing jurisdiction at the various centers that store the records of inactive reservists fails on almost every count. Apparently, it is the practice of the various branches of the military to store the records of inactive reservists in a single location. Thus if jursdiction were located in the record center forum, all reservists’ cases would be concentrated in a few locations to almost as great an extent as would be the case if Washington were found to be the proper forum. The problem of concentration would be compounded since there are substantially fewer federal District Judges in Indiana and Colorado than there are in the District of Columbia; thus, the burden would be even greater on the judicial system in those places. These isolated record centers will often be remote and inconvenient for both the petitioner and witnesses. Although the Government has at times advocated the record centers as the proper location, it is difficult to imagine that locating all reservists’ actions in such places as Denver, Colorado, and Fort Benjamin Harrison, Indiana, would be significantly more convenient for the Government than permitting the action elsewhere. Conceivably, it could lead to even greater inconvenience, since the Government undoubtedly has limited resources in these areas which could be overburdened by the influx of habeas cases.

If it were determined that the record centers were a proper location, it would necessarily be merely an alternative forum. The Supreme Court decision mentioned in discussing the Washington alternative did not, whatever else it might have done, establish that cases such as this must be brought in the location of the record centers. Thus, permitting the record center alternative would inevitably lead in some circumstances to the possibility of forum shopping.

Of all the interests that should be considered in determining the proper jurisdiction, the only one that the record center alternative even arguably satisfies is that it is relatively simple to determine. This is, however, a poor dividend indeed for the cost of forfeiting every other interest which a rule should seek to satisfy.

C. First Duty Station

The third possible alternative suggested by the parties, permitting an action in the district to which the reservist has been ordered to report for active duty, is equally unacceptable. As with the other alternatives, the place of reporting would in many cases be inconvenient for witnesses and might be far from the records. It is also clear that such a rule would establish multiple jurisdictions in which actions might be maintained since, as has been noted, the Supreme Court has established at least a limited right to maintain actions in a petitioner’s place of domicile. Forum shopping is thus a problem with this alternative.

By far the greatest reason not to require actions in the jurisdiction where a reservist is ordered to report is the potential inconvenience that such a rule would impose on the reservist. With this rule the military could determine the forum virtually at will by simply ordering the reservist to a particular location. The services could, for example, select the jurisdiction for cases by issuing active duty orders to a reservist for a designated post, which might be a remote outpost far from the petitioner’s home. Such a rule would also permit the military to select a jurisdiction thought to be favorable to the Government by designating it as the place to report. This rule would be both inconvenient and unfair.

For these reasons we cannot accept the place of duty alternative.

IV. The Proper Rule

This court is satisfied that it would be improper to permit appellants to seek habeas relief in the District of Columbia. We are aware, however, that our comments are of little solace to Gelber and Eisel who must now set off in search of the proper forum. This unfortunate consequence may be compounded by the possibility that upon instituting an action in another jurisdiction the Government may deny that the new location is the proper forum. It has been suggested that in future proceedings, by taking contradictory positions on which jurisdiction is proper, the Government might engage in a form of inverse forum shopping, i.- e., whatever court is hearing the case will always be argued to be the wrong jurisdiction. Such tactics, if successful, could prevent the case from ever being heard. While we certainly do not ascribe such unworthy motives to the Government, we are concerned by the apparent contradictions in the Government’s position in this case and the unwillingness of counsel on appeal to articulate a clear-cut rule for determining just where inactive reservists might bring habeas actions. To help prevent the Kafkaesque specter of supplicants wandering endlessly from one jurisdiction to another in search of a proper forum, only to find that it lies elsewhere, we think it proper to carry our reasoning to its ultimate conclusion and determine where we believe the proper forum to be.

As seen above, under a functional analysis approach none of the alternatives advanced by the parties in this case is acceptable. The true answer lies in an entirely different direction. There are, however, numerous guideposts in existing law that are of help in determining the answer.

