author: Mr. Justice Rehnquist delivered the opinion of the Court. Mr. Justice Douglas,

text:
    ANDREWS v. LOUISVILLE & NASHVILLE RAILROAD CO. et al.
    No. 71-300.
    Argued March 22, 1972
    Decided May 15, 1972
    Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., Brennan, Stewart, White, Marshall, and Black-mun, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 326. Powell, J., took no part in the consideration or decision of the case.

      Andrew W. Estes argued the cause for petitioner. With him on the brief was James E. Slaton.

      William EL. Major argued the cause for respondents. With him on the brief were Lamar W. Sizemore and Robert O. Young.

   Mr. Justice Rehnquist delivered the opinion of the Court.

Petitioner brought suit in the state trial court of Georgia seeking damages for alleged “wrongful discharge” by the respondent. He alleged that prior to an auto accident in 1967, he had been an employee in good standing of the respondent, employed “under specified conditions and with a stipulated schedule of benefits.” He alleged that following the accident, he had fully recovered and was physically able to resume his work for respondent, but that respondent had refused to allow him to return to work, and that respondent’s actions amounted to a wrongful discharge. He prayed for damages consisting of loss of past and future earnings and for attorneys’ fees. Respondent removed the case to the United States District Court and there moved to dismiss the complaint for failure to exhaust the remedies provided by the § 3 First (i) of the Railway Labor Act, 44 Stat. 679, as amended, 48 Stat. 1191, 46 U. S. C. § 153 First (i). See also 1966 amendments to § 3 Second, 80 Stat. 208. The District Court granted the motion, and the Court of Appeals for the Fifth Circuit affirmed. We granted certiorari, 404 U. S. 955, and are once more confronted with the question of whether Moore-v. Illinois Central B. Co., 312 U. S. 630 (1941), should be overruled.

Moore held that a railroad employee who elected to treat his employer’s breach of the employment contract as a discharge was not required to resort to the remedies afforded under the Railway Labor Act for adjustment and arbitration of grievances, but was free to commence in state court an action based on state law for breach of contract. The result was supported by the Court’s conclusion that the procedures for adjustment of “minor disputes” under the Railway Labor Act had been intended by Congress to be optional, not compulsory, and that therefore a State was free- to accord an alternative remedy to a discharged railroad employee under its law of contracts. The basic holding of Moore was reaffirmed and its state law aspects amplified in Transcontinental & Western Air, Inc. v. Koppal, 345 U. S. 653 (1953). There it was held that if state law required the employee to exhaust administrative remedies provided for in his contract of employment before resorting to court, a federal diversity court should enforce that requirement.

Later cases from this Court have repudiated the reasoning advanced in support of the result reached in Moore v. Illinois Central, supra. Fifteen years ago, in Brotherhood of Railroad Trainmen v. Chicago R. & I. R. Co., 353 U. S. 30, 39 (1957), this Court canvassed the relevant legislative history and said:

“This record is convincing that there was general understanding between both the supporters and the opponents of the 1934 amendment that the provisions dealing with the Adjustment Board were to be considered as compulsory arbitration in this limited field.”

When the issue was again before the Court in Walker v. Southern R. Co., 385 U. S. 196 (1966), it was observed:

“Provision for arbitration of a discharge grievance, a minor dispute, is not a matter of voluntary agreement under the Railway Labor Act; the Act compels the parties to arbitrate minor disputes before the National Railroad Adjustment Board established under the Act.” 385 U. S., at 198.

Thus, the notion that the grievance and arbitration procedures provided for minor disputes in the Railway Labor Act are optional, to be availed of as the employee or the carrier chooses, was never good history and is no longer good law.

The related doctrine expressed in Moore and Koppal, that a railroad employee’s action for breach of an employment contract is created and governed by state law, has been likewise undercut by later decisions. In Machinists v. Central Airlines, 372 U. S. 682 (1963), an agreement required under § 204 of the Railway tabor Act was said to be “like the Labor Management Relations Act § 301 contract ... a federal contract and . . . therefore governed and enforceable by federal law, in the federal courts.” 372 U. S., at 692. A similar result was reached under § 301 (a) of the Labor Management Relations Act in Textile Workers v. Lincoln Mills, 353 ü. S. 448 (1957).

In Republic Steel Corp. v. Maddox, 379 U. S. 650 (1965), the Court deduced from the Labor Management Relations Act a preference for the settlement of disputes in accordance with contractually agreed-upon arbitration procedures. It accordingly held that before a state court action could be maintained for breach of such a contract, the employee must first “attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress.” 379 U. S., at 652. In Maddox, the Court not only refused to extend Moore- to save state court actions for breach of contract under § 301 of the Labor Management Relations Act, but intimated that its rule might well not survive even in Railway Labor Act cases. Indeed, since the compulsory character of the administrative remedy provided by the Railway Labor Act for disputes such as that between petitioner and respondent stems not from any contractual undertaking between the parties but from the Act itself, the case for insisting on resort to those remedies is if anything stronger in cases arising under that Act than it is in cases arising under § 301 of the LMRA.

The fact that petitioner characterizes his claim as one for “wrongful discharge” does not save it from the Act’s mandatory provisions for the processing of grievances. Petitioner argues that his election to sever his connection with the employer and treat the latter’s alleged breach of the employment contract as a “discharge” renders his claim sufficiently different from the normal disputes over the interpretation of a collective-bargaining agreement to warrant carving out an exception to the otherwise mandatory rule for the submission of disputes to the Board. But the very concept of “wrongful discharge” implies some sort of statutory or contractual standard that modifies the traditional common-law rule that a contract of employment is terminable by either party at will. Here it is conceded by all that the only source of petitioner’s right not to be discharged, and therefore to treat an alleged discharge as a “wrongful” one that entitles him to damages, is the collective-bargaining agreement between the employer and the union. Respondent in this case vigorously disputes any intent on its part to discharge petitioner, and the pleadings indicate that the disagreement turns on the extent of respondent’s obligation to restore petitioner to his regular duties following injury in an automobile accident. The existence and extent of, such an obligation in a case such as this will depend on the interpretation of the collective-bargaining agreement. Thus petitioner’s claim, and respondent’s disallowance of it, stem from differing interpretations of the collective-bargaining agreement. The fact that petitioner intends to hereafter seek employment elsewhere does not make his present claim against his employer any the less a dispute as to the interpretation of a collective-bargaining agreement. His claim is therefore subject to the Act’s requirement that it be submitted to the Board for adjustment.

The constitutional issue discussed in the dissent was not set forth as a “question presented for review” in the petition for certiorari, and therefore our Rule 23 (1) (c) precludes our consideration of it. “We do not reach for constitutional questions not raised by the parties.” Mazer v. Stein, 347 U. S. 201, 206 n. 5 (1954).

