Petition — Brown v. Glines

PAGE -1

MAR 16

.

No.

8-1006 eid

DEC 20 1978

5

i

—

MICHAEL RODAK, JR., CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

HAROLD R. BROWN, SECRETARY OF DEFENSE, ET AL.,

PETITIONERS

Vv.

ALBERT EDWARD CLINES

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

WADE H. McCREE, JR.

Solicitor General

Department of Justice

Washington, D.C. 20530

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No.

HAROLD R. BROWN, SECRETARY OF DEFENSE, ET AL.,

PETITIONERS

v.

ALBERT EDWARD GLINES

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

The Solicitor General, on behalf of the Secretary of

Defense and the other federal defendants,’ petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit

in this case.

1 The other defendants are the Secretary of the Air Force -

and two Air Force officers responsible for implementing the

challenged regulations at the time of respondent’s military

service. ,

(1)

2

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-16a) is not yet reported. The opinion of the district

court (App. B, infra, 17a-27a) is reported at 401 F.

Supp. 127.

JURISDICTION

The judgment of the court of appeals was entered

on October 5, 1978. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether Air Force regulations that require

military personnel to obtain approval before circulat-

ing petitions to members of Congress on Air Force

bases are invalid under 10 U.S.C. 1034.

2. Whether Air Force regulations that require

military personnel to obtain approval before circulat-

ing petitions on base violate the First Amendment.

CONSTITUTIONAL PROVISION, STATUTE

AND REGULATIONS INVOLVED

1. The First Amendment to the United States Con-

stitution provides in relevant part:

Congress shall make no law * * * abridging the

freedom of speech, or of the press; or the right

of the people peaceably to assemble, and to peti-

tion the Government for a redress of grievances.

2. 10 U.S.C. 1034 provides:

Ee

3

No person may restrict any member of an

armed force in communicating with a member of

Congress, unless the communication is unlawful

or violates a regulation necessary to the security

of the United States.

3. Air Force Regulation (AFR) 30-1(9) provides

in pertinent part:

Members of the Air Force, their dependents

and civilian employees have the right, in com-

mon with all other citizens, to petition the

President, the Congress or other public officials.

However, the ‘public solicitation or collection of

signatures on a petition by any person within

an Air Force facility or by a member when in

uniform or when in a foreign country is pro-

hibited unless first authorized by the com-

mander.

4, AFR 35-15(38) (a) provides:

(1) No member of the Air Force will dis-

tribute or post any printed or written material

other than publications of an official govern-

mental agency or base regulated activity within

any Air Force installation without permission of

the commander or his designee. A copy of the

material with a proposed plan or method of dis-

tribution or posting will be submitted when per-

mission is requested. Distribution of publica-

tions and other materials through the United

States mail or through official outlets, such as

military libraries and exchanges, may not be

prohibited under this regulation.

(2) When prior approval for distribution or

posting is required, the commander will deter-

a

mine if a clear danger to the loyalty, discipline,

or morale of members of the Armed Forces, or

material interference with the accomplishment

of a military mission, would result. If such a

determination is made, distribution or posting

will be prohibited and HQ USAF (SAFOI) will

be notified of the circumstances.

(3) Mere possession of materials unauthor-

ized for distribution or posting may not be pro-

hibited unless otherwise unlawful. However, such

material may be impounded if a member of the

Armed Forces distributes or posts or attempts to

distribute or post such material within the in-

stallation. Impounded materials will be returned

to the owner when departing the installation un-

less determined to be evidence of a crime.

(4) Distribution or posting may not be pro-

hibited solely on the ground that the material

is critical of Government policies or officials.

(5) In general, installation commanders

should encourage and promote the availability to

service personnel of books, periodicals, and other

media which present a wide range of viewpoints

on public issues.

STATEMENT

1. Air Force regulations provide that “the pub-

lic solicitation or collection of signatures on a peti-

tion by any person within an Air Force facility * * *

is prohibited unless first authorized by the com-

mander,” and that “[n]o member of the Air Force

will distribute or post any printed or written mate-

5

rial * * * without permission of the commander or

his designee * * *.” AFR 30-1(9), 35-15(3) (a)

(1). Distribution of such material is prohibited if

the commander determines that “a clear danger to

the loyalty, discipline, or morale of members of the

Armed Forces, or material interference with the

accomplishment of a military mission, would result.”

AFR 35-15(3) (a) (2). The regulations provide that

“Cd]istribution or posting may not be prohibited

solely on the ground that the material is critical of

Government policies or officials.” AFR 35-15(3) (a)

(4).

