Mottola v. Nixon

• Decision Date: 13 July 1972
• Docket Number: No. 26662.,26662.
• Parties: Gary F. MOTTOLA, a citizen of the United States, and a member of the United States Air Force Reserves, et al., Plaintiffs-Appellees, v. Richard M. NIXON, President of the United States, and Melvin Laird, Secretary of Defense, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

464 F.2d 178 (1972)

Gary F. MOTTOLA, a citizen of the United States, and a member of the United States Air Force Reserves, et al., Plaintiffs-Appellees, v. Richard M. NIXON, President of the United States, and Melvin Laird, Secretary of Defense, Defendants-Appellants.

No. 26662.

United States Court of Appeals, Ninth Circuit.

July 13, 1972.

Brian B. Denton, Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for defendants-appellants.

Robert M. O'Neill (argued), Berkeley, Cal., Gary F. Mottola, in pro. per., Irving M. Gross, in pro. per., James R. Schwartz, in pro. per., for plaintiffs-appellees.

Peter J. Donnici (argued), San Francisco, Cal., Lawrence R. Velvel, Lawrence, Kan., Anthony D'Amato, Chicago, Ill., amicus curiae for Constitutional Lawyers Comm. on Undeclared War.

Before ELY, TRASK and CHOY, Circuit Judges.

TRASK, Circuit Judge:

The government brings this appeal under 28 U.S.C. § 1292(b) from an interlocutory order of the district court, 318 F.Supp. 538, denying the government's motion seeking dismissal of plaintiffs' action on the grounds that the plaintiffs lack standing, that their action is barred by the doctrine of sovereign immunity and that the action presents a non-justiciable political question. We have concluded that the plaintiff-appellees lack standing to litigate their action and reverse the order of the district court for that reason.

The appellees are members of the United States Air Force and Army Reserves.¹ Following President Nixon's April 30, 1970, announcement that United States combat forces were being introduced into the conflict in Cambodia, the appellees brought suit for a judgment declaring such military activities to be in violation of the United States Constitution, the United Nations Charter, and other treaties, and seeking to enjoin the President and the Secretary of Defense from ordering military personnel to conduct military operations in Cambodia in the absence of a congressional declaration of war.²

The action was filed on behalf of the named plaintiffs and, pursuant to Rule 23, Fed.R.Civ.P., on behalf of all citizens and taxpayers of the United States, and, pursuant to Rule 23(c) (4) (B), on behalf of all military reservists similarly situated and "all eligible potential draftees under the Selective Service Act." The trial court disallowed the class action claim and the prayer for injunctive relief, but proceeded to decide the declaratory judgment action on behalf of Mottola, Schwartz and Gross.³

Specifically, appellees allege that the Executive has acted unconstitutionally in committing American combat forces to Cambodia since Congress has not declared war against Cambodia under Article I, Section 8(11) of the United States Constitution.

The government contends that only those under military orders to report to a theatre of hostilities have the requisite standing to challenge the legality of military operations in such a theatre. We agree. The legality of an order sending men to participate in an "undeclared war" should be raised by someone to whom such an order has been directed.⁴ Berk v. Laird, 429 F.2d 302, 306 (2d Cir. 1970); Ashton v. United States, 404 F.2d 95, 97 (8th Cir. 1968), cert. denied, 394 U.S. 960, 89 S.Ct. 1308, 22 L.Ed.2d 561 (1969); United States v. Bolton, 192 F.2d 805, 806 (2d Cir. 1951) (challenge to the legality of the Korean conflict).⁵ This rule of standing has been stated previously in cases which have not involved military reservists. The appellees rely in part on this difference in urging that they have standing in the present case.

