[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR TH E ELEV ENTH C IRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 21, 2003
No. 02-12136 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 01-01142-CV-J-21-HTS
DAV ID M . WIN CK, JR .,
Petitione r-App ellee,
versus
GOR DON R. EN GLA ND, H onorab le,
JULI AN E . SAL LAS , Lieuten ant,
RICH ARD G. HO FFM AN, C aptain,
JOH N AS HCR OFT ,
MA C CA ULE Y,
Respo ndents- Appe llants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 21, 2003)
Before AN DERS ON, BIR CH and B ARKE TT, Circuit Judges.
BIRCH, Circuit Judge:
This appeal presents the question w hether a military service member must
exhaust all intraservice administrative remedies before applying for a writ of
habeas corpus seeking discharge from the military under the terms of his or her
enlistment contract. The district court granted relief and ordered the service
memb er discha rged fro m the m ilitary after co nstruing the contr act in his fa vor.
Because Winck has not exhausted his intraservice military remedies, we
REVERSE and RE MAND with instructions to dismiss the petitioner’s application
without prejudice.
I. BACKGROUND
The petitioner, David M. Winck, Jr., enlisted in the Navy under the
exceptio nal stude nt prov isions of the Nu clear Pro pulsion Officer Candid ate
(“NUPOC”) program, executing the NUPOC Service Agreement (“enlistment
contract”) on 18 June 1999. He was then ordered to active duty while he
completed his final year of college. In December 1999, while still in college,
Winck signed an “Addendum Page for Service Agreements.” In the Addendum, he
acknowledged that Officer Candidate School (“OCS”) was “a physically and
mentally challenging program,” and agreed that “[i]f entering the program from
2
civilian life . . . [ , i]n the eve nt . . . [he] req uest[ed] d isenrollm ent prior to
acceptan ce of a co mmissio n, [he w ould] be discharg ed from the Nav al Servic e,”
but, “[i]f entering the program from an enlisted status . . . [he would] be obligated
to serve th e terms o f the prev ious enlis tment co ntract.” R 1-1, Ex . A at 10 . In this
case, those terms “required [him] to serve two years on active duty in an enlisted
status if disenrolled from the NUPOC Program for any reason other than physical.”
Id., Ex. A at 2.
In May 2000, Winck received orders to report to OCS. After reporting, he
signed an “Administrative Remarks” form with essentially the same language as
the Addendum regarding disenrollment, with the exception that entering the
progra m from enlisted sta tus expr essly inclu ded spe cial prog rams su ch as N UPO C.
The following month, Winck voluntarily disenrolled from OCS and requested
discharge from the Navy under the terms of his enlistment contract. The Navy
advised him, however, that he must serve out the two-year enlisted term required
by the original Service Agreement, and subsequently assigned him to the U.S.S.
Hue City, a guided missile cruiser to be deployed in January 2002 for extended
operations in the Persian Gulf. Winck then filed this habeas petition, arguing that
the term “program” in the Addendum referred to NUPOC and n ot OCS, and that
since he entered NUPOC from civilian life, he was entitled to discharge. Because
3
the Navy did not raise exhaustion as an issue, the district court assumed, without so
finding, that Winck had exhausted all available intramilitary remedies, and granted
the petition on its me rits after co nstruing the contr act in W inck’s fav or.
II. DISCUSSION
A. Waiver of the Exhaustion Doctrine
On appeal, the Navy raises exhaustion for the first time, arguing that Winck
had first sought relief neither from the Board for Correction of Naval Records
(“BCN R”), crea ted purs uant to 1 0 U.S .C. § 15 52 “with broad r emedial a uthority to
correct any error or remove any injustice identified by a service member” upon
approval by the Secretary of the Navy, Appellant’s Br. at 16, or from his superior
officer pursuant to Article 138 of the Uniform Code of Military Justice, 10 U.S.C.
§ 938. Winck urges us, however, to deem the issue waived because the Navy
failed to raise it below both in its response to the habeas petition and in its motion
to reconsider. The Navy responds that “exhaustion in the special military context
is in the nature of a jurisdictional requirement,” and, therefore, may be raised at
any time. Appellant’s Br. at 12. As a threshold issue, we determine whether
exhaus tion in this context is jurisdictio nal and, th erefore, in cumba nt upon us to
consider.
