Carlson v. Schlesinger

• Citation: 364 F. Supp. 626
• Decision Date: 23 August 1973
• Docket Number: Civ. A. No. 145-72.
• Parties: James Edward CARLSON et al., Plaintiffs, v. James R. SCHLESINGER et al., Defendants.
• Court: U.S. District Court — District of Columbia

364 F. Supp. 626

James Edward CARLSON et al., Plaintiffs, v. James R. SCHLESINGER et al., Defendants.

Civ. A. No. 145-72.

United States District Court, District of Columbia.

August 23, 1973.

Melvin L. Wulf, Joel M. Gora, American Civil Liberties Union Foundation, New York City, David Addlestone, Lawyers Military Defense Committee, Hope Eastman, Washington National Office, American Civil Liberties Union, Washington, D. C., for plaintiffs.

Harold H. Titus, Jr., U. S. Atty., Michael A. Katz, Asst. U. S. Atty., Washington, D. C., for defendants.

MEMORANDUM OPINION

PARKER, District Judge.

This suit, brought by James Edward Carlson, Richard Randig and William C. Daniels, Jr., members of the Armed Forces of the United States, who at the time of filing were stationed in South Vietnam, challenges the constitutionality of Air Force Regulation 30-1(9)¹ which both grants and regulates the right of Air Force Personnel to petition the President, members of Congress and other public officials. Named as defendants are the Secretary of Defense, Secretary of the Air Force and the then Commanders of the Tan Son Nhut Air Base and Cam Ranh Bay Air Base in Vietnam.² A declaration is sought that the Air Force Regulation is in violation of the First Amendment of the Constitution and 10 U.S.C. § 1034.³ Plaintiffs further request the Court to declare their arrests, stemming from incidents relating to the enforcement of this Regulation, as illegal and that their military records be expunged of any reference thereto.⁴

Cross motions for summary judgment have been filed. The Court, having reviewed the record including the memoranda of points and authorities, the various affidavits and the oral argument of counsel, denies defendants' motion and grants summary judgment for the plaintiffs.

The Factual Background

A review of the pertinent facts is desirable.

PLAINTIFF JAMES EDWARD CARLSON

Plaintiff Carlson, a Navy enlisted man stationed in Saigon, went to Tan Son Nhut Air Base, and while off duty and in uniform, collected signatures on a petition to Congress calling for a cessation of American involvement in the South East Asian hostilities. This activity took place in front of the Base's main post exchange. His efforts did not result in any disturbance or incident disruptive of normal activities. Thereafter, he was arrested by Air Force Security Police for passing out "anti-war material" and jailed for several hours. He was informed that a charge, solicitation of signatures on an unauthorized anti-war petition, would be brought against him. He was later informed by Naval authorities that no charges would be brought against him and none, in fact, were instituted. Still determined to collect signatures, Carlson twice sought permission through military channels to do so. The first request, made orally to the Base Commander's assistant was rejected with the statement that he would be jailed if he persisted in his efforts. A second written request made to the Commander by a civilian lawyer, acting on Carlson's behalf, was likewise denied.

Carlson has stated by affidavit that during his Vietnam tour of duty he was permitted to gather signatures during his off-duty hours while on Naval property.

Carlson was subsequently honorably discharged from active military duty. Reference to the above-mentioned arrest has been maintained in a Naval Investigation Service Report, the contents of which are subject to limited disclosure to certain governmental agencies.⁵

PLAINTIFF RICHARD RANDIG

Randig, an enlisted airman, stationed at Cam Ranh Bay Air Base, while off duty, in civilian attire, and along with another serviceman, attempted to collect signatures on a similar petition at that Base. Later the two men were arrested by military police and charged with the same offense for which Carlson was detained. The petitions were confiscated. After several hours of incarceration he was informed that no further action would be taken and he was released.

Several days thereafter Randig formally requested of the Commander permission to solicit signatures on the congressional petition under restricted and controlled conditions. The request was denied in a summary fashion. Randig received an honorable discharge and there is no evidence that any record of or reference to the arrest incident is maintained by the military.

PLAINTIFF WILLIAM C. DANIELS, JR.

Daniels served in Vietnam as an Air Force enlistee and was stationed at the Cam Ranh Air Base. After learning about the "anti-war" petition, he joined in Randig's unsuccessful attempt to gain the permission of Air Force authority to collect signatures. This litigant was released from active duty with an honorable discharge. Daniels is presently a college student, as are both Carlson and Randig.