In 1974, while respondent was on active duty as a

captain in the Air Force Reserves, he drafted peti-

tions to the Secretary of Defense and to several mem-

bers of Congress opposing military hair length stand-

ards. Respondent was informed by his superiors at

Travis Air Force Base that the on-base circulation of

petitions was permitted only with the approval of the

base commander. Respondent then circulated the

petition off-base.

In April 1974, while respondent was at Anderson

Air Force Base in Guam, he gave the petitions to an

Air Force sergeant, who gathered eight signatures

on the petitions. Because of the unauthorized cir-

culation of the petitions, respondent was removed

from active duty status and was charged with fail-

ure to meet the professional standards of a reserve

officer. He declined to submit evidence on his behalf.

The charges were sustained, and respondent was re-

assigned from the active reserve to the standby re-

6

serve. Respondent then filed this action seeking re-

instatement and back pay, alleging that the prior

approval regulations violated 10 U.S.C. 1034 and the

First Amendment.

2. The district court granted respondent’s motion

for summary judgment. The Court held that the

regulations, “[o]n their face, * * * suffer from con-

siderable overbreadth” (App. B, infra, 24a), and

“impose[] a considerable burden upon the free exer-

cise of the First Amendment right of petition for

redress of grievances” (id. at 25a). Finding that “the

military need to control petitioning arises only in

extraordinary circumstances (such as in a combat

zone * * * or in an induction center * * *),” the

court concluded that the regulations violate the First

Amendment (id. at 26a). The court entered a judg-

ment declaring the prior approval requirement of

the regulations to be unconstitutional, enjoining the

Air Force from enforcing the regulations against

* The district court did not determine whether respondent

had exhausted his administrative remedy before the Air Force

Board for the Correction of Military Records. The court of

appeals held, however, that the Board was an inappropriate

forum for the resolution of “the essentially legal issues in-

volved in this case” because it is “a clemency-oriented body”

without authority to declare military regulations invalid

(App. A, infra, 5a). Although we believe that the decision

of the court of appeals on this issue was in error, see, e.9.,

Knehans v. Alexander, 566 F.2d 312 (D.C. Cir. 1977), cert.

denied, 435 U.S. 995 (1978); Seepe v. Department of the

Navy, 518 F.2d 760 (6th Cir. 1975); Horn v. Schiesinger,

514 F.2d 549 (8th Cir. 1975), we now waive the,exhaustion

requirement and do not raise it in this petition.

7

respondent, and ordering the respondent’s reinstate-

ment to active duty with $22,032.91 in back pay.

8. a. The court of appeals affirmed in part and

vacated and remanded in part. Relying on its deci-

sion in Allen v. Monger, 583 F.2d 438 (9th Cir. 1978),

and on Huff v. Secretary of the Navy, 575 F.2d 907

(D.C. Cir. 1978), petition for cert. pending, No. 78-

599, the court held that Section 1034 prohibits the

application of the prior approval requirement to the

distribution of petitions to members of Congress at

the Guam air force base (App. A, infra, 7a-9a).°

b. 10 U.S.C. 1034 concerns only petitions to mem-

bers of Congress, and one of respondent’s petitions

was addressed to the Secretary of Defense. The court

of appeals therefore reached the question whether the

prior approval requirement of the regulations is con-

stitutional (App. A, infra, 9a). The court stated

that the requirement is “obviously a prior restraint

on speech, and prior restraints have the heaviest

burden of justification under the First Amendment”

(id. at 1la). The court concluded that there is no

sufficient justification for the challenged regulations.

Although it recognized the special disciplinary

needs of the military, the court held that the mili-

tary interests could be satisfied through alternative

means, such as “[p]unishment after the fact for

genuinely disruptive petitions, limitation of circu-

lation to certain areas and to off-duty periods, and

8 We are filing a petition for a writ of certiorari in Allen

concurrently with this petition. We have furnished copies of

the petitions in Allen and Huff to counsel for respondent.

8

protection from pressure by superiors who are seek-

ing signatures” (id. at lla-12a). While the court

stated that the regulations may be constitutionally

valid in a combat-zone setting, the court concluded

that the regulations were wholly unconstitutional be-

cause of their overbroad application to protected ac-

tivity (id. at 13a).*

Despite holding the regulations unconstitutional,

the court of appeals observed that monetary claims

against the government for amounts in excess of

$10,000 are within the exclusive jurisdiction of the

Court of Claims and therefore vacated the award

of back pay (id. at 14a-16a). The court remanded

the case to the district court with instructions to dis-

miss the clain for back pay without prejudice or to

transfer it to the Court of Claims (id. at 16a).