4
It is true, as the Navy points out, that our opinion in Hodges v. Callaway,
499 F.2d 417, 419 & n.5 (5th Cir. 1974), raised exhaustion sua spo nte, referring to
it as a “jurisdictional problem.” However, “[w]hat we really determine is a judicial
policy akin to comity,” Mindes v. Seaman, 453 F.2d 197, 199 (5th Cir. 1971), that
is, a “judicial abstention doctrine.” Meister v. T ex. Adjutan t Gen. De p’t, 233 F.3d
332, 33 9 (5th C ir. 2000 ), cert. denied, 532 U.S. 1052, 121 S. Ct. 2194 (2001). As
such, “w e view th e require ment of exhaus tion as . . . ba sed on p rinciples o f comity
and not as an imperative limitation of the scope of federal habeas corpus power.”
In re K elly, 401 F .2d 211 , 213 (5 th Cir. 19 68) (pe r curiam ).
In fact, we have consistently distinguished our subject-matter jurisdiction
from th ese prud ential con sideration s. For ex ample, w hile we h ave squ arely held
that courts have jurisdiction over “applications for habeas corpus brought by
persons in confinement by the military,” United States ex rel. Berry v.
Commanding General, 411 F.2d 822, 824 (5th Cir. 1969), “[b]efore entertaining
[such] an application . . . , we have required, on principles of comity, the
exhaustion of the procedures of the military justice system.” Id. Similarly,
“‘judicial concern over inappropriate intrusion’ into military matters . . . has led
[us] to decline review” of those matters, though we “generally have jurisdiction.”
Rucker v. Sec’y of the Army, 702 F.2d 966, 969 (11th Cir. 1983) (citation
5
omitted) ; see also Woodard v . Marsh, 658 F .2d 989 , 992 (5 th Cir. U nit A S ept.
1981) (“[A] fed eral district court sho uld not r eview e very suc h decisio n, even if it
has sub ject matter ju risdiction .”).
The Supreme Court has espoused a similar distinction. Because civilian
courts have jurisdiction “to review the judgment of a court-martial in a habeas
corpus proceeding,” the Court’s “initial concern is not whether the District Court
has any power at all to consider [those habeas] applications[, but] rather . . . the
manner in which the Court should proceed to exercise its power.” Burns v.
Wilson, 346 U.S. 137, 139, 73 S. Ct. 1045, 1047 (1953). Again in Schlesinger v.
Councilman, 420 U.S. 738, 95 S. Ct. 1300 (1975), having already established that
subject-m atter jurisd iction exis ted for th e district co urt to per manen tly enjoin
impend ing cou rt-martial p roceedin gs again st an Army capta in, id. at 739-40, 95 S.
Ct. at 1304, the Court concluded that a “question of equitable jurisdiction
[remained], a question concerned, not with whether [a] claim falls within the
limited jur isdiction c onferre d on the federal co urts, but w ith whe ther con sistently
with the principles governing equitable relief the court may exercise its remedial
powers.” Id. at 754, 95 S. Ct. at 1311.
We have also expressly concluded that exhaustion “is not a jurisdictional bar
to habea s relief” w hen seek ing releas e from s tate custod y pursu ant to 28 U.S.C . §
6
2254. Essling er v. Da vis, 44 F.3d 1515, 1524 n.33 (11th Cir. 1995). 1 Our
conside ration w hether ju dicial revie w is app ropriate in the military context is
animated by the sam e princip les of com ity arising in the § 22 54 setting . See
discussion infra note 3. For this reason, we apply an abuse of discretion standard
in reviewing a district court’s refusal, for lack of exhaustion, to take jurisdiction of
a habeas petition brought by a member of the armed forces convicted by special
court-m artial. See Doyle v. Koelbl, 434 F.2d 1014, 1015 (5th Cir. 1970) (per
curiam).2
1
By contrast, “[e]xhaustion of administrative remedies is jurisdictional,” when a petition for
writ of habeas corpus is brought pursuant to 28 U.S.C. § 2241 for release from a federal prison.
Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir. 1992) (per curiam). Also jurisdictional
is “[t]he general rule . . . that a challenge to agency actions in the courts must occur after
available administrative remedies have been pursued.” Boz v. United States, 248 F.3d 1299,
1300 (11th Cir. 2001) (per curiam) (internal quotation marks and citation omitted); see also
United States v. Lucas, 898 F.2d 1554, 1556 (11th Cir. 1990) (per curiam) (action filed pursuant
to 18 U.S.C. § 3568 for credit against prisoner’s sentence for time spent in custody).
2
To be clear, we do not suggest, as Winck appears to, that a court may always exercise its
discretion in deciding whether to require exhaustion, even where we have previously determined
that exhaustion is necessary:
[T]he decision whether to require exhaustion is not discretionary in the sense that
it can be made solely on the basis of the equities in any given case without regard
to authoritative precedent. Rather, judicially-developed exhaustion requirements
are “common law” rules in that the decisions of appellate courts on this issue will
govern the subsequent decisions of the lower courts [and other appellate court
panels] to which they properly apply.
Montgomery v. Rumsfeld, 572 F.2d 250, 254 n.4 (9th Cir. 1978). However, where we have not
developed such rules, the outcome of a district court’s exhaustion analysis is reviewed for abuse
of discretion. See Doyle, 434 F.2d at 1015; Panola Land Buyers Ass’n v. Shuman, 762 F.2d
1550, 1556-57 (11th Cir. 1985).
7
Having found the military exhaustion requirement prudential, and not
jurisdictio nal, Win ck now urges u s to reject th e Navy ’s allegation that he faile d to
exhaust intraservice military remedies out-of-hand because it was raised for the
first time on appeal. We decline to do so, emphasizing the importance of the
doctrines of abstention and exhaustion, as well as their application to the military
context. In Schlesinger, for exam ple, the C ourt sua spo nte sought supplemental
briefing on “‘exhaustion of remedies, and . . . the propriety of a federal district
court enjoining a pending court-martial proceeding.’” 420 U.S. at 743-44, 95 S.
Ct. at 130 6. Simila rly, in the co ntext of a habeas p etition for release fro m state
custody, the Court held that, while an “appellate court is not required to dismiss for
nonex haustion notwith standing the State’s failure to r aise it,” neith er is it
“obligated to regard the State’s omission as an absolute waiver of the claim.”
Granberry v. Greer, 481 U.S. 129, 133, 107 S. Ct. 1671, 1674 (1987). Recognizing
that “there a re some cases in w hich it is ap propria te for an a ppellate co urt to
address the merits of a hab eas corp us petition notwith standing the lack o f comp lete
exhaustion,” id. at 131, 1 07 S. C t. at 1674 , the Cou rt neverth eless cou nseled its
lower counterparts to “determine whether the interests of comity . . . will be better
served b y addres sing the m erits forth with or by requ iring a ser ies of add itional . . .
proceedings before reviewing the merits of the petitioner’s claim.” Id. at 134, 107
8
S. Ct. at 1 675; see also Esslinger, 44 F.3d at 1524 (“[C]ircumstances may counsel
that [a] district court raise sua spo nte a procedural bar to relief that the state has
‘waived,’” such as the exhaustion requirement in 28 U.S.C. § 2254.).3
3
In Gusik v. Schilder, 340 U.S. 128, 71 S. Ct. 149 (1950), the Court “drew an explicit analogy”
between the exhaustion requirement for habeas applications by military prisoners and that “for
federal habeas attacks on state criminal convictions.” Schlesinger, 420 U.S. at 758 n. 32, 95 S.
Ct. at 1313 n. 32. “The policy underlying that rule is as pertinent to the collateral attack of
military judgments as it is to collateral attack of judgments rendered in state courts.” Gusik, 340
U.S. at 131-32, 71 S. Ct. at 151.
It is true, of course, that the principles of federalism which enlighten the law of
federal habeas corpus for state prisoners are not relevant to the problem before us.
Nevertheless other considerations require a substantial degree of civilian
deference to military tribunals. In reviewing military decisions, we must
accommodate the demands of individual rights and the social order in a context
which is far removed from those which we encounter in the ordinary run of
civilian litigation.
Noyd v. Bond, 395 U.S. 683, 694, 89 S. Ct. 1876, 1883 (1969).
The military is “a specialized society separate from civilian society” with “laws
and traditions of its own (developed) during its long history.” Moreover, “it is the
primary business of armies and navies to fight or be ready to fight wars should the
occasion arise.” To prepare for and perform its vital role, the military must insist
upon a respect for duty and a discipline without counterpart in civilian life. The
laws and traditions governing that discipline have a long history; but they are
founded on unique military exigencies as powerful now as in the past.
