Berry v. Bean

• Decision Date: 31 July 1986
• Docket Number: Nos. 85-2197,s. 85-2197
• Parties: Sonja M. BERRY and Robert L. Young, Appellees, v. Wesley W. BEAN, Jr., Colonel, United States Air Force Commander, Andrews Air Force Base and Secretary of the Air Force, Appellants. (Two Cases) (L), 86-1523.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 713

796 F.2d 713

Sonja M. BERRY and Robert L. Young, Appellees, v. Wesley W. BEAN, Jr., Colonel, United States Air Force Commander, Andrews Air Force Base and Secretary of the Air Force, Appellants. (Two Cases)

Nos. 85-2197(L), 86-1523.

United States Court of Appeals Fourth Circuit.

Argued April 7, 1986.

Decided July 31, 1986.

Howard S. Scher, Civil Div., U.S. Dept. of Justice (Richard K. Willard, Asst. Atty. Gen., Washington, D.C., J. Frederick Motz, U.S. Atty., Baltimore, Md., Anthony J. Steinmeyer, U.S. Dept. of Justice, Alexander S. Nicholas, Major, U.S. Air Force, Gen. Litigation Div., Office of the Judge Advocate Gen., Washington, D.C., on brief), for appellants.

Allen M. Lenchek (Gaffney, Anspach, Schember, Klimaski & Marks, P.C., Washington, D.C., on brief), for appellees.

Before HALL, PHILLIPS and WILKINSON, Circuit Judges.

WILKINSON, Circuit Judge:

Sonja Berry sought injunctive relief from an order barring her from Andrews Air Force Base except for court appearances and medical emergencies. The base commander, Colonel Wesley Bean, issued the order after an incident involving "possession/use of a controlled/dangerous substance." At the time, Berry lived on base as an eighteen-year-old dependent of her stepfather, Technical Sergeant Robert L. Young. The district court, after issuing and extending a temporary restraining order, granted the preliminary injunction. It concluded that plaintiffs Berry and Young would suffer irreparable harm if the order were sustained, whereas enjoining the order would cause defendant Bean only minimal harm. It also found Berry likely to succeed on the merits, and the public interest weighing in her favor. Berry v. Bean, 623 F.Supp. 977 (D.Md.1985).

We reverse. The district court erred in finding plaintiffs likely to succeed on the merits. On the contrary, it is well-established that a base commander has the broadest authority to exclude civilians from his area of command. Here, the commander exercised this authority in response to an incident threatening his efforts to rid the base of illegal drugs, and his order was neither arbitrary nor discriminatory. Because the merits of this issue are so well settled against the plaintiffs, they are not entitled to a preliminary injunction. The law compels us to hold not only that the injunction should be dissolved, but also that the matter should be dismissed. Where the proper resolution of the dispute is so clear, there is nothing to be gained from remanding for consideration of the merits.

I.

In the early morning hours of March 2, 1985, Sonja Berry was riding in a vehicle on base which was stopped by an Air Force Security Policeman for running a stop sign. According to the police report, the officer observed an obvious cloud of marijuana smoke emanating from the car. The driver of the car, Berry's male companion, failed a field sobriety test, and the officer found stubs of marijuana cigarettes in the car. Berry's companion was charged with operating a vehicle under the influence of narcotics. After being advised of her rights, Berry admitted that she had smoked marijuana herself on the way to the base. She was later charged with possession of marijuana, and pled guilty to that charge.

On March 13, 1985, Base Commander Colonel Wesley Bean wrote Sergeant Young of these events, warning that such conduct in the future could result in restrictions on Berry and revocation of Young's housing privileges. The letter recommended to Young various counseling services available on base and offered to arrange an appointment to discuss the matter. The warning was followed on March 25 with a "Letter of Expulsion and Order Not to Reenter Andrews AFB," issued to Berry because of the March 2 incident. The letter warned of possible criminal sanctions for illegal re-entry, and invited Berry to submit "any compelling reason which you believe would be sufficient to justify a modification or termination of this order."

Berry ignored both the invitation to contest the bar order and the order itself, remaining on base with her stepfather. She was subsequently arrested at Andrews Air Force Base and charged with trespassing in violation of 18 U.S.C. Sec. 1382. Berry finally moved off base after her second arrest on August 20, 1985, and lived with her stepfather's fiancee in northern Virginia.