REASONS FOR GRANTING THE PETITION

1. The cuestion of the validity of the challenged

regulation under 10 U.S.C. 1034, as applied to peti-

tions to members of Congress, is pending before this

Court in Secretary of the Navy v. Huff, petition for

cert. pending, No. 78-599, and Brown v. Allen, in

which a petition is being filed concurrently with the

present petition. We therefore believe that the dispo-

*The court of appeals distinguished Greer v. Spock, 424

U.S. 828 (1976), which upheld the constitutionality of prior

approval regulations at Fort Dix, on the ground that Greer

involved civilian activity on the base, while this case concerns

military personnel (App. A, infra, at 12a-18a).

9

sion of this aspect of the petition may be deferred

pending the Court’s disposition of Huff.

2. If the Court were to grant our petition in

Huff and determine that the challenged regulations

do not violate 10 U.S.C. 1034, it could then resolve

the question whether the regulations are consistent

with the First Amendment.’ Our petition in Huff

contends (Pet. 10-14) that the prior approval re-

quirement of the military regulations is a constitu-

tional means of ensuring the ability of the military

to perform its essential mission. Because the Court

may properly reach this issue in Huff, we believe that

this aspect of the petition in this case may also be de-

ferred pending the Court’s disposition of our peti-

tion in Huff. If the Court should decide Huff without

reaching the constitutional question, then it should

grant review in the instant case.

CONCLUSION

The Court should defer disposition of the petition

pending disposition.of Secretary of the Navy v. Huff.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

DECEMBER 1978

5A conclusion that the regulations are unconstitutional

would be an alternative ground for supporting the judgment

of the court of appeals in Huff. The constitutionality of the

regulations is, of course, raised directly here.

la

APPENDIX A

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

No. 76-1412

ALBERT EDWARD GLINES, APPELLEE

4

Uv.

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,

APPL_LEANTS

Oct. 5, 1978

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 rein-

statement in the Air Force, back pay, and declara-

tory relief which struck down es 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 Re-

serves. While on active duty, he took training as a

* The Honorable Edmund L. Palmieri, United States Dis-

trict Judge for the Southern District of New York, sitting by

designation.

2a

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.‘ He intended to seek signatures to the

petitions at his home station, Travis Air Force Base.

Captain Glines learned, however, that Air Force Reg-

ulation 30-1(9) prohibits “the public solicitation or

collection of signatures on a petition by any person

within an Air Force facility * * * unless first au-

thorized by the commander” and that AFR 35-15(3)

(a)(1) prohibits the distribution of “any printed or

written material * * * within any Air Force installa-

tion without permission of the Commander or his

‘ The petitions were identical except for the names of the

person to whom they were directed and of the others to whom

petitions were also being sent. That to the Secretary of De-

fense read:

“Dear Secretary of Defense:

“We the undersigned, all American citizens serving in

the Armed Services-of our nation, request your assistance

in changing the grooming standards of the United States

Air Force.

“We feel that the present regulations on grooming have

caused more racial tension, decrease in morale and reten-

tion, and loss of respect for authorities than any other

official Air Force policy.

“We are similarly petitioning Senator Cranston, Sena-

tor Tunney, Senator Jackson, and Congressman Moss in

the hope that one of our elected or appointed officials will

help correct this problem.”

3a

designee.” * Because of these regulations, Captain

Glines first circulated the petitions off base. Later he

2 AFR 30-1(9) reads:

“9, Right of Petition. Members of the Air Force, their

dependents and civilian employees have the right, in com-

mon with all other citizens, to petition the President, the

Congress or other public officials. However, the public

solicitation or collection of signatures on a petition by any

person within an Air Force facility or by a member when

in uniform or when in a foreign country is prohibited

unless first authorized by the commander.”

AFR 35-15 (3) (a) reads:

“3. Specific Guidelines and Prohibited Activities:

a. Possession and Distribution of Written or Printed

Materials:

(1) No member of the Air Force will distribute or

post any printed or written material other than publica-

tions of an official governmental agency or base regu-

lated activity within any Air Force installation without

permission of the commander of his designee. A copy of

the material with a proposed plan or method of distribu-

tion or posting will be submitted when permission is re-

quested. Distribution of publications and other materials

through the United States mail or through official outlets,

such as military libraries and exchanges, may not be

prohibited under this regulation.

