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June 20, 1972

Lee T. LOVALLO, Petitioner,
Robert F. FROEHLKE, Secretary of the Army, and Major General Walter M. Higgins, Commanding General of Fort Hamilton Complex, New York, Respondents

Curtin, District Judge.

The opinion of the court was delivered by: CURTIN

CURTIN, District Judge.

Both sides have moved for summary judgment, the respondents formally by filing a motion and the petitioner informally during the course of oral argument. The court has considered the affidavits and exhibits and has determined that there is no dispute about the facts in the case.

 On December 10, 1968, Lee Lovallo enlisted in the Regular Army for a term of three years, with an initial assignment option for the 26th Army Band at Fort Wadsworth, New York. At the time of his enlistment, he executed an "Acknowledgement of Service Obligation under Military Selective Service Act of 1967," which read as follows:

I, LEE THEODORE LOVALLO, a citizen of the United States . . . for the purpose of amplifying the statements made in the enlistment contract this date, do hereby acknowledge that I have voluntarily enlisted this 10 day of December, for a period of three years in the Regular Army of the United States of America. I understand that upon release from active duty, I will, if qualified, be transferred to the Army Reserves to complete my six-year service obligation. I further understand that if I am credited with three years active duty, I will not be involuntarily assigned to reserve unit nor will I be required to participate in unit training. *fn1"

 In August, 1970, while still serving as a member of the 26th Army Band, Lovallo submitted an application for discharge as a conscientious objector. His application was disapproved by the Army. After exhausting his in-service remedies, the petitioner filed an application for a writ of habeas corpus in the United States District Court for the Eastern District of New York on January 14, 1971. On February 4, 1971, District Court Judge Jack B. Weinstein, concluding that there was no basis in fact for the Army's disapproval of Lovallo's application, ordered that "petitioner's application for a writ of habeas corpus is granted." After a stay granted by Judge Weinstein and a further stay consented to by counsel, the Court of Appeals granted an additional stay on February 8, 1971. When counsel for the Department of the Army learned of the stay, he informed the Assistant United States Attorney that the action in obtaining a stay order was contrary to the policy of the Department of the Army and Department of Justice. *fn2" Upon application of the government, without notice to the petitioner, the stay was vacated by the Court of Appeals on or about February 12, 1971.

 On February 23, 1971, Headquarters, Department of the Army, directed Lovallo's release from custody and control of the Army pursuant to paragraph 5-12, Army Regulations 635-200 *fn3" and the order of the United States District Court for the Eastern District of New York. Apparently because Lovallo was on a short leave, his actual release was not accomplished until March 9, 1971, when the Commanding General at Fort Hamilton issued an order, "By direction of the Secretary of the Army (Lee Lovallo) is Released from Custody and Control of the Army as indicated," citing as authority "Para 5-12 AR 635-200 and order US District Court Eastern District of N.Y."

 Thereafter, on May 24, 1971, the Court of Appeals reversed the trial court, dismissed petitioner's writ, and directed that "the order of the district court is reversed and the petition is dismissed." Lovallo v. Resor, 443 F.2d 1262 (2d Cir. 1971). Lovallo did not apply for a writ of certiorari to the Supreme Court. No orders were issued to him during this period because, in other cases where orders were issued under similar circumstances, an application for a stay of the orders followed. Counsel for the Department of the Army related that, since there is no specific procedure in any regulation for ordering an individual returned to active military control, each case must be handled on an individual basis. There followed discussion between authorized representatives of the Adjutant General, the Judge Advocate General and the Chief of Personnel Operations, all acting in behalf of the Secretary of the Army. The representatives determined that Lovallo should be returned to military duty primarily because he had served only two years and three months of his three-year active duty obligation.

 Finally, on December 3, 1971, a message was dispatched by Headquarters directing the Commanding General at Fort Hamilton to order Lovallo to report to duty. On December 10, 1971, orders were issued at Fort Hamilton directing Lovallo to report to Fort Dix on December 17, 1971. These orders were received by Lovallo on December 16. Relying upon the message from Army Headquarters, the orders to Lovallo provided: "In computing (Lovallo's) period of service the period from 9 Mar 71 to 16 Dec 71 will be excluded."

 After this lawsuit was instituted and in order to preserve the status quo pending the outcome, a temporary restraining order was entered on notice, with the consent of the respondents, on January 11, 1972. The order has been extended by consent until the present.

 In his complaint, the petitioner sought a combination of distinct forms of relief, including mandamus, preliminary and permanent injunction, habeas corpus and declaratory judgment. Petitioner contends that the active duty order is illegal since he was separated from the service on March 9, 1971 and his contractual obligation terminated December 9, 1971, one day before the order was issued and six days before he received it. On February 15, 1972 the respondents filed the motion requesting an order dismissing the complaint.

 Because it appeared to the court at that point that the papers filed raised a number of questions which needed to be resolved, the court made an order on March 30, 1972 requiring additional briefs and affidavits, if necessary, to be filed. The most important questions to be decided are whether this court has jurisdiction to entertain a habeas corpus application, and whether a mandamus action is available to the petitioner. Each side filed additional briefs and the court heard oral argument on May 19, 1972.

 It is now clear that there is no habeas corpus jurisdiction in this district because Lovallo, unlike the petitioners in Strait v. Laird, 406 U.S. 341, 92 S. Ct. 1693, 32 L. Ed. 2d 141 (1972), and Arlen v. Laird, 451 F.2d 684 (2d Cir. 1971), never had any contacts with the military here. Since his alleged custodians are elsewhere, he must sue in habeas corpus in the district of custody. Schlanger v. Seamans, 401 U.S. 487, 91 S. Ct. 995, 28 L. Ed. 2d 251 (1971).

 Petitioner also asserts that, pursuant to Title 28, United States Code, Section 1361, a mandamus action is available to him in this district. As the court has already noted in its original order, however, mandamus is an extraordinary remedy to be used only in the clearest and most compelling of cases. Mandamus relief is a matter of judicial discretion. Before the writ of mandamus may issue, three elements must co-exist: (1) a clear right of petitioner to the relief sought; (2) a clear duty on the part of the respondent to do the act in question; and (3) no other adequate remedy available. Carter v. Seamans, 411 F.2d 767 (5th Cir. 1969). Furthermore, mandamus may not be invoked to "direct the manner in which discretionary acts are to be performed." McQueary v. Laird, 449 F.2d 608, 611 (10th Cir. 1971).

 The government vigorously denies that the petitioner has satisfied the first two elements, and asserts that the petitioner has an adequate remedy in habeas corpus in the District Court of New ...

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