Allen v. Monger, C-73-745 RFP and C-73-1012 RFP.

• Decision Date: 11 July 1975
• Docket Number: No. C-73-745 RFP and C-73-1012 RFP.,C-73-745 RFP and C-73-1012 RFP.
• Citation: 404 F. Supp. 1081
• Court: U.S. District Court — Northern District of California
• Parties: Wayne M. ALLEN et al., Plaintiffs, v. A. J. MONGER et al., Defendants. George T. MOSES et al., Plaintiffs, v. S. R. FOLEY, Jr., et al., Defendants.

404 F. Supp. 1081

Wayne M. ALLEN et al., Plaintiffs, v. A. J. MONGER et al., Defendants.

George T. MOSES et al., Plaintiffs, v. S. R. FOLEY, Jr., et al., Defendants.

Nos. C-73-745 RFP and C-73-1012 RFP.

United States District Court, N. D. California.

July 11, 1975.

COPYRIGHT MATERIAL OMITTED

David Cobin, Oakland, Cal., Joseph Remcho, Charles C. Marson, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, Cal., for plaintiffs Allen and others.

Robert E. Breecker, Oakland, Cal., James L. Larson, Doron Weinberg, Stender, Stender & Weinberg, San Francisco, Cal., for plaintiffs Moses, and others.

James L. Browning, Jr., U. S. Atty., and James A. Bruen, Asst. U. S. Atty., Chief, Civ. Div., San Francisco, Cal., for defendants A. J. Monger, and others and S. R. Foley, Jr., and others.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

PECKHAM, District Judge.

FINDINGS OF FACT

1. Plaintiffs Wayne M. Allen, David R. Gibson, Norman L. Jones, Richard C. Luton, II, and Peter R. Pendleton were at the time of the filing of this action enlisted members of the United States Navy assigned to the USS Hancock (CVA-19).

2. Prior to March 9, 1973, plaintiff Wayne Allen and Michael Ferner (another seaman) prepared a petition to Congressman Fortney Stark. The body of the petition read as follows:

Dear Congressman Stark,

We, the undersigned crew members of the U.S.S. HANCOCK, in recognition of the fact that the United States is officially no longer at war with the countries of Indo-China, and because the HANCOCK has already been in commission for 29 years, respectfully request that you ask Congress to investigate the necessity of having the HANCOCK make another West Pacific cruise.

3. The petition was drafted on board the USS Hancock. (R.T. 21.) Copies of the petition were prepared at a private place of business at no expense to the government. (R.T. 21.)

4. The USS Hancock (CVA-19) is an aircraft carrier with a normal crew of approximately 3400 persons. It was first commissioned in 1944 and, with the exception of six years following the end of World War II, has been in commission since that time.

5. At all relevant times until early May 1973, the USS Hancock was located at the Naval Air Station, Alameda, California. In early May 1973, the USS Hancock deployed for the Western Pacific.

6. On March 9, 1973, Michael Ferner made a written request to defendant Captain A. J. Monger, commanding officer of the USS Hancock, that the petition be authorized for distribution. (R. T. 22; Exh. F to Complaint.)

7. At this time plaintiff Allen intended to participate in the distribution of the petition, but decided to wait until Mr. Ferner received an answer from Captain Monger. (R.T. 22-23.)

8. On March 19, 1973, Captain Monger denied Mr. Ferner's request. (Exh. G. to Complaint.)

9. Despite the denial of his request, Mr. Ferner did circulate the petition on board the USS Hancock during his off-duty hours on the mornings of March 20 and 21, 1973. (R.T. 12-13.)

10. At about 3:00 p. m. on March 21, 1973, Mr. Ferner was ordered to report to Captain Monger to answer a charge of violating Article 92, Uniform Code of Military Justice: failure to obey a lawful order not to distribute the petition. Captain Monger found that Mr. Ferner had committed the offense charged and imposed punishment of a reduction in rating, a fine of One Hundred Fifty dollars, and twenty days restriction to the ship. (R.T. 12-13; Affidavit of Michael Ferner, Exh. J to Complaint at 3-4.)

11. On March 23, 1973, the plan of the day posted for each division on the USS Hancock contained the following notice:

7. Results of Captain's Mast of 21 March 1973. FERNER, M. S. HN MEDICAL Violation of UCMJ Art. 92: Failure to obey a lawful order from Captain A. J. Monger, to wit: not to circulate a petition. Awarded: Forfeiture for sic $150 for 1 month, reduction in rate, and 20 days restriction.

This notice was read aloud on H division, where plaintiffs Allen, Jones, and Pendleton were stationed. (R.T. 13; Exh. K to Complaint.)

12. Plaintiffs all desired to circulate this petition but refrained from doing so because of Captain Monger's denial and the punishment given to Michael Ferner. They filed the present action on behalf of themselves and all others similarly situated on May 4, 1973. (R.T. 12-13; Complaint, p. 6, ¶ 29.)

