Grosvenor Burnett v. Lt. General John J. Tolson, Commanding General of Fort Bragg, North Carolina, and Stanley R. Resor, as Secretary of the Army

474 F.2d 877

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 21, 1973
• Docket: 72-1545
• Status: Published

Opinions

CRAVEN, Circuit Judge:

Appellant Burnett and other members of an antiwar organization brought a class action in district court to enjoin the Commanding General of Fort Bragg Military Reservation from prohibiting distribution of certain leaflets on the base. Jurisdiction was alleged under 28 U.S.C. §§ 1331 and 1361. The district court dismissed the suit for lack of jurisdiction, holding that Burnett et al could not establish the $10,000 jurisdictional minimum required by § 1331 and that this was not an appropriate case for mandamus under § 1361. We reverse.

Burnett and other leaders of the United Citizens for Peace, a group seeking to bring about an end to the conflict in Vietnam, had previously sought permission from officials at Fort Bragg, North Carolina, to distribute various handbills in the public areas of the base. Burnett submitted two written requests for permission, together with sample leaflets, to the office of the Provost Marshal. These requests were denied after a determination by Lieutenant General John J. Tolson, pursuant to Fort Bragg Regulations Nos. 210-23 ¹ and 210-10,² that distribution of the leaflets would constitute a “clear danger to the military loyalty, discipline, and morale of military personnel at Fort Bragg.”

The Complaint is grounded upon the first amendment and alleges an arbitrary denial of the fundamental first amendment right of speech and expression. It is urged upon us that we should ignore the $10,000 requirement contained in 28 U.S.C. § 1331 or judicially notice that freedom of speech is of great price and value sufficient to come within the pecuniary limitations of the statute. Much has been written on the subject,³ including, notably, Judge Medina’s expression of regret at what he considered to be an unfortunate gap in federal jurisdiction, Wolff v. Selective Service System, 372 F.2d 817, 826 (2d Cir. 1967), and Chief Judge Lumbard’s forecast that if the “case of a poor man who stands to lose nothing but his most precious personal liberties [by the] unconstitutional actions of the federal government” should ever come before the federal courts, the “old rule requiring the claimed deprivation be capable of monetary valuation would [not] long endure.” Fein v. Selective Service System, 430 F.2d 376, 385 (2d Cir. 1970) (Lumbard, C. J., dissenting).

Since we are persuaded that there is jurisdiction in the district court under 28 U.S.C. § 1361, we need not decide these questions, but we note that the last mention of the subject by the Supreme Court in Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 ,L.Ed.2d 424, 432 (1972), is not favorable to Burnett’s contentions.⁴

28 U.S.C. § 1361

Burnett places his alternative jurisdictional argument upon the federal mandamus provision, 28 U.S.C. § 1361, which provides:

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

Mandamus is an ancient remedy, said to lie only to compel the fulfillment of a duty which is ministerial, plainly and positively ascertained, and free of doubt. Prairie Band of Pottawatomie Tribe of Indians v. Udall, 355 F.2d 364, 367 (10th Cir. 1966). These traditional requirements for invoking federal mandamus were concisely stated by the Fifth Circuit in Carter v. Seamans, 411 F.2d 767 (5th Cir. 1969), at 773:

Generally speaking, before the writ of mandamus may properly issue three elements must coexist: (1) a clear right in the plaintiff to the relief sought; (2) a clear duty on the part of the defendant to do the act in question; and (3) no other adequate remedy available.

Whether the purview of the common law writ of mandamus was broadened by the inclusion of the words “in the nature of” before the word “mandamus” in § 1361,⁵ or whether Congress meant only to make the writ available as at common law,⁶ we need not decide. For we think that however narrowly viewed mandamus may be, the allegations of the Complaint are sufficient to confer jurisdiction upon the district court.

Where military reservations are open to the public it is now clear that civilians have an unqualified right to enter such public areas and to exercise their constitutionally protected freedom of expression in these areas. Flower v. United States, 407 U.S. 197, 198-199, 92 5. Ct. 1842, 32 L.Ed.2d 653 (1972). In areas of a base open to the public,

the military has abandoned any claim that it has special interests in who walks, talks, or leaflets on the avenue. The base commandant can no more order petitioner off of this public street because he was distributing leaflets than could the city police order any leafleteer off of any public street. “[Sjtreets are natural and proper places for the dissemination of information and opinion.” “[0]ne who is rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional right to express his views in an orderly fashion.” [citations omitted].