The term “exhaustion of administrative remedies” in its broader sense may be an entirely appropriate description of the obligation of both the employee and carrier under the Railway Labor Act to resort to dispute settlement procedures provided by that Act. It is clear, however, that in at least some situations the Act makes the federal administrative remedy exclusive, rather than merely requiring exhaustion of remedies in one forum before resorting to another. A party who has litigated an issue before the Adjustment Board on the merits may not relitigate that issue in an independent judicial proceeding. Union Pacific R. Co. v. Price, 360 U. S. 601 (1959). He is limited to the judicial review of the Board’s proceedings that the Act itself provides. Gunther v. San Diego & A. E. R. Co., 382 U. S. 257 (1965). In such a case the proceedings afforded by 45 U. S. C. § 153 First (i), will be the only remedy available to the aggrieved party.

In Walker v. Southern R. Co., 385 U. S. 196 (1966), the Court noted that there had been complaints not only about the long delay in processing of grievances on the part of the Adjustment Boards, but also about the fact that a more extensive right of judicial review of Board action was accorded to carriers than to employees. The Court noted that Congress, by Public Law 89-456, 80 Stat. 208, effective June 20, 1966, had legislated to correct these difficulties, but observed that the employee in Walker had not had the benefit of these new procedures. It therefore declined, “in his case,” 385 U. S., at 199, to overrule Moore. Petitioner Andrews, however, would in the prosecution of his claim before the Adjustment Board have the benefit of these improved procedures. We now hold that he must avail himself of them, and in so doing we necessarily overrule Moore v. Illinois Central R. Co., supra.

Affirmed.

Mr. Justice Powell took no part in the consideration or decision of this case.

Mr. Justice Douglas,

dissenting.

I

If this employee wanted reinstatement and back pay, there would be merit in remitting him to the remedies under the Railway Labor Act. But he does not want that relief. Rather, he desires to quit the railroad, to have no further jobs with it, and to be compensated in dollars for his wrongful discharge.

The cases on which the Court relies to overrule Moore v. Illinois Central R. Co., 312 U. S. 630, are quite different. Brotherhood of Railroad Trainmen v. Chicago R. & I. R. Co., 353 U. S. 30, involved claims of existing employees, not for damages for wrongful discharge, but for “additional compensation” and for “reinstatement,” and involved a “minor” dispute, that is, a controversy “over the meaning of an existing collective bargaining agreement.” Id., at 32-33. Machinists v. Central Airlines, 372 U. S. 682, also involved reinstatement “without loss of seniority and with back pay.” Id., at 683. In Republic Steel Corp. v. Maddox, 379 U. S. 650, the aggrieved employee wanted “severance pay” allegedly owed under the collective-bargaining agreement. Id., at 650-651. In Walker v. Southern R. Co., 385 U. S. 196, the dispute basically involved an issue of seniority, though the opinion does not disclose it.

The complaint in this case alleges that following an automobile accident, in which the petitioner-employee was involved, the company refused to allow him to go to work on the ground he had not recovered sufficiently to perform his former duties. No issue involving the collective-bargaining agreement was tendered. Petitioner — rightly or wrongly — claimed this was a discharge and that under Georgia law, governing the place where he worked, he had been deprived of wages from the time he recovered from the accident, and that he was deprived “of the expectancy of future earnings . . . until the date of his scheduled retirement.”

In other words, he asks for no relief under the collective agreement, he does not ask for reinstatement or severance pay, he does not ask for continued employment. He is finished with this railroad, and turns to other activities; he seeks no readmission to the collective group that works for the railroad. He leaves it completely and seeks damages for having been forced out.

To remit him to the National Railroad Adjustment Board is to remit him to an agency that has no power to act on this claim. We said as much in Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239. That case involved a grievance that “concerned interpretation of an existing bargaining agreement.” Id., at 242. We therefore held that the employee first had to exhaust his remedies before the Adjustment Board. We distinguished the case from Moore as follows:

“Our holding here is not inconsistent with our holding in Moore v. Illinois Central R. Co., 312 U. S. 630. Moore was discharged by the railroad. He could have challenged the validity of his discharge before the Board, seeking reinstatement and back pay. Instead he chose to accept the railroad’s action in discharging him as final, thereby ceasing to be an employee, and brought suit claiming damages for breach of contract. As we there held, the Railway Labor Act does not bar courts from adjudicating such cases. A common-law or statutory action for wrongful discharge differs from any remedy which the Board has power to provide, and does not involve questions of future relations between the railroad and its other employees. If a court in handling such a case must consider some provision of a collective-bargaining agreement, its interpretation would of course have no binding effect on future interpretations by the Board.” 339 U. S., at 244. (Emphasis added.)

The Adjustment Board has considerable expertise in construing and applying collective-bargaining agreements, as respects severance pay, seniority, disciplinary actions by management, and the various aspects of reinstatement. But the body of law governing the discharge of employees who do not want or seek reinstatement is not found in customs of the shop or in the collective agreement but in the law of the place where the employee works. The Adjustment Board is not competent to apply that law. In the first place the members of the four divisions of the Adjustment Board authorized by 45 U. S. C. § 153 First (b) presumably do not know the local law governing the employee-employer relationships in all of the States where railroads run. In the second place, the personnel of these divisions of the Adjustment Board may occasionally have lawyers on them but law-trained members are the exception, not the rule. In the third place, an employee seeking damages for reinstatement is normally entitled to a jury trial; and no division of the Adjustment Board ever pretends to serve in that role.

The Board, we now know, is made up of laymen; those laymen have no insight into the nuances of Georgia law on the question of damages, and they obviously cannot even purport to give the remedy in damages which a “court suit” entails.

The regime of mediation and arbitration under collective-bargaining agreements, such as the one we upheld in Textile Workers v. Lincoln Mills, 353 U. S. 448, and those we have cited under the Railway Labor Act, are important in stabilizing relations between unions and employers. See U. S. Bulk Carriers v. Arguelles, 400 U. S. 351, 355-356. But where the collective-bargaining agreement is not directly involved, and certainly where the individual employee, who tenders his grievance, wants to quit the railroad scene and go elsewhere and sever his communal relation with union and railroad, the case falls out of the ambit of authority given to the mediation or arbitration agencies.

The courthouse is the forum for that litigant and I would never close its door to him, unless the mandate of Congress were clear. Even then I do not see how the Seventh Amendment could be circumvented: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”

Though the case is in the federal courts, this employee sues to enforce a common-law right recognized by the State of Georgia. The only place he can get a trial by jury is in a court. If he sues under a collective-bargaining agreement, he does not sue at common law but under a statutory federal regime. Yet that is not this case.