Schlesinger, 420 U.S. at 757, 95 S. Ct. at 1313 (citations omitted); see also Kawitt v. United
States, 842 F.2d 951, 953 (7th Cir. 1988) (applying “the Supreme Court’s flexible interpretation
of . . . exhaustion” in Granberry to the military setting).
More generally, we have concluded that, notwithstanding our general refusal to entertain
an issue not raised below, we are justified in doing so “‘where the proper resolution is beyond
any doubt.’” Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994) (citation omitted). In view
of the long line of cases precluding judicial review of military claims absent exhaustion, the
proper resolution of this issue, as we demonstrate below, is beyond any doubt.
9
Accordingly, our decision w hether to mandate exhaustion w hen raised first
on appeal is within our discretion. Here, Winck has at least a “colorable federal
claim,” one that is not, however, “plainly warranted,” two factors that both counsel
against a d ecision o n the me rits. Granberry, 481 U.S. at 135, 107 S. Ct. at 1675-
76. Thus, we will use our discretion to determine whether exhaustion of
intraservice military administrative remedies is required before a federal court may
review a habeas petition brought by a member of the military seeking discharge
under th e terms o f his or h er enlistm ent contr act.
B. The Exhaustion Doctrine as Applied to Military Habeas Petitions
As previously noted, “[t]hat the federal civil courts have jurisdiction of
applications for habeas corpus brought by persons in confinement by the military
authorities is undoubted.” Berry, 411 F .2d at 82 4; Gusik v. Schilder, 340 U.S. 128,
133 n.3, 71 S. Ct. 149 , 152 n.3 (1950). Th is jurisdiction extends to those
involuntarily held while claiming entitlement to discharge under military
regulatio ns. See In re K elly, 401 F.2d at 213. We have also recognized our
jurisdiction over a habeas petition seeking cancellation or rescission of the
petitioner’s enlistment contract, applying “traditional notions of contract law.”
10
Peavy v. Warner, 493 F .2d 748 , 749-5 0 (5th C ir. 1974 ); see also Ferrell v. Sec’y of
Def., 662 F .2d 117 9, 1181 , 1182 ( 5th Cir. D ec. 1981 ).
In Gusik , the Court concluded that “[i]f an available procedure has not been
employed to rectify [an] alleged error [in a military judgment] which the federal
court is as ked to co rrect, any in terferenc e by the fe deral cou rt may be wholly
needless.” 340 U.S. at 132, 71 S. Ct. at 151-52. It thereby “established the general
rule that habeas corpus petitions from military prisoners should not be entertained
by federal civilian courts until all available remedies within the military court
system have been invoked in vain.” Noyd v. Bond, 395 U .S. 683 , 693, 89 S. Ct.
1876, 1 882 (1 969); see also Berry, 411 F.2d at 824. In Woodrick v. Hungerford,
800 F .2d 141 3, 1417 (1986 ), the Fifth Circuit applied the exhaustion requirement
to the type of habe as claim ra ised here , and held “that wh ere a serv iceman s eeks to
effect a rescission of his enlistment contract by means of the habeas writ in federal
court, he must show that he has exhausted all available intraservice remedies.” We
agree, and now adopt this holding as our own, including within its ambit all habeas
petitions seeking discharge fro m the military un der the terms o f the petitioner’s
enlistmen t contract, o r throug h allegatio ns that su ch a con tract has b een illegally
formed or breached.
11
In doing so, we employ the usual considerations used in determining
application of the exhaustion doctrine to specific cases, an application which the
Supreme Court has observed “requires an understanding of its purposes and of the
particular administrative scheme involved.” McKart v. United States, 395 U.S.
185, 19 3, 89 S . Ct. 165 7, 1662 (1969 ).
Accordingly, in determining whether the exhaustion rule should be
rigidly applied, the Court has, on a case-by-case basis, employed a
balancin g analysis which conside rs both th e interests o f the agen cy in
applying its expertise, correcting its own errors, making a proper
record, enjoying appropriate independence of decision and
maintaining an administrative process free from deliberate flouting,
and the in terests of p rivate par ties in find ing adeq uate redr ess for th eir
grievances.
