43 699 Lucas v. Champlain 8212 1346

• Citation: 421 U.S. 21,43 L.Ed.2d 699,95 S.Ct. 1365
• Decision Date: 15 April 1975
• Docket Number: No. 73,73
• Parties: . 43 L.Ed.2d 699 John L. McLUCAS, Secretary of the Air Force, et al., Appellants, v. Raymond G. DeCHAMPLAIN. —1346
• Court: United States Supreme Court

421 U.S. 21

95 S.Ct. 1365.

43 L.Ed.2d 699

John L. McLUCAS, Secretary of the Air Force, et al., Appellants,

v Raymond G. DeCHAMPLAIN.

No. 73—1346.

Argued Dec. 9, 1974.

Decided April 15, 1975.

Syllabus

Appellee, an Air Force master sergeant whose court-martial conviction for violations of Art. 134 of the Uniform Code of Military Justice involving, inter alia, unauthorized use of classified documents and information, had been reversed for improper admission of certain evidence, and whose retrial was about to commence, filed this action for injunctive relief in Federal District Court against appellant military authorities, asserting that Art. 134 was unconstitutionally vague and that certain limitations imposed by the military authorities on the defense's pretrial access to classified documents in issue, denied him due process and effective assistance of counsel. The District Court preliminarily enjoined appellants from proceeding with the court-martial on the Art. 134 charges, and also on any other charges unless civilian defense counsel and certain other persons were allowed unlimited access to documents material to the defense. The court held that the circumstances justified an exception to the rule requiring a serviceman to exhaust his military remedies before a federal court will interfere with court-martial proceedings, that the unconstitutionality of Art. 134 was clear from the Courts of Appeals decisions in Avrech v. Secretary of the Navy, 155 U.S.App.D.C. 352, 477 F.2d 1237, and Levy v. Parker, 3 Cir., 478 F.2d 772, that the restrictions placed on access to documents were excessive, and that appellee had adequately shown irreparable injury. Appellants directly appealed to this Court under 28 U.S.C. § 1252, which allows appeal from 'an interlocutory or final judgment, decree or order of any court of the United States . . . holding an Act of Congress unconstitutional in any civil action . . . to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party.' Held:

1. Whether a three-judge district court was or was not required under 28 U.S.C. § 2282 as to appellee's Art. 134 claim, the case is properly before this Court on appeal under 28 U.S.C. § 1252, since it is a civil action, appellants are officers of the United States acting in their official capacities, Art. 134 is an 'Act of Congress,' and 'the basis of the decision below in fact was that the Act of Congress was unconstitutional,' United States v. Raines, 362 U.S. 17, 20, 80 S.Ct 519, 522, 4 L.Ed.2d 524. Pp. 27-32

2. Under this Court's decisions in Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439, and Secretary of the Navy v. Avrech, 418 U.S. 676, 94 S.Ct. 3039, 41 L.Ed.2d 1033, holding that Art. 134 is not unconstitutionally vague, appellee's constitutional claim as to Art. 134 is clearly insubstantial and must be dismissed. P. 32.

3. Relief as to appellee's access claim is squarely precluded by this Court's holding in Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591, that 'when a serviceman charged with crimes by military authorities can show no harm other than that attendant to resolution of his case in the military court system, the federal district courts must refrain from intervention, and hence the 'unlimited access' aspect of appellee's suit must be dismissed for failure to state a claim upon which relief can be granted. Pp. 33-34.

367 F.Supp. 1291, vacated and remanded.

Solicitor Gen. Robert H. Bork, New Haven, Conn., for appellants.

Leonard B. Boudin, New York City, for appellee.

Mr. Justice POWELL delivered the opinion of the Court.

The District Court for the District of Columbia preliminarily enjoined appellants, the Secretary of the Air Force and five Air Force officers,¹ from proceeding with appellee DeChamplain's court-martial (i) on charges based upon Art. 134 of the Uniform Code of Military Justice, 10 U.S.C. § 934, and (ii) on any charges whatever unless appellants allowed civilian defense counsel and certain other persons unlimited access to documents material to DeChamplain's defense. 367 F.Supp. 1291 (1973). The military authorities appealed directly to this Court, averring jurisdiction under 28 U.S.C. § 1252. We postponed the jurisdictional question to the hearing on the merits. 418 U.S. 904, 94 S.Ct. 194, 41 L.Ed.2d 1152 (1974). We hold the case properly here under § 1252 and, finding its disposition controlled by our intervening decisions in Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), and Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975), vacate the preliminary injunction and remand with directions to dismiss the action.