Id.

The Third Circuit recently characterized the Flower decision in Spock v. David, 469 F.2d 1047 (3d Cir. 1972).

[T]he [Supreme] Court made clear that the power of military authorities to restrict general access to a military-facility ... did not apply to those parts of the facility to which the public has been freely admitted.

The Federal Government exercises jurisdiction over the entire reservation [Fort Dix]. Its military policemen enforce traffic regulations and the criminal laws applicable to offenses on federal military reservations. But the fact of the exercise of such jurisdiction does not imply the power to selectively exclude persons solely on the ground of exercise of rights protected by the first amendment. If the reservation is open to all the rest of the public, there is no basis for holding that it may be closed, selectively, to political candidates or to distributors of unapproved literature.

Taking the allegations of the Complaint to be true, as we must on appeal from the granting of a motion to dismiss, it appears that Burnett and his class sought only to distribute handbills at places on the military reservation open to the public. It further appears that members of the civilian public are allowed to frequent certain areas of Fort Bragg without any restriction, and that these areas include the shopping center, the post exchange, the post office, and the motion picture theater. Indeed, we have previously had occasion to note that there are areas of Fort Bragg “completely open and unrestricted.” United States v. Bradley, 418 F.2d 688, 689 (4th Cir. 1969); Yahr v. Resor, 431 F.2d 690 (4th Cir. 1970). The allegations of the Complaint, therefore, establish a clear right in Burnett and his class to enter the public areas of Fort Bragg as leafleteers.⁷

Plaintiffs have not sought access to restricted areas nor have they threatened to enter them without permission. There has not been interference with the use of “public” streets or sidewalks, and none is intended by Burnett and his class. Despite assurances by Burnett that distribution in public areas will be accomplished in such a manner as not to interfere with or disrupt military functions and activities, and that a distributing group of persons will not exceed five in number, the base commander, according to the Complaint, refused permission to distribute leaflets while arbitrarily and discriminatingly permitting others to make like distributions.

The government urges that mandamus will not lie here since the duty Burnett seeks to have fulfilled is not “ministerial.” ⁸ It is argued that Regulation No. 210-10 vests the Commanding General with “discretion” — i.e., whether to allow Burnett and his class to enter the public areas of the base and distribute leaflets, it is asserted, is within the sound discretion of the commander. We disagree, and on the authority of Flower, supra, we hold that General Tolson is under a duty to allow the orderly expression of views in areas of Fort Bragg generally open to the public.

While we think the ministerial-discretionary dichotomy is not very helpful in analysis of the limitations on statutory mandamus, we are not presently confronted with a situation in which discretion is even involved. No officer of the United States, not even a base commander, may exercise his “discretion” to prevent leafletting in areas generally open to the public, Flower, supra, 407 U.S. at 198, 92 S.Ct. 1842, and certainly he may not pick and choose expressions of viewpoints that may be disseminated in such areas. United States v. Crowthers, 456 F.2d 1074, 1078 (4th Cir. 1972). Where the area of the base involved is one open to the public, the base commander has no discretion, but instead a ministerial duty to allow peaceful leaf-letting regardless of the views sought to be expressed.

The base commander may, of course, prohibit all distribution of handbills, leaflets, and fliers within areas of a military base that are not open to the general public. Also, he may enforce cosmetic regulations, even in places open to the public, so as to prohibit broadcasting or throwing away handbills and to require that discarded material be placed in receptacles. In short, the government may enforce reasonable regulations to prevent littering. What it may not do is to “favor one pamphlet and reject another because the latter displeases the official in charge” in areas that are open to the public. Crowthers, supra, at 1081.

Because we think there is (1) a clear right in the plaintiff to the relief sought, and (2) a clear duty on the part of the defendant to permit the activity sought, we now consider whether the third requirement of traditional mandamus is present: that there is no other adequate remedy available. See Carter, supra, 411 F.2d at 773.

