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Grosvenor Burnett et al., Appellants, v. Lt. General John J. Tolson, Commanding General of Fortbragg, North Carolina, and Stanley R. Resor, Assecretary of the Army, Appellees
United States Court of Appeals, Fourth Circuit. - 474 F.2d 877
Argued Nov. 2, 1972.Decided Feb. 21, 1973
Prof. Walter E. Dellinger, III, Durham, N. C. (Charles F. Lambeth, Jr., Thomasville, N. C., on brief), for appellants.
F. Stuart Clarke, Asst. U. S. Atty. (Warren H. Coolidge, U. S. Atty., on brief), for appellees.
Before CRAVEN, RUSSELL and WIDENER, Circuit Judges.
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. Secs. 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 Sec. 1331 and that this was not an appropriate case for mandamus under Sec. 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. 210-231 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. Sec. 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. Sec. 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. Sec. 1361
Burnett places his alternative jurisdictional argument upon the federal mandamus provision, 28 U.S.C. Sec. 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 Sec. 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 S.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. . . . "[S]treets are natural and proper places for the dissemination of information and opinion." . . . "[O]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.
But see Spock v. David, 469 F.2d 1047 (3d Cir. 1972). Recent decisions on this subject conflict. For cases denying jurisdiction under Sec. 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. Resor, 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)
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 Sec. 23.09 (Supp. 1965). When Congress was considering the enactment of 28 U.S.C. Sec. 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
E. g., Massachusetts v. Connor, 248 F.Supp. 656, 659 (D.Mass.), aff'd, 366 F.2d 778 (1st Cir. 1966)
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 Flower sense. Our recitation of the allegations of the complaint is that only
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. Sec. 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 Schonbrun 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 has.
Work v. United States ex rel. Rives, 267 U.S. 175, 177, 45 S.Ct. 252, 69 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).
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)
Mandamus jurisdiction under 28 U.S.C. Sec. 1361 permits flexibility in remedy. Davis, supra note 5