A. Existing Law

Appellants’ action here is based upon a remedy granted by a federal statute. Although the statutory scheme designates particular forums as proper in some situations, it is silent regarding the appropriate jurisdiction for this type of action. Further, while the statute does provide that the action shall be against the “person having custody of the person detained,” it does not define “custody” or specify who the person having “custody” will be. Nowhere does the statutes speak of an “immediate custodian” or intimate that an action must necessarily be instituted in the location of such an “immediate custodian,” even if it were possible to grant substance to the vague concept of “immediate custodianship.” Confronted with this vacuum the courts have attempted to formulate rules governing where habeas actions might be maintained.

Until relatively recently, only persons who were actually physically restrained could seek habeas relief. The concept of “custody” was narrowly limited and only those who were literally in someone’s physical custody couíd obtain a writ. Since habeas petitioners were actually imprisoned or otherwise prevented from moving about, if one had territorial jurisdiction over the petitioner one necessarily had territorial jurisdiction over the person who was actually holding him captive — his “immediate custodian,” if you will. This was true because if the petitioner was physically restrained, there must' be someone in the same location who was doing the actual restraining. In such situations the issue of whether a court had jurisdiction over a custodian was relatively unimportant; if one had proper jurisdiction over the petitioner, one necessarily had jurisdiction over the custodian.

In the leading Supreme Court decision of Ahrens v. Clark, petitioners confined in New York brought suit in the District of Columbia against the Attorney General of the United States to obtain their release. The Court decided that Washington was not the proper forum because it did not have territorial jurisdiction over the petitioners, although the Court has recently explained that the lack of territorial jurisdiction in Ahrens was important because of the risk and expense attendant upon the production of 120 prisoners from New York. There was nothing in the opinion that would intimate that the Court felt that the action would fail because the Attorney General was not the “immediate custodian” of those being held “in custody.” Indeed,' there is language that intimates that the Court felt that the issue of who had “immediate custody” was largely irrelevant to where the action should be maintained.

Thus according to the Supreme Court, it was the location of the petitioner, not the location of the “immediate custodian,” that was determinative of the outcome. In cases of physical custody, however, the locations of petitioner and “immediate custodian” are necessarily the same. Thus it is possible that one could sufficiently blur the distinction and argue that the location of the “immediate custodian” rather than the petitioner was outcome determinative. This misinterpretation is aided by the existence of a number of cases decided prior to Ahrens that held, in effect, that habeas actions would only lie in the jurisdiction of the “immediate custodian.”

Within the last decade habeas jurisdiction has expanded greatly and the remedy has been applied to situations in which the petitioner has not been physically restrained in the traditional sense. In the landmark case of Jones v. Cunningham, the Supreme Court retreated from its prior requirement of strict custody and recognized that legal as well as physical restraints could be properly regarded as a “custody.” In holding that a prisoner released on parole was sufficiently in “custody” to seek habeas relief, the Jones Court listed a number of factors which it felt entitled the parolee to maintain the action. Jones was subject to four types of restraints: (1) he was restricted in his physical movement, unable to leave his community or change his residence without special permission; (2) he was subject to other regulations which did not specifically restrict his movement but had that practical effect, including the requirements that he obtain special permission before operating an automobile and that he report regularly to his parole officer; (3) he was threatened with reincarceration for violations of his parole; and (4) he could be ordered back to prison without a court hearing.

It is unclear from the Court’s opinion which of these factors it felt were determinative. The Court appeared to rely heavily, however, on the limitations placed upon the petitioner’s physical freedom:

History, usage, and precedent can leave no doubt that, besides physical imprisonment, there are other restraints on a man’s liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus. . . . Such restraints are enough to invoke the help of the Great Writ. Of course, that writ always could and still can reach behind prison walls and iron bars. But it can do more. It is not now and never has been a static, narrow formalistic remedy; its scope has grown to achieve its grand purpose— the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty.

Since physical restraint was a part of the test, the nature of the “custody” concept was not altered. Physical restraints similar to those in Jones have generally existed in the areas to which Jones has been extended: probation ; escape from detention; conditional suspension of a sentence; and, in some cases, bail.

