CCCO-Western Region v. Fellows

• Citation: 359 F. Supp. 644
• Decision Date: 31 December 1972
• Docket Number: Civ. No. C-72-1580.
• Court: U.S. District Court — Northern District of California
• Parties: CCCO-WESTERN REGION et al., Plaintiffs, v. Colonel John L. FELLOWS, Jr., et al., Defendants.

359 F. Supp. 644

CCCO-WESTERN REGION et al., Plaintiffs, v. Colonel John L. FELLOWS, Jr., et al., Defendants.

Civ. No. C-72-1580.

United States District Court, N. D. California.

December 31, 1972.

Robert S. Rivkin, Hansen, Jaffe & Weiss, Joseph Remcho, Charles Marson, Peter Sheehan, San Francisco, Cal., for plaintiffs.

John K. Link, Asst. U. S. Atty., San Francisco, Cal., for defendants.

MEMORANDUM AND ORDER

PECKHAM, District Judge.

On July 25, 1972, five individuals, Kerry Berland, Carolyn Berland, Judith Clark, Raymond Johnson, and Vincent O'Connor, entered the Presidio on Lincoln Boulevard and began distributing leaflets which outlined ways that soldiers can leave active duty. All plaintiffs except Carolyn Berland are employees of CCCO-Western Region, an organization known for its research into and publications concerning the draft and military organization. The pamphlet plaintiffs handed out was a publication of CCCO-Western Region.

Three of the individuals were informed by military police that they were violating the Presidio commander's regulation 210-10 which requires that prior permission of the commander be obtained before any leafletting is done. At this point, Carolyn and Kerry Berland left the premises. The others remained and were arrested under 18 U.S. C. § 1382, which charge was subsequently dismissed (§ 1382 makes it a crime to enter a military base in violation of the commander's order that one stay off). Soon after this incident, the three plaintiffs who had stayed were given "bar letters" which are issued by Colonel Fellows, the Presidio commander, and state that their further entry on the Presidio could subject plaintiffs to prosecution under § 1382. The Berlands have not received such bar letters.

All plaintiffs now seek a declaratory judgment that the bar letters are unconstitutionally issued and void; that the parts of rule 210-10 which require prior approval of leafletting are unconstitutional; that Army regulation 210-10, which gives base commanders power to exercise prior restraint, is unconstitutional as applied to bases that have been opened to the public; and that § 1382 is similarly unconstitutional as applied to people on open bases, or that § 1382 does not apply to such people. Also, plaintiffs request preliminary and permanent injunctions restraining defendant from barring them from the Presidio for peaceful exercise of First Amendment rights. Defendants move for dismissal, or in the alternative summary judgment.

JURISDICTION

Plaintiffs assert the jurisdiction of this court pursuant to several statutes. Defendants controvert them all. We consider the jurisdictional grounds seriatim.

I. The Administrative Procedure Act.

5 U.S.C. §§ 701, 702 (formerly § 1009) provide that except where statutes preclude it or agency discretion is involved, all persons "suffering legal wrong" or "adversely affected or aggrieved" by agency action are entitled to judicial review of that action. It is a matter of some debate whether these provisions grant to the district courts jurisdiction to hear grievances independent of any other jurisdictional ground, or merely address the scope of review available once jurisdiction is properly established pursuant to some other statutory grant. See Charlton v. United States, 412 F.2d 390, 395-396 (3d Cir. 1969) (Stahl, J., concurring). The weight of authority favors the latter view. Zimmerman v. United States, 422 F.2d 326, 330-331 (3d Cir. 1970), cert. den. 399 U.S. 911, 90 S.Ct. 2200, 26 L. Ed.2d 565, and cases cited therein. A few courts seem to have found to the contrary, but without discussing the question. See, e. g., Arrow Meat Company v. Freeman, 261 F.Supp. 622, 623 (D.Or.1966). The authority in this circuit, while somewhat ambiguous, seems in accord with the majority view. Braude v. Wirtz, 350 F.2d 702, 706-708 (9th Cir. 1965).

Plaintiffs rely upon language in Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L. Ed.2d 136 (1971), for the proposition that §§ 701, 702 are jurisdictional. But the court there seems to be addressing availability of review under the Act in light of the two exceptions explicit in § 701, not whether jurisdiction is proper at all. The court's references to Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), Brownell v. We Shung 352 U.S. 180, 185, 77 S.Ct. 252, 1 L.Ed. 225 (1956), and in a footnote, Rusk v. Cort, 369 U.S. 367, 379-380, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962), point to a conception of §§ 701, 702 as remedial rather than jurisdictional. In Abbott, jurisdiction was proper apart from the Administrative Procedure Act, see Abbott Laboratories v. Celebrezze, 352 F.2d 286, 288 (3d Cir. 1965), and Toilet Goods Association v. Gardner, 360 F.2d 677, 679 & n. 1 (2d Cir. 1966), and the court cited Brownell and Rusk. In both those cases, jurisdiction was proper pursuant to the Immigration and Nationality Act of 1952 (369 U.S. at 372-373, 82 S.Ct. 787, 7 L.Ed.2d 809), and in Rusk, the court stated that "the teaching of those cases including Brownell is that the Court will not hold that the broadly remedial provisions of the Administrative Procedure Act are unavailable to review administrative decisions under the 1952 Act in the absence of clear and convincing evidence that Congress so intended." 369 U.S. at 379-380, 82 S.Ct. at 794. (emphasis added). It is therefore this court's view that 5 U.S.C. §§ 701, 702 do not, in and of themselves, confer jurisdiction to hear this action.

