Fourte v. Spencer

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MICHAEL FOURTE,

Petitioner,
Civil Action No. 18-2023 (BAH)
v.
Chief Judge Beryl A. Howell
RICHARD V. SPENCER, in his official
capacity as Secretary of the Navy and his
successors in office,

Respondent.

MEMORANDUM OPINION

The pro se petitioner, Michael Fourte, is a Reserve Naval Officer with 20 years of service

in the United States Navy, including over 16 years of active duty service. Pet. for Writ of

Habeas Corpus and Compl. for Declaratory and Injunctive Relief (“Pet.”) ¶ 11, ECF No. 1.

Currently deployed in Africa on active duty orders, id. ¶¶ 39, 44, Fourte seeks a writ of habeas

corpus requiring the respondent, Richard V. Spencer, the Secretary of the Navy, to demobilize

him, id. at 31, and restore him to his previous active duty assignment in Washington, D.C., see

Civil Case Form for Habeas Petitions Under 28 U.S.C. § 2241 (“Habeas Form”) at 8 (Request

for Relief), ECF No. 1. According to Fourte, he is entitled to this reassignment because he has

been unlawfully ordered to duty in Africa, in violation of a Navy “directive . . . mandat[ing] that

the Navy will not involuntarily mobilize reservists with over 16 years of active service without

justification and a . . . waiver.” Pet. at 1. For the reasons discussed below, the pending habeas

petition seeking a judicial order to countermand a military deployment order and to reassign an

active duty Naval officer to a duty station in Washington, D.C., crosses the boundaries of

justiciability and is therefore dismissed.
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I. BACKGROUND

Fourte previously filed a habeas petition, in the form of a complaint, in this Court

challenging the same allegedly illegal military deployment order, and that petition was

transferred to the United States District Court for the District of South Carolina (“D.S.C.”). See

Fourte v. Spencer, No. 18-cv-1847, Mem. & Order at 1– 6 (D.D.C. Aug. 10, 2018) (D.D.C. order

transferring first habeas petition to D.S.C. (“D.D.C. 2018 Transfer Order”)). The petition was

ultimately dismissed without prejudice after the transfer. See Fourte v. Spencer, No. 18-cv-2212,

2018 WL 3845136, at *1 (D.S.C. Aug. 12, 2018) (D.S.C. Magistrate Judge’s report

recommending dismissal of Fourte’s first habeas petition (“D.S.C. Magistrate’s 2018 R&R”));

Fourte v. Spencer, No. 18-cv-2212, 2018 WL 3829232, at *1–3 (D.S.C. Aug. 13, 2018) (D.S.C.

Order and Opinion dismissing Fourte’s first habeas petition (“D.S.C. 2018 Dismissal Order”)).

The relevant facts and procedural history are set out below as context for resolution of the

pending petition.

A. Fourte’s Deployment to Active Duty in Africa

Fourte is a Navy reservist, who has “over 16 years of total active duty service.” Pet’r’s

Decl. Supp. Writ of Habeas Corpus (“Pet’r’s Decl.”) (Aug. 27, 2018) ¶ 3, ECF No. 1. On May

31, 2018, while stationed on “active duty” at the Washington Navy Yard in Washington, D.C.,

he was “ordered to active duty” at a different “assignment in Africa” to serve as an Officer in

Charge of a military base for one year. Id. ¶¶ 4, 6–7; Pet. ¶¶ 15–16, 22. Within a week, on June

5, 2018, Fourte “contacted the regional Judge Advocate General for Region Mid-Atlantic

Reserve Component Command” to explain that “the [respondent] . . . needed a waiver and

justification in order to mobilize” him for the Africa assignment because he would have over 16

years of active duty service by the time of the assignment. Pet’r’s Decl. ¶¶ 8, 17. The next day,

Fourte was informed that the respondent planned to seek such a waiver. Id. ¶ 9.
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 Through his chain of command, Fourte learned, on June 15, 2018, that a “waiver had

been approved,” id. ¶ 12, and approximately one week later, he obtained a copy of the waiver, id.

¶ 14; Pet. ¶ 30, which had been issued on June 7, 2018, Pet., Ex. A, Department of the Navy,

Navy Personnel Command Waiver for Partial Mobilization Orders for Michael Fourte (June 7,

2018), ECF No. 1-1. In compliance with “the Africa orders,” Fourte was “mobilized to active

duty involuntarily” on July 20, 2018, and he reported to Fort Jackson in South Carolina for

training. Pet. ¶¶ 39, 41.