By like token, the expansion of the habeas remedy under Jones and its progeny did not alter the location where such actions would lie. These cases all involved criminal detentions in which the proper forum is designated by statute. Since the nature of the evil (£. e., the “custody”) that was sought to be remedied had not been altered, there was no basis for the courts to depart from the established statutory and common law.

The inactive reservist presents a situation in which the concept of “custody” has been stretched to the extreme. The petitioner is as mobile as any other member of our society and conceivably can be in “custody” anyplace he happens to be at the time. Indeed, it was not until the Supreme Court’s decision in Strait v. Laird, handed down May 1972, that it was established conclusively that an inactive reservist was actually in “custody” and therefore able to seek habeas relief.

Holding that inactive reservists are “in custody” creates several conceptual and practical problems. The conceptual problems are discussed completely in Justice Rehnquist’s dissent in Strait. Since Strait is now clearly the law, these conceptual problems are not of primary concern for this court. The fundamental practical problem of where an inactive reservist may bring suit, however, is.

In this area of administrative as opposed to criminal custody there are no statutory guidelines. As we noted above, the place where the petitioner was in “custody” has been the touchstone for this determination. Since the inactive reservist is not “in custody” in any páricular place this test is no longer particularly helpful.

In casting about for another test, it is not surprising that one might fix upon the other factor that has occasionally been mentioned in previous actions — the location of the “custodian.” While it may be true that the petitioner is not “in custody” in any particular place, it is superficially reasonable to conclude that if the inactive reservist is in “custody” at all, as the Supreme Court has said that he is, then he must have a “custodian.” The reasoning continues that if one could but find this “custodian” all questions would be solved. We have seen the problems that this sort of reasoning produces. It is not surprising that one who is “in custody” only in the most metaphorical sense would also have a “custodian” that partakes of the chimerical.

This search for the proper “custodian” is not merely unproductive, it is not required by law. There has never existed in this Circuit an absolute requirement that a habeas action be brought in the location of the “immediate custodian.” For example, servicemen stationed abroad have been freely granted the right to bring habeas actions in the District of Columbia even though their “immediate custodians” were not in any sense located here. In such situations the “immediate custodian” — presumably the petitioner’s commanding officer— was not within the territorial jurisdiction of any federal District Court. Thus, to the extent that the concept of “immediate custodian” has ever had any viability, it has readily given way to the practical impossibility of obtaining such jurisdiction.

B. The Nature of Custody for the Inactive Reservist

The answer to the issue of the proper forum must begin with an understanding of the significance of the altered nature of “custody” in the context of the inactive reservist. Unlike an incarcerated prisoner, an inactive reservist is in “custody” only in a highly metaphysical sense. The chains imposed by the Government bind only his sense of well-being and if he is a prisoner at all his confinement emanates from his own mind.

The altered nature of “custody” necessitates a reconsideration of the nature of “custodianship.” In situations of physical custody it is both natural and helpful to think of an actual person charged with the physical restraint of the prisoner. Where the petitioner is at large but the restraints deny him freedom of movement it will still be proper to think of his “custodian” as being the person who is causing the restraint.

In the case of the inactive reservist, however, this type of thinking is entirely inappropriate. The instant ease illustrates the point. Here there is no showing that any of the suggested “immediate custodians” have exercised any real control over the petitioners. The commanders of the record centers and the bases to which petitioners have been ordered to report have never had anything to do with the denial of the requests for release. The record centers’ commanders have been mere shadows through which others worked and the relationship of the base commanders is at best potential. By like token, the civilian service Secretaries’ relationship to the petitioners is extremely remote.

The fact is that petitioners have been denied release from the service by none of these people. Their true “jailer” is that faceless amalgam of decision-making process known as the “bureaucracy.” Perhaps it would be possible to trace through the baroque interior of the petitioners’ cases and discover the precise point that it was decided that they would not be released from the service, and designate that moment, the point at which they were placed “in custody” and the particular decision-maker as their “custodian.” Yet such a process would often be impossible and would not be particularly helpful. It is far more helpful simply to accept reality and think of the “custodians” of inactive reservists as being, in a general sense, the Armed Services of which they are a part.

