United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 24, 2005 Decided May 3, 2005
No. 04-5004
RICHARD C. ROONEY,
APPELLANT
v.
SECRETARY OF THE ARMY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 02cv00450)
Christopher D. Wiest argued the cause and filed the brief
for appellant.
R. Craig Lawrence, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney, and Michael J. Ryan and Gary Corn,
Assistant U.S. Attorneys.
Before: EDWARDS, ROGERS, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
2
GARLAND, Circuit Judge: Major Richard Rooney seeks a
declaratory judgment that his obligation to the Army terminated
when the Army discharged him in February 2002, and that the
Army’s subsequent revocation of his discharge on the ground
that it was procured by fraud was unlawful. The district court
granted the Army’s motion for summary judgment, and Rooney
appealed. We conclude that a petition for a writ of habeas
corpus is the exclusive avenue of relief for Rooney, and that the
Western District of Texas rather than the District of Columbia
is the appropriate forum. We therefore vacate the district court’s
decision and judgment for lack of jurisdiction.
I
The facts of this case are fully set forth in the district court’s
opinion, 293 F. Supp. 2d 111 (D.D.C. 2003), and we recount
them only briefly here. When Rooney graduated from the
United States Military Academy in 1991, he had a five-year
active duty service obligation to the Army. He elected to
postpone his service and pursue a medical education under the
Armed Forces Health Professional Scholarship Program. In
exchange for the Army’s payment of his tuition and expenses,
Rooney agreed to an additional eight-year service obligation.
He further agreed that his time in medical school would not
count toward fulfilling his active duty requirement.
Rooney began his active duty service when he entered the
Army Medical Corps upon his graduation from medical school
in 1995. He spent the next several years as a resident in
orthopedic surgery at various military hospitals. In September
2000, Rooney applied to participate in the Army’s Nonfunded
Graduate Medical Education Program (NGMEP), which
temporarily releases Army doctors from active duty into the
reserves to allow them to train at civilian institutions. NGMEP
fellows must, however, return to active duty upon completion of
their training to serve for the length of their remaining service
3
obligation. Rooney was selected to participate in the program,
and the Army released him from active duty to begin his
NGMEP fellowship on August 31, 2001.
What happened next is hotly disputed by the parties, but
both sides agree on the following. Before relocating to San
Diego for his fellowship, Rooney filed an application for
disability compensation with the Department of Veterans
Affairs. He also initiated the formal process for obtaining a
discharge from the Army. On January 7, 2002, after a series of
communications, Rooney sent the Army a letter of resignation.
On February 5, the Army issued an order honorably discharging
him. On February 15, however, when it realized that Rooney
still had an outstanding active duty service obligation, the Army
issued an order revoking the February 5 discharge. A cover
letter accompanying the order stated: “Due to an administrative
error a discharge order was published on you however, it has
been revoked.” Letter from Lydia Wesley to Maj. Richard
Rooney, Feb. 15, 2002.
On March 11, 2002, Rooney filed suit in the United States
District Court for the District of Columbia, seeking a declaratory
judgment pronouncing the February 5 discharge effective and
voiding the Army’s subsequent effort to revoke it. On
September 12, 2002, the district court vacated the February 15
order revoking Rooney’s discharge, on the ground that Army
regulations do not permit revocation solely for administrative
error. Mem. Op., No. 02-450, at 1 (D.D.C. Sept. 12, 2002). At
the same time, the court noted that the Army “may well have
had on February 15, or may now have, a basis for revoking
[Rooney’s] discharge” on the ground that it was obtained under
fraudulent circumstances. Id. at 12. The court gave the Army
eleven days either to submit a record of the evidence of fraud
known to it as of February 15, 2002, or to issue a new revocation
order based on the current record. Id.
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The Army opted to issue a new order, and on September 20,
2002, it again revoked Rooney’s discharge and ordered him to
report for active duty at Fort Hood, Texas by September 25,
2002. The memorandum prepared by the commanding officer
who ordered the revocation stated: “Rooney engaged in an
intentional and protracted pattern of fraudulent
misrepresentations and omissions to the Army in an intentional
effort to obtain a discharge and thereby avoid his nearly eight
year contractual service obligation.” Mem. from Col. Elton
Bruce, U.S. Army Reserve Personnel Command, for the Record
(Sept. 19, 2002). On September 23, Rooney sought a temporary
restraining order, which the district court denied. Thereafter,
Rooney reported for duty at Fort Hood.
On October 15, 2002, Rooney filed an amended complaint
seeking a declaratory judgment that “his February 5, 2002
discharge is valid, effective, and irrevocable” and that the
revocation order was unlawful. Am. Compl. at 6. The district
court granted the Army’s motion for summary judgment, finding
it “overwhelmingly clear that the Army relied upon substantial
evidence of fraud in revoking Rooney’s discharge,” and holding
that the revocation was consistent with the relevant statutes,
regulations, and constitutional provisions. 293 F. Supp. 2d at
130. Rooney now appeals.
II
Rooney contends that the Army’s revocation of his
discharge without a hearing violated Army regulations, the
Uniform Code of Military Justice, and the Due Process Clause
of the Fifth Amendment to the Constitution. The relief he seeks
is a declaration that “his February 5, 2002 discharge is valid,”
and that the Army’s “attempted revocation thereof and orders
calling him to active duty are invalid and of no force or effect.”