Mon tgomer y v. Rum sfeld, 572 F.2d 250, 253 (9th Cir. 1978) (explaining McKart).
With this framework in mind, we find that the balancing analysis in this case
weighs in favor of exhaustion. While some of “the practical considerations
supporting . . . the requirement of exhaustion of administrative remedies”—unique
agency competence and expertise, and development of an adequate factual record
on app eal—m ay not be implicated here, Schlesinger, 420 U.S. at 756, 95 S. Ct. at
1312, our “respect for coordinate judicial systems” and their autono my, id., has led
us, time an d again, to require e xhaustio n in militar y cases. See, e.g., Linfors v.
United States, 673 F .2d 332 , 334 (1 1th Cir. 1 982) (p er curiam ); Von Hoffburg v.
12
Alexander, 615 F .2d 633 , 637-3 8 (5th C ir. 1980 ); Hodges, 499 F.2d at 420;
Mindes, 453 F .2d at 20 1; Berry, 411 F.2d at 825.
The exhaustion doctrine, as we have already explained, originated from
broader principles of comity and judicial concern for military independence.
Granberry, 481 U.S. at 134, 107 S. Ct. at 1675 (“[C]omity [is] the basis for the
exhaustion doctrine: ‘It is a principle controlling all habeas corpus petitions to the
federal co urts . . . .’”) (citation omitted). Determining whether federal habeas
corpus relief wa s available to review “specific as signme nts to du ty,” the Co urt in
Orloff v. Willoughby, 345 U.S. 83, 73 S. Ct. 534 (1953), explained the principles
behind this abiding reluctance to interfere with military affairs:
We know that from top to bottom of the Army the complaint is often
made, and sometimes with justification, that there is discrimination,
favoritism or other objectionable handling of men. But judges are not
given the task of running the Army. The responsibility for setting up
channe ls throug h whic h such g rievance s can be c onsider ed and f airly
settled rests upon the Congress and upon the President of the United
States and his subordinates. The military constitutes a specialized
comm unity go verned by a sepa rate discip line from that of the civilian.
Order ly gover nment r equires th at the judic iary be as s crupulo us not to
interfere with legitimate Army matters as the Army must be
scrupu lous no t to interve ne in jud icial matters .
Id. at 93-94 , 73 S. C t. at 540; see also White v. Callaway, 501 F .2d 672 , 674 (5 th
Cir. 1974).
13
In Mindes, we “distilled,” from Orloff and oth er federa l court pr ecedent,
“the prim ary conc lusion th at a court s hould n ot review internal m ilitary affairs in
the absence of (a) 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 (b) exhaustion of available intraservice corrective measures.” 453
F.2d at 201.4 In explaining Mindes, we said that “[t]he strict application of the
exhaus tion doc trine . . . serv es to main tain the ba lance betw een militar y author ity
and the power of federal courts,” Von Hoffburg, 615 F.2d at 637, by reducing
“‘inappropriate intrusion’ into military matters.” Rucker, 702 F.2d at 969 (quoting
Smith v. Fulton, 615 F.2d 196, 201 (5th Cir. 1980)). Thus, “[i]n the military
context, the exhaustion requirement promotes the efficient operation of the
military’s ju dicial and adminis trative syste ms, allow ing the m ilitary an op portun ity
to fully exercise its own expertise and discretion prior to any civilian court
review.” Von Hoffburg, 615 F .2d at 63 7-38.
Althou gh the co urt in Woodrick expressly relied on Mindes, see 800 F.2d at
1416, we do not. The Mindes test originally developed from claims in which
4
Mindes also requires that, once a sufficient allegation has been subjected to all available
military remedies, a court “must examine the substance of that allegation in light of the policy
reasons behind nonreview of military matters,” balancing four factors: (1) “The nature and
strength of the plaintiff’s challenge to the military determination”; (2) “The potential injury to
the plaintiff if review is refused”; (3) “The type and degree of anticipated interference with the
military function”; and (4) “The extent to which the exercise of military expertise or discretion is
involved.” 453 F.2d at 201.