The Navy has explained that that the position for which Fourte was chosen, Officer in

Charge, is “[r]esponsible for the overall safety, security, and well-being of the [base] and all

troops therein.” Resp’t’s Resp. to Order to Show Cause (“Resp’t’s Resp.”) at 5, ECF No. 9. The

Navy advertised this position, but when no volunteers applied, the Navy ran a search within its

database and Fourte was the only Reservist who satisfied each of the position’s requirements.

See id., Ex. E., Decl. of Quinton S. Packard, Commander, Navy Reserve Forces Command

(“Packard Decl.”) (Aug. 10, 2018) ¶¶ 4, 5, 8, ECF No. 9-5. Specifically, Fourte was the “first

fully-qualified Sailor on the list of the top 10 qualified Sailors to fill this position,” and the only

officer who satisfied the “command experience requirement” and held the required security

clearance. Id. ¶ 8.

Fourte believes that the waiver paperwork for the Africa deployment was “non-

compliant” because the Navy “did not . . . conform to the [Navy’s] own procedures for waivers”

in Chief of Naval Operations Instruction 1001.27.1 Pet. ¶¶ 25–26. For example, in his view, the

1
Notably, Fourte uses the Navy’s waiver process as a sword in his habeas petitions, when the actual purpose
of the waiver process is to shield the Navy from inadvertent, unnecessary spending. Navy Reserve officers
accumulating eighteen years of active-duty service obtain “sanctuary” status, which protects them from involuntary
release from active duty before the completion of twenty years of service and thereby guarantees active-duty status
until crossing the twenty-year threshold for regular active-duty, as opposed to lower non-regular, retirement pay.
See 10 U.S.C. §§ 6323, 6327(a), 12646(a). As the respondent explains, “inadvertently allowing Reservists to enter

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Navy originated the waiver in the wrong office, id. ¶¶ 56–64, did not include a justification in the

waiver for selecting Fourte as the “only qualified” reserve member for the Africa assignment, id.

¶ 66, included an incorrect endorsement, id. ¶¶ 80–84, failed to obtain Fourte’s signature to

verify his total active duty service time, id. ¶¶ 56–64, 85–90, and prepared the waiver in the

wrong format, id. ¶¶ 91–98.

The Navy offered Fourte an “opportunity to present his objections” to the waiver

paperwork to a Special Cases Board, but he rejected this offer. Resp’t’s Resp. at 6; Packard

Decl. ¶ 9. Instead, Fourte “attempted to resolve this matter with the [respondent] by utilizing

[his] chain-of-command and separately by filing a formal Complaint of Wrongs under Article

1150 of the Navy Regulations.” Pet’r’s Decl. ¶ 18. Fourte, who has a law degree, retained

counsel for his Article 1150 complaint, which was filed on July 16, 2018. Pet. ¶¶ 14, 38.

B. Fourte’s First Habeas Petition

While Fourte’s Article 1150 complaint was pending, id. ¶ 42, and before his deployment

to Africa, Pet’r’s Decl. ¶ 26, he filed his first habeas petition in this Court on August 7, 2018.

Compl. for Declaratory and Injunctive Relief (“First Habeas Petition”) at 1, Fourte v. Spencer,

No. 18-cv-1847 (D.D.C. Aug. 7, 2018), ECF No. 1. This First Habeas Petition sought a

declaration of his mobilization as unlawful, arguing that the Navy violated the Administrative

Procedure Act (“APA”), 5 U.S.C. § 706, because the waiver “did not comply with [the Navy’s]

own directives and decision processes and did not justify why [Fourte] is the only qualified

candidate.” Id. On the same day, he also filed a motion for a preliminary injunction to enjoin

‘sanctuary’ status can present a significant windfall for the officer, but also an unexpected expense for the Navy.”
Resp’t’s Resp. at 3. The waiver process affords the Navy an opportunity to review a Navy Reserve officer’s
accumulated active duty time before the issuance of orders to avoid inadvertently allowing the Reservist to enter
“sanctuary” status, with the concomitant expense for the Navy of regular active-duty retirement pay. See Resp.’t’s
Resp., Ex. C., Chief of Naval Operations Instruction 1001.27 ¶¶ 1, (5)(f), ECF No. 9-3 (explaining that the waiver
process “establishes policy and procedures . . . to ensure all entry into sanctuary or earning of a regular retirement is
the result of planned actions necessary to meet the needs of the Navy”).