Am. Compl. at 6. In other words, Rooney claims that he is “in
custody in violation of the Constitution or laws . . . of the United
5
States,” 28 U.S.C. § 2241(c)(3). Although he does not use the
term in his complaint, what he seeks from the federal courts is
a writ of habeas corpus. See Parisi v. Davidson, 405 U.S. 34, 39
(1972) (“[T]he writ of habeas corpus has long been recognized
as the appropriate remedy for servicemen who claim to be
unlawfully retained in the armed forces.”); Schlanger v.
Seamans, 401 U.S. 487, 489 (1971) (same). And as we have
previously held, a party who can petition for a writ of habeas
corpus may not instead seek a declaratory judgment. LoBue v.
Christopher, 82 F.3d 1081, 1082 (D.C. Cir. 1996); Monk v.
Secretary of the Navy, 793 F.2d 364 (D.C. Cir. 1986). Rooney’s
declaratory judgment action must therefore be treated as a
habeas petition.
In a Notice of Supplemental Authority filed after oral
argument, Rooney concedes that “as respects claims that simply
challenge the fact of confinement, habeas is the remedy.”
Second Notice, No. 04-5004, at 1 (Mar. 2, 2005). He contends
that declaratory relief is nonetheless appropriate because his
claims involve “significant property concerns” (in an honorable
discharge and benefits that might stem therefrom) and “do not
touch on the fact of confinement.” Id. That assertion is contrary
to the position taken in Rooney’s briefs. See, e.g., Appellant’s
Br. at 11 (“Major Rooney’s interest implicates core liberty
interests that go beyond . . . a paycheck in his pocket.”). It is, in
any event, incorrect. If Rooney receives a declaratory judgment
that the discharge was valid and the revocation invalid, “release
. . . would follow automatically since, in a second action for a
writ of habeas corpus, the prior judgment would have res
judicata effect.” Monk, 793 F.2d at 366. It thus does “not
matter that he ha[s] not asked for release.” LoBue, 82 F.3d at
1083. Nor may Rooney “avoid the requirement that he proceed
by habeas corpus by adding a request for relief that may not be
made in a petition for habeas corpus.” Monk, 793 F.2d at 366.
Accordingly, habeas corpus is Rooney’s exclusive remedy. See
id. (citing Preiser v. Rodriguez, 411 U.S. 475, 490 (1973)); cf.
6
Heck v. Humphrey, 512 U.S. 477 (1994) (holding that a state
prisoner may not challenge the constitutionality of his
conviction in a suit for damages under 42 U.S.C. § 1983).
The problem for Rooney is that, because his declaratory
judgment action must be treated as a habeas petition, it must also
be dismissed for lack of jurisdiction. As the Supreme Court
reminded us just last Term, a district court has jurisdiction over
a habeas petition “only if it has jurisdiction over” the
petitioner’s custodian. Rumsfeld v. Padilla, 124 S. Ct. 2711,
2722 (2004) (citing 28 U.S.C. § 2241(a) (providing that federal
district courts are limited to granting habeas relief “within their
respective jurisdictions”)). And while the United States District
Court for the District of Columbia may have jurisdiction over
the Secretary of the Army, that fact does not help Rooney
because the petitioner’s “immediate custodian, not a supervisory
official who exercises legal control, is the proper respondent.”
Padilla, 124 S. Ct. at 2720; see Monk, 793 F.2d at 369 (“[F]or
purposes of the federal habeas corpus statute, jurisdiction is
proper only in the district in which the immediate, not the
ultimate, custodian is located.”).
Since September 30, 2002, nearly a month before he filed
his challenge to the second revocation of his discharge, Rooney
has been an active duty officer, physically located at Fort Hood,
Texas. During this time, he undoubtedly has been in the custody
of the Army for habeas purposes, see Parisi, 405 U.S. at 39;
Oestereich v. Selective Serv. Sys. Local Bd., 393 U.S. 233, 235
& n.5 (1968), and his “immediate custodian” has been the
commanding officer at Fort Hood, see Schlanger, 401 U.S. at
490-91 (1971); Monk, 793 F.2d at 369.1 The District Court for
1
Indeed, we think it likely that Rooney was “in custody” for
purposes of the habeas statute when he filed his initial complaint in
March 2002, since at that point the Army considered him a reservist
7
the District of Columbia does not have jurisdiction over that
officer. See Schlanger, 401 U.S. at 490-91 (1971); Monk, 793
F.2d at 371. Rather, as the government indicated in its brief and
agreed at oral argument, the federal district court with
jurisdiction over Fort Hood is the United States District Court
for the Western District of Texas, and that is where Rooney
must file his petition for a writ of habeas corpus.
III
For the foregoing reasons, the decision and judgment of the
district court are vacated for lack of jurisdiction.
So ordered.
in the NGMEP subject to military orders and obligated to return to
active duty when his fellowship ended. Cf. Strait v. Laird, 406 U.S.
341 (1972) (concluding that a reservist called to active duty is “in
custody” for habeas purposes); Eisel v. Secretary of the Army, 477
F.2d 1251 (D.C. Cir. 1973) (same); Bohnert v. Faulkner, 438 F.2d 747
(6th Cir. 1971) (granting reservist’s habeas petition). But we need not
resolve that question because this appeal only concerns Rooney’s
challenge to the Army’s second revocation of his discharge, which he
presented for the first time in the amended complaint that he filed after
reporting to Fort Hood. Nor do we think it dispositive that the district
court’s September 2002 order purported to “retain jurisdiction of this
case,” Order, No. 02-450, at 2 (D.D.C. Sept. 12, 2002), since the
district court cannot by decree grant itself jurisdiction. See Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“Federal
courts are courts of limited jurisdiction. They possess only that power
authorized by Constitution and statute, which is not to be expanded by
judicial decree.”) (citations omitted).