# Private Frank L. Huff v. Secretary of the Navy

> Court of Appeals for the D.C. Circuit · May 15, 1978 · 575 F.2d 907

URL: https://www.frixlaw.com/law-library/cases/9464790

## Case

- **Full name:** Private Frank L. HUFF Et Al. v. SECRETARY OF the NAVY Et Al., Appellants
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** May 15, 1978
- **Citations:** 575 F.2d 907; 188 U.S. App. D.C. 26
- **Precedential status:** Published
- **Opinion:** Concurring in part by Tamm
- **Judges:** McGowan, Tamm, Robinson
- **Cited by:** 9 later opinions in the Frix Law Library

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## Opinion text

TAMM, Circuit Judge,
concurring in part and dissenting in part:
I concur in Judge McGowan’s well-written and very careful opinion insofar as it vacates the portion of the district court’s judgment that extends to materials unrelated to the petitioning process. However, because I am unable to agree with the conclusions and result he reaches concerning multi-signature petitions addressed to Congress by members of the armed forces, I must respectfully dissent from that part of his opinion.
I
By exercising an appropriate degree of judicial restraint, Judge McGowan has written a very narrow opinion based solely on statutory grounds. The result he reaches follows from two conclusions: first, that a petition, signed by more than one individual, addressed to a senator or representative by a member of the armed forces, is a protected communication under 10 U.S.C. § 1034 (1970); and second, assuming such a petition is protected, that regulations requiring prior approval of the petition by appropriate military authority are not necessary to the security of the United States. I disagree with both of these conclusions. Prior to commenting on them, however, a few preliminary remarks are in order.
We must not lose sight of the fact that this case arises from events that occurred in a purely military environment. Both the Congress and the Supreme Court have long recognized that “the military is, by necessity, a specialized society separate from civilian society.” Parker v. Levy, 417 U.S. 733, 743 , 94 S.Ct. 2547, 2555 , 41 L.Ed.2d 439 (1974); see Orloff v. Willoughby, 345 U.S. 83, 94 , 73 S.Ct. 534 , 97 L.Ed. 842 (1953). For example, the Congress has made it a felony to urge or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the armed forces. See 18 U.S.C. §§ 2387-2388 (1970). Similarly, the Court has often indicated its awareness of the military's need for “a respect for duty and a discipline without counterpart in civilian life.” Schlesinger v. Councilman, 420 U.S. 738, 757 , 95 S.Ct. 1300, 1330 , 43 L.Ed.2d 591 (1975); see Greer v. Spock, 424 U.S. 828, 848 , 96 S.Ct. 1211 , 47 L.Ed.2d 505 (1976) (Powell, J., concurring); Burns v. Wilson, 346 U.S. 137, 140 , 73 S.Ct. 1045 , 97 L.Ed. 1508 (1953) (plurality opinion). I mention these well-accepted propositions to illustrate my belief that legislative and judicial actions that seek to limit a military commander’s disciplinary prerogatives should be only as intrusive as is necessary to accomplish the effect desired.
II
Consistent with the foregoing premise, I believe that laws affecting military discipline should be interpreted as narrowly as possible, because an expansive reading of such statutes may circumscribe the authority of military commanders to an extent never intended by Congress. In my opinion, the court’s conclusion in this case that petitions are protected communications under 10 U.S.C. § 1034 clearly goes beyond what Congress intended when it passed that statute.
An objective reading of the legislative history demonstrates that the sole purpose in enacting 10 U.S.C. § 1034 was to ensure that an individual member of the military *917 could, at any time, write to his senators or representative without being required to have the communication proceed through command channels. The sponsor of the amendment, Congressman Byrnes of Wisconsin, introduced the measure because of an incident in which an individual sailor desired to communicate with Mr. Byrnes about a personal grievance and was “told by his commanding officer aboard ship that a direct communication with his Congressman was prohibited and it would make him subject to a court-martial.” 97 Cong.Rec. 3776 (1951). As the majority notes, in a somewhat offhand fashion, see Majority opinion, supra at-of-U.S.App.D.C., at 912 of 575 F.2d n.16, when Mr. Byrnes was asked whether “the purpose [of the amendment was] ‘to permit any man who is inducted to sit down and take a pencil and paper and write to his Congressman or Senator’,” he replied, “That is right.” 97 Cong. Rec. 3776 (emphasis added). Later, the chairman of the committee responsible for the legislation, Mr. Vinson of Georgia, reiterated that the amendment was intended “to let every man in the armed services have the privilege of writing his Congressman or Senator on any subject if it does not violate the law or if it does not deal with some secret matter.” Id. at 3877 (emphasis added). If one construes the statute strictly, therefore, as it most certainly ought to be construed, it is apparent that individual communications with senators or representatives were indeed intended to be “the outer limit of the communication which Congress sought to protect in passing this legislation.” See Majority opinion, supra at - of 188 U.S.App.D.C., at 912 of 575 F.2d; Carlson v. Schlesinger, 167 U.S.App. D.C. 325, 511 F.2d 1327, 1333 (1975). 1