14
service members objected to a military discharge or other personnel action, and has
generally not been applied in habeas cases, and, in fact, has eroded over time.5
5
In Doe v. Garrett, 903 F.2d 1455, 1463 n.15 (11th Cir. 1990), we criticized a panel’s prior
decision in Stinson v. Hornsby, 821 F.2d 1537, 1541 (11th Cir. 1987), to reverse and remand a
district court’s dismissal on the merits of a constitutional claim against the Alabama National
Guard for reconsideration under Mindes “despite the fact that the issue on the merits was quite
simple, the district court’s disposition appeared plainly correct, and the district court’s
consideration of Mindes on remand could not possibly have led to a different result.” In doing
so, “[w]e note[d] that despite the apparent assumption of Stinson, this Court and its predecessor
have not always applied Mindes in constitutional challenges to military personnel decisions.” Id.
While Mindes may not have always been explicitly applied, its core assumption, we believe, has
been adhered to, either expressly or impliedly. See, e.g., Doe, 903 F.2d at 1463 (“We find
nothing objectionable in the district court’s application of Mindes, and we think it clear that
under Mindes factors one and three, at least, review of Doe’s due process claim in this case is
disfavored.”) (footnote omitted); Stinson, 821 F.2d at 1540 (express application); Smith v.
Christian, 763 F.2d 1322, 1325 (11th Cir. 1985) (per curiam) (implied application in matter
involving a conflict between statute setting out physical qualifications for Naval officers and the
Rehabilitation Act); Rucker, 702 F.2d at 969-71 (express application); Linfors, 673 F.2d at 333-
34 (express application); Woodard, 658 F.2d at 994-95 (express application); Von Hoffburg, 615
F.2d at 637-38 (express application); Smith, 615 F.2d at 201-02 (express application); Johnson v.
Reed, 609 F.2d 784, 788-89 (5th Cir. 1980) (express application); Walker v. Alexander, 569
F.2d 291, 292 (5th Cir. 1978) (express application); West v. Brown, 558 F.2d 757, 759 (5th Cir.
1977) (express application); Sims v. Fox, 492 F.2d 1088, 1095 (5th Cir. 1974) (implied
application in holding that service member did not have to exhaust military remedies because to
do so would be futile, and that the claim was reviewable “based upon a procedural defect that
goes to the preparation of the [military discharge] record itself” that “might have a substantially
deleterious effect on [the service member’s] future capabilities”), rev’d on other grounds, 505
F.2d 857, 864 (5th Cir. 1974) (en banc) (“[W]e think the [district court’s] dismissal of the
complaint must be allowed to stand, making it unnecessary to discuss the case in light of
[exhaustion].”); Hodges, 499 F.2d at 419-20 (express application).
Nevertheless, we have said that Mindes no longer applies to statutory claims, see Doe,
903 F.2d at 1463 n.15, or to claims for injuries that arise incident to service in the military,
whether for monetary damages or injunctive relief, which are nonjusticiable across-the-board
unless the claim mounts a facial challenge to military regulations. Speigner v. Alexander, 248
F.3d 1292, 1295 n.5, 1298 (11th Cir.), cert. denied, 534 U.S. 1056, 122 S. Ct. 647 (2001); but see
id. at 1295 n.5 (expressly reserving a decision on “the applicability of Mindes to other
situations”); Meister, 233 F.3d at 341 (“[C]laims still fall within Mindes . . . that are not ‘incident
to [a serviceman’s] military service.’”) (citation omitted).
15
Instead, we reaffirm the unflagging strength of the principles of comity and
judicial noninterference with, and respect for, military operations that informed the
Mindes doctrine. Thus, to decide this case on the merits without first applying the
exhaustion doctrine would only encourage future litigants to deliberately flout
military processes, and telegraph that we are no longer serious about, or concerned
with, their integrity or autonomy. We therefore hold that a military service
member must exhaust all intramilitary remedies before applying for a writ of
habeas corpus seeking discharge from the military under the terms of his or her
enlistment contract, unless the application falls within a limited number of
exceptions to the exhaustion principle. Consequently, unless Winck can
demon strate that h is petition im plicates on e or mo re of thes e exceptio ns, it is due to
be denied.6
6
Winck argues that we should not consider the exhaustion issue because there is no evidence in
the record, and the Navy has not demonstrated, that he actually failed to exhaust his military
remedies. While exhaustion is an affirmative defense in a habeas proceeding, the Supreme
Court has observed that “[t]he petitioner has the burden . . . of showing that other available
remedies have been exhausted,” Darr v. Burford, 339 U.S. 200, 218-19, 70 S. Ct. 587, 597-98,
and many of our sister circuits have held that the burden of proving exhaustion is on the
petitioner. See Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997); Rust v. Zent, 17 F.3d 155,
160 (6th Cir. 1994); Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir. 1990); Baldwin v. Lewis,
442 F.2d 29, 35 (7th Cir. 1971). Here, the Navy asserts that Winck failed to exhaust his military
remedies. In response, Winck’s only argument is that there is inadequate evidence in the record
as to exhaustion. By implication, then, and by virtue of his failure even to meet a burden of
production, we conclude that Winck has, indeed, failed to exhaust his intraservice remedies.
