Khalsa v. Weinberger, 84-5880

• Citation: 779 F.2d 1393
• Decision Date: 03 January 1986
• Docket Number: No. 84-5880,84-5880
• Parties: Guru Sant Singh KHALSA, Plaintiff-Appellant, v. Caspar WEINBERGER, Secretary of Defense; John O. Marsh, Jr., Secretary of the Army; in their official capacities, and United States of America, Defendants- Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1393

779 F.2d 1393

Guru Sant Singh KHALSA, Plaintiff-Appellant, v. Caspar WEINBERGER, Secretary of Defense; John O. Marsh Jr., Secretary of the Army; in their official capacities, and United States of America, Defendants- Appellees.

No. 84-5880.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 6, 1985.

Decided May 7, 1985.

As Amended Jan. 3, 1986.

Marvin E. Krakow, Los Angeles, Cal., for plaintiff-appellant.

Thomas R. Folk, Dept. of Army, Washington, D.C., Dzintra Janavs, Los Angeles, Cal., for defendants-appellees.

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

Before BOOCHEVER and BEEZER, Circuit Judges, and CARROLL, ^* District Judge.

ORDER

The Opinion and concurrence in the above matter, published at 759 F.2d 1411 (1985), are being amended in accordance with the attached Amended Opinion and partial concurrence and dissent.

AMENDED OPINION

BEEZER, Circuit Judge:

Appellant, a member of the Sikh religion, sued the Army for refusing to process his enlistment application because he could not comply with Army appearance regulations. The district court dismissed the suit on the ground that such regulations are not subject to judicial review. Appellant contends that the regulations are reviewable, that they were amended in violation of the Administrative Procedure Act, and that they violated his First and Fifth Amendment rights. We affirm.

I FACTS

Practicing Sikhs must wear unshorn head and facial hair and iron bracelets, and are strongly encouraged to wear turbans. Army Regulation 670-1 requires soldiers to In the late 1970's, the Army received requests from other groups for similar exemptions. It reviewed the problem and concluded that allowing exemptions for numerous groups would adversely affect the Army's discipline, morale, esprit de corps, and public image. The Army also evaluated the impact of beards and long hair on the effectiveness of gas masks, and concluded that they impair the ability of U.S. troops to survive chemical attacks by aggressor forces. The Army therefore amended its appearance regulations in 1981 to eliminate the blanket exemption for Sikhs. It apparently retained procedures for granting individual exemptions based on case by case evaluations of need. Neither the original appearance regulations nor the amendments were published in the Federal Register. The amendments did not apply to the approximately 15 Sikhs then on active duty.

cut their hair, shave, and wear only specified types of jewelry and headgear. From 1958 to 1974, the Army exempted conscripted Sikhs from these regulations. In 1974, the Army expanded the exemption to cover enlisted Sikhs.

In November 1982, appellant Guru Sant Singh Khalsa, a Sikh, attempted to enlist. The Army refused to process his application. Appellant then met with Colonel Hunt, an attorney with the Army Recruiting Command. Appellant informed Hunt that although he still wanted to enlist, he could not obey the Army's appearance regulations. Hunt replied that Khalsa could not enlist because he would be unable to take the statutory enlistment oath promising to obey orders. See 10 U.S.C. Sec. 502. Appellant's request for an individual exemption was denied.

Appellant sued the Army, alleging violations of the Administrative Procedure Act and his First and Fifth Amendment rights. The Army moved to dismiss or, in the alternative, for summary judgment. Appellant responded in part by requesting more time to complete discovery. The district judge dismissed the case for lack of subject matter jurisdiction after concluding that the Army's appearance regulations are not subject to judicial review. Khalsa appeals.

II ANALYSIS

A. REVIEWABILITY OF CLAIMS

Appellant contends that the district court applied the wrong legal standard in determining reviewability, that it erred in defining and weighing the various factors that determine such reviewability, and that it improperly decided the issue without allowing appellant adequate time to complete discovery.