We have previously expressed our doubt that there is jurisdiction under 28 U.S.C. § 1331 because of the difficulty with jurisdictional amount. We are unaware of any other statutory authority for supporting jurisdiction in the district court, and none has been suggested to us. That there might possibly be a “back door” entry into the federal court is not, we think, an available adequate remedy. In Spock, supra, 469 F.2d at 1051 it was suggested that the commander of the Fort Dix Military Reservation

. could have been sued in the state courts of New Jersey. He would undoubtedly have removed to the federal courts pursuant to 28 U.S.C. § 1442(a)(1), since the suit is for acts which were done under color of his federal office. In the removed action the jurisdictional amount requirement would have been inapplicable because § 1442 is a separate jurisdictional grant without regard to amount in controversy ....

We think it clear that assuming such a route to the federal court is available, it is not an adequate remedy within the meaning of the mandamus rule, for it rests not- upon the volition of the plaintiffs but upon the decision of the government to seek removal.9

We hold that on the allegations of the Complaint in this case there is jurisdiction in the District Court under 28 U.S.C. § 1361 to try the case and to thereupon consider whether or not the plaintiffs may be entitled to a Writ of Mandamus, or an injunction, or a declaratory judgment,¹⁰ establishing their right to their freedom of expression in areas of Fort Bragg that are open to the general public. If the district court should determine that plaintiffs are entitled to relief it may, of course, confine relief to the allowing of leafletting at appropriate times -and places so as to assure that the activity will be peaceful and will not disrupt the organization and operation of the military establishment.

Reversed.

1 . Fort Bragg Regulation No. 210-23 provides as follows:

1. Purpose. The purpose of this directive is to establish policies for the control of the distribution of publications on this post.

2. General Policy.

a. The distribution of publications, including pamphlets, newspajters, magazines, handbills, flyers and other printed material on the Fort Bragg Military Reservation will not be made except through regularly established distribution outlets, under appropriate contractual agreements, or as required by law or regulation.

b. The Installation Commander may grant exceptions to the policy contained in this paragraph. Applications for exceptions shall be submitted in writing to the Provost Marshal, this headquarters, at least seven days prior to the date of the proposed distribution describing the method of distribution proposed and including a copy of the publication or publications involved.

3. Reference: AR 210-10.

2 . Fort Bragg Regulation No. 210-10, K 5-5, f c provides as follows:

If it appears that the dissemination of a publication presents a clear danger to the loyalty, discipline, or morale of troops at this installation, the installation commander may without prior approval of higher headquarters, delay the distribution of any publication which he considers undesirable, on property subject to his control.

3 . See Cortright v. Resor, 325 F.Supp. 797, 809 (E.D.N.Y.1971), for a good collection of this literature. E. g., Note, Judicial Review of Military Surveillance of Civilians: Big Brother Wears Modern Army Green, 72 Colum.L.Rev. 1009, 1014-1018 (1972). We note that an act is now before Congress to abolish the $10,000 requirement in actions based upon a federally created right. Hearings on S. 1876 Before the Subcomm. on Improvements in Judicial Machinery of the Senate Comm, on the Judiciary, 92d Cong., 1st Soss., pt. 1, at 1 (1971).

4 . But see Spock v. David, 469 F.2d 1047 (3d Cir. 1972). Recent decisions on this subject conflict. For cases denying jurisdiction under § 1331 see, e. g., Goldsmith v. Sutherland, 426 F.2d 1395 (6th Cir. 1970); Giancana v. Johnson, 335 F.2d 366 (7th Cir. 1964). For cases upholding jurisdiction see, e. g., Fifth Ave. Peace Parade Comm. v. Hoover, 327 F.Supp. 238 (S.D.N.Y.1971); Cortright v. Rosor, 325 F.Supp. 797 (E.D.N.Y.1971); Murray v. Vaughn, 300 F.Supp. 688 (D.R.I.1969). See Note, Judicial Review of Military Surveillance of Civilians: Big Brother Wears Modern Army Green, 72 Colum.L.Rev. 1009, 1019-1022, 1051-1054 (1972).