Everyone who joins a union does not give up his civil rights. If he wants to leave the commune and assert his common-law rights, I had supposed that no one could stop him. I think it important under our constitutional regime to leave as much initiative as possible to the individual. What the Court does today is ruthlessly to regiment a worker and force him to sacrifice his constitutional rights in favor of a union. I would give him a choice to pursue such rights as he has under the collective agreement and stay with the union, or to quit it and the railroad and free himself from a regime which he finds oppressive. I would construe the federal law as giving the employee that choice. The choice imposed by the Court today raises serious constitutional questions on which we have not had the benefit of any argument.

This is a plain, ordinary, common-law suit not dependent on any term or provision of a collective-bargaining agreement. I cannot, therefore, join those who would close the courthouse door to him. Under the First Amendment, as applied to the States by the Fourteenth, he is petitioning the Government “for a redress of grievances” in the traditional manner of suitors at common law; and by the Seventh Amendment is entitled to a jury trial.

II

As noted, my basic disagreements with the majority concern the validity of the two assumptions implicit in its holding: (a) that the collective agreement will be sufficiently implicated in this dispute to warrant the application of federal substantive law, and (b) that Congress has vested the Board with jurisdiction to entertain nonreinstatement grievances such as Andrews’ complaint. But, even taking these assumptions as correct for purposes of argument, I believe the Court has erred.

The majority does not hold that Congress has mandated that the statutory procedure be the exclusive route for adjusting Andrews’ grievance. Indeed, that path was foreclosed by our decision in Walker v. Southern R. Co., 385 U. S. 196, holding that prior to the 1966 amendments Congress had evinced no such purpose, and by the fact that nothing in the 1966 amendments themselves evidences an intention to render the statutory channel exclusive for nonreinstatement claims. Rather, today’s result is grounded in the authority of the federal courts to fashion the substantive law to be applied to collective agreements. Machinists v. Central Airlines, 372 U. S. 682, 695; see also Textile Workers v. Lincoln Mills, 353 U. S. 448. Even under that assumption, I would not impose the exhaustion requirement upon this narrow and readily identifiable group of dischargees.

There is no equation of the substantive law to govern agreements under § 301 of the Labor Management Relations Act, into which exclusive arbitration clauses may voluntarily be inserted by the parties and the substantive law to govern railroad contracts, onto which the statutory grievance procedure is superimposed by law. One would not suppose that every doctrine developed under the Labor Management Relations Act, 61 Stat. 136, should be carried over into the apparatus created by the Railway Labor Act. A salutary doctrine under one measure may serve no worthwhile purpose under the other. Yet today the majority transplants the Maddox rule in the foreign soil of the railroad world without any discussion of the ends to be served. Even Maddox cautioned against that result, stating that any overruling of Moore should come only after “the various distinctive features of the administrative remedies provided by [the Railway Labor] Act can be appraised in context, e. g., the make-up of the Adjustment Board, the scope of review from monetary awards, and the ability of the Board to give the same remedies as could be obtained by court suit.” 379 U. S., at 657 n. 14.

It is said that the fact that Congress (rather than private parties as in Maddox) fashioned the instant adjustment procedure somehow reinforces a presumption of exclusivity. Yet it is difficult to perceive how that can be when it is also conceded, as mentioned earlier, that Congress itself has never designed its prescription to be the sole avenue of redress for this limited class of claimants. Rather, the significance of the statutory source of this procedure lies in its inflexibility and immunity from modification through collective bargaining. Unlike the Maddox rule, what is done today cannot be undone tomorrow through contract negotiation. That difference would seem to warrant caution to ensure that more is to be gained than lost by closing the courthouse door.

One clear disadvantage counsels against today’s holding. Given the nature of permanent dischargees’ weak positions vis-a-vis their former unions, the personnel manning the adjustment mechanism, its haphazard de-cisional process, and the absence of judicial review of Board decisions, the risk is substantial that valid complaints of permanent dischargees such as Andrews will be unfairly treated.

The machinery erected by the Railway Labor Act was not meant to be judicial in nature. Rather, it was designed as an arbitration process in which the union and the carrier occupy opposite sides of a bargaining table. As a substitute for the economic battleground, the process envisions decisionmaking on the basis of strength and accountability to the interests represented. Unions will often press one grievance at the expense of another. If Andrews were a continuing union member perhaps he would receive equal representation. But because the union will not have to answer to him if his claim is lost the union may yield its merit in the logrolling process carried on with management. I now have doubt that the reasoning of Maddox was sound insofar as we opined that a union agent will have sufficient interest in faithfully prosecuting the complaint of a former member who “has lost his job and is most likely outside the union door looking in instead of on hand to push for his claim.” 379 U. S., at 653 (majority opinion), and 668 (Black, J., dissenting). Indeed, only this Term in Chemical Workers v. Pittsburgh Glass, 404 U. S. 157, we refused to permit a union to represent nonvoting pensioners, holding that under the National Labor Relations Act, 49 Stat. 449, as amended, 29 U. S. C. § 151 et seq., the company was not required to bargain with respect to pension plans affecting inactive retirees. We reasoned that “the risk cannot be overlooked that union representatives on occasion might see fit to bargain for improved wages or other conditions favoring active employees at the expense of retirees' benefits.” Id., at 173.

Beyond the inherent risk of compromise of a dis-chargee’s claim there lie still further obstacles to fair treatment. First, the internal procedures used by the Board are far afield from those normally associated with impartial adjudication. The Board is exempt from the Administrative Procedure Act, § 2 (a)(1), 5 U. S. C. § 551 (1). One account of its ad hoc procedures leaves little doubt that before that forum Andrews will have no means of proving his allegations:

“As the Board has operated in practice, the procedures followed in holding hearings have been quite informal and have differed from the trial-type hearings conducted by other agencies established and maintained by the Federal Government. Disputes are referred to the Adjustment Board by the filing of written submissions. Each submission contains a statement of claim, accompanied by a statement of facts. If the parties can agree, a joint statement of facts is filed; if they cannot agree, separate submissions are filed, stating the facts separately. All submissions are in writing. Parties may be heard in person, by counsel, or by other representatives as they elect. ... It would be most extraordinary for live testimony to be given by witnesses. There is no requirement that a factual submission or other written statement be sworn. There is no cross-examination of witnesses and no record or transcript of the proceedings. There is no provision for issuance of subpenas or compulsory attendance of witnesses.” Hearing on H. It. 706 [1966 Railway Labor Act amendments] before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 89th Cong., 2d Sess., 49 (1966).