In concluding that the Army's appearance regulations are not subject to judicial review, the district court erroneously dismissed the case for lack of subject matter jurisdiction. Rather, the doctrine of limited reviewability of certain military regulations and decisions is a matter of justiciability, analogous to the political questions doctrine. Although subject matter jurisdiction may indeed exist, the claim may prove unsuitable for review by a court acting in its traditional judicial role. ¹ The However we conclude that, in this particular case, the district court's error was harmless. The district court's construction of the doctrine of limited reviewability of military matters as a doctrine of subject matter jurisdiction was understandable in light of decisions of this court using the word "jurisdiction" loosely to refer to reviewability of a claim involving a military decision. ² More importantly, the district court applied the proper analytical test for determining whether the military regulation challenged in this case was subject to judicial review. The court's characterization of this test as a matter of subject matter jurisdiction, rather than a prudential doctrine of justiciability, did not prevent it from reaching the appropriate result. We may affirm the district court on any basis fairly supported by the record. City of Las Vegas v. Clark County, 755 F.2d 697, 701 (9th Cir.1985).

distinction between dismissal on the grounds that the federal courts lack subject matter jurisdiction and a decision that the plaintiff has not stated a claim to relief because of a prudential judgment that the military's decision should not be reviewed in a judicial forum is an important one.

This court reviews de novo a dismissal for failure to state a claim upon which relief can be granted. Unt v. Aerospace Corp., 765 F.2d 1440, 1447 (9th Cir.1985).

1. Applicable Test for Reviewability

Appellant contends that the district court applied the wrong legal test in deciding the reviewability of his claims. Since the Supreme Court has not spoken on this issue, the court applied the test first established in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971). The Mindes test has been adopted by seven other federal circuits, including ours. Note, Judicial Review of Constitutional Claims Against the Military, 84 Col.L.Rev. 387, 397, 402 (1984) (noting that eight circuits have adopted the Mindes test, and that the Third and District of Columbia Circuits have not followed it); Wallace v. Chappell, 661 F.2d 729 (9th Cir.1982), rev'd on other grounds, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (expressly adopting the Mindes test); Gonzalez v. Department of the Army, 718 F.2d 926, 929-30 (9th Cir.1983) (applying Mindes test). Appellant claims that the Mindes test is not applicable to this case for several reasons.

a. Internal Decisions

First, appellant claims that the Mindes test only determines the reviewability of "internal " military decisions, and that the Army appearance regulations are not "internal" in scope because they effectively prevent certain civilians from enlisting. We need not decide whether the supposed dichotomy between "internal" and "non-internal" regulations controls the choice of test. Even if it does, Army appearance regulations are "internal" for two reasons.

First, all three cases from Mindes circuits deciding the reviewability of enlistment regulations have applied the Mindes test to find such regulations nonreviewable. See Lindenau v. Alexander, 663 F.2d 68 (10th Cir.1981); West v. Brown, 558 F.2d 757 (5th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 520 (1978); Henson v. Alexander, 478 F.Supp. 1055 (W.D.Ark.1979). If, as in the three cited decisions, regulations expressly and directly prohibiting the enlistment of certain Second, if regulations governing soldiers' appearance are not "internal," then no Army regulations are "internal." Almost any regulation may cause a particularly sensitive civilian to decide that he or she could not take the statutory enlistment oath to follow all orders.

classes of civilians are "internal" for Mindes purposes, regulations that affect civilians only by indirectly preventing them from enlisting cannot be considered less "internal" for that purpose.

We hold that Army appearance regulations are "internal."

b. Conflict with Recent Cases

Second, appellant asserts that Rostker v. Goldberg, 453 U.S. 57, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981), and Callahan v. Woods, 736 F.2d 1269 (9th Cir.1984), require a judicial determination that the military properly exercised its discretion in making the regulations. According to appellant, the proper exercise of discretion involves giving reasoned consideration to the need for such regulations and the possibility of making exceptions, and considering alternative methods of serving legitimate state interests in a way that minimizes the burden on the free exercise of religion. It is unclear how these requirements would fit into the Mindes framework. ³

Rostker upheld a federal statute that forced men but not women to register for possible conscription. Since Rostker involved a congressional statute rather than a military action, regulation or decision, the power of the federal courts to review the challenged rule was not even addressed by the Court. See Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803). Moreover, Rostker was decided before the Ninth Circuit adopted the Mindes test in Wallace v. Chappell, and neither that case nor more recent authorities have referred to Rostker as altering or adding to the Mindes test. See, e.g., Gonzalez v. Department of the Army, supra; Note, Judicial Review of Constitutional Claims Against the Military, 84 Colum.L.Rev. 387 (1984).

Similarly, Callahan was an appeal from a summary judgment upholding a non-military regulation requiring the use of social security numbers to receive public...