5 . E. g., Carey v. Local Board No. 2, Hartford, Conn., 297 F.Supp. 252, n. 3 (D.Conn.), aff’d, 412 F.2d 71 (2d Cir. 1969). See generally 3 K. Davis, Administrative Law Treaties § 23.09 (Supp. 1965). When Congress was considering the enactment of 28 U.S.C. § 1361, it was the recommendation of the Department of Justice that the statute include the word “ministerial” before the word duty. The suggestion was not accepted by Congress. The omission may be significant.

6 . E. g., Massachusetts v. Connor, 248 F.Supp. 656, 659 (D.Mass.), aff’d, 366 F.2d 778 (1st Cir. 1966).

7 . On remand it -will be for the district court, of course, to determine what areas of Fort Bragg are open to the public in the Blower sense. Our recitation of the allegations of the complaint is that only.

8 . To accept the government’s contention that General Tolson’s duty here was “discretionary” rather than “ministerial” does not necessarily resolve the question of the availability of mandamus. It is not easy to tell what the cases mean. For example, in Cortright v. Resor, 325 F.Supp. 797 (E.D.N.Y.1971), the government did not even challenge the district judge’s holding that there was mandamus jurisdiction under 28 U.S.C. § 1361 to review the order of the commanding general transferring soldiers to different stations — certainly a matter ordinarily within his discretion. Again, the Second Circuit, in United States ex rel Sehon-brun v. Commanding Officer, 403 F.2d 371, 374 (2d Cir. 1968), recognized that although mandamus jurisdiction was not available to direct the exercise of discretion, “official conduct may have gone so far beyond any rational exercise of discretion as to call for mandamus even when the action is within the letter of the authority granted.” In Feliciano v. Laird, 426 F.2d 424 (2d Cir. 1970), it was held that the failure of the Army to follow its own regulations was enough to support the writ of mandamus and that the disapproval of an application for a hardship discharge was arbitrary and irrational rather than within the discretion of the military authority. In Nixon v. Secretary of Navy, 422 F.2d 934, 939 (2d Cir. 1970), it was said as to the military, “there are certain limitations to this ‘hands-off’ policy, and official military conduct may go so far beyond the limits of what may be considered a rational exercise of discretion as to call for mandamus.”

Long before the enactment of the present statute, Chief Justice Taft spoke to the ministerial-discretionary dichotomy:

Mandamus issues to compel an officer to perform a purely ministerial duty. It cannot be used to compel or control a duty in the discharge of which by law he is given discretion. The duty may be discretionary within limits. He cannot transgress those limits, and if he does so, he may be controlled by injunction or mandamus to keep within them. The power of the court to intervene, if at all, thus depends upon what statutory discretion he lias.

Work v. United States ex rel. Rives, 207 U.S. 175, 177, 45 S.Ct. 252, 09 L.Ed. 561 (1925).

Compare the excerpt from Bivens v. Six Unknown Named Agents of the Fed. Bur. of Narc., 409 F.2d 718, 723, (2d Cir. 1969), rev’d on other grounds, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) :

Few more unseemly sights for a democratic: country operating under a system of limited governmental power can be imagined than the specter of its courts standing powerless to prevent a clear transgression by the government of a constitutional right of a person with standing to assert it.

See also: Dash v. Commanding General, 307 F.Supp. 849 (D.S.C.1969), aff’d, 429 F.2d 427 (4th Cir. 1970) (mandamus jurisdiction apparently assumed); Chase v. Robson, 435 F.2d 1059 (7th Cir. 1970) (mandamus available against a district judge to prevent prior restraint of first amendment freedom of speech); Yahr v. Resor, 431 F.2d 690 (4th Cir. 1970) (mandamus jurisdiction apparently assumed); Murray v. Vaughn, 300 F.Supp. 688 (D.R.I.1969).

9 . It is far from certain that such a suit could be maintained in a state court. See e. g., Alabama v. Rogers, 187 F.Supp. 848 (M.D.Ala.), aff’d mem., 285 F.2d 430 (5th Cir. 1961). See also Arnold, The Power of State Courts to Enjoin Federal Officers, 73 Yale L.J. 1385 (1964); Warren, Federal and State Court Interference, 43 Harv.L.Rev. 345 (1930).

10 . Mandamus jurisdiction under 28 U.S.C. § 1361 permits flexibility in remedy. Davis, supra note 5.