All of this might be made tolerable if at some point in his journey Andrews could look forward to a judge’s inquiry into the affair. But the fact is that whatever order by whatever process the Board may enter will be virtually immune from any judicial review because an award, either of the Adjustment Board or of a special board, is reviewable only for fraud or for lack of jurisdiction. 45 U. S. C. § 153 (p) (proviso).

On the other side of the balance, it could not be claimed that permitting a judicial remedy (in addition to an administrative one) would risk economic warfare, especially in light of the estranged relationship of permanent dischargees to their former unions. Nor could it be claimed that a judicial remedy would risk nonuniformity in interpretation of collective agreements inasmuch as courts as well as the Board would be obliged to apply a single body of federal common law. See Maddox, supra, at 658 n. 15.

In summary, the danger of unfair treatment of the clearly identifiable class of dischargees represented by Andrews is so great, without any compensating advantages, that I would not confine these claimants to the administrative remedy.

       References throughout the opinion to respondent are to the Georgia Railroad Co., which consisted of properties leased by Louisville & Nashville Railroad Co. and Seaboard Coastline Railroad Co. The petitioner alleged in his complaint that the Georgia Railroad Co. had refused to allow him to return to work.

       The opinion of the Court of Appeals in the Walker case makes clear that the seniority dispute was based on the collective agreement. 354 F. 2d 950.

       The Georgia law of “wrongful discharge” seems to amount to a set of common-law axioms of construction to fill in the ambiguities in employment contracts and employment relationships. If there is a contract, however, which expressly addresses the issue, the contract, and not the construction axioms, controls. For example, unless a contract provides otherwise, disobedience is a ground for discharge, Georgia Coast & Piedmont R. Co. v. McFarland, 132 Ga. 639, 64 S. E. 897, as is disrespectful language, Wade v. Hefner, 16 Ga. App. 106, 84 S. E. 598. If the employment contract, whether oral or written, provides that the worker may be fired only if his performance is unsatisfactory, he may not be discharged only, for economic necessity, Lummus Cotton Gin Co. v. Baugh, 29 Ga. App. 498, 116 S. E. 51, although “mitigating factors” may generally be a defense. Walker v. Jenkins, 32 Ga. App. 238, 123 S. E. 161.
      But where the language of the agreement is clear, that- language controls and not the rules of construction. Thus, if the parties provide that the employer may fire at will, no discharge can be wrongful. Webb v. The Warren Co., 113 Ga. App. 850, 149 S. E. 2d 867.
      The general presumption is that hiring is terminable at will, unless some definite period of employment is provided or inferable from the relationship. Ga. Code Ann. §.66-101 (master and servant). The intent of the parties is the'guide to determine if the courts may look to custom or the pay interval, if the contract is otherwise ambiguous. Odom v. Bush, 125 Ga. 184, 53 S. E. 1013. Thus, if the worker is paid monthly, he must be given 30 days’ notice.
      As to' damages, once it is shown that the discharge was wrongful, the measure of damages is the difference between the rate of pay and what the dischargee might have been able to earn in other employment. Ga. Code Ann. § 4-216. The fact that the employer prevented the employee from performing the remainder of the service is not a bar to recovery on that portion of the term. Irwin v. Young, 91 Ga. App. 773, 87 S. E. 2d 322.
      For Andrews to recover on a damages theory, it appears that it would be necessary for him to show first that he was not discharge-able at will. We do not know from the pleadings what proof Andrews will tender. So far as we can now tell the collective agreement is not in issue. His complaint does not state the source of the employer’s duty; and respondents allege that the collective agreement creates no such duty. As to damages it is also impossible to say that any terms of the collective agreement will be relevant to this dispute.

       The Board is currently disposing of petitions at the rate of about 1,500 annually. At that rate the Board will eliminate its present backlog of slightly more than 3,000 cases in two years. Thirty-Seventh Annual Report of the National Mediation Board 95 (Table 9) (1971).

       Constitutional issues not raised by the parties are at times passed upon by the Court. For a notorious example, see Erie R. Co. v. Tompkins, 304 U. S. 64, and Butler, J.’s comments, id., at 88-89. See also Mapp v. Ohio, 367 U. S. 643, 673-677 (Harlan, J., dissenting); Redrup v. New York, 386 U. S. 767, 771-772 (Harlan, J., dissenting).

       Nothing in the 1966 amendments nor their related legislative history even suggests or hints at a design to overrule Moore v. Illinois Central R. Co., 312 U. S. 630. See H. R. Rep. No. 1114, 89th Cong., 1st Sess. (1965); S. Rep. No. 1201, 89th Cong., 2d Sess. (1966).

       It was expressly observed by the majority in Republic Steel Corp. v. Maddox, 379 U. S. 650, 657-658, that bargaining parties could avoid the force of that opinion simply by agreeing that arbitration was not the exclusive remedy.

       One commentator on the Act has warned that representation by a union may be a critical factor in obtaining a favorable award: “[A]n individual’s efforts will presumably be less effective than that of a union, particularly since the grievance will ultimately be resolved by a board composed in part of representatives of affected unions.” Risher, The Railway Labor Act, 12 B. C. Ind. & Com. L. Rev. 51, 72 (1970). The plight of the unionless grievant is more alarming when viewed in light of the unsatisfactory record under the Act: “The Railway Labor Act is special privilege legislation, the product of the once great political power of the railroad unions. It has been administered as such. This accounts for the dismal administrative records of the National Mediation Board and the National Railroad Adjustment Board in . . . protection of individual rights, and grievance adjustments.” Northrup, Foreword to Risher, The Railway Labor Act, supra, at 52.


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Douglas,

license: Public Domain

text:
    HUFFMAN v. BOERSEN
    No. 71-5097.
    Argued April 19, 1972
    Decided May 15, 1972

      Leo Eisenstatt, by appointment of the Court, 404 U. S. 998, argued the cause and filed briefs for petitioner.

      Vincent L. Doweling argued the cause and filed a brief for respondent.
   Per Curiam.

We granted certiorari to review the constitutionality of Neb. Rev. Stat. § 25-1914 (1964) under which the Nebraska Supreme Court dismissed this indigent petitioner’s appeal for his failure to deposit the $75 cash or bond security for costs required of appellants by the statute. 404 U. S. 990 (1971). The judgment appealed from annulled petitioner’s marriage to respondent and dismissed his countersuit claiming paternity and custody of a child born to respondent. After our grant of certiorari, Nebraska enacted Legislative Bill 1120 providing, among other things, that the Nebraska courts “shall authorize . . . [an] appeal . . . without prepayment of . . . security, by a person who makes an affidavit that he is unable to . . . give security . . . ,” except that “[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” Counsel for both parties were of the opinion on oral argument here that this new statute is applicable to the instant case. Counsel for respondent also conceded that petitioner’s appeal on the paternity issue has merit. Accordingly, the judgment is vacated and the cause remanded to the Nebraska Supreme Court for reconsideration in light of the supervening statute.