I

Article 134 provides, inter alia, that 'crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial according to the nature and degree of the offense . . ..' This clause of the article is an assimilative crimes provision, conferring court-martial jurisdiction over service-connected, non-capital federal offenses not covered by specific provisions of the Code. ² In 1971, court-martial charges were pre- ferred under this provision against appellee DeChamplain, an Air Force master sergeant. Specifically, DeChamplain was charged with having copied classified documents, in violation of 18 U.S.C. § 793(b), and with having attempted to deliver such copies to an unauthorized person, in violation of 18 U.S.C. § 793(d). DeChamplain was also charged, under Art. 81 of the Uniform Code, 10 U.S.C. § 881, with conspiracy to communicate classified information to an agent of a foreign government, in violation of Art. 134 and 50 U.S.C. § 783(b), and, under Art. 92, 10 U.S.C. § 892, with failure to obey an Air Force regulation requiring that contacts with foreign agents be reported. All of these charges were premised on allegations that, while stationed in Thailand, DeChamplain twice had been in the company of a Soviet embassy official and subsequently was found in possession of 24 official Air Force documents, ranging in classification from 'confidential' to 'top secret.' The general court-martial convicted DeChamplain of all charges. On appeal, the Air Force Court of Military Review held that certain inculpatory statements made by DeChamplain should not have been admitted into evidence; the court therefore reversed the conviction and remanded for a new trial.³ The Court of Military Appeals affirmed.⁴

The military authorities then prepared to retry DeChamplain before a general court-martial on substantially the same charges. The charges were amended, however, to delete all allegations pertaining to three of the classified documents, the Air Force choosing to forgo prosecution as to these documents rather than compromise their confidentiality. The Air Force also decided not to intro- duce at the new trial 12 of the documents, assertedly because of their connection with DeChamplain's inadmissible inculpatory statements. Copies of all of these documents are contained in the record of DeChamplain's first court-martial, to which the Air Force has given DeChamplain's military counsel full access. Civilian defense counsel, however, were allowed access only to unclassified portions of the record and thus were not permitted to inspect those documents that will not be in issue at the retrial. The Air Force authorized DeChamplain, his military counsel, chief civilian counsel, one legal associate, and one secretary to have access to the nine remaining documents that the charges against DeChamplain now concern. It imposed restrictions, however, on the use of the documents: they were to be examined only in the presence of persons with appropriate security clearances; no copies were to be made; written notes pertaining to classified information were to remain in Air Force custody; and the information was not to be discussed with anyone other than those who had been authorized access.

At a pretrial hearing conducted pursuant to 10 U.S.C. § 839, DeChamplain challenged these restrictions. The presiding military judge sustained the restrictions, but granted the civilian defense team access to portions of the original record pertaining to the nine documents still at issue, subject to the restrictions applicable to the documents themselves. DeChamplain also moved to dismiss the charges on various grounds, claiming, inter alia, that Art. 134 was unconstitutional. The presiding judge denied the motion. DeChamplain made the same claims in three petitions to the Court of Military Appeals for extraordinary relief. That court denied the petitions,⁵ stat- ing on the last occasion that '(a) petition for extraordinary relief is not a substitute for appeal.'⁶

DeChamplain's second court-martial was to begin on November 15, 1973. On October 3, he filed this action in the District Court seeking injunctive relief and asserting, among other claims, that Art. 134 was unconstitutionally vague and that the limitations on access to and use of the classified documents denied him due process and effective assistance of counsel. The defendant military authorities moved to dismiss for lack of subject-matter jurisdiction and failure to state a claim upon which relief could be granted. The court denied the motion. It agreed with the military authorities that 'generally a serviceman must first exhaust his military remedies before a federal court will interfere with court martial proceedings.' 367 F.Supp., at 1294. The court believed, however, that the circumstances of the case justified an exception to the rule. Because the issues presented in the case were 'purely legal' and did 'not necessitate determinations which the military forum is best equipped to make,' and because 'Sergeant DeChamplain (would) be denied fundamental constitutional guarantees' unless the court intervened, the court concluded...