In the extreme example of non-physical “custody” presented by the inactive reservist, the petitioner’s “custodian” accompanies him everywhere he goes. If the restraints in this case are largely psychological, they will exist in the petitioner’s mind regardless of his location.

C. The Location of the Proper Forum.

Accepting our analysis of the nature of the inactive reservists’ “custody” and his “custodian” does not mean however, that he may choose his forum by simply appearing personally in a jurisdiction, thereby bringing his mental “jailer” along with him. To think in such terms is to make the same error that the parties here make in keying jurisdiction to the location of the “custodian.” This whole issue simply cannot be allowed to turn on the location of an entity whose existence is such a source of controversy.

Indeed, the Supi’eme Coui’t has specifically held that the mere presence of a petitioner in a forum, standing alone, is not sufficent to support a court’s jurisdiction. In Schlanger v. Seamans the Court was asked to consider a denial of habeas relief to a serviceman who had obtained a temporary leave of absence from the service to attend college in Arizona. The Court held that the mere presenee of the petitioner in Arizona to attend school was not enough to permit him to bring the action there.

While the situation of a serviceman on leave to attend school is not entirely analogous to that of an inactive reservist, we think that the principle established in that case is applicable here; mere presence in a jurisdiction is not enough to support a habeas action. The Schlanger result is, of course, consistent with the functional method of determining the proper forum for habeas actions. If one were permitted to establish jurisdiction by merely being before the court, a petitioner could select any forum he wished; this would be forum shopping in its most extreme form.

There is much language in the Schlanger opinion that indicates the Court felt jurisdiction would not lie in Arizona because the petitioner’s “custodian” or commanding officer was elsewhere. We do not feel that this language, even assuming that it was determinative in that case, is of relevance here. The petitioner in Schlanger was not an inactive reservist, but rather was on leave of absence. His commander was not the keeper of some records in an obscure place where the petitioner had never been. His commander was the commanding officer of petitioner’s last duty station. Schlanger's commanding officer had been in charge of his conduct in a very physical and immediate way and the petitioner had remained subject to the commanding officer’s control while on his leave of absence. All of Sehlanger’s contacts with the Army had been through his chain of command, and there is no suggestion that confusion existed regarding to whom the petitioner was responsible.

On these facts we see that Schlanger’s condition was more analogous to that of a parolee who, although free, has retained continuing contacts with a particular, easily identifiable entity. In such a situation the concept of “custodianship” may retain viability since the “custodian” is not an object of speculation as with the inactive reservist. In short, the nature of the “custodian” in Schlanger was similar to the traditional definition of that term. As we have shown, the “custodian” in the inactive reserve context bears little resemblance to its traditional counterpart. We therefore do not feel that the Supreme Court’s discussion of “custodianship” in Schlanger is relevant to this case. And, as the Court plainly stated in Strait, “[t]he jurisdictional defect in Schlanger, however, was not merely the physical absence of the Commander of Moody AFB from the District of Arizona, but the total lack of formal contacts between Schlanger and the military in that distl’ict.”

The ultímate answer to where jurisdiction does lie for • the inactive reservist may be found in a careful consideration of the Supreme Court’s opinion in Strait v. Laird. That case involved an inactive reservist who, unlike the petitioner in Schlanger, had never been on active duty and who sought release from the military as a conscientious objector. The petitioner in Strait had been a longtime resident of California and it was in that state that he sought release from the militax-y, first by application to the military and failing that by petitioning for a writ of habeas corpus in the federal court. The Government argued that the California courts had no jurisdiction because Strait’s “custodian,” supposedly the same commander of the record center in Indiana involved in this ease, was not within the court’s jurisdiction. The Government’s argument was based on an interpretation of Schlanger that would require actions always to be brought in the jurisdiction of the “immediate custodian.” The Strait Court wisely rejected this mechanistic method of solving the problem and inquired into the factors that were relevant to a functional determination of the proper forum.