It is so ordered.

Mr. Justice Douglas,

concurring.

While I agree to either reversing the judgment below or vacating and remanding, I do so on somewhat different grounds.

This case is clearly controlled by Boddie v. Connecticut, 401 U. S. 371. It involves, not a divorce, but an annulment and a claim concerning the paternity and custody of a child. The principles announced in Boddie are therefore clearly applicable no matter how closely Boddie is confined.

What the Supreme Court of Nebraska may do about the statute that has recently been enacted is its business and not ours. The parties before us cannot by their agreement make that statute applicable. Only the Supreme Court of Nebraska can do so, and we cannot direct that court to reconsider this ease in light of the supervening statute. The Supreme Court of Nebraska is sovereign in its own right in connection with local law matters. Boddie contains the guiding federal principle and that principle alone should control the disposition that we make of the case.

       “On appeal in any case taken from the district court to the Supreme Court the appellant . . . shall, within one month next after the rendition of the judgment or decree . . . sought to be reversed, vacated or modified, ... file in the district court a bond or undertaking in the sum of seventy-five dollars to be approved by the clerk of the district court, conditioned that the appellant shall pay all costs adjudged against him in the Supreme Court; or, in lieu thereof, shall make a cash deposit with said clerk of at least seventy-five dollars for the same purpose . . . .”

       “Q. You told us today that you concede that the determination of the paternity question was insufficient, invalid I think is the word you used.
      “Mr. Dowding. Yes, I’m willing to agree that [petitioner] did not have his day in court on the paternity issue.
      “Q. And we could say so on a remand.
      “Mr. Dowding. Yes. So stipulate.” Tr. of Oral Arg. 40.

       1 share the view of Justice Black, however, that:
      “[T]he decision in Boddie v. Connecticut can safely rest on only one crucial foundation — that the civil courts of the United States and each of the States belong to the people of this country and that no person can be denied access to those courts, either for a trial or an appeal, because he cannot pay a fee, finance a bond, risk a penalty, or afford to hire an attorney. . . .

        “[T]he crucial foundation on which Boddie rests also forbids denial of an indigent’s right of appeal in civil cases merely because he is too poor to pay appeal costs. Once the right to unhampered access to the judicial process has been established, that right is diluted unless the indigent litigant has an opportunity to assert and obtain review of the errors committed at trial.” Meltzer v. LeCraw & Co., 402 U. S. 954, 955-956, 958 (opinion of Black, J.).

       Some States do have procedures by which federal appellate courts may certify questions of law to the state supreme court. Florida is one. See Diffenderfer v. Central Baptist Church, 404 U. S. 412, 415 (Douglas, J., dissenting). Nebraska has no such procedure.

       It is possible that the Nebraska Supreme Court will have no opportunity, despite the remand, to rule on the applicability of the new statute to petitioner. Legislative Bill 1120 provides that “[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” In the federal system, “good faith” has “been defined as a requirement that an appeal present a nonfrivolous question for review.” Cruz v. Hauck, 404 U. S. 59, 62 (Douglas, J.,' concurring). Here, respondent urges strenuously that the annulment issue is indeed frivolous. While counsel is willing to stipulate that there is merit to the paternity issue, the effect of such a stipulation on the views of the trial judge, who is on record as believing petitioner’s assertions to be “wholly without merit,” App. 49, is highly speculative.
      Should petitioner’s in forma pauperis appeal be disallowed because of the trial court’s certification of the appeal as frivolous, I would hold that petitioner had been denied the equal protection of the laws. Cruz v. Hauck, supra.


author: Per Curiam.

text:
    ATLANTIC COAST LINE RAILROAD CO. v. ERIE LACKAWANNA RAILROAD CO. et al.
    No. 71-107.
    Argued April 17-18, 1972
    Decided May 15, 1972

      Devereux Milburn argued the cause for petitioner. With him on the briefs were Louis L. Stanton, Jr., Jerome L. Getz, and Frank G. Kurka.

      E. Barrett Prettyman, Jr., argued the cause for respondents. With him on the brief for respondent Erie Lackawanna Railroad Co. were Timothy J. Bloomfield and Lloyd W. Roberson.

   Per Curiam.

We granted certiorari to review the judgment of the Court of Appeals for the Second Circuit, 442 F. 2d 694 (1971), affirming the judgment of the District Court for the Southern District of New York, 315 F. Supp. 357 (1970). 404 U. S. 909 (1971). We agree that in this noncollision admiralty case the District Court properly dismissed petitioner’s third-party complaint for contribution against respondent Erie on the authority of Halcyon Lines v. Haenn Ship Corp., 342 U. S. 282 (1952). The judgment of the Court of Appeals is therefore

Affirmed.

Mr. Justice Powell took no part in the consideration or decision of this case.


author: Mr. Justice Douglas delivered the opinion of the Court. Me. Justice Rehnquist,

text:
    STRAIT v. LAIRD, SECRETARY OF DEFENSE, et al.
    No. 71-83.
    Argued March 22, 1972
    Decided May 22, 1972
    Douglas, J., delivered the opinion of the Court, in which Stewart White, Marshall, and Blackmun, JJ., joined. Rehnquist, J., filed a dissenting opinion, in Part I of which Burger, C. J., and Brennan and Powell, JJ., joined, post, p. 346.

      /ohn T. Hansen argued the cause for petitioner. With him on the briefs were Melvin L. Wulj, Michael N. Pollet, and Paul Halvonik.

      Solicitor General Griswold argued the cause for respondents. With him on the brief were Assistant Attorney General Mardian, Wm. Terry Bray, and Robert L. Keuch.

      Stanley F. Farrar filed a brief for the Central Committee for Conscientious Objectors et al. as amici curiae urging reversal.
   Mr. Justice Douglas delivered the opinion of the Court.

Petitioner is an Army Reserve officer not on active duty. His active-duty obligations were deferred while he went to law school after graduating from college. During the period of deferment and at the time this action was commenced, his military records were kept at Fort Benjamin Harrison, Indiana. His nominal commanding officer was the Commanding Officer of the Reserve Officer Components Personnel Center at Fort Benjamin Harrison. Petitioner was, however, at all times domiciled in California and was never in Indiana or assigned there. On finishing law school he took the California Bar examination and on March 5, 1970, he was ordered to report for active duty at Fort Gordon, Georgia, beginning April 13, 1970. Before that time, however, he had filed an application for discharge as a conscientious objector. That application was processed at Fort Ord, California, where hearings were held. Fort Ord recommended his discharge and review of that recommendation was had in Indiana. The result was disapproval of the application.

