Deborah Karpatkin

Deborah Karpatkin

By Deborah H. Karpatkin

The years 2005-2011 saw a number of federal court cases considering habeas corpus applications from military conscientious objectors.  These cases were ably considered in Steve Collier’s excellent article in the March 2011 issue of On Watch.

Today, with the military reducing its personnel and combat activity, we are, not surprisingly, seeing fewer CO applications. Indeed, we know of no reported habeas cases from military COs after the Fourth Circuit’s decision in Kanai v. McHugh.1

Nevertheless, a review of recent cases may be valuable for practitioners and counselors, in these four respects.

First, each of the four appellate CO habeas decisions of the Afghanistan-Iraq era – Aguayo v. Harvey, Hanna v. Secretary, Watson v. Geren, and Kenai v. McHugh (citations at endnotes 2, 7, 9, 13, respectively) – has generated some additional law. Attention to these leading CO cases offers some insight into how courts will apply their holdings in future CO litigation.

Second, recent case law offers opportunities for practitioners and counselors seeking remedies for the hardships faced by unsuccessful COs.

Third, courts continue to be unwelcoming to cases challenging selective service registration on CO grounds.

Finally, the term “conscientious objector” continues to have legal vitality in a range of non-military CO cases, which in turn may influence the judges who decide our military CO cases.

I. What Followed From Aguayo, Hanna, Watson, and Kenai?

Aguayo, Hanna, Watson, and Kenai did not make materially new substantive law on the merits of CO applications, but they are likely to be reference points for future courts considering CO cases. For that reason, it is instructive to see how each case has been treated by subsequent courts.

Aguayo v. Harvey.Mr. Aguayo’s habeas application was denied. The D.C. Circuit took the unusual step of allowing the Army to add self-serving material to the record through a supplemental memorandum, to support what would otherwise have been a record devoid of any basis-in-fact to deny Mr. Aguayo’s CO application. The appellate panel also accorded the Army considerable deference for its personnel decisions.

Aguayo relied on a discovery rule allowing for an expanded record in habeas proceedings under 28 U.S.C. §2254, notwithstanding that Mr. Aguayo’s habeas petition was brought under §2241, not § 2254. Moreover, in Aguayo, the Army’s supplemental memorandum was not disclosed in “discovery” – which had not been ordered by the judge, as required in habeas corpus litigation – but rather was attached to its opposition papers. The Aguayo Court considered this “a distinction without a difference.”3 Courts in subsequent cases have permitted respondents in §2241 habeas proceedings to submit supplemental materials in support of their defense using the discovery rule of §2254,4 but the court in at least in one case denied the petitioner similar leeway.5

In refusing to scrutinize the Army’s claimed “basis in fact” for rejecting Aguayo’s CO application, the Aguayo Court accorded “considerable deference” to the Army’s “personnel” decisions.  This standard, too, has been cited approvingly in at least one subsequent CO case, and one subsequent non-CO case, both in the D.C. District Courts.6

Hanna v. Secretary.7   Dr. Hanna’s habeas petition was upheld by the First Circuit, by a 2-1 vote, rejecting the Army’s claimed “basis in fact.” Hanna was cited in Watson and Kanai, and also cited in support of granting the habeas petition for the CO applicant in Barnes v. Green.8

Watson v. Geren.9 Dr. Watson’s habeas petition was upheld by the Second Circuit panel by a 2-1 vote.  A judge sought en banc review, which was denied, over a vigorous dissent.  The panel rejected the Army’s request for remand for further proceedings (on an expanded record) agreeing with Dr. Watson that remand would be futile.

The Second Circuit picked up on the “futile remand” argument in a summary order issued an immigration case, Singh v. Holder.10 Mr. Singh sought review of an order of removal from a decision of the Board of Immigration Appeals. The panel rejected the government’s argument seeking remand, because the government had been accorded plenty of opportunity to submit additional evidence.

In support of his CO application, Dr. Watson explained that he could not treat wounded soldiers because doing so would be the functional equivalent of weaponizing human beings. In United States v. Farhane,11 the Government cited Dr. Watson’s argument against an al Qaeda doctor who was convicted in a criminal case of providing or attempting to provide “material support” to a terrorist organization. On appeal, the al Qaeda doctor argued that that as a physician, he could not have provided “training” or “material support” because his offer of medical treatment was “simply consistent with his ethical obligations as a physician.” The court rejected this argument, referring to Dr. Watson’s argument about treating wounded soldiers.12  The Farhane precedent thus helps support claims of future CO applicants who are medical personnel.