The Petition and Pertinent Regulations

The petition which the plaintiffs attempted to circulate reads as follows:

"We, the undersigned American Servicemen on duty in Vietnam, wish to express our opposition to further United States military involvement by air, sea, or land forces in Vietnam, Laos, Cambodia or other countries in South East Asia. We petition the United States Congress to take whatever action necessary to assure an immediate cessation of all hostilities in South East Asia; to set a near date for final and complete military withdrawal; to insure a rapid and peaceful return of American Prisoners of War; and to assume and assert its responsibility for determination of future American Foreign policy."

Two regulations are particularly relevant, Air Force Regulations 30-1(9) and 35-15. The former in part provides:

SECTION D-DISSENT AND PROTEST ACTIVITIES

* * * * * *

(9) Right of Petition. Members of the Air Force, their dependents and civilian employees have the right, in common with all other citizens, to petition the President, the Congress or other public officials. However, the public solicitation or collection of signatures on a petition by any person within an Air Force facility or by a member when in uniform or when in a foreign country is prohibited unless first authorized by the commander.

Reference: AFR 35-15

The applicable provisions of Air Force Regulation 35-15 are:

DISSIDENT AND PROTEST ACTIVITIES

* * * * * *

3 Specific Guidelines and Prohibited Activities:

(a) Possession and Distribution of Written or Printed Materials:

* * * * * *

(2) When prior approval for distribution or posting is required, the commander will determine if a clear danger to the loyalty, discipline, or morale of members of the Armed Forces, or material interference with the accomplishment of a military mission, would result. If such a determination is made, distribution or posting will be prohibited . . . .

The plaintiffs' arrest resulted from their failure to obtain Regulation 30-1(9) authorization and the subsequent denials of the request to petition were based upon the standards of Regulation 35-15, 3(a)(2).⁶

Subsequent to the filing of this action the plaintiffs were transferred from Vietnam and later discharged from active duty, prompting the government to move for a dismissal of the complaint on the grounds of mootness.⁷ The Court denied that motion since the constitutional violations complained of are capable of being repeated as long as the challenged regulations remained in force. This situation appears to fit neatly into the category of cases which present questions "capable of repetition yet evading review." Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L. Ed.2d 1 (1969). See also Dash v. Commanding General, Fort Jackson, South Carolina, 307 F.Supp. 849 (D.S.C.1969) aff'd 429 F.2d 427 (4th Cir. 1970) where several enlisted men challenged a regulation restricting the right to distribute anti-war leaflets on a military installation. Before reaching the merits, the District Court disposed of the government's contention of mootness based upon the fact that all of the plaintiffs had either been transferred or released from duty, and stated at page 851:

"The issues posed are continuing ones, involving restraints not alone on the plaintiffs but on all noncommissioned personnel, present or future, at the base. If, by either the release or transfer of the plaintiffs, the power of the Court to resolve such issues could be destroyed, the rights asserted by the plaintiffs might never be determined since the defendants, who control such releases or transfers, could effectively prevent a review of their actions. Under such circumstances where the problem is `capable of repetition, yet evading review', the mere transfer or release of all or a part of the plaintiffs will not render the proceedings moot." (Emphasis added)

This Court is in full agreement with that rationale, and finds it applicable and appropriate to the present action.

Jurisdiction

The government has raised two further jurisdictional challenges: first, that the requirements of 28 U.S.C. § 1331(a), namely that the amount in controversy be in excess of $10,000, have not been satisfied and secondly, that mandamus relief, pursuant to 28 U.S.C. § 1361, is inappropriate and cannot therefore serve as a basis for subject matter jurisdiction. The Court finds, however, that § 1331(a) jurisdiction is not lacking and therefore rejects the defendant's contentions.

In Gomez v. Wilson, 477 F.2d 411 (D. C.Cir. 1973) the Court of Appeals for this Circuit addressed the gnawing problem federal courts have been confronted with when called upon to pass upon § 1331(a) jurisdiction in suits involving abridgements of individual liberties. Acknowledging that Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1971)⁸ rejects the proposition that in such cases the monetary requirement may be abandoned, the Gomez Court noted that:

"with remarkable expansion of remedies in damages to enable redress of invasions of an incalculable variety of personal interests, monetary valuation of fundamental civil rights seems hardly impossible

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