Petitioner thereupon filed a petition for writ of habeas corpus in California. The District Court denied a motion to dismiss, holding that it had jurisdiction (3 S. S. L. R. 3152), but ruled against petitioner on the merits. On appeal the Court of Appeals agreed with the District Court as to jurisdiction but disagreed with it on the merits and granted the writ. 3 S. S. L. R. 3784. Shortly thereafter our decision in Schlanger v. Seamans, 401 U. S. 487, was announced. Thereupon the Court of Appeals granted a petition for rehearing and dismissed the action, holding that the District Court had no jurisdiction under the habeas corpus statutes. 445 F. 2d 843. The case is here on a petition for cer-tiorari, which we granted. We reverse the judgment below.

In Schlanger the serviceman — on active duty in the Air Force — was studying in Arizona on assignment from Ohio. There was no officer in Arizona who was his custodian or one in his chain of command, or one to whom he was to report. While the Habeas Corpus Act extends to those “in custody under or by color of the authority of the United States,” 28 U. S. C. § 2241 (c)(1), we held in Schlanger that the presence of the “custodian” within the territorial jurisdiction of the District Court was a sine qua non. In Schlanger the only “custodian” of the serviceman was in Moody AFB, Georgia. While there were army officers in Arizona, there were none to whom the serviceman was reporting and none who were supervising his work there, though he was on active duty. Moreover, the serviceman in that case was in Arizona only temporarily for an educational project.

In the present case California is Strait’s home. He was commissioned in California. Up to the controversy in the present case he was on reserve duty, never on active duty, and while he had gone east for graduate work in law, California had always been his home. Fort Ord in California was where his application for conscientious objector discharge was processed and where hearings were held. It was in California where he had had his only meaningful contact with the Army; and his superiors there recommended his discharge as a conscientious objector.

Thus, the contention in the dissent that we “abandon Schlanger” by the approach we take today is incorrect. Sergeant Schlanger was on permissive temporary duty. While his stay in Arizona was thus not charged to his leave time, it was primarily for his own benefit, he paid his own expenses, and he was as much on his own as any serviceman on leave. We held in Schlanger that, while an active-duty serviceman in such a status might be in military “custody,” see Donigian v. Laird, 308 F. Supp. 449 (Md. 1969), his custodian may not be deemed present wherever the serviceman has persuaded the service to let him go. The 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 district.

Strait’s situation is far different. His nominal custodian, unlike Schlanger’s, has enlisted the aid and directed the activities of armed forces personnel in California in his dealings with Strait. Indeed, in the course of Strait’s enlistment, virtually every face-to-face contact between him and the military has taken place in California. In the face of this record, to say that Strait’s custodian is amenable to process only in Indiana — or wherever the Army chooses to locate its recordkeeping center, see n. 3, infra — would be to exalt fiction over reality.

In a closely parallel case the Court of Appeals for the Second Circuit held that an unattached reserve officer who lived in New York and whose application for discharge as a conscientious objector was processed in New York could properly file for habeas corpus in New York, even though the commanding officer of the reservists was in Fort Benjamin Harrison, Indiana. Arlen v. Laird, 451 F. 2d 684. The court held that the only contacts the serviceman had had with his commanding officer were through the officers he dealt with in New York. Those contacts, it concluded, were sufficient to give the commanding officer “presence” in New York. It concluded:

“Quite unlike a commanding officer who is responsible for the day to day control of his subordinates, the commanding officer of the Center is the head of a basically administrative organization that merely keeps the records of unattached reservists. To give the commanding officer of the Center ‘custody’ of the thousands of reservists throughout the United States and to hold at the same time that the commanding officer is present for habeas corpus purposes only within one small geographical area .is to ignore reality.” Id., at 687.

We agree with that view. Strait’s commanding officer is “present” in California through the officers in the hierarchy of the command who processed this serviceman’s application for discharge. To require him to go to Indiana where he never has been or assigned to be would entail needless expense and inconvenience. It “would result in a concentration of similar cases in the district in which the Reserve Officer Components Personnel Center is located.” Donigian v. Laird, 308 F. Supp., at 453. The concepts of “custody” and “custodian” are sufficiently broad to allow us to say that the commanding officer in Indiana, operating through officers in California in processing petitioner’s claim, is in California for the limited purposes of habeas corpus jurisdiction.

We intimate no opinion on the merits of the controversy — whether petitioner is entitled to a discharge or whether by denying that relief the Army has acted in accordance with the prescribed procedures. We hold only that there is jurisdiction under 28 U. S. C. § 2241 (c)(1) for consideration of this habeas corpus petition and for decision on the merits.

Reversed.

Me. Justice Rehnquist,

dissenting.

The Court today emasculates Schlanger v. Seamans, 401 U. S. 487 (1971), by permitting habeas corpus when the custodian against whom the writ must run is not within the forum judicial district. It stretches the concept of custody beyond anything contained in any of our previous decisions, and permits the federal courts through habeas corpus to exercise broader review of military administration than has ever been permitted. I therefore dissent.

I

The facts of this case are indistinguishable in any material respect from Schlanger v. Seamans, supra. Petitioner was assigned to the Reserve Officer Components Personnel Center at Port Benjamin Harrison, Indiana. His dealings with the Army consisted of several requests for delay in commencing active duty, all of which were addressed to and granted by his commanding officer at Fort Benjamin Harrison, and an application for discharge as a conscientious objector, which was also submitted to the Indiana command. Although petitioner was interviewed by a chaplain, psychiatrist, and another Army officer at Fort Ord, California, each of whom made recommendations about petitioner’s application, petitioner was not subject to military orders from any command in California nor did any California command rule upon his application. The preliminary processing accomplished by the interviews was forwarded to petitioner’s commanding officer at Fort Benjamin Harrison, who convened a review board to pass upon the application. Following the board’s recommendation, petitioner’s commanding officer denied the requested discharge. Nothing in the record before us indicates that petitioner has ever been subject to the orders of any Army officer or command in California. What little control the Army imposed upon petitioner emanated from his commanding officer in Indiana.