(2) When prior approval for distribution or posting is

required, the commander will determine if a clear danger

to the loyalty, discipline, or morale of members of the

Armed Forces, or material interference with the accom-

plishment of a military mission, would result. If such a

determination is made, distribution or posting will be

prohibited and HQ USAF (SAFOI) will be notified of the

circumstances.

(3) Mere possession of materials unauthorized for

distribution or posting may not be prohibited unless

otherwise unlawful. However, such material may be im-

4a

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 reser-

vation. 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 be-

fore 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 “stand-

by” he was unable to complete his navigator instruc-

tor 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 regula-

tions void for statutory and constitutional infirmities,

ordered Captain Glines reinstated in the active re-

pounded if a member of the Armed Forces distributes

or posts or attempts to distribute or post such material

within the installation. Impounded materials will be re-

turned to the owner when departing the installation un-

less determined to be evidence of a crime.

(4) Distribution or posting may not be prohibited

solely on the ground that the material is critical of Gov-

ernment policies or officials.

(5) In general, installation commanders should en-

courage and promote the availability to service personnel

of books, periodicals, and other media which present a

wide range of viewpoints on public issues.”

5a

serve, 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 judg-

~ ment on a number of grounds.

1. 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 Mili-

tary 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 gov-

ernment treats the case as simply a claim for rein-

statement 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 re-

statement. “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 con-

gressional bills its remedy for individual grievances.

6a

Congress stopped accepting such private bills when

it authorized the BCMRs. 2 U.S.C. § 190g. BMCKRs

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 author-

ity 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 fur-

ther attempts by the Air Force to enforce its regula-

tions. Only a court can do so.*

We recently held that a district court may require

exhaustion to a BCMR, in its discretion, after balanc-

ing 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. How-

ever, the district court did not in this case require

exhaustion, and, for the reasons indicated, we agree

with the district court.‘

8 Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1800, 48

L.Ed.2d 591 (1974), which the government cites, involved a

district court’s authority to enjoin a court-martial allegedly

acting in excess of its jurisdiction. A courtmartial is, of

course, a legally oriented body, as are the military appeals

courts. They are competent to decide their own jurisdiction,

and they do not take their legal advice directly from the Judge

Advocate General’s office.

‘This court recently outlined in substance the following

test of reviewability in a case brought by an enlisted member

of an armed branch who objected to his duty assignment:

(1) The plaintiff must allege the denial of a constitutional

right and the exhaustion of his military remedies.

[Footnote continued on page 7a]

7a

II. Statutory Claim

10 U.S.C. § 1034 prohibits restrictions on commu-

nications between members of the military and mem-

bers of Congress unless the communication is unlaw-

ful or the restrictions are necessary to the national

security.” In Allen v. Monger, F.2d —— (slip,

opin. p. 3239) (9th Cir. 1978), we struck down un-

der § 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.

* [Continued]

(2) If the plaintiff satisfies step (1), he must then show

that judicial review is warranted upon a proper balancing of

the following considerations:

(a) the nature and strength of his claim;

(b) the extent of his potential injury if review is

denied ;

(c) the degree of civilian interference with the mili-

tary mission if the court grants review; and

(d) the extent to which the decision to be reviewed

was based upon military expertise.

Schlanger v. United States, F.2d —— (9th Cir., Sept.

11, 1978).

In the case at bar, Glines satisfies all the tests set forth in

Schlanger, supra, even though, as the factual situations in the

two cases reveal, the cases have little but the military uni-

form in common.

510 U.S.C. § 1034 reads:

“No person may restrict any member of an armed

force in communicating with a member of Congress, un-

less the communication is unlawful or violates a regula-

tion necessary to the security of the United States.”

Sa

The District of Columbia Circuit has upheld similar

restrictions when applied to an actal 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 Navy, 188 U.S.App.

D.C. ——, 575 F.2d 907 (1978). The base com-

mander 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 gov-

ernment has not shown that Guam was more sensi-

tive 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 dis-

cipline, we do not believe the government has shown

that the bad effects of petitioning would endanger

the national security in these circumstances.’ This is

a determination we must make independently, for

* Glines was disciplined for violating the regulations requir-

ing prior approval. The Air Force does not contend that he

did anything else that would have subjected him to discipline.

