Glines v. Wade, 76-1412

• Decision Date: 05 October 1978
• Docket Number: No. 76-1412,76-1412
• Citation: 586 F.2d 675
• Parties: Albert Edward GLINES, Appellee, v. James L. WADE, Commander 349th Material Airlift Wing, Major General Gonge, Commander 22nd Air Force, John L. McLucas, Secretary of the Air Force, James Schlesinger, Secretary of Defense, Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 675

586 F.2d 675

Albert Edward GLINES, Appellee, v. James L. WADE, Commander 349th Material Airlift Wing, Major General Gonge, Commander 22nd Air Force, John L McLucas, Secretary of the Air Force James Schlesinger, Secretary of Defense, Appellants.

No. 76-1412.

United States Court of Appeals Ninth Circuit.

Oct. 5, 1978.

As Amended Nov. 22, 1978.

John F. Cordes (argued), of Dept. of Justice, Washington, D.C., for appellants.

Melvin K. Dayley, Oakland, Cal., David M. Cobin (argued), St. Paul, Minn., for appellee.

Appeal from the United States District Court for the Northern District of California.

Before GOODWIN and HUG, Circuit Judges, and PALMIERI ^*, District Judge.

GOODWIN, Circuit Judge:

The government appeals a judgment ordering reinstatement in the Air Force, back pay, and declaratory relief which struck down as unconstitutional certain Air Force regulations.

We affirm the nonmonetary parts of the judgment but vacate that portion awarding back pay as beyond the jurisdiction of the district court to grant.

Albert Glines was a Captain in the Air Force Reserves. While on active duty, he took training as a navigator instructor. Air Force standards describing maximum hair length offended him. To show his opposition, he drafted essentially identical petitions to several members of Congress and to the Secretary of Defense. ¹ He intended to seek signatures to the petitions at his home station, Travis Air Force Base. Captain Glines learned, however, that Air Force Regulation 30-1(9) prohibits "the public solicitation or collection of signatures on a petition by any person within an Air Force facility * * * unless first authorized by the commander" and that AFR 35-15(3)(a)(1) prohibits the distribution of "any printed or written material * * * within any Air Force installation without permission of the Commander or his designee." ² Because of these regulations, Captain Glines first circulated the petitions off base. Later he decided to ignore the regulations and to circulate the petitions on base. He also shaved his head.

The record does not show whether Captain Glines actually circulated the petitions on the Travis reservation. In April 1974, during a stopover at Guam, he gave copies of the petitions to a Sergeant Wolf. Sergeant Wolf gained eight signatures on Guam before base authorities learned of his activities, stopped them, and helped the signatories learn "the error of their ways". The Air Force immediately removed Captain Glines from active duty and soon afterwards reassigned him to the standby reserves. As a "standby" he was unable to complete his navigator instructor training and lost other benefits.

Captain Glines brought this action alleging that the regulation of petitions violated 10 U.S.C. § 1034 and the First Amendment. He sought reinstatement and back pay. The district court declared the regulations void for statutory and constitutional infirmities, ordered Captain Glines reinstated in the active reserve, and awarded him more than $22,000 in back pay. Glines v. Wade, 401 F.Supp. 127 (N.D.Cal.1975). The government appeal challenges the judgment on a number of grounds.

I. Exhaustion of Administrative Remedies

The government first argues that the district court should have required Captain Glines to seek relief from the Air Force Board for the Correction of Military Records (AFBCMR) before bringing this action. This point is not well taken.

Captain Glines' claim depends on constitutional and statutory interpretations which are beyond the scope of the jurisdiction of the AFBCMR. While the government treats the case as simply a claim for reinstatement and back pay, Captain Glines also sought and received a declaratory judgment invalidating the challenged regulations. Without this judgment he would remain subject to the regulations after his reinstatement. "Resolving a claim founded solely upon a constitutional right is singularly suited to a judicial forum and clearly inappropriate to an administrative board." Downen v. Warner, 481 F.2d 642, 643 (9th Cir. 1973).

