Berrigan v. Sigler

• Decision Date: 01 May 1974
• Docket Number: No. 73-1563.,73-1563.
• Citation: 499 F.2d 514
• Parties: Philip BERRIGAN et al., Appellants, v. Maurice SIGLER, Chairman of the board of parole and all members of the said board of parole (all of whom have their offices at room 354 HOLC (Building) et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

499 F.2d 514 (1974)

Philip BERRIGAN et al., Appellants, v. Maurice SIGLER, Chairman of the board of parole and all members of the said board of parole (all of whom have their offices at room 354 HOLC (Building) et al.

No. 73-1563.

United States Court of Appeals, District of Columbia Circuit.

Argued February 21, 1974.

Decided May 1, 1974.

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Morton Stavis, New York City, with whom Alvin J. Bronstein, Washington, D. C., was on the brief, for appellants.

N. Richard Janis, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, John A. Terry and Gil Zimmerman, Asst. U. S. Attys., were on the brief, for appellees. Earl J. Silbert, U. S. Atty., also entered an appearance for appellees.

Before BAZELON, Chief Judge, McGOWAN, Circuit Judge, and CHRISTENSEN,^* United States District Judge for the District of Utah.

CHRISTENSEN, Senior District Judge.

Despite a preliminary exploration of the problem to the contrary,¹ it has now been determined that a constitutional balance was struck by the Board of Parole between its duties of supervision and the right of parolees to travel in denying leave for appellants to make a trip to North Vietnam under the circumstances, and we therefore affirm the summary judgment of the district court to this effect.²

Fathers Philip and Daniel Berrigan were convicted of felonies by reason of the illegal activation of their opposition to the Vietnam war.³ After serving a substantial part of the sentences imposed, they were granted parole upon the usual condition contained in certificates of parole that they would "go directly to the district shown on this Certificate of Parole . . . and . . . shall not leave the limits fixed by the Certificate of parole without written permission from the probation officer."⁴

Having been granted permission on other occasions to leave their districts for speech making and other purposes,⁵ on January 8, 1973, appellants unsuccessfully sought leave from the Board to travel to Hanoi "to visit with religious leaders and others". They filed their complaint⁶ with the district court on January 12, seeking judicial review of the administrative action of the Board, a declaratory judgment "that the members of the Board had interfered with plaintiffs' constitutional rights in denying such permission", to enjoin the defendants "from interfering with any future travel plans of the plaintiffs wherein they may seek to exercise their First Amendment rights", and "a mandatory order to require that the defendants in their capacity as members of the Board of Parole permit the plaintiffs to make the trip to Hanoi, and any other travel of a similar nature".

At the time of filing their complaint appellants moved for a temporary restraining order requiring the Board to approve appellants' request, which was denied by the district court. On January 17, following oral arguments the preceding day, this court, one member of the panel dissenting, summarily vacated the order denying appellants temporary relief, ordered "that appellee Parole Board members be, and they are hereby, temporarily restrained from withholding their approval of appellants' proposed trip to North Vietnam", and remanded the case to the district court "for further proceedings not inconsistent with this order."⁷ Thereupon the Solicitor General presented to the Chief Justice an application for a stay of the order of this court until a hearing before the district court on plaintiff's motion for a preliminary injunction could be had. The Chief Justice granted such stay pending reference of the matter to the full court. On January 22, 1973, the Supreme Court, with one justice dissenting, ruled that the "application for stay, presented to The Chief Justice, and by him referred to the Court, is granted".⁸ Following another hearing, a remand to the Board, and a further hearing in view of the Board's supplemental report, the district court on May 3, 1973, granted the appellees' motion for summary judgment on the merits and accordingly denied appellants' motion for preliminary injunction as moot.⁹

We need concern ourselves no further with the procedures below which brought into the record an amplification of the Board's reasons for denial of the requested leave and culminated in the decision on the merits by summary judgment; they are amply outlined in Judge Gasch's Memorandum Order, 358 F.Supp. at 131-133, and were considerate and sufficient to warrant final disposition there subject to this appeal.