9a

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 re-

striction. “[W]e do not think that the national se-

curity can be said to require that the objective of

military discipline be pursued to the exclusion of ail

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 ——, 575 F.2d at 914. Congress adopted

§ 1034 because it preferred free communication with

military personnel to absolute discipline in the mili-

tary; AFR 30-1(9) and 35-15(3)(a) improperly

ignore the Congressional policy.’

III. Constitutional Claims

Read literally, § 1034 protects only the four peti-

tions addressed to members of Congress. One peti-

tion, which was essentially identical to the others,

was addressed to the Secretary of Defense. This peti-

tion requires us to decide whether the First Amend-

ment also protects Glines’ activities.

It is clear that these regulations would be uncon-

stitutional on their face if they applied to the public

* This discussion assumes that military discipline and free

speech are necessarily incompatible. There is a strong argu-

ment to the contrary. Donald N. Zillman, Free Speech and

Military Command, 1977 Utah L.Rev. 423, 433-34.

10a .

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. 718, 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. California, 274 U.S. 357, 47

S.Ct. 641, 71 L.Ed, 1095 (1927) (Brandeis, J., con-

curring). The First Amendment reflects a conscious

choice to prefer citizen autonomy to conformity.

lla

A requirement for precirculation clearance is obvi-

ously a prior restraint on speech, and prior restraints

have the heaviest burden of justification under the

First Amendment.

‘

‘... [P]rior restraints on speech and publica-

tion are the most serious and the least tolerable

infringement on First Amendment rights * * *.

“Tf it can be said that a threat of criminal or

civil sanctions after publication ‘chills’ speech,

prior restraint ‘freezes’ it at least, for the time.”

Nebraska Press Ass’n v. Stuart, 427 U.S. 539,

559, 96 S.Ct. 2791, 2803, 49 L.Ed.2d 683 (1976).

The military need for obedience and discipline may

justify certain restrictions on speech that would be

impermissible in civilian life. As Parker v. Levy,

supra, shows, speech that poses a genuine threat of.

undermining obedience to orders may subject the

speaker to appropriate punishment.’ If Glines’ activi-

ties had violated regulations that focused on these

considerations, the Air Force’s response might be ac-

ceptable. Punishment after the fact for genuinely

disruptive petitions, limitation of circulation to cer-

tain areas and to off-duty periods, and protection

from pressure by superiors who are seeking signa-

® We do not believe that vocal disagreement with public pol-

icy by itself necessarily leads to disobedience to orders. “I

think, and any society which truly believes in a First Amend-

ment mus” assume, that soldiers like other citizens can dis-

agree with governmental policy and yet still realize that they

must follow the legal requisites of that policy, including mili-

tary service, until the policy is changed by democratic means.”

Carlson v. Schlesinger, 167 U.S.App.D.C. 325, 335, 511 F.2d

1327, 1837 (1975) (Bazelon, J., dissenting). —

12a

tures would adequately protect the government’s in-

terest.°

The Supreme Court insists on less restrictive alter-

natives to prior restraint when they are available, and

it critically examines whether the restraint will have

its intended effect. Nebraska Press Ass’n v. Stuart,

427 U.S. at 563-70, 96 S.Ct. 2791. Less restrictive

alternatives are available.

We have emphasized that these regulations are

prior restraints on speech. The government suggests

that they are, instead, merely time, place, and manner

restrictions. This is how the District of Columbia

Circuit treated the same regulations as applied in a

combat zone. Carlson v. Schlesinger, supra. A com-

bat zone, of course, is only a small part of the total

military deployment. Restrictions there do not neces-

sarily support restrictions throughout all other mili-

tary reservations. Indeed, to treat these regulations

as time, place, and manner restrictions necessarily

implies that there must be other places within the

military jurisdiction where petitioning by military

personnel is permitted. Assuming that we would

agree with the majority in Carlson, therefore, we do

not think Carlson compels us to give combat-zone

status to the regulations when applied here.

The Supreme Court also treated similar restrictions

applied to civilian political campaigning as time,

place, and manner restrictions in Greer v. Spock, 424

® See the limitations the district court adopted, and we ap-

proved on appeal, Allen v. Monger, 404 F.Supp. 1081, 1090

(N.D.Cal. 1975), aff’d supra.

13a

U.S. 828, 86 S.Ct. 1211, 47 L.Ed.2d 505 (1976). The

question there was whether uninvited civilians could

come on the base, where they had no clear right to be,

for political purposes. That is quite a different ques-

tion from that of direct restraints upon the exercise

by military personnel of the right of free speech.