The soundness of this conclusion is even more apparent when one considers a directly analogous statute, enacted almost forty years before 10 U.S.C. § 1034 , which illustrates that Congress had no difficulty in employing unequivocal language when it did intend that multi-signature petitions be included within the protective ambit of a statute. Entitled “Right to petition Congress; employees,” 5 U.S.C. § 7102 (1976) states (emphasis added): “The right of [civil service] employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.” Section 1034, on the other hand, makes no mention of the key words “petition” or “collectively,” and I hardly think that we should read into that statute something Congress clearly did not intend to be included.
The wisdom of Congress in not extending the protection afforded to petitions by civil service employees to petitions by members of the military is evident. The overt acts required to generate a petition, while only mildly disruptive to the tasks performed by civil service' employees if done during off-duty hours, could be very harmful to military discipline and morale. In this case, appellees desired to canvass virtually every off-duty area of the base — including barracks, the base exchange, and the enlisted men’s club 2 — in an effort to gain support for their petitions. I find it difficult to believe that Congress intended the narrow language of 10 U.S.C. § 1034 to afford blanket protection to these activities, since such protection necessarily strips the local commander of even the very limited right of prior review sought by the regulations under scrutiny here.
Ill
Even assuming arguendo that multi-signature petitions are covered by 10 U.S.C. § 1034 , I disagree with the conclusion that the regulations that provide for a system of *918 prior review of petitioning activities on the Iwakuni Air Station are not “necessary to the security of the United States.” The linchpin of the majority’s argument in favor of this conclusion is that the Iwakuni Air Station is “not in an actual and current combat zone,” 3 as was the case in Carlson v. Schlesinger. It also appears that the majority would have been more sympathetic to the regulations had they been applied at a “basic training camp,” as in Greer v. Spock. 4 I find these distinctions to be untenable.
Our first President, who was intimately familiar with the horrors of armed conflict, once remarked that the most effective means of securing peace is to be prepared for war. This same theme was echoed by the Supreme Court in United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 , 76 S.Ct. 1, 5 , 100 L.Ed. 8 (1955) (emphasis added): “[I]t is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.” The Congress, too, has recognized the inseparability of the military’s responsibility both to wage and to be prepared to wage wars, by imposing similar sanctions on those who attempt to cause insubordination by members of the military whether during peacetime or during war. Compare 18 U.S.C. § 2387 (1970) with id. § 2388.
An affidavit submitted in the district court by a former commanding general at Iwakuni 5 indicates that the regulations under scrutiny in this case were promulgated with one goal in mind: to assist the local commander in accomplishing his assigned mission of having his command prepared to react immediately or on very short notice, a mission we have previously denominated as “a strong national interest.” Hess v. Schlesinger, 159 U.S.App.D.C. 51 , 486 F.2d 1311, 1312 (1973). I quote at length from this affidavit to illustrate how little difference there is between being stationed at Tan Son Nhut Air Base in Vietnam in 1971, as in Carlson , and being stationed at Iwaku-ni Air Station in Japan, either today, or in 1974 when the relevant actions commenced:
The First Marine Aircraft Wing, its personnel and equipment, is constantly maintained in a high degree of readiness for possible combat deployment on extremely short notice. For example, in early 1972, units of the First Marine Aircraft Wing stationed at Iwakuni, deployed to combat bases in Vietnam and Thailand within 24 hours of receiving notice. Later, during the spring of 1975, elements of the First Marine Aircraft Wing were rapidly deployed to assist in the evacuation of Phnom Penh and Saigon. At any time, the Wing may again be called upon to deploy under similar circumstances on a moment’s notice. In this eventuality, the highest degree of loyalty, discipline, and morale will be necessary for the successful completion of the mission.
Personnel who are constantly prepared for deployment into combat or a crisis situation must at all times have the same strict discipline and high morale as would troops in actual combat situations. A well-trained and disciplined Marine, when considering the mission of the supporting units, must be prepared for instantaneous *919 deployment for such contingency operations, ranging from protection/evacuation to combat operations. The highest standards of mental, physical, moral discipline, and morale of all members of the Command are central to combat readiness and effectiveness. . . . These traits must be inherent in each Marine before he goes into combat and not a learning process reserved for the actual battlefield. Individual or collective efforts by those who would attempt, consciously or otherwise, to undermine good order, discipline, loyalty, and morale, cannot be tolerated. Therefore, the regulations under challenge in this lawsuit, which afford a Commander the ability and authorization to screen such printed material prior to its distribution, are in keeping with the requirement for the safety and well-being of his troops. 6