16
Generally, “exhaustion is not required where no genuine opportunity for
adequa te relief exis ts, irrepara ble injury will resu lt if the com plaining party is
compelled to pursue administrative remedies, or an administrative appeal would be
futile.” Linfors, 673 F.2d at 334 (citations omitted). Here, Winck argues that
irreparab le harm m ust be ev aluated at th e time the h abeas pe tition wa s filed in
district cou rt, even o n appea l; “[o]therw ise, the milita ry wou ld alway s be able to
avoid the ‘irreparable harm’ exception by waiting until after they lose in the district
court an d then p lacing the petitioner on inactiv e reserve before th ey appea l . . . [,]
tactics [that] s hould n ot be per mitted.” A ppellee’s B r. at 13 n.8 . At the tim e of his
original p etition, W inck claim s that he w ould ha ve suffe red irrep arable ha rm if
required to exhaust his military remedies because he “was faced with imminent
deployment to the Persian Gulf,” the same region in which the attack on the U.S.S.
Cole occurred. Appellee’s Br. at 12.7
Winck’s arguments, however, are without merit, besides the fact that he
points to no authority, binding or persuasive, to sup port his reasoning. Adm ittedly,
“it seems unwise to adopt a rule that would permit, and might even encourage, the
7
For this reason, Winck contends that the district court did not abuse its discretion in finding
irreparable harm. Yet, the court found no such thing. Expressing no opinion on whether Winck
exhausted his military remedies, but merely assuming that he had, the district court observed
that, even if he had not, “the irreparable injury exception would appear to apply if [Winck’s]
claims [as to irreparable injury] have merit.” R1-15 at 3 n.2 (emphasis added).
17
[military] to seek a favorable ruling on the merits in the district court while holding
the exhaustion defense in reserve for use on appeal if necessary,” and then
thwarting application of the irreparable harm exception by placing the petitioner on
inactive re serve. Granberry, 481 U .S. at 132 , 107 S . Ct. at 167 4. But to hold
otherwise would simply reinforce strategic behavior by habeas petitioners who
intentionally evade intraservice remedies because they have little to lose if the
military raises exhaustion as a defense to the district court, since they would need
only to refile after exhaustion, and everything to gain if the military fails to do so,
since the appellate court would then be constrained to consider irreparable harm at
the time the original habeas petition was filed. The former contrivance rewards the
military at the expense of a habeas petitioner, whereas the latter rewards the
petitioner at the expense of the military; in both cases, whether through
inadvertence or otherwise, the petitioner has failed to exhaust intramilitary
remedies, and the military has failed to raise the exhaustion defense at the district
court lev el.8
In light of the exceeding importance we place on the exhaustion of
intramilitary remedies before a petitioner may invoke the power of the federal
courts, on balance, we conclude that the irreparable harm exception to the
8
As we have already observed, the district court may raise exhaustion sua sponte and, therefore,
is at least able to check the intentional failure of the parties in this regard.