The Court in Strait felt there were essentially four factors relevant to its determination that California was the proper forum for the petitioner’s action: (1) California was Strait’s “home”; (2) he had never been on active duty; (3) California was where he had received his commission; and (4) California was where petitioner had made his application for release from the militai'y and where the application had been processed. The Court concluded with the observation that “[i]t was in California where . . . [petitioner] had his only meaningful contact with the Army . . . ."

Under these criteria it is quite clear that appellant Gelber may bring his action in Massachusetts. Massachusetts is Gelber’s domicile and it is where he has applied for release and engaged in negotiations with the military to obtain release. As in the Strait case, Massachusetts is where the petitioner has “had his only meaningful contact with the Army . . . . ”

The meaning of the Strait opinion for appellant Eisel is, however, less clear. Eisel moved from Massachusetts to New York after his initial application for release and interviews with service personnel. Thus, while Eisel had his “most meaningful contact” with the service in Massachusetts, his “home” is in New York. The Court in Strait did not tell us which of the several factors it considered were determinative there. Undoubtedly, it considered all of them relevant and did not wish unnecessarily to decide which should prevail when they might be in conflict. Here two of the factors are in conflict and we must determine which should be allowed to control.

It would be possible to establish a rule that held the forum to be where the serviceman had his most significant contacts with the military. Such a choice has the rather obvious disadvantage, however, of being vague and easily subject to misinterpretation. It may well be that an inactive reservist may have contacts with the military in a number of different places. Deciding where the, place of the “most significant contacts” is might be as difficult as finding the mythical “immediate custodian.”

Employing the petitioner’s home or domicile as the determining factor does not have this disadvantage. If we apply the six criteria used to analyze the suggested “custodian” tests in Part II above, we see that a standard based on one’s domicile is virtually free of objections. First, witnesses such as ministers, employers, and friends who would testify regarding the petitioner’s status as a conscientious objector are more likely to be located in the jurisdiction of the petitioner’s domicile. Second, such a rule will promote an even distribution of this type of habeas cases throughout the country; the number of such actions in any given jurisdiction should be roughly proportionate to the size of the population. Thirdly, it is clearly a convenient forum for the petitioner. Fourthly, there does not appear to be any reason to think that a domiciliary test would work an inconvenience on the Government. Fifthly, the forum under a domiciliary test would be relatively easy to determine. There are of course situations in which the exact location of a person’s domicile is unclear. Such situations are relatively uncommon; they are certainly not as difficult of resolution as the alternatives that have been suggested to us. In addition, our judicial system is familiar with the concept of domicile — the problem has arisen in the context of decedents’ estates, divorce, and taxation — and there will be a body of law that courts can draw upon to resolve controversies. Finally, such a rule would establish a single exclusive forum, thereby preventing forum shopping. Traditionally a person has been able to have only one domicile. It is also not possible to change one’s domicile by simply moving from place to place.

We believe that our proposed rule of domicile is both correct under existing law and consistent with the policy considerations relevant to determining the proper forum in habeas cases. Admittedly, there is language in the Strait opinion which might be read as an indication that the Court there considered the concept of “custodianship” in concluding that the action was properly maintainable in California. This language is more properly read, however, as a statement that the “custodian” was in California because that is where appellant had his “home” and his most significant contacts with the military. There is no suggestion in the opinion that California is the proper forum because petitioner’s immediate custodian is located there. The Court did conclude that the custodian was present in California; that presence, however, was of a highly metaphysical nature. The discussion was no doubt included in order to eliminate the possibility that the Court’s opinion might be misinterpreted as doing away with the need for a “custody” and a “custodianship.” Likewise, in this case we are not saying that appellants are not in “custody” or that their “custodians” are not located within the jurisdiction of the forum. We are simply saying that the location of the “custodian” in this situation assumes such an uncertain character that its location should not be made the test for determining the proper forum.

