Kimball v. Commandant Twelfth Naval District
Decision Date | 25 February 1970 |
Docket Number | No. 24977.,24977. |
Citation | 423 F.2d 88 |
Parties | Grant P. KIMBALL, Plaintiff-Appellant, v. COMMANDANT TWELFTH NAVAL DISTRICT, San Francisco, California, Does I Through XX, Inclusive, Defendants-Appellees. |
Court | U.S. Court of Appeals — Ninth Circuit |
R. Jay Engel (argued), Anne F. Cumings (argued), San Francisco, Cal., for plaintiff-appellant.
Jerry K. Cimmet (argued), Asst. U. S. Atty., James L. Browning, U. S. Atty., San Francisco, Cal., for defendants-appellees.
Before BARNES, MERRILL and CARTER, Circuit Judges.
Appellant sought a temporary restraining order and further injunctive relief barring his removal from the Northern District of California pending action by the Navy on his request for in-service conscientious objector classification (I-AO). Initially the case was heard as an ex parte matter on October 16, 1969, but after a brief recess an assistant United States attorney appeared for the appellee and the cause was fully argued by both sides. (R.T. 5-27) The district judge denied all relief with the following statement: "Ordered after hearing argument by respective counsel the motion for temporary restrianing (sic) order, Denied." (C.T. 9A)
This appeal was filed under 28 U.S.C. § 1291. We hold for reasons that we discuss, post, that the denial of injunctive relief was a "final decision" within the purview of section 1291, and we affirm the judgment of the district court.
In the interests of avoiding uneconomical piecemeal appellate review, it has generally been held that appeal does not lie from the denial of an application for a temporary restraining order. (See e. g., Chandler v. Garrison, 394 F.2d 828 (5th Cir. 1967).) Nevertheless, under certain circumstances the denial of temporary or preliminary relief may decide the merits of a case. In such a situation nothing is gained by requiring an appellant to go through the motions of re-applying for permanent injunctive relief in the trial court. We think that this is such a case.
Commentators have noted the difficulty that courts have had in characterizing what are final and non-final orders. In general a practical rather than technical construction has been favored.
The Gillespie Court found the prime considerations in determining whether a final order had been entered were the following:
"In deciding the question of finality the most important competing considerations are `the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.\'" Gillespie v. U. S. Steel Corp., supra at 152, 153, 85 S.Ct. at 311.
We have read the record of the proceedings in the court below and we are convinced that the trial judge decided the merits of the case after hearing thorough argument by both sides. Appellant's orders overseas were originally stayed pending this appeal, but on December 18, 1969, a panel of this court terminated the stay.
We think there is no useful purpose to be served by remanding the case for another hearing on essentially the same issues, which would be before the court again, if permanent rather than temporary relief were to be sought. In short, we think denial of all relief was implicit in the trial judge's denial of a temporary restraining order. Therefore, we hold that the lower court's action was appealable, and that this court has jurisdiction to hear this appeal.
The essence of appellant's argument is that he will be denied his right to "administrative due process" if he is required to go to Vietnam, as he was ordered on October 7, 1969, pending determination of his application for conscientious objector status, which was filed on September 28, 1969. We can find no case authority or defense or Naval Regulation that supports this novel proposition.
Appellant cites the cases of United States ex rel. Brooks v. Clifford, 409 F. 2d 700 (4th Cir. 1969), Smith v. Resor, 406 F.2d 141 (2d Cir. 1969) and Brown v. McNamara, 387 F.2d 150 (3rd Cir. 1967) as holding that "the United States cannot make administrative due process conditional, nor can they grant all or part of it in a discretionary manner." (App. Br. 8)
While these cases did deal with administrative due process, their specific holding is best exemplified by the following quotation from United States ex rel....
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Glazier v. Hackel, 26106.
...dealing with conscientious objectors. United States ex rel. Donham v. Resor, 436 F.2d 751 (2d Cir. Jan. 6, 1971); Kimball v. Commandant, 423 F.2d 88, 90 (9th Cir. 1970); United States ex rel. Tobias v. Laird, 413 F.2d 936 (4th Cir. 1969); United States ex rel. Brooks v. Clifford, 409 F.2d 7......
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Cohen v. Laird, Civ. A. No. 69-1085.
...of Kallmann (D.C.Hawaii 1969) 307 F.Supp. 412 supports the grant of such restraining order but see Kimball v. Commandant Twelfth Naval District (9th Cir. 1970) 423 F.2d 88, 90, to the 3 See United States v. Corliss (2d Cir. 1960) 280 F.2d 808, 815, cert. den. 364 U.S. 884, 81 S.Ct. 167, 5 L......
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...neatly. Here, again, we note that the District Court had protected Parisi against exposure to violence. Cf. Kimball v. Commandant, 12th Naval Dist., 423 F.2d 88 (9th Cir. 1970). 13 The All Writs Act, 28 U.S.C. § 1651 (a), has been held to permit a military court to issue all "writs necessar......