Michael R. Locks v. Melvin Laird, Secretary of Defense

441 F.2d 479, 1971 U.S. App. LEXIS 10644

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 20, 1971
• Docket: 24682
• Status: Published

Opinions

MURRAH, Circuit Judge:

Our query is whether members of the military services may attack in the federal civilian courts the constitutionality of service regulations by seeking declaratory and injunctive relief subsequent to the commencement of court-martial proceedings against one of the complainants for violation of the regulation. Affirming the judgment of the trial court, D.C., 300 F.Supp. 915, we hold that they may not.

Appellants, members of the Air Force Reserve, attack as violative of their First and Fifth Amendment rights an Air Force regulation prohibiting the wearing of the Air Force uniform “ * * * at any public meeting, demonstration, or interview if * * * a purpose of the meeting, demonstration, or interview is the advocacy, expression, or approval of opposition to the employment or use of the Armed Forces of the United States.”

Locks has been convicted by a general court-martial for disobeying the regulation and sentenced to reduction to grade of airman basic, forfeiture of all pay and allowances, confinement at hard labor for one year and bad conduct discharge. He has not yet exhausted the remedies available within the military judicial system for review of the court-martial conviction.¹

Bright, Williams and O’Connell have not been charged with a violation of the challenged regulation. They assert, however, their right to wear their uniforms to meetings which have for their purpose the expression of opposition to the employment or use of the Armed Forces of the United States and that they are deterred from doing so by the certainty of prosecution and punishment (as evidenced by Locks’ conviction and sentence) if they do.

The present action, commenced after the initiation of criminal proceedings against Locks, seeks a declaration that the regulation is void on its face, abrogation of Locks’ court-martial conviction and injunctive relief against prosecutions for violations of the regulation. Judge Zirpoli dismissed the action as to Locks for failure to exhaust available military judicial remedies and ruled against the other complainants on the merits. We affirm the denial of relief for the reason that in the appropriate exercise of the court's discretion, relief by way of injunction or declaratory judgment should have been denied without consideration of the merits as to any of the parties.

We start with the proposition that the propriety of the relief sought cannot be separated from consideration of its impact on the pending criminal proceedings against Locks. The lawsuit is basically one to enjoin that prosecution. This is so even though three of the complainants are not presently subject to court-martial proceedings. For a declaratory judgment of uneonstitutionality would for all practical purposes terminate the criminal case against Locks. In effect, Bright, Williams and O’Connell have joined with Locks in this one lawsuit to deprive the military courts of the jurisdiction plainly conferred on them by statute. We hold that in these circumstances appellants are not entitled to this extraordinary relief.

Appellants invoke, as equally applicable to military prosecutions, the rationale of Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22, involving state prosecutions. And see Gusik v. Schilder, supra; Noyd v. Bond, 395 U.S. 683, 89 S.Ct. 1876, 23 L.Ed.2d 631; Angle v. Laird, supra; and Parisi v. Davidson, 435 F.2d 299 (9th Cir.). Dombrowski essentially involved the grant of injunctive relief against state prosecutions for alleged violations of an over-broad and vague statute regulating expression. And appellants read Dombrowski to hold that such relief is appropriate whenever the statute or regulation is challenged on its face as violative of the First and Fifth Amendments. But that case must be read in light of its contemporary, Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182, which characterized Dombrowski as presenting a situation “of the ‘impropriety of [state officials] invoking the statute in bad faith to impose continuing harassment in order to discourage appellants’ activities.’ ” And Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688, decided since oral argument in this case, leave no doubt that Dombrowski is to be confined to its own peculiar facts; “that the possible uneonstitutionality of a statute ‘on its face’ does not in itself justify an injunction against good faith attempts to enforce it * * * ” 401 U.S. 37 at 54, 91 S.Ct. 746 at 755. The “great and immediate” injury prerequisite to the disruption of a pending criminal prosecution must be a “threat to the plaintiff’s federally protected rights * * that cannot be eliminated by his defense of single criminal prosecution.” Younger v. Harris, supra. See also Samuels v. Mackell, supra, applying the same prerequisites to an action for declaratory judgment commenced after the initiation of criminal proceedings against the parties seeking relief.

The record before us is devoid of any showing of the requisite irreparable injury. Nothing more appears than that the military authorities are doing their duty by prosecuting Locks for violation of the regulation. Complainants present only unsupported allegations that the regulation was promulgated in bad faith and that resort to the military judicial system will be futile. This will not sustain a grant of the relief sought.

Judgment affirmed.

1 . The conceded available remedies include review by a Court of Military Review and petition by the accused to the Court of Military Appeals for review. And see Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146, and Angle v. Laird, 429 F.2d 892 (10th Cir.), which equate exhaustion of available military remedies with exhaustion of available state remedies.