It may be argued that the challenged regulations

cover activity, such as petitioning in a combat zone,

on which the military may legitimately impose prior

restraints. The regulations are nevertheless void be-

cause they are overbroad. Since they affect Glines’

activities, he has standing to challenge their over-

breadth. Parker v. Levy, 417 U.S. at 760-61, 94 S.Ct.

2547; Broadrick v. Oklanoma, 413 U.S. 601, 93 S.Ct.

2908, 37 L.Ed.2d 830 (1973).

Overbreadth appears from a cursory reading. The

regulations deal with protected expression and could

cover virtually all controversial written material. The

commanding officer makes the decisions, and his views

are centered on his command, not on abstract First

Amendment values. The regulations, indeed, allow

him to prohibit distribution partly because ‘the ma-

terial is critical of Government policies or officials.”

AFT 35-15(a) (4). Glines’ case itself shows that com-

manding officers may be unsympathetic to even the

most innocuous exercise of First Amendment rights.

Finally, the restrictions exceed anything essential to

the government’s interests. United States v. O’Brien,

391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672

(1967). The regulations are valid, if at all, only in

the limited setting of a combat zone. Their over-

14a

breadth is substantial.” Broadrick v. Oklahoma, 413

U.S. at 615-16, 93 S.Ct. 2908.

IV. Jurisdiction to Award Damages

For the reasons we have already given, we hold that

the district court was correct in declaring the regu-

lations void, enjoining their enforcement, and order-

ing Glines reinstated in a status that is consistent

with his status before he was relieved from active

duty. However, it lacked jurisdiction to award him

back pay, and we must vacate that part of its judg-

ment.

Under the Tucker Act, a district court has juris-

diction to award damages against the United States

to a maximum of $10,000. All other monetary claims

must go to the Court of Claims. 28 U.S.C. § 1343(a)

(2). There is no such restriction on actions seeking

nonmonetary relief or actions claiming that a govern-

ment official acted in violation of the Constitution or

of statutory authority. The reason is that in these

situations Congress has either waived sovereign im-

_ munity or the doctrine does not apply. 5 U.S.C. § 702;

Larson v. Domestic and Foreign Commerce Corp., 337

U.S. 682, 689-91, 69 S.Ct. 1457, 93 L.Ed. 1628

(1949); Hill v. United States, 571 F.2d 1098, 1102

(9th Cir. 1978) ; 14 Wright, Miller, and Cooper, Fed-

© The majority in Carlson v. Schlesinger, 167 U.S.App.D.C.

at 331-332, 511 F.2d at 1333-34, also questioned the regula-

tions’ breadth but stopped short of a finding of overbreadth.

Judge Bazelon, dissenting, viewed them as invalid, as applied,

and overbroad. 167 U.S.App.D.C. at 333, 511 F.2d at 1335.

ee

15a

eral Practice and Procedure § 3655 (Supp. 1977).

These doctrines justify the district court’s judgment

except for its award of back pay. Since the Court of

Claims is without jurisdiction to grant general decla-

ratory or equitable relief, the district court had no

reason to defer to it. 28 U.S.C. § 1491; United States

v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114

(1976) ; United States v. King, 395 U.S. 1, 3, 89 S.Ct.

1501, 23 L.Ed.2d 52 (1969).

Congress has waived sovereign immunity when

damages will be paid from the public treasury only if

the claimant sues under the Tucker Act in the proper

court. Glines did not plead Tucker Act jurisdiction,

and in any event the district court awarded him an

amount in excess of its Tucker Act authority. While

a district court may give damages as an incident to a

declaratory judgment, it may do so only if such re-

lief would otherwise be within its jurisdiction. 28

U.S.C. §§ 2201, 2202; United States v. King, 395 US.

at 3-4, 89 S.Ct. 1501.

Glines argues that sovereign immunity is inap-

plicable, and the district court therefore had juris-

diction under 28 U.S.C. § 1331, because he alleged

that the regulations are unconstitutional and in vio-

lation of a statute. He cites Larson v. Domestic and

Foreign Commerce Corp., supra, in support of his

position. However, he does not come within the

Larson exception to sovereign immunity. The Su-

preme Court specifically noted in Larson that a suit

would still fail as against the sovereign if relief would

require affirmative action or the disposition of sover-

l6a

eign property. 337 U.S. at 691 n.11, 69 S.Ct. 1457.