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the Navy from enforcing its mobilization orders. Mot. for Prelim. Inj. at 1, 3, Fourte v. Spencer,

No. 18-cv-1847 (D.D.C. Aug. 7, 2018), ECF No. 2. The action was transferred, sua sponte,

because at that time, Fourte was stationed at Fort Jackson in South Carolina, and as a result,

jurisdiction over the petition was appropriately placed in the District of South Carolina. See

D.D.C. 2018 Transfer Order at 4–6 (citing Rooney v. Sec’y of the Army, 405 F.3d 1029, 1032

(D.C. Cir. 2005)).

C. D.S.C.’s Dismissal of Fourte’s First Habeas Petition

After the action was transferred, a magistrate judge in South Carolina recommended, on

August 12, 2018, that the district court dismiss Fourte’s action. See D.S.C. Magistrate’s 2018

R&R, at *1. This recommendation was adopted, and the district court denied Fourte’s motion

for a preliminary injunction and dismissed his habeas action without prejudice. See D.S.C. 2018

Dismissal Order, at *1. Specifically, the D.S.C. 2018 Dismissal Order concluded that Fourte’s

claim was not justiciable because “a civilian court is not permitted to review an internal military

decision unless a service member demonstrates . . . (1) ‘an allegation of the deprivation of a

constitutional right, or an allegation that the military has acted in violation of applicable statutes

or its own regulations,’ and (2) an ‘exhaustion of available intraservice corrective measures,’” id.

at *2 (quoting Williams v. Wilson, 762 F.2d 357, 359 (4th Cir. 1985)). That court concluded that

Fourte had failed to satisfy either requirement. Id. at *2–3. Fourte’s motion for reconsideration

was also denied. Fourte v. Spencer, No. 18-cv-2212, 2018 WL 3980209, at *1–3 (D.S.C. Aug.

21, 2018) (“D.S.C. 2018 Order Denying Reconsideration”).

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 D. Fourte’s Pending Habeas Petition

After his deployment to Africa, Fourte filed the pending petition for a writ of habeas

corpus in this Court. See generally Pet.2 This second petition contains nearly identical

allegations to those in the first habeas petition. Fourte again alleges that the Navy violated the

APA by failing to comply with its procedures for issuing a waiver and did not include a

justification for choosing him in the waiver. See Pet. ¶¶ 45–98 (alleging APA violations in seven

counts because, in Fourte’s view, the Navy did not process his waiver paperwork correctly).

Although the instant petition also contains Fifth Amendment Due Process claims, these new

claims are predicated on the same arguments that the waiver was not prepared in compliance

with the Navy’s procedures. See Pet. ¶¶ 99–137 (alleging Due Process violations in three counts,

based on allegations that the waiver was not processed properly, and that Fourte disagrees with

how the respondent and respondent’s counsel described, in the D.S.C. action, the Navy’s

justification for choosing to deploy him to Africa).

Following the Court’s issuance of an Order to Show Cause, see Order Directing

Respondent to Show Cause, ECF No. 4; see also Min. Order (Nov. 1, 2018) (directing Fourte to

file any reply), the respondent responded to the petition, and Fourte filed a reply, see generally

Resp’t’s Resp.; Pet’r’s Reply to Resp’t’s Resp. (“Pet’r’s Reply”), ECF No. 11. The petition for a

writ of habeas corpus is now ripe for resolution.

2
A “district court has jurisdiction over a habeas petition ‘only if it has jurisdiction over’ the petitioner’s
custodian.” Rooney, 405 F.3d at 1032 (quoting Rumsfeld v. Padilla, 542 U.S. 426, 442 (2004)). The Supreme Court
has “relaxed [this] district of confinement rule when ‘American citizens confined overseas (and thus outside the
territory of any district court) have sought relief in habeas corpus,’” Padilla, 542 U.S. at 447 n.16 (quoting Braden v.
30th Judicial Circuit Court of Ky., 410 U.S. 484, 498 (1973)), allowing such “petitioner[s] to name as respondent a
supervisory official and file the petition in the district where the respondent resides,” id. Accordingly, the instant
habeas petition is appropriately filed in this Court, now that Fourte is currently deployed overseas and the
respondent is a supervisory official residing in Washington, D.C. See Pet. ¶ 2. 

