J.O.B. v. United States

1

J.O.B., a minor, et al., Petitioners/Plaintiffs, v. UNITED STATES OF AMERICA, et al., Respondents/Defendants.

No. 3:23-cv-217

United States District Court, S.D. Ohio, Western Division, Dayton

August 30, 2024

Thomas M. Rose District Judge.

REPORT AND RECOMMENDATION

Caroline H. Gentry United States Magistrate Judge.

In this case, a father and child seek a writ of habeas corpus to secure the child's release from alleged custody. The matter currently is before the undersigned United States Magistrate Judge to consider their application for relief and its attachments (ECF No. 5-1 through 5-23); two motions to dismiss it (ECF Nos. 15-16, 23); responses and reply to those motions (ECF Nos. 22, 24, 25); and four filings entitled “Mandatory Judicial Notice” (ECF Nos. 14, 17, 26 27). Having carefully considered all these materials and the applicable law, the undersigned RECOMMENDS that the Court DISMISS the case for lack of jurisdiction.

I. INTRODUCTION

Jamus Oran Bryant brought this action in 2023 by filing an “Affidavit of Petition for Writ of Habeas Corpus and Other Declaratory and Injunctive Relief.” (ECF No. 1). He purported to file pro se on his own behalf, on behalf of J.O.B. (his minor child), and as “next friend” for J.O.B. (Id.). Mr. Bryant later filed an amended affidavit, which is now the operative pleading in the case. (See ECF No. 5-1). This Report and Recommendation will refer to the “Amended Affidavit of Petition for Writ of Habeas Corpus and Other Declaratory and Injunctive Relief” that is currently of record as ECF No. 5-1, as well as its attachments (ECF No. 5-2 through 5-23), together as “the Application.” It will refer to J.O.B. as “the Child” and Mr. Bryant as “Father.”

The Child and Father seek the Child's release and reunification with Father. They have named Mother as a defendant, as well as the United States of America, the Secretary of the United States Air Force, and a private attorney who represented Mother in state custody proceedings. All four defendants have asked the Court to dismiss the case, arguing (among other things) that the Court lacks jurisdiction to grant habeas corpus relief in child custody matters.

The undersigned agrees with some of Defendants' arguments and ultimately concludes that this Court lacks jurisdiction to consider the habeas corpus claim. More specifically, the undersigned concludes that this Court cannot consider a habeas corpus claim where the petitioner-here, the Child-is not “in custody” as that term is used in the statute. The undersigned will therefore recommend that the Court grant the motions to dismiss to the extent they make this argument, and dismiss the case in its entirety.

II. SUMMARY OF THE APPLICATION

The Child and Father refer to themselves as “Plaintiffs” in the caption of the Application, and as “Petitioners” and “Plaintiffs” within it. (See, e.g., Application (“App.”), PageID 116, 117, 122, 134, 136, 137, 139). The Child and Father name the following four defendants, who are alleged to be connected in various ways to the United States Air Force (“USAF”):

(1) the United States of America, which, Father says, “operates and maintains, the United States Air Force 460th medical group at Buckley Air Force Base, located in Aurora Colorado” (App., ¶ 26);

(2) Frank Kendall III, the 26th Secretary of the USAF^[1](“Secretary Kendall”) (App., ¶ 27);

(3) Stacy Michelle Angel (“Mother”), who is an officer in the USAF (App., ¶ 28); and

(4) Grant Bursek, a former servicemember and Colorado attorney who represented Mother in Mother and Father's Colorado custody case (“Bursek” or “Attorney Bursek”) (App., ¶¶ 4, 16, 29).

(See App., PageID 116-117, 122-123).

The Application describes a dispute between Father and Mother about their Colorado custody arrangement (or lack thereof), and about Mother and the Child's physical location. It largely concerns Father's assertion of his parental rights and request to be reunified with the Child, and his allegations that Mother, Attorney Bursek, the USAF, and a Colorado state court have conspired to keep the Child (and the Child's whereabouts) from him. The Application also asserts that the Child's rights have been violated.

Father says he is a resident of Ohio. (App., ¶ 1). The Child was born in Colorado. (App., ¶ 2). The Application does not clarify Mother's residency,^[2]but does allege that she is or was in Ohio with the Child. (See App., ¶¶ 28, 45, 47). Father suggests that Mother was attempting to take the Child to Italy. (App., ¶ 49; see also ECF No. 5-20, PageID 200). He also asserts that Attorney Bursek erroneously told a Colorado state court that Mother had deployed to Japan. (App., ¶¶ 4, 8, 45; ECF No. 5-20, PageID 201). Father emphasizes that Attorney Bursek refused to the tell a Colorado court where Mother and the Child were actually located, based on “national security concerns.” (App., ¶¶ 10-11, 41-42, 47, 49-50, 54).