Based on the above, we conclude that appellant Eisel may bring his action in the jurisdiction of his domicile, New York.

The injunction of the District Court has remained in effect pending the disposition of this appeal. Since we have denied appellants permission to bring their action in the District of Columbia and have suggested the jurisdictions that we believe are proper, the issuance of the mandate in this case is stayed for a period of thirty days to permit appellants to take whatever action they deem appropriate in light-of our decision.

The action of the District Court in dismissing petitioners’ suits for lack of jurisdiction, for the reasons stated in our opinion herein, is

Affirmed.

      . 28 U.S.C. § 2243 (1970).

      . See generally, Developments in the Law —Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1160-65 (1970). For examples of a functional approach to determining the proper forum in other areas of the law see R. Weintraub, Commentary On The Conflicts Of Laws (1971).

      . 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed. 2d 443.

      . Id. at 1129.

      . If the civilian Secretaries are the “custodians” of inactive reservists it seems only reasonable to assume that they are the “custodians” of all military personnel. There has been no suggestion that the Secretaries assume a position in relation to inactive reservists that they do not have with all other members of the military. If inactive reservists may proceed against the Secretaries because the latter are their custodians, we cannot see why any other member of fhe military should not be permitted so to proceed.
      Furthermore, consider what appellants’ theory of jurisdiction based on location of the “ultimate custodian” would do if applied in criminal cases. In almost every federal case in which imprisonment or probation is decreed, at time of sentence the District Judge habitually remands the convicted defendant “to the custody of the Attorney General.” Thereafter, the place of confinement and the treatment the prisoner receives is the responsibility of the Attorney General. He is the “ultimate custodian,” just as the armed service Secretaries arp in regard to all in the military under their orders. It would be disruptive of the'entire criminal habeas corpus process to create in the District of Columbia an alternative jurisdiction for habeas purposes for every federal prisoner. The argument for so doing in administrative habeas cases involving the military rests on little more logic.

      . Strait v. Laird, 406 Ü.S. 341, 92 S.Ct. 1693, 32 L.Ed.2d 141 (1972). The import of this opinion is discussed in Part IV-C of this opinion.

      . Ibid.

      . Ibid.

      . See Kafka, The Trial 268-278 (Knopf 1937).

      . 28 U.S.C. § 2241(c)(3) (1970).

      . The statute provides, for example, that a prisoner convicted by a state court may seek relief in either the jurisdiction where he is being held or in the jurisdiction where he was convicted and sentenced. 28 U.S.C. § 2241(d) (1970).

      . 28 U.S.C. § 2243 (1970). Another provision in the statutory scheme provides that the application for a writ shall “allege the facts concerning the applicant’s commitment or detention, the name of the person who has custody over him and by virtue of what claim or authority, if known.” 28 U.S.C. § 2242 (1970).

      . Wales v. Whitney, 114 U.S. 564, 571-572, 5 S.Ct. 1050, 29 L.Ed. 277 (1885); See Developments in the Law — Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1073-74 (1970).

      . Some early cases held that an action would not lie in a particular jurisdiction because the proper — i. e., “immediate”— custodian was not present. E. g., McGowan v. Moody, 22 App.D.C. 148, 158-164 (1903). In these cases, however, the petitioner was in actual physical custody in another jurisdiction. The court could have, therefore, reached the same result by saying that the court did not have territorial jurisdiction over the petitioner.

      . 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948).

      . Id. at 190-191, 68 S.Ct. 1443; Braden v. 30th Judicial Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973).

      . The Court’s reasons for its holding are all based upon the location of the petitioner :
      Although the writ is directed to the person in whose custody the party is detained, 28 U.S.C. § 455, the statutory scheme contemplates a procedure which may bring the prisoner before the court. . . . For § 458 provides that “The person making the return shall at the same time bring the body of the party before the judge who granted the writ.” See Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830. It would take compelling reasons to conclude that Congress contemplated the production of prisoners from remote sections, perhaps thousands of miles from the District Court that issued the writ. The opportunities for escape afforded by travel, the cost of transportation, the administrative burden of such an undertaking negate such a purpose. These are matters of policy which counsel us to construe the jurisdictional provision of the statute in the conventional sense, even though in some situations return of the prisoner to the court where he was tried and convicted might seem to offer some advantages.
      335 U.S. at 190-191, 68 S.Ct. at 1444.