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II. LEGAL STANDARD

A serviceman who seeks a declaration that “orders calling him to active duty are invalid,”

in fact seeks “from the federal courts [] a writ of habeas corpus.” Rooney, 405 F.3d at 1031

(internal quotation marks omitted). Indeed, “the writ of habeas corpus has long been recognized

as the appropriate remedy for servicemen who claim to be unlawfully retained in the armed

forces.” Parisi v. Davidson, 405 U.S. 34, 39 (1972); see also Strait v. Laird, 406 U.S. 341, 351

(1972) (concluding that a reservist called to active duty is “in custody” for habeas purposes

under 28 U.S.C. § 2241). “[H]abeas corpus is [the petitioner’s] exclusive remedy,” because “a

party who can petition for a writ of habeas corpus may not instead seek a declaratory judgment.”

Rooney, 405 F.3d at 1031; see also Monk v. Sec’y of the Navy, 793 F.2d 364, 366 (D.C. Cir.

1986) (explaining that a petitioner “may not 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”).

A writ of habeas corpus is an “extraordinary remedy,” Bousley v. United States, 523 U.S.

614, 621 (1998), and “[o]rderly government requires that the judiciary be as scrupulous not to

interfere with legitimate [military] matters as the [military] must be scrupulous not to intervene

in judicial matters.” Blevins v. Orr, 721 F.2d 1419, 1421 (D.C. Cir. 1983) (second and third

alterations in original) (quoting Orloff v. Willoughby, 345 U.S. 83, 94 (1953)).

III. DISCUSSION

Fourte alleges that the waiver permitting his mobilization to active duty in Africa is

invalid because the Navy failed to follow its own procedures when issuing the waiver in his case.

Pet. at 1. Regardless of the merits of this allegation, Fourte’s claims are dismissed for two

reasons. First, Fourte’s requested relief—demobilization and reassignment within the Navy by

judicial decree—cannot be afforded, and as a result, his claims must be dismissed as non-

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justiciable. Second, even if the requested relief could be afforded, Fourte has not exhausted his

intraservice remedies, which is required before his claims may be raised in federal court. Each

of these reasons is discussed in more detail below.

A. Fourte’s Request for Reassignment of His Naval Duties by Judicial Decree Is
Not Justiciable

Fourte requests a writ of habeas corpus that would (1) “require[e] the respondent to

demobilize” him, (2) “declar[e] that the Africa mobilization orders are unlawful,” see id. at 31

(Demand for Relief), and (3) “restore” Fourte “to [his] previous duty” assignment at the

Washington Navy Yard in Washington, D.C., see Habeas Form at 8 (Request for Relief); see

also Pet’r’s Reply at 26. In effect, then, Fourte asks the Court, in the form of a writ of habeas

corpus, to countermand and revise his active duty orders issued by the Navy and issue a new

order assigning him to another duty station. The law is well-settled, however, that a writ of

habeas corpus cannot be used to “revise duty orders as to one lawfully in the service.” Orloff,

345 U.S. at 94.

In Orloff v. Willoughby, a doctor in the Army requested, through a petition for a writ of

habeas corpus, “judicial review of his assignments to duty.” Id. at 92. The Supreme Court ruled

that it was beyond the Court’s power, by habeas corpus, “to determine whether specific” non-

medical tasks were appropriately assigned to the doctor, because “judges are not given the task

of running the Army,” and “[e]ach doctor in the Army cannot be entitled to choose his own

duties.” Id. at 92–93. Thus, while habeas corpus may be used “to determine whether one has

been lawfully inducted and is therefore within the jurisdiction of the Army and subject to its

orders,” id. at 94, the Court made clear that “it is not within the power of this Court by habeas

corpus to determine whether specific assignments to duty fall within the basic classification of

petitioner,” id. at 93. Since “[n]othing appears to convince us that he is held in the Army

8
unlawfully, and, that being the case,” the Court declined to exercise jurisdiction, observing doing

so “would be a disruptive force as to affairs peculiarly within the jurisdiction of the military

authorities.” Id. at 94–95.

