Moore and Feinberg, Circuit Judges, and McLean,*fn* District Judge.
This is an appeal by Arthur Rudick (appellant) from a decision of the District Court for the Southern District of New York, John M. Cannella, Judge, which effectively dismissed the instant action for lack of jurisdiction. Rudick, a Private in the Armed Forces of the United States, seeks the aid of the Federal Courts in obtaining his discharge on the ground that he is a conscientious objector. Rather than suing his commanding officer in California where he is stationed, appellant has brought suit against the Secretary of the Army and the Secretary of Defense in New York. The facts, which we have derived from the memoranda of law, affidavits and briefs, are set out below.
Appellant was inducted into the United States Army on March 27, 1968. At no time prior to his induction had he asserted a claim as a conscientious objector. In the course of advanced military training, he alleges that his views on war crystallized and that he became opposed to all wars. Thereafter, on October 12, 1968, he sought conscientious objector status and discharge from the Army.
Pursuant to Army Regulations, appellant was interviewed by a chaplain, a psychiatrist and a hearing officer. Appellant alleges that both the chaplain's report and the hearing officer's report were deficient and that procedures set up by Army Regulations for processing in-service conscientious objectors were not followed. The psychiatrist reported that he considered appellant normal. The chaplain, Major Thomas L. Strayhand, stated in his report that he had counseled appellant "concerning his desire for 1-O classification based upon his religious beliefs." He found that appellant's application for conscientious objector status was not "based solely upon religious training and beliefs. He does believe in self-defense when personally attacked or his family is being attacked."
On October 29, 1968 Rudick was given a hearing by Captain John O'Brien at his base in California. His own attorney was present at this hearing. In his report on appellant's application to the Chief of the Overseas Replacement Station in Oakland, California, after summarizing the interview and indicating some of the background information, Captain O'Brien stated "In my opinion Private Rudick is not sincere and does not have any religious objection to serving in the military. His beliefs are merely convenient to his desire to get out of the Army and not go to Vietnam * * * Therefore, I recommend that Private Rudick's application for discharge as a conscientious objector be denied."
Appellant alleges that he was never formally notified of this recommendation. He also claims that he was notified only informally of the fact that his application for conscientious objector status and for discharge had subsequently been denied.
On February 22, 1969 Rudick departed on leave from his duty station at Fort Ord, California with orders to report to the United States Army Overseas Replacement Center at Oakland, California on March 9, 1969 for assignment to Vietnam. Rudick took his leave in New York City, which is his residence.
While on leave, on March 4, 1969, appellant sought relief in the Southern District of New York under 28 U.S.C. § 2241, claiming that he was entitled to be discharged as a conscientious objector under Department of Defense Directive (DoD) 1300.6 and Army Regulations (AR) 635-20. He claimed that he is being denied due process of law because there was no basis in fact for the Army's failure to discharge him. He alleges that his beliefs are religious and meet the tests set forth in United States v. Seeger, 380 U.S. 163, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965).
Appellant also contends that the Army failed to follow its own regulations in processing his application. He states that the chaplain is required to submit a report of the interview "to include comments on the sincerity of the applicant in his beliefs and an opinion as to the source of the beliefs," AR 635-20(4) (c), which the chaplain allegedly failed to do. He also claims that the hearing officer was not an officer who was "knowledgeable in policies and procedures relating to conscientious objection matters," DoD 1300.6 VI(b) (4), that the application and supporting papers were not forwarded to Departmental Headquarters for individual determination, DoD 1300.6 VI (b) (5), and that the file was not forwarded to the Selective Service Director for an advisory opinion, DoD 1300.6 VI (b) (6). Because the Army did not comply with its own regulations, appellant asserts that he was denied due process of law, citing Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968). He also claims that he was denied due process because he was not notified of the recommendations made by the hearing officer.
As indicated above, appellant commenced suit in the Southern District of New York where he was on leave. He claims that, at that time, he was not carried on the books at either Fort Ord or Oakland. On that basis he concludes that he had no immediate commanding officer and that suit against the Secretary of the Army and the Secretary of Defense in the District Court pursuant to 28 U.S.C. §§ 2241 and 1391(e) was proper.
The District Court refused to sign an order to show cause, stating on the back of the proposed order that "Application for order to show cause is denied. The Court does not have jurisdiction. Title 28 U.S.C. § 2241. This is not on the merits. The denial is without prejudice to an application in the proper district." An appeal from this denial was taken, but this Court remanded for a determination whether Judge Cannella's denial was based on his conclusion that there was no jurisdiction to issue the order or the writ. After a brief hearing, Judge Cannella again refused to sign the order to show cause, stating that appellant had failed to show that there was jurisdiction. We treat that refusal as tantamount to dismissing the case for lack of jurisdiction and we affirm that decision.
Section 2241 of Title 28 provides that "Writs of habeas corpus may be granted by * * * the district courts within their respective jurisdictions." This provision authorizes the district courts, on the proper application, to inquire whether a petitioner within their jurisdiction, including a member of the Armed Forces, is being detained in violation of the Constitution or laws of the United States. Hammond v. Lenfest, supra. The appellant, in support of his position that there is jurisdiction, cites Section 1391, which is a venue provision as its title clearly specifies. That provision provides, in subsection (e), that "A civil action in which each defendant is an officer of the United States * * * acting in his official capacity or under color of legal authority * * * may * * * be brought in any judicial district in which * * * the plaintiff resides if no real property is involved in the action."
Because the appellant seems to confuse the principles of jurisdiction with those of venue, at the outset it is necessary to restate the difference between the two. The concepts of personal jurisdiction and venue are closely related but nonetheless distinct. Jurisdiction is the authority to hear and determine a cause; it is, in essence, the power to adjudicate the action. Farmers Elevator Mut. Ins. Co. v. Austad & Sons, Inc., 343 F.2d 7, 11 (8th Cir. 1965). If a court lacks jurisdiction over an action, it lacks the power to act with respect to that action. Venue, on the other hand, does not involve the power or authority to adjudicate a controversy. It relates solely to the place where jurisdiction should or may be exercised. Olberding v. Illinois Central R. Co., 346 U.S. 338, 340, 74 S. Ct. 83, 98 L. Ed. 39 (1953). Venue is a forum limitation imposed for the convenience of the parties. As a concept of convenience rather than of jurisdiction, it may be conferred on a court either by consent or by the failure of the defendant to make a timely objection. Concession Consultants, Inc. v. Mirisch, 355 F.2d 369 (2d Cir. 1966). In either case, whether it is conferred by consent or by waiver, the court may render a valid judgment, whereas lack of jurisdiction cannot be waived, United States v. Griffin, 303 U.S. 226, 229, 58 S. Ct. 601, 82 L. Ed. 764 (1938), Ahrens v. Clark, 335 U.S. 188, 193, 68 S. Ct. 1443, 92 L. Ed. 1898 (1948), and a court without jurisdiction is without power to render a valid or binding judgment. ...