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06/20/86 Solomon Monk, A/K/A David v. Secretary of the Navy

June 20, 1986




Before: MIKVA and BORK, Circuit Judges, and GREENE,* District Judge, United States District Court for the District of Columbia.



Opinion for the Court filed by Circuit Judge BORK.

Concurring opinion filed by Circuit Judge MIKVA.

BORK, Circuit Judge: Defendant Secretary of the Navy appeals an order of the district court denying his motion to dismiss and his motion for summary judgment and granting plaintiff Monk's motion for summary judgment. Because the district court lacked jurisdiction over Monk's action, we reverse and remand this case to the district court with instructions to grant the Secretary's mention to dismiss. I.

Appellee, Monk was a corporal in the United States Marine Corps serving on active duty at Camp Pendleton, California. In February, 1978, Monk was charged with murdering his wife, a violation of article 118 of the Uniform Code of Military Justice, 10 U.S.C. § 918 (1982). Monk was tried before a general court-martial and found guilty on May 17, 1978. He was sentenced to be dishonorably discharged from the service, to forfeit all pay allowances, and to be confined to hard labor for thirty years.

Monk's conviction and sentence were affirmed by both the Navy Court of Military Review, see United States v. Martin, 9 M.J. 731 (N.C.M.R. 1979), and the United States Court of Military Appeals, see United States v. Martin, 13 M.J. 66 (C.M.A. 1982). Monk petitioned the Naval Clemency and Parole Board for clemency and restoration to duty. These requests were denied. Monk has exhausted his available military and administrative remedies and remains incarcerated at the United States Disciplinary Barracks, Fort Leavenworth, Kansas.

In June 1983, Monk filed suit in the United States District Court for the District of Columbia challenging his conviction on various constitutional grounds. Monk prayed that the district court (1) declare his conviction and sentence illegal and void, (2) direct the Secretary to vacate and annul his conviction and sentence, (3) direct the Secretary to grant Monk an honorable or general discharge, and (4) direct the Secretary to pay him all back pay and allowances to which he would have been entitled but for his conviction. See Joint Appendix at 8-9.

The Secretary moved to dismiss on the ground that the court was without jurisdiction. The Secretary argued that Monk's action was, in effect, a petition for a writ of habeas corpus subject to the jurisdictional requirements of the federal habeas corpus statute. The district court denied the motion, holding that Mone could "seek civilian review outside the scope of a habeas corpus action." Monk v. Secretary of the Navy, Civ. Action No. 83-1853, mem. op. at 4 (D.D.C. Oct. 5, 1984), J.A at 14. In the alternative, the court held that even if the action is viewed as a petition for habeas corpus, jurisdiction was proper since Monk's "ultimate custodian," the Secretary of the Navy, was within the District of Columbia. See id. at 4-6, J.A. at 14-16. We consider two questions: whether Monk's action must be treated as a petition for habeas corpus and, if so, whether the district court properly asserted jurisdiction. II.

Monk brought this challenge, alleging jurisdiction under 28 U.S.C. 1331, 2201 (1982), the general federal question and declaratory judgment provisions. The Secretary argues, as he did below, that Monk's challenge must be treated as a petition for a writ of habeas corpus. "Appellee has actually attempted to mount a collateral attack on his court-martial conviction" and "although there is no specific request to be released from confinement, it is clear that this ultimate relief must flow directly from the declaratory relief sought in this case." Brief for Appellant at 5. Monk contends that habeas corpus in not the exclusive means by which he may collaterally attack his conviction. His argument is that he "simply sought to have his conviction invalidated. He did not seek, nor did the district court grant, immediated release from custody." Brief for Appellee at 10.

We agree with the Secretary that Monk's action must be construed as a petition for a writ of habeas corpus. It is immaterial that Monk has not requested immediate release. If Monk has not requested -- a declaratory judgment that the conviction in invalid and an order directing the Secretary to vacate and annul his conviction and sentence -- the additional relief of immediate release or a new trial would follow automatically since, in a second action for a writ of habeas corpus, the prior judgment would have res judicata effect. In adopting the federal habeas corpus statute, Congress determined that habeas corpus is the appropriate federal remedy for a prisoner who claims that he is "in custody in violation of the Constitution . . . of the United States," 28 U.S.C. § 2241(c)(3)(1982). This specific determination must override the general terms of the declaratory judgment and federal question statutes. Cf. Preiser v. Rodriguez, 411 U.S. 475, 490, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973) (habeas corpus overrides the general terms of section 1983 and provides the exclusive federal remedy for state prisoners seeking immediate or speedier release from custody).

Monk stresses that his complaint also sought back pay, the equivalent of damages, and that this relief is not available in a habeas corpus proceeding. See Brief for Appellee at 10 (citing Preiser, 411 U.S. at 493). Though true, this observation in no way alters our conclusion that Monk must collaterally attack his conviction, if at all, in an action for habeas corpus. He 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. Any claim for back pay that Monk may have is entirely dependent upon the validity of his underlying conviction. If Monk successfully challenges his conviction by petitioning for a writ of habeas corpus, his recourse is to initiate a separate action for damages, one in which the determination of the invalidity of the underlying conviction will be res judicata.

Our analysis is entirely consistent with Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973), and Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). In Preiser, state prisoners deprived of good-conduct-time credits pursuant to disciplinary proceedings, brought an action under 42 U.S.C. § 1983 (1982) against the New York State Department of Correctional Services. The prisoners did not challenge the validity of their underlying convictions. Rather, their claim was that the disciplinary proceedings failed to afford them due process of law. The relief they sought was an order compelling restoration of the credits, which, if granted, would have resulted in their immediate release from prison. Under these circumstances, the Court reviewed the challenge as falling squarely "within the core of habeas corpus," 411 U.S. at 487, and held that "when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." Id. at 500 (emphasis added).

The Presier Court expressly limited its holding to cases in which the relief requested would result in the prisoner's immediate, or more speedy, release from prison. Thus, the Court was careful to distinguish claims ...

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