Based on that interaction, Father alleges that the Child is “being unlawfully restrained by the USAF under the National Security Act, title 50 Chapter 15.” (App., ¶ 3). Father also

believes a reasonable inference can be drawn that, the USAF ultimate goal is to place [Mother and the Child] outside the arm of the state courts, by unlawfully assisting [Mother] in fraudulently procuring [the Child] a passport from the U.S. Dept of State without [Father's] approval and deploying [Mother] outside of the United States, effectively concealing the defendants fraud upon the court, and unlawfully “blocking off”' [the Child from Father] . . .

(App., ¶ 55). Father describes this as a “conspiracy to defraud [him] of protected liberty.” (Id.).

The Application contains a section entitled “Legal Framework: Habeas Authority.” (App., ¶¶ 57-60; see also PageID 116). It frames the “question presented” in this case as follows:

Whether the habeas corpus statute, 28 U.S.C. §§§ 2241, 2243, 2255, confers jurisdiction on the federal courts to consider collateral challenges to [USAF's] “national security” claim and the [Colorado state court's] acquiescence, which had the effect of involuntarily restraining [the Child], and substantially depriving [Father and the Child] of their protected . . . familial interest under the 14th amendment of the U.S. Constitution.

(App., ¶ 57). The Application asserts that “[b]ecause this action arises in the context of habeas corpus, this Court has plenary authority, both statutory and equitable, to remedy [the Child's] continuing unlawful restraint.” (App., ¶ 59). It further asserts that “habeas courts have broad authority to enter any form of order, including declaratory or injunctive relief.” (App, ¶ 60). The Child and Father seek such relief. (App., PageID 139).

The Application contains two claims or causes of action. The first claim is labeled “Violation of Plaintiffs fundamental liberty protected by 14th Amendment of U.S. Constitution.” (App., PageID 135). It asserts that the Child is “under restraint of the USAF,” but has a liberty interest in being free from this unlawful restraint. (App., ¶ 63, 66). This claim asserts that both the Child and Father have a “substantive due process right to remain together as a family and ensure their family integrity” and a “right . . . to be together.” (App., ¶ 64-65). For clarity, the undersigned notes that the Child is the only one allegedly restrained; the Application does not allege that Father is restrained by the USAF or the other Defendants. (Cf., App., ¶¶ 63 (“Petitioner J.O.B. has a liberty interest under the Due Process Clause to be free from unlawful restraint.”), ¶ 66 (“J.O.B. is under restraint of USAF”)).

In addition, Father says that his fundamental rights as a parent required the court to hold a hearing before the Child was taken from him. (App., ¶ 66-67). Father further argues that:

the conspiracy to defraud him and J.O.B. of their fundamentally protected liberty is exemplified when the state court, Mr. Bursek, and USAF, collectively, unlawfully restrained J.O.B, without a declaration of [Father's] parental “unfitness,” and without providing [him] with an “opportunity” to challenge the USAF claim of national security . . .

The fraud was commenced and instituted by the defendants, without subject matter jurisdiction, in clear violation of the Plaintiffs constitutional due process right to adequate notice and opportunity to be heard, with the deliberate intent to harm the Plaintiffs, and is the cause of the deprivation of Plaintiffs' protected liberty herein stated.

(App., ¶ 67-68). The Child and Father conclude that the unlawful deprivation of their “familial interest” violates the Fourteenth Amendment and is “made cognizable under 28 USC §§§ 2241, 2243, 2255.” (App., ¶ 69).

The second claim in the Application is brief and unlabeled. It seeks relief under this Court's “equitable, common law habeas authority” and the All Writs Act, 28 U.S.C. § 1651. (App., ¶¶ 71-72).

For relief, the Child and Father request a writ of habeas corpus, temporary restraining order, or preliminary injunction ordering the Child's immediate release from restraint pending final resolution of the case. (App., PageID 139). They also seek a declaration that the Child's separation from Father is unlawful and an order to:

C. Preliminarily and permanently enjoin defendants from continuing to separate J.O.B. from Mr. Bryant.;

D. Enjoin USAF from moving or transferring J.O.B. from the District of Ohio, or from delivering or releasing J.O.B. into the custody of anyone except . . . Mr. Bryant;

E. Fashion such additional relief as is necessary and appropriate, including declaratory relief or other interim relief necessary to vindicate Petitioners' rights under U.S. law.

F. Should USAF personnel be unlawfully restraining J.O.B. in

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