      . The Court begins its discussion of why the lower court did not have jurisdiction with the observation that “It is not sufficient in our view that the jailer or custodian alone be found in the jurisdiction.” Id. at 190, 68 S.Ct. at 1444. The possibility that the Court in Ahrens did not consider the location of the “immediate custodian” of great importance is supported by the fact that some of the lower court cases which the Court cited in support of its outcome had used the “immediate custodian” rationale to determine jurisdiction. E. g., McGowan v. Moody, 22 App.D.C. 148, 158-164 (1903). Thus, the Supreme Court had available to it authority that would have supported a disposition on the basis of the absence of the “immediate custodian” of the petitioner, but it specifically stated, “. . . we do not reach the question whether the Attorney General is the proper respondent. ...” Id., 335 U.S. at 193, 68 S.Ct. at 1446. The Supreme Court’s decision not to use the “immediate custodian” rationale even though it was available is of some significance.
      Our interpretation is also supported by the fact that the dissenters in Ahrens criticized the place of petitioner rule established by the majority. 335 U.S. at 193, 68 S.Ct. 1443. Justice Rutledge argued vigorously that the proper forum should be determined by the location of the jailer or “custodian.” The dissenters felt that the majority’s rule might mean that an action would not be permitted in certain situations where the court had jurisdiction over the petitioner but for some reason did not have territorial jurisdiction over the “custodian.” Id. at 195-197, 68 S.Ct. 1443. The majority did not speak to this argument in their opinion. It seems unlikely, however, that the Court would have wanted their opinion to produce such an obviously unjust result. It, therefore, seems likely that the Ahrens Court did not feel that the location of the “immediate custodian” should be a decisive factor in determining the proper forum or that failure to have jurisdiction over the “immediate custodian” would necessarily bar an action.

      . See, e. g., Sanders v. Bennett, 80 U.S.App.D.C. 32, 148 F.2d 19 (1945); Jones v. Biddle, 131 F.2d 853 (8th Cir. 1942); McGowan v. Moody, 22 App.D.C. 148 (1903).

      . 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963).

      . Id. at 240 and 243, 83 S.Ct. at 376, 377.

      . See, e. g., Benson v. California, 328 F.2d 159 (9th Cir. 1964), cert. denied, 380 U.S. 951, 85 S.Ct. 1086, 13 L.Ed.2d 970 (1965).

      . New York ex rel. Williams v. New York State Addiction Control Comm’n, 288 F.Supp. 171 (S.D.N.Y.1968) (escape from civil commitment).

      . Walker v. North Carolina, 262 F.Supp. 102 (W.D.N.C.1966), aff’d per curiam, 372 F.2d 129 (4th Cir.), cert. denied, 388 U.S. 917, 87 S.Ct. 2134, 18 L.Ed.2d 1360 (1967).

      . See, e. g., Duncombe v. New York, 267 F.Supp. 103, 109, 109 n. 9 (S.D.N.Y.1967) (dictum). Many cases, however, have held that one on bail is not in custody.
        E. g., Allen v. United States, 349 F.2d 362 (1st Cir. 1965).

      . 28 U.S.C. § 2241 (1970); 28 U.S.C. § 2255 (1970).

      . 406 U.S. 341, 92 S.Ct. 1693, 32 L.Ed. 2d 141 (1972).

      . “The most realistic approach is to recognize that custody as a prerequisite for habeas corpus simply does not exist for an unattached reservist who is under virtually no restraints upon where he may live, work, or study, and whose only connection with the Army is a future obligation to enter active duty.” Id. at 350, 92 S.Ct. at 1698.