Just like the doctor in Orloff, Fourte is here requesting revision of his active duty orders,

a purpose for which a writ of habeas corpus may not be issued. He attempts to distinguish

Orloff, claiming he is not “lawfully in the service,” because in his view, the Navy did not follow

its procedures in securing a waiver to order him to active duty in Africa. See Pet’r’s Reply at 22

(quoting Orloff, 345 U.S. at 94). Notwithstanding this assertion, Fourte concedes that he is a

reservist, id. at 1, that the Navy may recall reservists to active duty, see id. at 8 (“It is undisputed

that the military may recall reservists.”), and that he seeks to remain on active duty orders, albeit

in a different location that he prefers, id. at 26 (requesting restoration to his premobilization

assignment in Washington, D.C.). Thus, despite being lawfully in Naval service and subject to

the Navy’s orders, Fourte is asking the Court to interfere with military matters by finding the

Secretary’s decisionmaking process in issuing the deployment order to him to be unjustified and

incorrect, and thereby to have this Court substitute its judgment for that of the Secretary. This is

contrary to the instruction in Orloff.

Moreover, following Orloff’s guidance, the D.C. Circuit has explained “[t]he Constitution

vests ‘[t]he complex, subtle, and professional decisions as to the composition, training,

equipping, and control of a military force’ exclusively in the legislative and executive branches.”

Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1511 (D.C. Cir. 1989) (quoting Gilligan v.

Morgan, 413 U.S. 1, 10 (1973) and citing Orloff, 345 U.S. at 93–94). Consistent with this

teaching, the D.C. Circuit has repeatedly ruled that “military personnel decisions” are

“nonjusticiable” when “grant[ing] such relief would require” a court to “second-guess the

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[military’s] decision about how best to allocate military personnel in order to serve the security

needs of the Nation.” Id. at 1511; see also, e.g., Wilson v. James, No. 15-5338, 2016 WL

3043746, at *1 (D.C. Cir. May 17, 2016) (affirming non-justiciability of review of a

“disciplinary action reprimand[ing]” a serviceman for failing to give superior officer the “dignity

and respect due his office”); Schamburg v. White, 63 F. App’x 526, 526 (D.C. Cir. 2003) (review

of denial of promotion was non-justiciable); Cargill v. Marsh, 902 F.2d 1006, 1007 (D.C. Cir.

1990) (denying writ of mandamus to compel Army to reassign petitioner within the Army).

For example, in Kreis, the D.C. Circuit reviewed an Air Force Major’s request for a

retroactive promotion in the military, based on the claim that his military record contained

inaccuracies that prejudiced his promotion application. Kreis, 866 F.2d at 1510. The D.C.

Circuit affirmed the district court’s dismissal of the Air Force Major’s request for a promotion

“by judicial decree” as “nonjusticiable,” reasoning that the court was “not competent to

compare” the Air Force Major with “other officers competing for such a promotion,” a task

“unsuitable to the judicial branch.” Id. at 1511.

Here, similar to the request for a promotion in Kreis, Fourte seeks, by judicial decree,

reassignment of his duties, see Pet’r’s Reply at 26, based on his assertion that he is not the “only

qualified candidate in the entire reserve force” for the Africa assignment, Pet. at 1; id. ¶ 27. As

in Kreis, Fourte’s challenge to the Navy’s justification for his deployment “falls squarely within

the realm of nonjusticiable military personnel decisions.” Kreis, 866 F.2d at 1511. Indeed, the

pending petition has put the Navy in the position of having to justify its personnel action

regarding Fourte, namely that Fourte’s position, Officer in Charge, is “[r]esponsible for the

overall safety, security, and well-being of the [base] and all troops therein,” Resp’t’s Resp. at 5,

10
and Fourte was chosen as the only qualified Reservist after the Navy advertised this position and

had no volunteers, see Packard Decl. ¶ 4. Fourte was the “first fully-qualified Sailor on the list

of the top 10 qualified Sailors to fill this position,” and the only officer who satisfied the

“command experience requirement” and held the required security clearance. Id. ¶ 8; see also

Resp.’t’s Resp. at 16–17. Fourte himself touts his qualifications for the position to which he was

deployed, stating that he has “served on active duty longer than 95% of his peers of equal rank,”

is one of “few candidates” with a “JD, MBA, and large-scale corporate financial experience,”

and has previously been chosen by the Navy for overseeing a “DOD-wide Congressionally

mandated financial audit.” Pet. ¶¶ 12–14. The Navy’s choice of Fourte as the most-qualified

Reservist for the Officer in Charge position, therefore, is unsurprising, and is well beyond this

Court’s power to “second-guess” the Navy’s “decision about how best to allocate military

personnel in order to serve the security needs of the Nation,” a task “unsuitable to the judicial

branch.” Kreis, 866 F.2d at 1511.