Kanai v. McHugh.13  Mr. Kanai, a West Point cadet, lost his CO case in the Fourth Circuit after winning in the district court. The case made helpful law on the appropriate venue (location) for filing CO habeas petitions. When Mr. Kanai filed his habeas petition in federal court in Maryland, he was living at home in Maryland and had been relieved of active duty. The Army belatedly challenged the subject matter jurisdiction of the Maryland federal court, arguing that because Mr. Kanai did not have a Commanding Officer present in Maryland, the Maryland federal courts had no habeas jurisdiction. Mr. Kenai argued that the court had personal jurisdiction because he was located in Maryland, and that the Army waived its opposition to personal jurisdiction by not challenging it earlier in the case.

Where to sue is an important question for some CO applicants and others who seek habeas relief. While some habeas petitioners have an obvious district of “confinement” (e.g., a prison inmate, or a service member on active duty), others, like Mr. Kanai, do not. The Kanai Court rejected the Army’s subject matter jurisdiction argument, agreed with Mr. Kanai that he had correctly filed his habeas petition in Maryland, and ruled that the Army waived any objection to on venue grounds because it failed to raise the issue in the District Court (Generally, an appellate court will not rule on an issue not raised at the trial level).

While the Army lost the jurisdiction argument, it won on the merits, persuading the Fourth Circuit that the Army CO Review Board had several bases in fact supporting the denial of CO discharge, any one of which would be sufficient to uphold its decision. Siding with the Army, the Fourth Circuit rejected the district court’s findings of bias and procedural irregularities.

Kanai has not been cited by any cases for its holding on the merits of Mr. Kanai’s CO application, but has been frequently cited in the Fourth Circuit for its holdings with regard to habeas jurisdiction and waiver.14

II. Remedies For a Client Wrongfully Denied CO and Facing Hardship

Civil Relief from Vietnam-Era Conviction

Herbert Erickson was denied CO status in 1968, and convicted for refusing induction.  In 2010, due to changes in CO law, he was relieved of some of the consequences of that conviction.15 

In 1968, after he was drafted, Mr. Erickson refused induction on the grounds that he was a non-religious CO based on personal ethical and moral beliefs.  He was indicted and convicted for refusing induction.  Judge Gus Solomon (D. Or.) rejected Mr. Erickson’s argument that his CO claim did not need to be based on traditional “religious training and belief,” and was also evidently influenced by Mr. Erickson’s statement that he would resort to force to defend his family or home. Judge Solomon, known to be lenient to COs, sentenced him to three years of community service and five years’ probation. 16 

Years passed.  Mr. Erickson completed his community service, and was never again in trouble with the law.  He was a beneficiary of the California In-Home Supportive Services (“IHSS”) Program.  In 2009, a change in California policy rendered persons with felony convictions no longer eligible for the IHSS program.  Mr. Erickson would be required to disclose his felony conviction and believed that he faced a loss of benefits.

Like many in our over-criminalized society, Mr. Erickson was facing re-entry barriers, as a result of his 1968 felony conviction for his CO beliefs. Mr. Erickson was included in President Carter’s 1977 mass pardon of Vietnam-era draft resisters, but was still required by California authorities to report the conviction.

Mr. Erickson’s plight found a sympathetic ear in Judge Anna Brown (D. Or.), who found grounds to grant a writ of Audita Querela17 based on changes in the law that would have provided Mr. Erickson with a defense to the crime charged against him. Judge Brown cited Gillette v. United States,18 recognizing non-religious COs, and also legal recognition that use of force in self-defense or defense of family was not inconsistent with a CO claim.  Judge Brown also noted changes in Army regulations recognizing non-religious COs. She declined, however, to expunge his conviction.19

There is much here for practitioners and counselors.  COs with records of conviction based on erroneous or obsolete legal determinations on their CO applications may be able to use the Erickson case as a model for seeking judicial relief.

