Secretary of the Navy v. Avrech

418 U.S. 676, 94 S. Ct. 3039, 41 L. Ed. 2d 1033, 1974 U.S. LEXIS 92

Opinions

Per Curiam.

Appellee Mark Avrech was convicted by a special court-martial on charges of having violated Art. 80 of the Uniform Code of Military Justice, 10 U. S. C. § 880. The specification under Art. 80, which punishes attempts to commit offenses otherwise punishable under the UCMJ, charged an attempt to commit an offense under the first and second clauses of Art. 134, 10 U. S. C. § 934, namely, an attempt to publish a statement disloyal to the United States to members of the Armed Forces “with design to promote disloyalty and disaffection among the troops.”

Upon conviction, appellee was sentenced to reduction in rank to the lowest enlisted grade, forfeiture of three months’ pay, and confinement at hard labor for one month. The commanding officer suspended the confinement, but the remainder of the sentence was sustained by the Staff Judge Advocate and the Judge Advocate General of the Navy. Appellee was subsequently given a bad-conduct discharge after an unrelated second court-martial conviction.

In December 1970, appellee brought this action in the United States District Court for the District of Columbia, asserting jurisdiction under 5 U. S. C. §§ 701-706, 28 U. S. C. § 1331, and 28 U. S. C. § 1361. He claimed that Art. 134 was unconstitutionally vague and over-broad on its face and as applied, that his statement was protected speech, and that he was convicted without sufficient evidence of criminal intent. He sought an order declaring his Art. 80 conviction invalid and requiring the Secretary of the Navy to expunge any record of his conviction and to restore all pay and benefits lost because of the conviction. After the District Court denied relief, the Court of Appeals reversed, holding that Art. 134 is unconstitutionally vague. 155 U. S. App. D. C. 352, 477 F. 2d 1237 (1973). We noted probable jurisdiction. 414 U. S. 816 (1973). Following oral argument on the merits, we directed counsel to file supplemental briefs on the issues of the jurisdiction of the District Court and the exhaustion of remedies.

Without the benefit of further oral argument, we are unwilling to decide the difficult jurisdictional issue which the parties have briefed. Assuming, arguendo, that the District Court had jurisdiction under the circumstances of this case to review the decision of the court-martial, our decision in Parker v. Levy, 417 U. S. 733 (1974), would require reversal of the Court of Appeals’ decision on the merits of appellee’s constitutional challenge to Art. 134. We believe that even the most diligent and zealous advocate could find his ardor somewhat dampened in arguing a jurisdictional issue where the decision on the merits is thus foreordained. We accordingly leave to a future case the resolution of the jurisdictional issue, and reverse the judgment of the Court of Appeals on the authority of Parker v. Levy, supra. See United States v. Augenblick, 393 U. S. 348 (1969); Schneckloth v. Bustamonte, 412 U. S. 218, 249 (1973).