Glines’ action is of this nature. His relief must come

from the Court of Claims. The government, of course,

could not relitigate in that forum any issues which

have been decided against it here. |

We affirm the judgment of the district court except

for its award of back pay. We vacate that award and

remand it to the district court with instructions either

to dismiss the claim without prejudice to another

action in the Court of Claims or to transfer that part

of the case to the Court of Claims directly. Sherar v.

Harless, 561 F.2d 791, 794 (9th Cir. 1977).

Affirmed in part: vacated and remanded in part.

17a

APPENDIX B

UNITED STATES DISTRICT COURT

N. D. CALIFORNIA

No. C-74-1264 WHO

ALBERT EDWARD GLINES, CAPTAIN USAF

RESERVES, PLAINTIFF

Vv.

JAMES L. WADE, COMMANDER 349TH MATERIAL

AIRLIFT WING, ET AL.,

DEFENDANTS

May 30, 1975

David M. Cobin, Breecker, Cobin & Dayley, Oak-

land, Cal., for plaintiff.

James L. Browning, Jr., U.S. Atty., Stephen A.

Schefler, Asst. U.S. Atty., San Francisco, Cal., for

defendants.

MEMORANDUM OPINION AND ORDER

ORRICK, District Judge.

This case concerns the constitutionality of certain

Air Force regulations which limit the right of Air

Force members to circulate petitions. The cause came

on for hearing on cross-motions for summary judg-

ment on May 13, 1975. Having considered the plead-

ings, the affidavits, the memoranda of points and

authorities, and oral argument, for the reasons here-

18a

inafter stated, plaintiff’s motion for summary judg-

ment is granted, and defendants’ motion for summary

judgment is denied.

I.

The material facts are undisputed. Stated briefly,

plaintiff, a captain in the Air Force Reserves, was on

active duty at Travis Air Force Base in April, 1974.

He prepared a petition addressed to certain members

of Congress requesting assistance in obtaining a re-

laxation of Air Force rules on hair length and, while

on a routine training flight to Anderson Air Force

Base in Guam, he allowed a blank copy of the peti-

tion to fall into the hands of another serviceman.

This was in violation of Air Force Regulations AFR

30-1(9) and AFR 35-15, which state as follows:

AFR 30-1(9):

“Right of Petition. Members of the Air Force,

their dependents and civilian employees have the

right, in common with all other citizens, to peti-

tion the President, the Congress or other public

officials. However, the public solicitation or col-

lection of signatures on a petition by any person

within an Air Force facility or by a member

when in uniform or when in a foreign country is

prohibited unless first authorized by the com-

mander.

Reference: AFR 35-15”

AFR 35-15:

c* * *

3.a. Possession and Distribution of Written or

Printed Materials:

7”

* * *

det ee eee ess

19a

(2) When prior approval for distribution or

posting is required, the commander will de-

termine if a clear danger to the loyalty, disci-

pline, or morale of members of the Armed Forces,

or material interference with the accomplishment

of a military mission, would result. If such a

determination is made, distribution or posting

will be prohibited and HQ USAF (SAFOI) will

be notified of the circumstances.

* * * *

(4) Distribution or posting may not be pro-

hibited solely on the ground that the material is

critical of Government policies or officials.”

Defendants, plaintiff’s superiors, determined that for

violating such regulations by failing to ask. permis-

sion of the commander before circulating his petition,

plaintiff was to be removed from active duty and

reassigned to Standby Reserve. Plaintiff was so trans-

ferred effective July 10, 1974; in consequence, he lost

and continues to lose salary, retirement benefits, and

flight experience.

Il.

The sole question of law presented on these facts

is whether the Air Force Regulations thus restricting

the right of petition on Air Force bases violate the

First Amendment to the Constitution of the United

States. If so, it was unlawful to discipline plaintiff

for the above-described violation of said Regulations

(Shuttlesworth v. Birmingham, 394 U.S. 147, 151,

89 S.Ct. 935, 22 L.Ed.2d 162 (1969)), and he is,

therefore, entitled to reinstatement and compensation

for the losses suffered by virtue of such discipline.

20a

Military regulations have traditionally been sub-

ject to a somewhat different constitutional standard

than that applying to laws regulating civilians. The

applicable standard involves a balancing of individual

liberties against the public interest in accommodating

legitimate military needs. Carlson v. Schlesinger, 511

F.2d 1327, 1832 (D.C. Cir. 1975) ; Callison v. United

States, 413 F.2d 133, 1386 (9th Cir. 1969). Civilian

standards as to First Amendment freedoms are to

apply unless it appears that “conditions peculiar to

military life require a different rule’. Kauffman v.

