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SWITKES v. LAIRD

July 2, 1970

Daniel A. SWITKES, Petitioner,
v.
Melvin LAIRD, individually and as Secretary of Defense of the United States, and Stanley S. Resor, individually, and as Secretary of the Army of the United States, Respondents


Wyatt, District Judge.


The opinion of the court was delivered by: WYATT

WYATT, District Judge.

This is an application for a writ of habeas corpus (28 U.S.C. §§ 2241, 2242) and a motion for a preliminary injunction (Fed. R. Civ. P. 65).

 The factual situation assumed for purpose of decision is made to appear solely from papers submitted by petitioner. For respondents, there is only a memorandum of law.

 Petitioner Switkes is a member of the armed services of the United States, a Captain in the Army, a physician whose specialty is psychiatry. He is said to be "under orders to report for shipment to Vietnam and is required to report to Travis Air Force Base at Fairfield, California, for that purpose on June 12, 1970."

 The relief sought by this application and motion is the immediate discharge of Switkes from the armed services or, in the alternative, enjoining respondents from compelling him "to go to Indochina."

 The application for a writ of habeas corpus must be denied for want of jurisdiction. The motion for a preliminary injunction must be denied for want of sufficient merit.

 Switkes registered in 1960 with the Selective Service System, Local Board 41 in Brooklyn. He was then 18 years old. No claim was made to conscientious objector status.

 He graduated from Massachusetts Institute of Technology in 1962 and from Albert Einstein Medical School in 1967. He was a member of the "Berry Plan", wherein induction is deferred for persons training as doctors who, after completion of such training, can enter the Army as doctors with the rank of Captain or higher.

 Switkes was an intern at Cook County Hospital in Chicago in 1967 and part of 1968.

 In November 1967 he resigned from the "Berry Plan" and on December 1, 1967 filed with his Local Board a claim to be a conscientious objector. He and an uncle appeared before the Local Board which on March 26, 1968 denied the claim and stated, among other things, that Switkes "does not sincerely hold the beliefs he sets forth". There was an appeal but the State Appeal Board affirmed the denial by the Local Board of the claim to be a conscientious objector.

 For part of 1968 and into 1969 Switkes was a resident in psychiatry at Kings County Hospital in Brooklyn.

 He was ordered to report for induction, did so, and on September 17, 1969 was inducted and was then assigned to the Army.

 In the first instance, Switkes was sent to Fort Sam Houston in Texas for a basic training course for doctors.

 From a time in October 1969 to May 20, 1970 he was assigned to the Mental Hygiene Clinic at Ireland Army Hospital at Fort Knox, Kentucky.

 Orders were issued placing Switkes on leave from May 20, 1970 and directing that he report on June 12, 1970 to Travis Air Force Base at Fairfield, California, for shipment to Vietnam by June 15.

 While on leave status, Switkes came to New York where he has his residence and domicile. He has been here to the present time.

 On June 1, 1970, Switkes went to the Army Base at Fort Hamilton, New York, and attempted to apply for release from the Army on the ground that he was a conscientious objector. He was advised that while a person (such as he) is between duty assignments he may not apply for release as a conscientious objector but must apply when he arrives at his new duty station.

 On June 6, 1970, Switkes filed in this Court a document entitled "Petition for a Writ of Habeas Corpus and Complaint for Injunctive Relief". Apparently this is intended to combine in a single proceeding an application for the ancient writ of habeas corpus and a civil action for a declaratory judgment and for injunctive relief. It would seem that habeas corpus, while a proceeding civil in nature, is by its nature and by its history different from and separate from a civil action. The propriety of the combination here effected seems thus to be questionable as a matter of procedure. For purposes of present decision, however, it is assumed that the combination is appropriate.

 The two respondents are, respectively, the Secretary of Defense and the Secretary of the Army.

 On June 5, 1970, Switkes obtained from Judge McGohey an order requiring respondents to show cause why a preliminary injunction should not issue. This was before the application for habeas corpus was filed or the civil action commenced. The order to show cause recites that the "petition" was filed on June 5; according to the Clerk's stamp the petition was filed on June 6.

 On June 9, 1970, when the order to show cause was returnable, argument was heard. Because of the upcoming June 12 date for Switkes to report in California for shipment to Vietnam, a temporary restraining order was filed, without objection by respondents, restraining defendants from moving the plaintiff, or ordering his presence outside the Southern District of New York, pending ...


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