The AFBCMR was never intended by Congress to resolve the essentially legal issues involved in this case. Like other BCMRs, it is a clemency-oriented body, with authority to "correct an error or remove an injustice," 10 U.S.C. § 1552(a), not to declare the law. The Board simply substitutes for private congressional bills its remedy for individual grievances. Congress stopped accepting such private bills when it authorized the BCMRs. 2 U.S.C. § 190g. BCMRs are not necessarily legally trained. They get their legal advice from the Judge Advocate General's office. See, e. g., Flute v. United States, 535 F.2d 624, 627-28, 210 Ct.Cl. 34 (1976). The AFBCMR has no authority to declare the challenged regulations invalid. Even if it gave Captain Glines all the redress within its power, it would not be able to protect him from further attempts by the Air Force to enforce its regulations. Only a court can do so. ³

We recently held that a district court may require exhaustion to a BCMR, in its discretion, after balancing the relevant factors. Montgomery v. Rumsfeld, 572 F.2d 250, 252-54 (9th Cir. 1978). The district court, of course, did not have the opportunity to do the balancing we suggested in Montgomery. However, the district court did not in this case require exhaustion, and, for the reasons indicated, we agree with the district court. ⁴

II. Statutory Claim

10 U.S.C. § 1034 prohibits restrictions on communications between members of the military and members of Congress unless the communication is unlawful or the restrictions are necessary to the national security. ⁵ In Allen v. Monger, 583 F.2d 438 (9th Cir. 1978), we struck down under § 1034 Naval regulations requiring prior approval for the circulation of petitions on a ship at port in the United States. We held that the Navy's system of prior restraints was not necessary to the national security in the factual situation described in the Allen case.

The District of Columbia Circuit has upheld similar restrictions when applied to an actual combat zone. Carlson v. Schlesinger, 167 U.S.App.D.C. 325, 511 F.2d 1327 (1975). On the other hand, the same court has struck down regulations inconsistent with § 1034 when they were applied to a combat-ready base in Japan. Huff v. Secretary of the Navy, 188 U.S.App.D.C. 26, 575 F.2d 907 (1978). The base commander filed an affidavit emphasizing the combat-ready nature of the base, but the majority found his argument unpersuasive.

The record now before us does not indicate the precise nature of the base on Guam where Captain Glines handed Sergeant Wolf the petitions. The government has not shown that Guam was more sensitive or that petitioning on that base was inherently more disruptive than was true of the base involved in Huff. While prior restraints on petitioning may promote some military objectives, the government has not shown that such restraints are actually necessary to the national security outside of a combat zone.

Despite proper deference to the military's ability to judge the impact of unauthorized petitioning on discipline, we do not believe the government has shown that the bad effects of petitioning would endanger the national security in these circumstances. ⁶ This is a determination we must make independently, for Congress in adopting § 1034 has consciously restricted military command discretion on this point.

Only if we determine that the petitions are a threat to national security can we uphold the military restriction. "(W)e do not think that the national security can be said to require that the objective of military discipline be pursued to the exclusion of all other interests. If this were the case, then § 1034 would be a nullity, for restrictions on petitioning activity, as on other types of speech, can always be said to decrease the possibility of lapses of military discipline." Huff v. Secretary of the Navy, 188 U.S.App.D.C. at 33, 575 F.2d at 914. Congress adopted § 1034 because it preferred free communication with military personnel to absolute discipline in the military; AFR 30-1(9) and 35-15(3)(a) improperly ignore the Congressional policy. ⁷

III. Constitutional Claims

Read literally, § 1034 protects only the four petitions addressed to members of Congress. One petition, which was essentially identical to the others, was addressed to the Secretary of Defense. This petition requires us to decide whether the First Amendment also protects Glines' activities.

It is clear that these regulations would be unconstitutional on their face if they applied to the public at large. Prior restraints on speech face a heavy burden of justification, which they are seldom able to meet. New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). First Amendment rights do not expire upon enlistment in a military arm, although the needs of the service may modify the extent of the application of these rights. "Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected." Parker v. Levy, 417 U.S. 733, 758-59, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), quoting, at 759, 94 S.Ct. at 2563, United States v. Gray, 20 U.S.C.M.A. 63 (1970). The issue in Parker v. Levy was whether various Articles of the Uniform Code of Military Justice were too vague to support a conviction for statements urging enlisted men to disobey orders. The Supreme Court held that they were not. There was no prior restraint involved.

The First Amendment protects this country's basic commitment to open and vigorous debate. We have assumed as a nation that free discussion will be likely to lead to the right decisions, that, as Justice Brandeis said, when falsehoods and fallacies abound, "the remedy to be applied is more speech, not enforced silence." Whitney v....