Only last Term, this Court held in Schlanger, that a district court has jurisdiction to issue a writ of habeas corpus under 28 U. S. C. § 2241, to a military custodian, only where a commanding officer or other custodian in the chain of command is found within the judicial district. Because Schlanger had been assigned to a command in Georgia, and no official in Arizona controlled his activities, the District Court of Arizona had no habeas jurisdiction. Attempting to reconcile Schlanger with this case, the Court today says:

“In Schlanger the only ‘custodian’ of the serviceman was in Moody AFB, Georgia. While there were army officers in Arizona, there were none to whom the serviceman was reporting and none who were supervising his work there, though he was on active duty. Moreover, the serviceman in that case was in Arizona only temporarily for an educational project.
“In the present case California is Strait’s home. He was commissioned in California. Up to the controversy in the present case he was on reserve duty, never on active duty, and while he had gone east for graduate work in law, California had always been his home. Fort Ord in California was where he processed his application for conscientious objector discharge and where hearings were held. It was in California where he had had his only meaningful contact with the Army; and his superiors there recommended his discharge as a conscientious objector.” Ante, at 343.

But there were no officers in California to whom this petitioner was reporting, and “none who were supervising his work there.” His control by the Army has heretofore consisted only of requests for delayed commencement of active duty, and for discharge. All such requests were addressed to and decided by his commanding officer in Indiana. His “meaningful contact” with the Army was not in California, but Indiana. His interviews with staff officers at Fort Ord neither constituted them “superiors” nor did it bring them within petitioner’s chain of command. No officer or command in California had authority to provide the relief requested by petitioner. Under the principle enunciated in Schlanger, the Northern District of California lacked jurisdiction to issue habeas corpus for want of a custodian within the district. Emphasizing that petitioner brought this habeas corpus suit in the district where his home is cannot cure that defect, cf. Rudick v. Laird, 412 F. 2d 16 (CA2 1969). We deal not with the provisions of a venue statute, but with the established requirement that the petitioner’s custodian be within the district. Petitioner's presence in his home State to take the bar examination, after a three-year' absence while attending law school, affords him no more support than did Schlanger’s presence in Arizona.

The Court substitutes the approach of Arlen v. Laird, 451 F. 2d 684 (CA2 1971), for its Schlanger rule. Arlen, incorrectly concluding that Schlanger reserved the question presented here, held that the type of contacts between the commanding officer and a reservist that have been found to support state jurisdiction over nonresidents under cases like McGee v. Int’l Life Ins. Co., 355 U. S. 220 (1957), and Int’l Shoe Co. v. Washington, 326 U. S. 310 (1945), would also suffice for habeas jurisdiction. To adopt Arlen is to abandon Schlanger. But the reasons given by the Second Circuit in Arlen do not support a result in that case different from Schlanger. Arlen noted that Government counsel were adequately available in any judicial district, and the records could be forwarded from petitioner’s command to the forum district. The same could have been said of Schlanger. Moreover, the Government can assert that Indiana would be the appropriate forum, for the actions of which petitioner complains were taken by the commanding officer and his advisory board at Fort Benjamin Harrison and presumably the proper witnesses for this litigation were there. These factors would be appropriately considered in a determination as to venue or jorum non conveniens but they are not a substitute for the actual presence of a custodian, which Schlanger held was required by statute.

II

While I am satisfied that the Ninth Circuit correctly applied Schlanger and ordered dismissal of the habeas corpus petition for want of a custodian within the district, the analysis of the Court in reaching the opposite conclusion highlights what is for me the more substantial issue of whether petitioner was in the custody of anyone.

The Court believes that petitioner’s commanding officer was merely a record center, and says that the realistic approach is to rule that such a record center is present in all States where there are reservists over whom it has custody. I believe that where the control exercised over petitioner is so attenuated as to require the contacts between himself and his commanding officer to be weighed for a jurisdictional nexus, the problem is not where the custodian may be found, but whether the petitioner is in custody at all. 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. This Court has recognized that a person on active duty with the armed forces is sufficiently “in custody” to invoke habeas corpus. Eagles v. Samuels, 329. U. S. 304 (1946); Schlanger v. Seamans, supra; Parisi v. Davidson, 405 U. S. 34 (1972). Aside from ruling that release from active to inactive duty does not moot a habeas proceeding, however, the Court has never considered whether a future obligation to commence Army duty is a sufficiently severe restraint to support habeas jurisdiction.

Habeas corpus is a powerful remedy to be wielded promptly in cases where restrictions on individual liberty are substantial. The requirement of custody is a primary parameter for preserving the great writ for appropriate situations. It is undefined by statute, but depends upon the severity of restraint upon liberty that is involved. Jones v. Cunningham, 371 U. S. 236 (1963); Developments in the Law — Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1073 (1970).

Notions of custody have changed over the years. In 1885, this Court held that a military order restricting a serviceman to the confines of the District of Columbia did not place him in custody. Wales v. Whitney, 114 U. S. 564 (1885). Recent decisions dealing with nonmilitary petitioners have admittedly broadened the concept of custody. Jones v. Cunningham, supra; Carafas v. LaVallee, 391 U. S. 234 (1968). Jones held that a parolee was in custody because he was restricted to the community of his parole, needed special permission to undertake some activities such as driving an auto, and was subject to prompt reincarceration with only administrative proceedings if he violated parole conditions. In Carafas a convicted felon who was neither in prison nor on parole was held to be “in custody” because the disabilities of his conviction prevented him from engaging in many types of businesses, voting at any state election, or serving as a labor official or juror.

But even if this nonmilitary standard were to be applied to petitioner, it is difficult to place him in that class of persons laboring under substantial restraints for whom habeas corpus is reserved. By his own admission, petitioner “has not been subject to military orders, reserve meetings or summer active duty.” From all that appears in the record, petitioner is free to go anywhere he desires or to- engage in any activity he chooses, and is not subject to any Army control until he commences active duty. His situation is indistinguishable from a prospective inductee, who is not considered to be in custody for habeas corpus purposes until after induction. DeRozario v. Commanding Officer, 390 F. 2d 532 (CA9 1967). Neither precedent nor the raison d’etre of the writ sanctions the result reached in this case. Petitioner would be in “custody” only when he reported to Fort Gordon, Georgia, pursuant to his orders, and only then would he be entitled to bring habeas corpus.

Ill

There is yet another shortcoming in petitioner’s claim to habeas corpus.

Unlike those who are covered by thé Military Selective Service Act, 50 U. S. C. App. § 451 et seq., there is no statutory right afforded petitioner and other voluntary members of the armed services to be discharged as conscientious objectors. Under Department of Defense Directive 1300.6 the armed forces will approve administrative discharges on a discretionary basis. By assuming that habeas corpus review of the exercise of this discretion is proper, the Court and the courts of appeals applying the same standards of review called for under § 6 (j) of the Military Selective Service Act, 81 Stat. 104, as amended, 85 Stat. 351, have failed to recognize well-established limitations upon habeas corpus in military cases, and the also well-established restriction upon reviewing the administration of the armed services.