13. Since the filing of this action, plaintiffs Allen, Jones and Pendleton have been discharged from the United States Navy. Plaintiffs Gibson and Luton are still members of the United States Navy and are still stationed on the USS Hancock. (R.T. 79.)

14. Plaintiffs George T. Moses, Michael T. Gavin, Peter C. Berry, Scott R. Keller, Floyd R. Duncan were at the time of the filing of this action enlisted members of the United States Navy assigned to the USS Midway (CVA-41). (Complaint, p. 2, ¶¶ 2-6.)

15. Sometime prior to May 1, 1973, plaintiffs Gavin, Moses, Keller and Duncan prepared a petition to members of Congress. The body of the petition read as follows:

We, the crew and families of the U.S. S. Midway, do hereby exercise our rights as citizens of the United States of America to petition Congress on the following issue. We object to the homeporting in Yokosuka, Japan of the U.S.S. Midway for the following reasons:

(1) We are freely opposed to the excessive expansion and imposition of United States military forces overseas. Homeporting the Midway in Yokosuka is another attempt by the U.S. to permanently establish its military presence in Asia.

(2) We object to the false statements made by the military that there is an all volunteer crew to deploy to Yokosuka.

(3) We disapprove of the government's lack of preparations in providing housing and other living accommodations to support our full complement of crew and familes.

(4) It is the right of all military personnel as citizen-soldiers of the U.S. to practice individually or collectively their rights as citizens, namely, (a) the right to free speech, (b) the right to peacefully assemble, (c) freedom of the press, and (d) the right to petition Congress.

(Exh. A to Complaint.)

16. Copies of the petition were prepared at no expense to the government at a private place of business. (R.T. 42, 57.)

17. The USS Midway (CVA-41) is an aircraft carrier with a normal crew of approximately 3500 persons. At all relevant times until September 10, 1973, the USS Midway was located at either Hunters Point Naval Shipyard, San Francisco, California, or Alameda Naval Air Station, Alameda, California. The USS Midway was scheduled to depart for the Western Pacific on September 11, 1973, at which time its home port would be changed from Naval Air Station, Alameda, California to United States Naval Station, Yokosuka, Japan. Deployment to the Western Pacific and change of home port took place as scheduled.

18. During a period of approximately a week prior to May 1, 1973, plaintiffs circulated their petition on board the USS Midway. (R.T. 67, 68.)

19. On May 1, 1973, plaintiffs became aware of Midway Instruction 1620.6, which required commanding officer approval prior to distribution of petitions on board the USS Midway. On May 1, 1973, plaintiffs Moses and Gavin wrote to Captain Foley, Commanding Officer of the USS Midway, and requested his permission to circulate their petition on board the USS Midway. (R.T. 66, Exh. B to Complaint.)

20. On May 4, 1973, Captain Foley denied the request by plaintiffs Moses and Gavins. (Exh. F. to Complaint.)

21. On May 23, 1973, plaintiffs Berry, Keller and Duncan submitted a request to circulate a petition identical to the one previously requested but for the addition of the words "and are demoralized by" to the third line of the first paragraph. Captain Foley similarly denied this request on May 25, 1973. (Exhs. E-J of the Complaint.)

22. Following the denial of their requests, plaintiffs refrained from circulating their petitions on board the USS Midway, fearing punitive action. (R.T. 28-29.)

23. Plaintiffs filed this action on behalf of themselves and all others similarly situated on June 4, 1973. The two actions were joined by the court as related cases.

24. Since the filing of this action, plaintiffs Gavin, Berry and Duncan have been discharged from the Navy. Plaintiffs Keller and Moses are members of the United States Navy assigned to stations other than the USS Midway. (R. T. 75.)

25. No action giving rise to this litigation occurred in or near a combat zone.

26. The First Amendment of the United States Constitution provides that "Congress shall make no law . . . abridging the freedom of speech, . . . or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

27. Title 10, United States Code, § 1034 provides:

No person may restrict any member of an armed force in communication with a member of Congress, unless the communication is unlawful or violates a regulation necessary to the security of the United States.

28. Department of Defense Directive (hereinafter "DOD Directive") 1325.6, Section III(A), provides in substance that a commander may prohibit distribution of a "publication" through other than "official outlets such as post exchange" if he determines there is a "clear danger to the loyalty, discipline, or morale of military personnel, or if the distribution of the publication would materially interfere with the accomplishment of a military mission." Section III(G) of the same directive provides:

The right of members to complain and request redress of grievances against actions of their commanders is protected by Article 138 of the Uniform Code of Military Justice. In addition, a member may petition or present any grievance to any member of Congress (10 U.S.C. 1034). An open door policy for complaints is a basic principle of good leadership, and Commanders should personally assure themselves that adequate procedures exist for identifying valid complaints and taking corrective action.

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