Captain Howard Brett Levy, for Himself and for All Others Similarly Situated v. Honorable Howard F. Corcoran, United States District Judge

389 F.2d 929

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 7, 1967
• Docket: 20972
• Status: Published

Opinions

ORDER

PER CURIAM.

This cause came on for hearing on petitioner’s petition for writ of mandamus and application for a stay and said petition and application were argued by counsel.

Upon consideration whereof, it is

Ordered by the court that petitioner’s aforesaid petition for writ of mandamus and application for a stay are denied.

BAZELON, Chief Judge, dissents from the foregoing order for the reasons stated in his dissenting opinion filed herewith.

TAMM, Circuit Judge.

I join in denying the application for the stay and the petition for writ of mandamus. I am of the view that this case is not properly before this court at the present time. I am of the opinion that the record discloses that our present petitioner has an adequate remedy at law. It is my view that he cannot at this time show imminent, irreparable injury. In the event of his conviction by a court martial, which at this time is problematical, there is then available to him, through court martial proceedings, review of those proceedings as specifically provided by law, including an ultimate appeal to the United States Court of Military Appeals, which is in itself a court entirely composed of civilians and which court within the last week has ruled that the principles of the Supreme Court’s holding in the Miranda case are applicable to court martial proceedings. United States v. Tempia, 35 L.W. 2625 (April 25, 1967).

In addition, there is available to this petitioner, in due course and if he is convicted, the right of appeal to the civil courts through habeas corpus or other appropriate proceedings.

Against this background, I feel that at this time this court is without any jurisdiction in this matter.

LEVENTHAL, Circuit Judge:

The refusal of the District Judge to take steps to convene a three-judge court seems to me sound for want of equity jurisdiction to restrain defendants from proceeding with a general court-martial scheduled to commence May 10, 1967.

The lack of equity jurisdiction to issue an injunction seems to me to inhere in the relationship of the civil courts and military tribunals, a relationship which looks to habeas corpus or kindred remedies as the technique by which the civil courts exercise such limited intervention as may be proper in cases taken before military tribunals. There may be want of equity jurisdiction for such reasons of governmental relationships even where there is no truly adequate remedy at law.¹ But the conclusion is strengthened by our awareness that petitioner can preserve his constitutional defenses before the general court-martial, and in due course can present them to the Court of Military Appeals. That court has indicated its readiness to apply to men in the military service the protection of pertinent Supreme Court decisions based on constitutional grounds.²

These considerations do not wholly answer petitioner’s contention that the ability of the military to use the broad provisions of articles 133 and 134 of the Uniform Code of Military Justice (10 U.S.C. §§ 933, 934) to punish expressions of views within the continental United States forebodes such a “chilling effect” on speech that is protected by the Constitution as to call for the application of Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).

The argument is not without logic. Where it breaks down, it seems to me, is where it runs into a judicial tradition which for more than 150 years has resisted all efforts to issue mandates intended to obviate exposure to court-martials or anticipate the results of proceedings before military tribunals.³

It is not necessary to consider now whether this pattern of decisions is absolutely inviolate. It is formidable enough to obviate injunctive relief based on an expansion of the implications of Dom-browski. Nothwithstanding the language of Dombrowski, some individuals and groups will be denied injunctions and relegated to protecting their First Amendment freedoms by way of defense in other proceedings.⁴ Furthermore, I cannot accept petitioner’s argument that a court should be as ready to enjoin the proceeding of a military tribunal as a Federal court to enjoin a state court proceeding.

Freedoms of speech and expression stand on the highest constitutional ground. And the fact of war does not obliterate freedom to dissent from the war. It may be assumed at least for discussion that although the balance between freedom and discipline is different for men in the military service than for civilians, at least some part of these freedoms is retained when civilians enter the military service. It may further be assumed that if these freedoms are unlawfully disregarded by military tribunals, there may in due course be recourse to the civil courts. But that does not compel this recourse to be by way of injunctive relief.

Whether the foregoing decision was reserved by Congress for three judges, rather than one, is not an easy question. It suffices to say that when the district judge is presented with a motion that is insubstantial insofar as it requests in-junctive relief, the law does not contemplate a three-judge court. The district judge can preclude a three-judge court only when it is clear that injunctive relief is not available. I think this is such a case.

1 . Smith v. Katzenbach, 122 U.S.App.D.C. 113, 351 F.2d 810 (1965).

2 . United States v. Tempia, April 25, 1967.

3 . Wales v. Whitney, 114 U.S. 564, 5 S.Ct. 1050, 29 L.Ed. 277 (1885); Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950); Beard v. Stahr, 370 U.S. 41, 82 S.Ct. 1105, 8 L.Ed.2d 321 (1962); Gorko v. Commanding Officer, 314 F.2d 858 (10th Cir. 1963).

4 . W.E.B. DuBois Clubs v. Katzenbach, 277 F.Supp. 971, April 18, 1967 (Dist.Ct.Dist. of Col., 3-judge).