These comments, and those previously cited sentiments of support from all three branches of government, convince me that those regulations establishing a system of prior review of petitioning activities at Iwa-kuni most certainly are “necessary to the security of the United States.” Only the local commander has the ability and expertise necessary to assess the effect of such activities on the combat readiness of his command, see Schneider v. Laird, 453 F.2d 345, 347 (9th Cir. 1972) (per curiam); Yahr v. Resor, 431 F.2d 690, 691 (4th Cir. 1970) (per curiam), and thus a limited right of prior review should be left to him. I stress the word “limited,” for, as noted by the majority, the Government has conceded that the military authorities acted improperly in denying the requests in issue here. Thus, in future cases, only those very few petitioning activities that are beyond this rather high threshold would be subject to circumscription. 7 Rather than totally usurping the local commander’s authority in this regard, as the majority opinion has done, 8 I would prefer to repose confidence in the commander to review petitions in a reasonable and fair manner; this proposition is simply a corollary to that which expresses confidence in him to do his part in securing our Nation.
IV
In summary, I would hold that multi-sig-nature petitions are not protected communications under 10 U.S.C. § 1034 , and, alternatively, that the regulations in issue here are proper because they are necessary to the security of the United States. In so holding, we would properly honor “the sound *920 and established principle that it is not the business of the courts to run the military.” Vander-Molen v. Stetson, 187 U.S.App.D.C. 183, 195 , 571 F.2d 617, 629 (1977) (Robb, J., dissenting). I respectfully dissent.
. This construction of 10 U.S.C. § 1034 is entirely consistent with DOD Directive No. 1325.6 § III G (1969), Joint Appendix (J.A.) at 65-69.
A petition can be signed either by one person or by many persons. The wording of the directive (emphasis added) — “a member may pe-
tition or present any grievance to any member of Congress . . —indicates that “petition” is being used in the singular sense in that document.
. J.A. at 4; Record entry 17, at 5.
. Majority opinion at - of 188 U.S.App. D.C., at 914 of 575 F.2d; see Memorandum opinion of May 21, 1976, J.A. at 83.
. Majority opinion at - of 188 U.S.App. D.C., at 915 of 575 F.2d n.21.
. J.A. at 70-74. The district judge’s characterization of this document as a “post hoc” rationalization, J.A. at 83 n.12, is very puzzling and somewhat troubling. At the time of the affidavit, the affiant had been in the Marine Corps for 35 years, had commanded Iwakuni Air Station for over a year just two years before, and was serving as Chief of Staff of the Marine Corps. It is hard to imagine anyone more qualified to set forth matters of significant value to the trier of fact, and yet it is obvious that the affidavit was accorded little, if any, weight by the judge below. The case cited in support of this approach, Hess v. Schlesinger, 159 U.S.App.D.C. 51 , 486 F.2d 1311 (1973), is hardly apposite. Indeed, the affidavits in Hess were found to be insufficient to support a summary judgment precisely because military lawyers rather than military commanders were making judgments concerning the efficiency of units at Iwakuni in certain deployment scenarios. That deficiency is not present in the instant case.
. J.A. at 73-74.
. I believe that DOD Directive No. 1325.6, supra note 1, and regulations promulgated thereunder, J.A. at 51, 54, 58 & 61-62, furnish the proper standard to be employed by the local commander:
It is the mission of the Department of Defense to safeguard the security of the United States. The service member’s right of expression should be preserved to the maximum extent possible, consistent with good order and discipline and the national security. On the other hand, no Commander should be indifferent to conduct which, if allowed to proceed unchecked, would destroy the effectiveness of his unit. The proper balancing of these interests will depend largely upon the calm and prudent judgment of the responsible Commander.
J.A. at 65 (emphasis added). See also id. at 52; Majority opinion at---of 188 U.S.App.D.C., at 913-914 of 575 F.2d & n.18.
The presumption against prohibition of petitioning activities in made even stronger by provisions of the implementing regulations that
require a commander who prohibits such activities to report this fact immediately to his superior officers. See J.A. at 60, 63. See also id: at 64. Since any of these superiors has the authority to reverse the commander’s prohibition decision, there thus exists a further safeguard against arbitrary application of the regulations. See Greer v. Spock, 424 U.S. 828 , 831-32 n.2, 840, 96 S.Ct. 1211 , 47 L.Ed.2d 505 (1976).
. The suggestion by the majority that post hoc legal action leaves the commander with a means to deter petitioning activities that are unlawful or otherwise inconsistent with the military mission is unpersuasive. Majority opinion at-, -,---of 188 U.S.App.D.C., at 912, 914, 915 of 575 F.2d. If a petitioning activity is indeed punishable, the harm to the unit’s mission will have been done before legal proceedings can be instituted, and long before the proceedings are completed. Given the quick-reaction nature of the Iwakuni mission, a legal recourse alternative is of little practical value to the commander.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9464790. Public record. Not legal advice.