II. Federal Question.

Plaintiffs assert jurisdiction pursuant to 28 U.S.C. § 1331, alleging that the amount in controversy exceeds $10,000. The defendants traverse this allegation, however, thereby placing the burden on plaintiffs to satisfy this court that the amount in controversy requirement is indeed met. McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). Since the plaintiffs herein seek vindication of their first amendment rights via an injunction and declaratory judgment, the question becomes whether the value of those rights is in excess of $10,000. Quinault Tribe of Indians v. Gallagher, 368 F.2d 648, 654 (9th Cir. 1966). This determination is not to be lightly passed over. Lynch v. Household Finance Corporation, 405 U.S. 538, 92 S.Ct. 1113, 1119-1120, 31 L.Ed.2d 424 (1972).

It has long been recognized that in cases, like the one at bar, involving major constitutional issues, the amount in controversy requirement is especially troublesome. At one time courts took the view that because basic constitutional rights are invaluable, they could not be the subject of an accounting, and the determination required by § 1331 could never be made. Fortunately, we are no longer constrained by such contorted reasoning. See Quinault Tribe, supra. But see Goldsmith v. Sutherland, 426 F. 2d 1395 (6th Cir. 1970), cert. den. 400 U.S. 960, 91 S.Ct. 353, 27 L.Ed.2d 270.

While the valuation process in particular cases may present difficulty, this court agrees with the view expressed in Cortright v. Resor, 325 F. Supp. 797, 808-811 (E.D.N.Y.1971), revs'd. on other grounds, 447 F.2d 245, cert. den., 405 U.S. 965, 92 S.Ct. 1172, 31 L.Ed.2d 240 that fundamental constitutional rights, of which freedom of speech is one, are "almost by definition, worth more than $10,000." See also Spock v. David, 469 F.2d 1047 (3d Cir., 1972); Jenness v. Forbes, 351 F.Supp. 88 (D.R.I., 1972); Fifth Avenue Peace Parade Comm. v. Hoover, 327 F.Supp. 238, 240-242 (S.D.N.Y.1971); Murray v. Vaughn, 300 F.Supp. 688, 694-696 (D. R.I.1969). The "almost" is critical, for it acknowledges that the valuation process cannot be scrapped altogether. However unsavory the "price tag" requirement of § 1331, see West End Neighborhood Corporation v. Stans, 312 F.Supp. 1066, 1067-1068 (D.D.C.1970), it is still the task of the district courts to consider the rights sought to be protected and determine whether, in the circumstances of the case, the value of their vindication exceeds $10,000. See Lynch v. Household Finance Corporation, supra.

In the case at bar, plaintiffs seek to protect their right to disseminate their views and information concerning discharge from military service. The issues involved are of widespread public concern. This is not a case involving only a very narrow aspect of speech, generally regarded as of limited value at best. See, e. g., Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). The speech for which plaintiffs seek protection here has traditionally been regarded as fundamental, "the indispensible condition of nearly every other form of freedom." Palko v. Connecticut, 302 U.S. 319, 327, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937). In these circumstances, this court finds that "the allegation of jurisdiction based upon § 1331 ought not be subject to denial." Cortright v. Resor, supra.

III. Mandamus.

Plaintiffs ask this court to compel "an officer . . . of the United States . . . to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. Whereas mandamus jurisdiction will not lie to determine the course of exercise of discretion, where such exercise violates constitutionally protected rights, the courts may intervene. Mead v. Parker, 464 F.2d 1108 (9th Cir., 1972); Cortright v. Resor, 447 F.2d 245, 250-251 (2d Cir. 1971); Kauffman v. Secretary, 135 U.S.App.D.C. 1, 415 F.2d 991, 994-995 (1969); Smith v. McNamara, 395 F.2d 896, 899 (10th Cir. 1968); Ashe v. McNamara, 355 F.2d 277, 282 (1st Cir. 1965). See also discussion in Marquez v. Hardin, Opinion and Order of September 5, 1969 (N.D. Cal.1969). "It should, then, be the approach of this court to examine the actions of the defendants to determine whether they transgressed plaintiff's rights under the Constitution. If they did so, then mandamus will issue as to them." Murray v. Vaughn, supra, 300 F.Supp. at 697. Since this court's jurisdiction is properly predicated upon 28...