Shortly thereafter, Sergeant Young asked Colonel Bean to dissolve the bar order, and on August 26, Bean suspended the order until October 1. During this period, Berry did not enter Andrews, though her lawyer requested that Bean revoke the bar order. Bean denied this request by letter of September 16, noting that "Ms. Berry has pled guilty to possession of a controlled dangerous substance, marijuana, while within the confines of Andrews Air Force Base." The letter specifically mentioned that "[t]he Air Force policy of prosecution of drug offenders is long standing and well publicized" and that "the negative impact of drugs upon the mission of the Air Force is well documented." Finally, Colonel Bean emphasized that entry onto a "closed" base such as Andrews was a privilege, and that "for those who engage in conduct which jeopardizes community safety or the mission of the military units stationed at Andrews the privilege should be withdrawn."

Plaintiffs sued on October 2, 1985, seeking injunctive and declaratory relief and an award of damages. They also sought a temporary restraining order, which the district court granted on October 25 for a ten-day period. The court granted a ten-day extension of the TRO and subsequently extended it indefinitely. ¹

The preliminary injunction was granted on December 6. The court found great harm to Berry and Young because the bar order resulted in "[b]reaking up this family unit for an indefinite period of time." Berry v. Bean, 623 F.Supp. at 979. Berry's inability to live on the base also prevented her from attending community college classes offered there. The court rejected the view that Colonel Bean's authority would be diluted if the order was stayed, finding that "[a]ny such dilution under the circumstances here would be insignificant." Id. at 980. The district court also found that plaintiffs would probably succeed on the merits, id. at 980-82, and that the public interest favored keeping the family together and allowing Berry to continue her education. Id. at 982.

Prior to oral argument on appeal, the parties stipulated to an additional fact relevant to our consideration of the case. Sergeant Young moved out of his assigned housing unit on Andrews Air Force Base on March 9, 1986, and the Base Commander terminated his housing privileges on March 10. There is no suggestion that this termination was in any way invalid, and we treat it simply as a factual matter for purposes of this appeal. Plaintiff Berry now resides with her stepfather and other family members off base in Maryland. ²

II.

Standards for the issuance of a preliminary injunction are well-established. Four factors enter the determination: "(a) plaintiff's likelihood of success in the underlying dispute between the parties; (b) whether plaintiff will suffer irreparable injury if interim relief is denied; (c) the injury to defendant if an injunction is issued; and (d) the public interest." North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749, 750 (4th Cir.1979). Though the district court is essentially required to balance the harms to the parties, Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189, 195-96 (4th Cir.1977), it must consider each factor in ruling on a motion for preliminary injunction. James A. Merritt and Sons v. Marsh, 791 F.2d 328, 329-30 (4th Cir.1986). Especially relevant here is the likelihood of success on the merits. "When the balance of harms decidedly favors the plaintiff, he is not required to make a strong showing of a likelihood of success; nevertheless, there must at least be a strong showing that the case raises grave or serious questions." Id. at 330. A plaintiff with little or no chance of success on the merits should not receive an injunction simply because she may be harmed by otherwise valid activity. See, e.g., id. at 330.

This principle controls the present dispute. Though the district court correctly stated the standards that governed its decision, Berry v. Bean, 623 F.Supp. at 979, it failed to recognize the unique context in which this suit arose and accordingly misjudged the likelihood that Berry would succeed on the merits. No matter what the balance of harms, plaintiff has no chance of ultimate success, and for this reason alone, the preliminary injunction should have been denied. We are especially hesitant at the outset to balance the hardships in this dispute, for such an inquiry draws the court into precisely the type of oversight of military decisions that the Supreme Court has found unacceptable. Given the absence of any hope that plaintiff will prevail, we are convinced that we should avoid balancing the hardships, and that the preliminary injunction should be dissolved.

III.

The merits of this suit relate to the military context in which it arose, for "it is difficult to conceive of an area of governmental activity in which the courts have less competence." Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2446, 37 L.Ed.2d 407 (1973). The Supreme Court has long noted that special considerations obtain when courts are asked to review the judgments of military authorities. These authorities "have been charged by the Executive and Legislative Branches with carrying out our Nation's military policy," Goldman v. Weinberger, --- U.S. ----, 106 S.Ct. 1310, 1313, 89 L.Ed.2d 478 (1986), and their power traces in turn to the broad constitutional mandate of those branches in military affairs. See United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). Courts, moreover, are "ill-equipped to determine the impact upon discipline that...