Discharge Upgrade After Erroneously Denied CO Discharge

Practitioners and counselors may want to consider the availability of discharge upgrades for clients facing limited VA benefits due to erroneously denied CO applications.

In Smith v. Marsh,20 Smith sought a declaration that the Army wrongfully denied his CO application, in violation of his constitutional and regulatory rights, and a declaration that the discharge review board unlawfully refused to upgrade his discharge. The Tenth Circuit ruled that Mr. Smith’s claim with regard to his CO claim was time barred, but not his claim with regard to the actions of the discharge review boards. Recent litigation is having some success in challenging the arbitrary imposition of limitation periods for Vietnam-era veterans seeking VA benefits. See, e.g., Dolphin v. McHugh.21

III. Conscientious Objection to Draft Registration and Opposition to Military Recruiters: Still a Challenge, But Try State and Local Law

Courts remain unfriendly to conscientious objectors who find they cannot comply with draft registration, and to those who oppose military recruiters.

First, the Supreme Court gave no comfort to the federal employees who lost their jobs because they had not registered for the draft.  In Elgin v. Department of Treasury,22 the Supreme Court (Thomas) held that the Civil Service Reform Act and the Merit Systems Protection Board (MSPB) were the exclusive avenue for Mr. Elgin’s and his colleagues’ claims that their terminations were unconstitutional. Their arguments were far from the typical MSPB contentions: that being removed from their federal jobs for failing to register amounted to an unconstitutional bill of attainder, and also unconstitutionally discriminated on the basis of sex, because women were not required to register under the Military Selective Service Act.

Second, courts have not been friendly to arguments that draft registration violates the Religious Freedom Restoration Act (RFRA). In Jacobrown v. United States,23 Plaintiff, a Quaker, alleged that the government violated RFRA because the draft registration system didn’t give him a formal mechanism for registering his conscientious objection to participation in draft registration, or retain a record of his CO beliefs. Plaintiff claimed that the very act of registering for the draft violated his religious beliefs, and that refusing to register exposed him to criminal and civil penalties, including being barred from federal student loans and grants, and federal employment.

The Selective Service told Mr. Jacobrown that he could write on his registration form that he was a conscientious objector, but he rejected this, because he believed he should be permitted to “officially assert” his CO beliefs on an “official record.” The case was dismissed for lack of standing, on the grounds that that the Selective Service already provided registration and record-keeping measures for communicating his conscientious objector beliefs.

Mr. Jacobrown was represented by the ACLU of the National Capital Area, and the ACLU  went on to gain a statutory exemption for COs to the Washington, D.C. version of the “little Solomon Amendment” “motor-registration” law.  Under the DC law, as enacted, a person applying to the DMV for a license can affirmatively avoid registration for the draft, through a waiver form, and will still be able to get a driver’s license.24 

Third, in a New York case, Macula v. Board of Education,25 an activist wanted to set up a “truth-in” table at an upstate New York high school on days when colleges and military recruiters were in the school for recruiting purposes, to provide negative information about military service. The school denied his request, and he brought a lawsuit, pro se, claiming that the denial violated his constitutional rights and was arbitrary and capricious. He lost, both at the trial court level and on appeal. The school was not a public forum on recruiting days; it was reasonable for the school to want to avoid the disruption of his negative information; and the school was required to allow military recruiters into the school on college days in order to keep its federal funding. The appellate court approvingly cited Rumsfeld v. Forum for Academic & Institutional Rights26 and concluded that the school’s rejection of the “truth-in” table was not “arbitrary or capricious.”  Mr. Macula did, however, get a thoughtful dissent from one of the five judges.27

Court rulings notwithstanding, local jurisdictions have created some pushback against military recruiting.  For example, New York City has restricted the extent to which military recruiting can be conducted in public schools, by creating an “Opt-Out Notification” process.28

IV. Conscientious Objectors in Other Contexts

Courts are increasingly familiar with the concept of “con-scientious objector” in a range of contexts beyond those of a service member seeking discharge from the US military.  Here are some examples:

Asylum Granted Armenian Jehovah’s Witness CO. In Davtyan v. Holder,29 an Armenian Jehovah’s Witness successfully contested a Board of Immigration Appeals order affirming the denial of his asylum petition under the Convention Against Torture. Mr. Davtyan was expelled from college (he believed because of his religious beliefs) and thus no longer deferred from Armenian military service. He then came to the United States on a work and travel visa, and overstayed. In removal proceedings, he applied for asylum, arguing, inter alia, that he faced persecution on return to Armenia for refusing, based on his religious beliefs, to comply with Armenia’s compulsory conscription laws. The Tenth Circuit opinion describes the difficulties faced by COs in Armenia, reversed the denial, and remanded for a further hearing.