Throughout these proceedings, the appellees allege that their lives and livelihood will be placed in jeopardy should they be activated, and assert that the use of American armed forces in Cambodia greatly increases the possibility of such activation.⁶

The Article III restriction on the judicial power of federal courts to "cases" and "controversies" requires that we examine these contentions to determine whether an actual controversy has been presented by plaintiffs with a "personal stake and interest," Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Jenkins v. McKeithen, 395 U.S. 411, 423, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), against persons with adverse legal interests in a sufficiently immediate adversary context to warrant declaratory relief. Golden v. Zwicker, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969); Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

Initially, we note that the appellees have failed to allege that the Cambodian incursion has caused them injury in fact. A plaintiff who alleges that he is injured in fact, economically or otherwise, has a personal stake in the outcome of a controversy sufficient to satisfy the requirements of Article III. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).⁷ The basis for our conclusion bears not only upon whether a sufficient personal stake has been alleged, but also on whether a sufficiently immediate adversary context has been presented to warrant declaratory relief. The appellees do not contend that they have been or will be activated for service in Indochina, much less in Cambodia. They contend that they may be so activated as a result of the Cambodian incursion.⁸ Thus, their connection with the constitutional guarantee relied upon is contingent upon an event which, at the time of the filing of the complaint, might never occur. Neither actual nor threatened injury is alleged, Jenkins v. McKeithen, 395 U.S., supra at 422, 89 S.Ct. 1843, other than the speculative possibility that the appellees may be activated to serve in Indochina. That possibility also exists for others who serve or may be subject to service in the armed forces. Since the injury alleged is not logically linked with their status, appellees have failed to allege a personal stake and interest sufficient to avoid the prohibition against employing "a federal court as a forum in which to air their generalized grievances about the conduct of government . . ." Flast v. Cohen, 392 U.S. 83, 106, 88 S.Ct. 1942, 1956, 20 L.Ed.2d 947 (1968). Furthermore, because of the contingent and speculative nature of the injury, the district court was presented with no more than a hypothetical case, Crossen v. Breckenridge, 446 F.2d 833, 839 (6th Cir. 1971), and thus lacked jurisdiction of the action under Article III, Section 2 of the Constitution.

In concluding that the plaintiffs had standing, the trial court apparently relied in large measure upon Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed. 2d 947 (1968), in which a taxpayer was held to have standing to attack a federal spending program which allegedly exceeded a specific constitutional limitation upon the exercise of the congressional taxing and spending power.

The trial court in the present case reasoned that a member of the armed forces reserves had the same nexus with the power of the President, as Commander-in-Chief of the armed forces, to order him into the Vietnam conflict, as the taxpayer in Flast had with the congressional power under the taxing and spending clause of the Constitution. We cannot agree. In Flast, the court explained that the first aspect of the nexus required to establish standing was the showing by a given plaintiff of a logical link between his status and the type of legislative enactment attacked. Thus, reasoned Flast, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of the Constitution. The nexus between the government's power to tax and the people with respect to whom such power is exercised is clear. However, we do not think that the reservists in the present case have established a similarly logical link between their status as reservists and the power of the President as Commander-in-Chief. The plaintiffs' status as reservists is logically linked with the congressional power "to raise and support armies" and "to provide and maintain a navy." But there is a distinction between that congressional power to raise and support armies and the power of the President, which is challenged in this case, as Commander-in-Chief. United States v. Rehfield, 416 F.2d 273, 275 (9th Cir. 1969), cert. denied, 397 U.S. 996, 90 S.Ct. 1137, 25 L.Ed.2d 405 (1970); United States v. Mitchell, 369 F.2d 323, 324 (2d Cir. 1966), cert. denied, 386 U.S. 972, 87 S.Ct. 1162, 18 L. Ed.2d 132 (1967). We therefore think that the district court's reliance upon Flast v. Cohen, supra, was the essence of its error.

The trial court also pointed out those cases where servicemen or registrants were held to have standing to challenge specific orders to report for duty in South Vietnam. Berk v. Laird and Orlando v. Laird (decided together), 443 F.2d 1039 (2d Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 94, 30 L.Ed.2d 113 (1971). In the case now before us, however, neither of the two remaining plaintiffs was alleged to be under an order to report to Vietnam or any combat area. There is no showing that they have even been called for active duty. As such, neither Berk nor Orlando is in point.

Holmes v. United States, 391 U.S. 936, 88 S.Ct. 1835, 20 L.Ed.2d 856 (1968) (denying certiorari), also relied upon by the trial court, is a case in which as a defense to conviction for failure to report for civilian work, a conscientious objector challenged the constitutionality of compulsory civilian duty in peace time. The trial court in the present case relied upon the opinions of Mr. Justice Stewart and Mr. Justice Douglas. The former concurred in the denial of certiorari, but stated that if the issue had been the power, in the absence of a declaration of war, to compel military service in armed conflict overseas he would have...