      . See text accompanying footnotes 15-19, supra. When Ahrens, supra, was originally decided, its rationale of jurisdiction in the location of the petitioner’s confinement was applicable to all types of habeas actions. This rule, however, was overruled in part by acts of Congress. 28 U.S.C. § 2241(d) (1970). In the area of “administrative custody,” the Ahrens opinion is still the law.

      . See cases cited in footnote 19, supra.

      . See discussion in Part III of this opinion.

      . See, e. g., Bortree v. Resor, 144 U.S. U.S.App.D.C. 292, 443 F.2d 707 (1971); United States ex rel. Barr v. Resor, 143 U.S.App.D.C. 292, 443 F.2d 707 (1971); Day v. Wilson, 101 U.S.App.D.C. 69, 247 F.2d 60 (1957). See also, Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508, and opinion of Mr. Justice Frankfurter at the denial of a rehearing, 346 U.S. 844, 851-852, 74 S.Ct. 3, 98 L.Ed. 363 (1953).

      . Our reasoning here raises the interesting but not highly relevant issue of precisely when the 'petitioners became “in custody.” A criminal petitioner is apparently “in custody” merely by virtue of being a prisoner. 28 U.S.C. § 2241 (c)(1) (1970). We do not believe, however, that an inactive reservist is “in custody” merely because he is a part of the military. We conclude this because of the wording of the statute that permits such persons held in administrative custody to seek relief. It requires that the petitioner be “in custody in violation of the Constitution or laws or treaties of the United States . . . . ” 28 U.S.C. § 2241(c)(3) (1970). Thus there must be a violation of the law in order for one to be “in custody” under this provision. We would, therefore, conclude that the petitioners hero came into “custody” at the point that their applications for release were denied.

      . 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971).

      . Id. at 389-392, 91 S.Ct. 995.

      . 406 U.S. 341, 344, 92 S.Ct. 1693, 1695, 32 L.Ed.2d 141 (1972).

      . Id.

      . Id. at 343, 92 S.Ct. at 1694.

      . In Strait the Supreme Court used the word “home” to describe the factor that it felt was important in determining whether California was the proper forum. It is clear, however, that the Court did not simply mean that it was significant that Strait was living in California at the time. The relationship described by the Court was of a more lasting nature and was more analogous to the legal concept of “domicile” than to mere residence. We, therefore, employ the concept of domicile as that term is used in a technical sense as the test to be applied to inactive reservists. We note also that the headnote writer for Strait used the word “domicile,” not “home.”

      . 406 U.S. at 344-345, 92 S.Ct. 1693.

      . Our reasoning in this case raises the issue of who should be named in the petition as the “person” having custody over the petitioner. Two provisions of the statutory scheme require that the application for a writ “name the person who has custody over” the petitioner and that “[t]he writ, or order to show cause shall be directed to the person having custody of the person detained.” 28 U.S.C. § 2242 (1970); 28 U.S.C. § 2243 (1970). This problem is relatively minor and has not caused courts a great deal of trouble in situations in which the “immediate custodian” has clearly not been before the forum court. See cases cited in footnote 32, supra; cf. Ex parte Endo, 323 U.S. 283, 305, 65 S.Ct. 208, 89 L.Ed. 243 (1944). In this situation it might be proper for the petition to “name” the officer who signed the order denying the petitioner release from the military. Another possible alternative would be to “name” the highest ranking military offieer of that branch of the Armed Services of which petitioner is a part who can be found in the forum court’s jurisdiction.

      . Our decision is that the U.S. District Courts in New York and Massachusetts would have jurisdiction over these actions, if brought by Eisel and Gelber in those respective forums. We couch this part of our decision as a holding, because it is essential to our rationale here; we would not hold that the U.S. District Court for the District of Columbia does not have jurisdiction if we could not point to a forum which did have.
      In so doing, we recognize that this holding does not bind the U.S. District Courts in New York and Massachusetts. Each , may independently determine its jurisdiction differently from our reasoning here; if such disparate decisions result, there may be produced a conflict between Circuits which only the Supreme Court can resolve.