“Seeger” Used as Reference for Sincerity of Inmate’s Religious Beliefs. Similarly, courts continue to make reference to the sincerity of religious beliefs of military COs objectors in the context of individuals seeking accommodation for religious beliefs in non-military contexts.  For example, in White v. Linderman30, the pro se plaintiff, an inmate and Messianic Jew, alleged that the prison denied him a kosher diet in violation of his religious beliefs. Prison officials doubted that Messianic Jews were obliged to keep kosher. In analyzing the plaintiff’s claims (and ultimately denying summary judgment to the state on whether plaintiff’s was sincere in his religious beliefs, based on disputed facts), the court observed that sincerity “is, of course, a question of fact,” quoting Seeger.31

Conscientious Objector Officers May Not Be Excluded from Court Martial Panel without some Basis. Not all COs are discharged. Some continue in military service. Such was the case for one Col. WN, who found himself serving on a court martial panel in United States v. Lovell.32 Spc. Lovell faced charges for AWOL, missing movement, and desertion with intent to shirk important service. He pleaded guilty and chose an officer panel for sentencing. In voir dire, one of the panel officers, Col. WN, disclosed that he had no-weapons conscientious objector status as of 1992. Neither lawyers nor the military judge asked him any questions. The government challenged Col. WN for cause, arguing that because he was CO it would skew his view of an absence type offense involving shirking service or missing movement. Defense opposed the objection. The military judge, without explanation, granted the government’s challenge.

The appeals court reversed, using words reflecting positively on the military character of COs: “While this is certainly one possibility, it is equally likely that Col. WN, having gone through a rigorous conscientious objector vetting process, successfully serving over twenty years in the Army, attaining the rank of colonel, and even possibly deploying with the Army might be less favorable towards an accused who refused to follow orders and took it upon himself to absent himself from the military and not deploy.” The Appeals court concluded that the military judge abused her discretion by granting the challenge for cause.

This case may be helpful for applicants seeking 1-A-0 status.

Health Care:  Hanna and other military CO cases are cited to support the arguments asserted by those seeking religious exemption from the Affordable Care Act in the Hobby Lobby/Conestoga Wood33 cases currently before the United States Supreme Court.  No decision has come down as of the deadline for this article. MLTF will offer an analysis of how those decisions may affect in-service and other related CO claims as soon as possible after the Supreme Court decides them.

CO habeas cases may not have been in the forefront over the last several years.  But our work on behalf of COs will continue, and these cases show that the courts are continuing to pay attention to the issues of concern to our clients.


About the author:

Deborah Karpatkin is a civil rights and employment rights lawyer in New York City and a member of the Military Law Task Force. She has represented conscientious objectors since 1991 and has litigated a number of CO cases, including Martin v. Army, 463 F. Supp. 2d 287 (N.D.N.Y. 2006) and, as amicus curiae, Watson v. Geren and Kanai v. McHugh, addressed in this article (see infra, notes 9, 13).



1 Research found no reported cases, and lawyers and counselors identified no unreported cases.

2 476 F. 3d 971 (D.C. Cir. 2007).

3 Id. at 976.

4 See, e.g., Black v. Johns, 2013 U.S. Dist. LEXIS 133492 (E.D. N. Car. 2013); Cantu v. Fed. Bureau of Prisons, 2012 U.S. Dist. LEXIS 184735 (S.D. Tex. 2012).

5 Al Maqaleh v. Hagel, 738 F. 3d 312, 326 (DC Cir 2013).

6 Rogowskyj v. Conway, 2007 U.S. Dist. LEXIS 17162, 2007 WL 779390 (D.D.C. Mar. 13, 2007) (denying a Marine Corps reserve enlisted member conscientious objector status); Oppermann v. United States, 2007 U.S. Dist. LEXIS 43270, 2007 WL 1748920 (D.D.C. June 15, 2007)(rejecting Navy officer’s challenge to court martial conviction on constitutional grounds).