I

The effect of one phase of the preliminary proceedings, however, must be determined, since the first point appellants seek to make is that this court's prior opinion concerning the invalidity of the initial restraining order, 475 F.2d 918, established the law of the case on the merits and now dictates reversal of the subsequent judgment of the district court. It is argued that the record in view of which the district court acted on the application for a preliminary injunction was substantially the same as that which was before this court when it considered the restraining order, and that since "the sole ground upon which a stay was applied for in the Supreme Court was to permit development of a full record", the district court was bound to dispositively follow the prior decision of this court. Even assuming, without accepting,¹⁰ the validity of the premises, we cannot agree with this conclusion.

The decision of a trial or appellate court whether to grant or deny a preliminary injunction does not constitute the law of the case for the purposes of further proceedings and does not limit or preclude the parties from litigating the merits,¹¹ unless there has been an order of consolidation pursuant to Rule 65(a) (2),¹² not the case here. Much less would rulings concerning temporary restraining orders have the binding effect claimed by appellants.¹³ This is not to say that the views expressed by a court at a given time, although not controlling, cannot be persuasive for their reason and authority to the extent applicable in any new context, or that a case may not be rendered moot as a consequence of preliminary rulings under special circumstances.¹⁴ But such rulings did not moot this case¹⁵ and did not preclude the district court, nor should they dissuade us, from taking a fresh look.¹⁶

Appellants advance the following basic contentions additionally in support of their appeal:

II. The action of the appellees abridged appellants' constitutional rights under the First and Fifth Amendments; the only basis upon which such abridgment could be justified is a "compelling governmental interest", tested by "stringent standards" and subjected to "rigid scrutiny", which cannot be found here.

III. The claim that prohibition of travel to Hanoi was justified by the needs of parole supervision is "transparently unrealistic".

IV. The Board acted wholly beyond its power in applying foreign policy considerations in its determination.

II

The right to travel is a part of the "liberty" of which a person cannot be deprived without due process of law.¹⁷ It does not follow, as contended by appellants, that to the extent that a restriction of travel in a particular circumstance may inhibit a person's speaking or associating with others, it necessarily involves an impairment of First Amendment rights. Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), supra, clearly stands against such a proposition.¹⁸ It is fallacious to argue that restriction of travel necessarily interferes with the traveler's prospective right of free speech at the point of destination in violation of the Constitution irrespective of the validity of the travel restriction. Association, as well as speech, always is to be expected and, indeed, may be inevitable at the destination of any travel, but this does not render invalid legitimate restrictions upon travel for any such reason.¹⁹

While we must remain sensitive to the overriding importance of First Amendment rights in the evaluation of restrictions that may be even tangentially related, the enforcement of legitimate regulations must not be diluted or rendered impractical because as an incident to their application speaking, association or writing may be affected. Under the guise of exercising the First Amendment right of free speech, a person may not reposition himself where he otherwise would have no authority to be. Nor can one in reliance upon freedom of the press, by virtue of that reliance alone, legally seize without consideration or lawful warrant the plant of a newspaper belonging to another; it would be one thing to expect to use the columns of the paper to voice views and opinions under appropriate conditions, quite another to move without authority into another's plant for the purpose. On the other hand, it has been held repeatedly that the right to travel is an aspect of the "liberty" guaranteed by the Due Process Clause of the Fifth Amendment.²⁰ We conclude that restrictions against the Fifth Amendment right to liberty in travel are involved here, and that such restrictions must be tested by the essentials of due process.²¹

III

As an essential part of any consideration of the travel restrictions as such, the appellants' parole status under the governing statute²² and regulations is inescapably significant.²³

Parole has its genesis and justification, and carries content, meaning and objectives from due process convictions and sentences for crimes which justifiably deprived the parolee for a time of any power of travel whatsoever, and which, were it not for acceptable conduct have continued to totally deprive the parolee of all power of travel for the remaining period of his sentence. Unless an inflation of "travel rights"²⁴ is to engulf the federal correctional system, these realities must not be lost to view. Their importance is pervasive, for the viability not only of parole, but of other enlightened aspects of the system²...