A district court has power to grant a writ of habeas corpus only where a prisoner “is in custody in violation of the Constitution or laws or treaties of the United States” or “is in custody under or by color of the authority of the United States.” Petitioner has voluntarily assumed a reserve officer’s commission and there is no indication from the record that his present obligation violates either the Constitution or laws of the United States. Nor is he restrained under any color of authority of the United States that cannot be traced to legitimate statutory authorization. Our inquiry should go no further.

In Burns v. Wilson, 346 U. S. 137 (1953), the Court reiterated the rule that the scope of habeas corpus has always been narrower in military cases than when a prisoner is in civil custody. That case permitted review of a court-martial conviction for claimed violations of constitutional due process where the military justice system had failed to fully consider such claims. Except for constitutional violations, however; relief is proper only if the military had no jurisdiction to take the action complained of.

Lack of jurisdiction to review requests for administrative discharge has similarly been well established. In Orloff v. Willoughby, 345 U. S. 83 (1953), the Court refused to review a military-duty assignment or to order a discharge on the ground that the petitioner there had been unlawfully treated, recognizing that military discretion is not subject to review in the courts. See also Noyd v. McNamara, 378 F. 2d 538 (CA10 1967) (refusal to order assignment to nonobjectionable duties or accept resignation of conscientious objector); United States ex rel. Schonbrun v. Commanding Officer, 403 F. 2d 371 (CA2 1968) (no habeas corpus or mandamus jurisdiction to review denial of hardship discharge request); Antonuk v. United States, 445 F. 2d 592 (CA6 1971) (no jurisdiction to review promotions).

It is said that jurisdiction is established to review military exercise of administrative discretion where the promulgated procedures are not followed. Authority for this proposition is stated to be Service v. Dulles, 354 U. S. 363 (1957), and Vitarelli v. Seaton, 359 U. S. 535 (1959). Although the principles of those cases might not carry over undiminished to the military services, some lower courts have assumed that they do. Reviewing an administrative decision for conformity to regulations, however, would afford no relief to petitioner in this case. If his application for discharge was processed as required by DOD Directive 1300.6 the Army has fulfilled its responsibility regardless of whether its ultimate conclusion corresponds to the decision that a court of law would make. In this case the provisions of DOD Directive 1300.6 were applied to petitioner by Army Regulation 135-25. It requires submission of a form request by petitioner, subsequent interviews with a chaplain, medical officer, and an “0-3” hearing officer, consideration of the application by a board of recommendation, and finally action by petitioner's commanding officer. All these procedures were followed in petitioner's case. The Army acted within its jurisdiction in denying the request.

Habeas corpus will issue where a person is held in custody under color of federal authority, or in violation of the Constitution or laws of the United States. 28 U. S. C. §§2241 (c)(1) and (c)(3). There is no question that the Army had jurisdiction over petitioner at least to the limited extent discussed above in reference to the issue of custody. There is also no question that the Army is under no statutory command to discharge petitioner before the expiration of his contracted period of military service. Acting in accordance with its own procedures, it has chosen not to do so. For me, this ends the permissible scope of habeas corpus inquiry.

The Chief Justice, MR. Justice Brennan, and Mr. Justice Powell join Part I of this dissent and on that ground would affirm the judgment of the Court of Appeals.

       At the time Sergeant Schlanger received his assignment, Air Force Regulation 35-26 (Mar. 6, 1968) defined “permissive temporary duty” as “duty of a quasi-official nature performed at other than the permanent duty station, without costs to the Government for per diem and travel.” So defined, primary difference between “leave” and “permissive temporary duty” appears to be that the latter status requires the serviceman to convince the military that his proposed activity, while away from his permanent duty station, would be of some direct or indirect benefit to the service.

       That such “presence” may suffice for personal jurisdiction is well settled, McGee v. Int’l Life Ins. Co., 355 U. S. 220; Int’l Shoe Co. v. Washington, 326 U. S. 310, and the concept is also not a novel one as regards habeas corpus jurisdiction. In Ex parte Endo, 323 U. S. 283, 307, we said that habeas corpus may issue “if a respondent who has custody of the prisoner is within reach of the court’s process . . . .” Strait’s commanding officer is “present” in California through his contacts in that State; he is therefore “within reach” of the federal court in which Strait filed his petition. See Donigian v. Laird, 308 F. Supp. 449, 453; cf. United States ex rel. Armstrong v. Wheeler, 321 F. Supp. 471, 475.

       This concentration would be exacerbated in the extreme by the fact that the Reserve Components Personnel Center at Fort Benjamin Harrison, Indiana, has now been moved to St. Louis, Missouri, and has been there merged into the United States Army Reserve Components Personnel and Administration Center (RCPAC). RCPAC has recordkeeping and nominal administrative responsibility for approximately 2,000,000 servicemen, all unattached, inactive reservists such as petitioner.

       “The Supreme Court reserved decision on this precise question, 401 U. S., at 489, 491 n. 5 . . . and cited, apparently with approval, Donigian v. Laird, 308 F. Supp. 449 (D. Md. 1969),” 451 F. 2d, at 686. But the cited portions of Schlanger dealt only with the question of custody, and not with the separate jurisdictional requirement that a custodian be present within the judicial district.

        Gillette v. United, States, 401 U. S. 437, 440 n. 2 (1971).

       Most of the circuits have permitted habeas corpus review of an application for discharge under DOD 1300.6. E. g., United States ex rel. Sheldon v. O’Malley, 137 U. S. App. D. C. 141, 420 F. 2d 1344 (1969); Bates v. Commander, 413 F. 2d 475 (CAI 1969); Hammond v. Lenfest, 398 F. 2d 705 (CA2 1968); Brown v. McNamara, 387 F. 2d 150 (CA3 1967); United States ex rel. Brooks v. Clifford, 409 F. 2d 700 (CA4 1969); Brown v. Resor, 407 F. 2d 281 (CA5 1969); Packard v. Rollins, 422 F. 2d 525 (CA8 1970) ; Sertic v. Laird, 418 F. 2d 915 (CA9 1969).
      This Court has considered petitions for habeas corpus under DOD 1300.6 in Craycroft v. Ferrall, 397 U. S. 335 (1970), and Gillette v. United States, 401 U. S. 437 (1971).

      . 28 U. S. C § 2241 (c) (3)

       28 U. S. C. § 2241 (c) (1)

      “[W]e cannot review the merits of appellant’s present claim that the Air Force in the case at bar did not comply with its own regulations in regard to appellant. Such a claim must indeed be strained to contain an overtone of constitutional invalidity giving rise to immediate judicial review of its application.” Noyd v. McNamara, 378 F. 2d 538, 540 (CA10 1967).

         E. g., Antonuk v. United States, 445 F. 2d 592 (CA6 1971); Smith v. Resor, 406 F. 2d 141 (CA2 1969).