Faced with Orloff, Kreis, and their progeny, Fourte switches gears and claims he is not

challenging the Navy’s choice to deploy him, but rather the process by which the Navy obtained

a waiver to order him to active duty in Africa. See Pet’r’s Reply at 8 (explaining the issue is not

“who” the Navy mobilized, but “how” Fourte was mobilized). Claims requiring the “court to

determine only whether the [military’s] decision making process was deficient,” and not whether

a military personnel decision “was correct,” have been found to be justiciable. Kreis, 866 F.2d at

1511. For example, a court may consider a “more modest request” to review “the

reasonableness” of the military’s decision not to correct a serviceman’s military record. Id.

Nonetheless, Fourte’s recharacterization of his claims as merely challenges to the Navy’s

11
waiver process cannot save his habeas petition. He has not sought any remedy for the alleged

deficiencies he identified in the Navy’s process for ordering him to active duty by, for example,

requesting re-processing of his waiver paperwork. See generally Pet. Instead, far from a

“modest request” to have his waiver paperwork reprocessed, Kreis, 866 F.2d at 1511, Fourte asks

the Court to interfere with the Navy’s personnel decisions and order that he be reassigned within

the Navy to active duty in Washington, D.C. Fourte’s claims for relief, therefore, are not

justiciable, and accordingly, must be dismissed.

B. Fourte’s Claims Are Barred For Failure to Exhaust Intraservice Remedies

Even if Fourte’s claims were justiciable under Orloff, Kreis, and their progeny, he has

failed to show that he exhausted his intraservice remedies because he has failed to present his

objections to the waiver to the Special Cases Board, and his habeas petition is barred, as a result.

As the D.S.C. 2018 Dismissal Order concluded, exhaustion of intraservice remedies,

including presentation of objections to the Special Cases Board, is required for Fourte’s claims to

be reviewed in federal court. See D.S.C. 2018 Dismissal Order, at *3.3 Indeed, “a court should

3
The D.S.C 2018 Dismissal Order ruled that Fourte’s First Habeas Petition was “not justiciable” because
exhaustion of intraservice remedies is required, and, although Fourte “ha[d] a pending action under Article 1150 of
the Navy Regulations,” he “failed to utilize an opportunity to present any personal issues with the deployment . . . to
the Special Cases Board.” D.S.C 2018 Dismissal Order, at *3; see also D.S.C. 2018 Order Denying
Reconsideration, at *3 (denying Fourte’s motion for reconsideration because he had “not exhausted his intraservice
remedies”). The respondent correctly points out that this exhaustion requirement may not be re-litigated here
because of issue preclusion, since “(1) the same issue was ‘contested by the parties and submitted for judicial
determination in [a] prior case,’ (2) the issue was ‘actually and necessarily determined by a court of competent
jurisdiction in that prior case,’ and (3) preclusion does not result in ‘basic unfairness to the party bound by the first
determination.’” Scahill v. District of Columbia, 909 F.3d 1177, 1181 (D.C. Cir. 2018) (alterations in original)
(quoting Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992)); see also Resp’t’s Resp. at 7
(citing Martin v. DOJ, 488 F.3d 446, 454 (D.C. Cir. 2007)). Fourte only contests the third requirement, arguing that
preclusion would be unfair to him, because the D.S.C. 2018 Dismissal Order dismissed his first action “without
prejudice,” and as a result, he has not yet had the opportunity to litigate the merits of his claims. Pet’r’s Reply at 3.
Issue preclusion, however, applies to “threshold jurisdictional issues,” Nat’l Ass’n of Home Builders v. EPA, 786
F.3d 34, 41 (D.C. Cir. 2015), such as the exhaustion requirement on which D.S.C. already ruled. Even though the
D.S.C. 2018 Dismissal Order’s dismissal for failure to exhaust did not “adjudicate the merit[s],” the decision did
“adjudicate the court’s jurisdiction,” and the pending petition “cannot command” re-consideration of the same issue
unless Fourte shows that he has since “cured” the original jurisdictional defect. Id. (internal quotation marks
omitted) (quoting GAF Corp. v. United States, 818 F.2d 901, 912 & n.72 (D.C. Cir. 1987)). Fourte still has not