18
exhaustion requirement is to be examined as of the time intramilitary remedies
must actually be sought, and not necessarily at the time the original petition was
filed. Because the military here has placed Winck on inactive status, “a status that
imposes no military duties or responsibilities,” and pledges to “preserve the status
quo” as well as to expedite his claim, Appellant’s Br. at 16, we find that Winck
will suff er no irre parable h arm by p ursuing , as he sho uld hav e origina lly, his
military remedies.9
Winck next argues that exhaustion would be futile because, in his case, “the
outcome of any intramilitary administrative procedure [would be] both biased and
predetermined.” Appellee’s Br. at 13. Since any appeal to the BCNR depends
upon final approval by the Secretary of the Navy, a party to Winck’s action, and
9
Even if we were to evaluate irreparable harm at the time Winck originally filed his petition, we
cannot say that military deployment, in and of itself, necessarily entails such injury, even if to
volatile regions, especially since the eighteen months of his “young life that he will never
regain” was, for the most part, lost during the sixteen months he decided to wait before filing the
habeas petition in district court. Appellee’s Br. at 12. Holding otherwise could unduly hamper
urgent military operations during times of crisis. As the Court in Orloff pointed out:
Orloff was ordered sent to the Far East Command, where the United States is now
engaged in combat. By reason of these proceedings, he has remained in the
United States and successfully avoided foreign service until his period of
induction is almost past. Presumably, some doctor willing to tell whether he was
a member of the Communist Party [unlike Orloff] has been required to go to the
Far East in his place. It is not difficult to see that the exercise of such jurisdiction
as is here urged would be a disruptive force as to affairs peculiarly within the
jurisdiction of the military authorities.
345 U.S. at 94-95, 73 S. Ct. at 540.
19
since the Secretary has “steadfastly insist[ed] that Winck is not entitled to any
relief,” W inck arg ues that “it is r idiculou s to expe ct the Sec retary of th e Navy to
suddenly change his mind and realize the error of his ways if this matter is brought
before the BCNR.” Id. at 13, 14 . This ex act argum ent was flatly rejected in
Hodges. First, “though the Secretary may overrule the [B CNR’s]
recommendations for relief, he cann ot do so arbitrarily; if he rejects the [BCNR’s]
recomm endation s, he mu st provid e either ex plicitly stated policy rea sons, or his
action must be supported by the record and evidence presented to the [BCNR].”
499 F .2d at 42 3.
[Second], to base an exception to the exhaustion requirement on the
fact that the final administrative decision is subject to the
discretionary power of the Secretary would in effect turn the
exhaustion doctrine on its head. Exhaustion is required in part
because of the possibility that administrative review might obviate the
need fo r judicial re view. . . . [A ]ppellant’s futility reaso ning w ould
mean that exhaustion of intraservice remedies should always be
excused. The administrative remedy . . . may offer cold comfort and
small consolation, but it is surely beyond our authority to permit the
exceptions to the exhaustion doctrine to swallow the rule.
Id. Thus, we conclude that Winck’s petition is not subject to any of the recognized
exceptio ns to the e xhaustio n princip le he relies o n, and, th erefore, h is petition is
barred for failure to exhaust his military remedies.
20
III. CONCLUSION
We hold that, while we have jurisdiction to review the merits of a habeas
corpus petition brought by a service member seeking to effect his discharge from
the military on the ter ms of h is enlistme nt contract, we w ill decline to exercise it
where the petitioner has failed to exhaust his intramilitary administrative remedies,
unless there is some legitimate and compelling reason to excuse the failure. Also,
where the interests of comity and our own precedent so counsel, we may consider
exhaus tion as a d efense in this conte xt, even if raised fo r the first tim e on app eal.
Finally, in determining whether the failure to exhaust is excused under the
recognized exception of avoiding irreparable harm to the petitioner, we look to the
potential h arm that e xists at the tim e we w ould oth erwise r equire th e petitione r to
exhaust his administrative remedies, and not necessarily to the time the original
petition was filed. In this case, the petitioner failed to appeal his case to the BCNR
and no recognized exc eptions to the exhaustion requirement app ly. Accordingly,
we REVERSE the district court’s order granting a writ of habeas corpus, and
REMAND with instructions to dismiss without prejudice so that the petitioner may
exhaust his military remedies. 10
10
Under the rule of Hodges, once exhaustion has been determined to apply, the district court
may not retain jurisdiction pending exhaustion of administrative remedies. 499 F.2d at 421; Von
Hoffburg, 615 F.2d at 641 n.15. However, we are comforted by the Navy’s express and
unconditional representation that it will keep the petitioner on inactive reserve status during the
21
pendency of its expedited review of his claim. We caution the Navy that our holding is
explicitly predicated on our finding that Winck will suffer no irreparable harm during this review
period based in part on this representation, and that, should it be breached, Winck may have
ground for injunctive relief based on a reassessment of this finding.
22