7 Hanna v. Sec’y of the Army, 513 F. 3d 4 (1st Cir. 2008).

8 2008 U.S. Dist. LEXIS 123978 (D. Alaska May 23, 2008).

9 Watson v. Geren, 569 F. 3d 115; en banc review denied, 587 F.3d 156 (2d Cir. 2009).

10 2014 U.S. App. LEXIS 4552.

11 634 F. 3d 127 (2d Circ. 2011), cert. denied sub nom. Sabir v. United States, 2011 U.S. LEXIS 8771 (U.S. Dec. 5, 2011).

12 Id. at 141.

13 638 F. 3d 251 (4th Cir. 2011).

14 See, e.g., Knox v. Marion CI Dep’t of Pub. Safety, 2014 U.S. Dist. LEXIS 11727 (M.D.N.C. Jan. 30, 2014); Ford v. United States, 2014 U.S. Dist. LEXIS 17835 (M.D.N.C. Jan. 14, 2014).

15 Erickson v. United States, 757 F. Supp. 2d 1060 (D. Oregon 2010).

16 Disclosure: I was law clerk to Judge Solomon in 1980-1981.  Judge Solomon was not persuaded to accept Mr. Erickson as a CO by United States v. Seeger, 380 U.S. 163 (1965).  That may be explained by a contemporaneous newspaper article reporting Mr. Erickson stating, “I don’t believe anyone has a right to make me fight a war I don’t believe in,” and reporting Judge Solomon’s response — that Mr. Erickson was espousing “the law of the jungle.”  Eugene Register-Guard, June 12, 1968.

17 Audita Querela (“the complaint having been heard”) is an ancient writ, stemming from English common law, permitting a defendant who has had a judgment rendered against him or her to seek relief from the consequences of such a judgment where there is some new evidence or legal defense that was not previously available.  Wikipedia, Black’s Law Dictionary on Line, 2nd Ed.  In the rare, appropriate case, it is still recognized in federal court under 28 U.S.C. § 1651. It is “a writ of a most remedial nature, and seems to have been invented, lest in any case there should be an oppressive defect of justice, where a party has a good defence, but by the ordinary forms of law had no opportunity to make it …” William Blackstone, Commentaries on the Laws of England, volume 3, page 405.

18 401 U.S. 437 (1970).  Of course, a better citation would have been Welsh v. U.S., 398 U.S. 333 (1970).

19 Although the court opinion does not say so, as a matter of federal constitutional law the Presidential pardon should actually have precluded California from denying any benefits on the basis of Erickson’s conviction. Effects of a Presidential Pardon, 19 Op. Off. Legal Counsel 160 (U.S. Dept. of Justice), 1995 WL 861681 (1995).

20 787 F. 2d 510 (10th Cir. 1986).

21 Dkt. no. 39, No. 12-cv-1578 (D. Conn. Feb. 4, 2014) (Motion to Dismiss denied); see

22 132 S. Ct. 2126 (2012).

23 Jacobrown v. United States, 764 F. Supp. 2d 221 (D.D.C. 2011).

24 D.C. Code §50-1401.01(a)(5A)(C).

25 75 A.D. 2d 1118, 906 N.Y.S. 2d 193 (App.Div.4th Dept. 2010).  New York’s highest court then imposed a penalty of costs on the petitioner for seeking to appeal further.  938 N.E.2d 1012 (N.Y. 2010).

26 547 U.S. 47 (2006).

27 Mr. Macula was not represented by counsel.  COs and those opposed to military recruiting may find courts more receptive, or at least more respectful, when they are represented by skilled and sympathetic counsel.

28 Chancellor’s Regulation A-825.

29 415 Fed. Appx 88 (No. 10-9534, 2011 U.S. App. LEXIS 4331) (10th Cir. 2011) (not precedential).

30 No. CV 11-8152-PCT-RCB (SPL), 2013 U.S. Dist. LEXIS 117853 (D. Ariz. Aug. 20, 2013).

31 Supra, note 16.

32 ARMY 20111006, 2014 CCA LEXIS 218 (U.S. Army Ct. Crim. App. March 31, 2014).

33 No. 13-356. Briefs can be found at SCOTUSblog,