12
not review internal military affairs in the absence of . . . exhaustion of available intraservice

corrective measures,” Bois v. Marsh, 801 F.2d 462, 468 (D.C. Cir. 1986) (internal quotation

marks and citation omitted), because “[c]ivilian courts must, at the very least, hesitate long

before entertaining a suit which asks the court to tamper with the established relationship

between enlisted military personnel and their superior officers,” id. (internal quotation marks

omitted) (quoting Chappell v. Wallace, 462 U.S. 296, 300 (1983)); see also New v. Cohen, 129

F.3d 639, 641 (D.C. Cir. 1997) (stating the “basic principle of comity” that “service members

subject to military discipline must exhaust their military remedies before seeking collateral

review in federal court”). Here, Fourte still has not presented his waiver objections to the

Special Cases Board, and his decision to forego this intraservice remedy bars him from bringing

the instant claims in federal court. See Resp’t’s Resp. at 6; Packard Decl. ¶ 9.4

Fourte correctly notes that in the D.C. Circuit, the exhaustion requirement does not apply

if exhaustion would be “futile” or lead to “irreparable harm.” Bois, 801 F.2d at 468; see also

Pet’r’s Reply at 4; Pet’r’s Decl. ¶¶ 24, 25. Although Fourte may not relitigate this issue here

because the D.S.C. 2018 Dismissal Order already ruled that exhaustion is required, Fourte

nevertheless does not qualify for either exception to exhaustion. Fourte states his belief that

submitting objections to the Special Cases Board would be futile because such review is for

“personal matters and not violations of federal regulations by the Navy,” but the declaration on

exhausted his intraservice remedies, as discussed in this section, and therefore, his petition is barred on this ground
as well.
4
The petitioner states that the Navy “completed its investigation” in response to his Article 1150 complaint,
concluding the petitioner could not bring that complaint because it was filed against a serviceman who was not
“superior in rank or position.” See Decl. Supp. Pet’r’s Reply (“Pet’r’s Reply Decl.”) (Nov. 17, 2018) ¶ 55, ECF No.
11-1. This fact does not establish that Fourte has exhausted his intraservice remedies, however, because Fourte has
not availed himself of the intraservice remedy that the Navy offered to him, which was to present his objections to
the Special Cases Board.

13
which he relies for that assertion explains that Special Cases Board requests may be broader,

reaching “legal” issues, stating this avenue of administrative review is “available to Sailors who

have significant personal, legal, . . . or other issues that could affect their mobilization, or require

special consideration.” See Pet’r’s Reply at 3 (citing Packard Decl. ¶ 9). Thus, Fourte has

advanced “no reason . . . to suggest that the Board lacks the power to provide [Fourte] with

complete relief or that it would not fairly consider all [his] claims.” Bois, 801 F.2d at 468.

Fourte’s contention that he will be irreparably harmed if he is required to exhaust

intraservice remedies fares no better. See Pet’r’s Decl. ¶ 27(c). Fourte argues that exhaustion

creates irreparable harm for him because exhaustion lengthens the time he will be deployed

abroad. He concedes, however, that he is not challenging the Navy’s authority or decision to

deploy him to Africa. Pet’r’s Reply at 8. Rather, the alleged wrong is in “how” the Navy

processed his waiver paperwork, id., and Fourte has not shown any irreparable harm stemming

from the alleged paperwork errors. If Fourte succeeded on the merits of his challenges to the

Navy’s waiver process, the Navy, for example, could reprocess the waiver for his Africa

assignment, and the alleged harm would be fixed. Exhaustion of intraservice remedies does not

create irreparable harm for Fourte, and is required, as the D.S.C. 2018 Dismissal Order already

ruled. Fourte still has not exhausted his intraservice remedies, and, accordingly, his habeas

petition is dismissed.5

5
The respondent argues that Fourte’s claims should also be dismissed because Fourte has failed to state a
claim under the APA and Due Process Clause of the Fifth Amendment. See generally Resp’t’s Resp. These
arguments need not be discussed further because the petition is dismissed on several other grounds.

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IV. CONCLUSION

For the reasons discussed above, Fourte’s Petition for a Writ of Habeas Corpus, ECF No.

1, is dismissed. An Order consistent with this Memorandum Opinion will be entered

contemporaneously.

Date: January 28, 2019

__________________________
BERYL A. HOWELL
Chief Judge

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