Secretary of the Air Force, 135 U.S. App.D.C. 1, 415

F.2d 991, 997 (1969), cert. den. 396 U.S. 1013, 90

S.Ct. 572, 24 L.Ed.2d 505 (1970). However, with

respect to petitions to Congress, any restrictive regu-

lation must actually be necessary to the security of

the United States.’

There is, moreover, a general recognition by the

judiciary that the military system of command re-

quires that considerable latitude be given the Armed

110 U.S.C. § 1034 provides:

“No person may restrict any member of an armed

force in communicating with a member of Congress, un-

less the communication is unlawful or violates a regula-

tion necessary to the security of the United States.”

It appears clear that under this statute, as well as under the

First Amendment itself, the right to petition Congress encom-

passes the right to solicit the signatures of others on petitions.

Plaintiff has cited numerous cases to that effect, and this

Court is not aware of any to the contrary. In Carlson v.

Schlesinger, supra, at 13841 n. 21 (dissenting opinion), Chief

Judge Bazelon advances the same view, and the majority

opinion in that case does not seriously dispute it (Jd. at 1338).

2la

Forces in regulating and disciplining military per-

sonnel. Parker v. Levy, 417 U.S. 733, 758-759, 94

S.Ct. 2547, 41 L.Ed.2d 439 (1974). This is based in

part on the view that military officials are better

qualified than judges to assess military needs and

weigh the negative impacts on military effectiveness

of certain types of speech or conduct.? While this con-

cept necessarily limits the scope of review by the

Court, it does not destroy jurisdiction altogether. In

a case involving the very same regulations which are

at issue here, the Court of Appeals for the District of

Columbia recently stated that the latitude to be per-

mitted in prescribing regulations varies with the

magnitude of the governmental or military interest

involved. Carlson v. Schlesinger, supra, at 1332. That

being so, the Court must make a threshold determi-

nation as to the military interest at stake before pro-

ceeding to apply the balancing test articulated above.

In the Carlson case, it was held that in a combat

zone setting (Vietnam), the military interest was

manifest; therefore, a prior approval requirement for

petitioning activities was reasonable, and the latitude

to be afforded a commanding officer in applying the

regulation was substantial. Under such circum-

stances, the Carlson court concluded it should not up-

2 Orloff v. Willoughby, 345 U.S. 88, 98-94, 73 S.Ct. 534, 97

L.Ed. 842 (1953); Carlson v. Schlesinger, supra, at 13338;

Dash v. Commanding General, 307 F.Supp. 849, 853 (D.S.C.

1969), aff'd 429 F.2d 427 (4th Cir. 1970), cert. den. 401 U.S.

981, 91 S.Ct. 1192, 28 L.Ed.2d 333 (1971). See also, Chief

Justice Earl Warren, The Bill of Rights and the Military, 37

N.Y.U.L.Rev. 181, 187 (1962).

22a

set the military ruling “unless the military infringe-

ment upon first amendment rights [was] manifestly

unrelated to legitimate military interests’. Jd. at

1333. The court, therefore, did not reach the question

of the facial constitutionality of the regulations. Jd.

at 1334.

In the case at bench, the proscribed activity did not

take place in a combat zone or during a time of war.

It occurred at Guam in 1974. The military need to.

restrict peaceful petitioning activities appears, there-

fore, relatively insubstantial, and the Court may

weigh the reasonability of the regulations with im-

punity.

AFR 30-1(9) requires prior approval by the com-

manding officer of any on-base solicitation of petition

signatures at any time, as well as any off-base solici-

tation while in uniform or when in a foreign country.

No distinction is made between combat and non-

combat circumstances. No distinction is made be-

tween potentially inflammatory subjects and non-

controversial material. No distinction is made

between solicitation tending to interrupt or interfere

with on-going military duties and solicitation at other

times. The requirement applies to a broad range of

petitioning activities which would unquestionably be

protected in all but the most extreme military emer-

gencies.

AFR 35-15 purports to provide guiding standards

for commanders enforcing AFR 30-1(9). Consequent-

ly, it must be scrutinized together with AFR 30-1(9)

a

28a

in order to determine the constitutionality of both,

because:

“* * * a law subjecting the exercise of First

Amendment freedems to the prior restraint of a

license, without narrow, objective and definite

standards to guide the licensing authority, is

unconstitutional.” Shuttlesworth v. Birmingham,

supra, at 150.

AFR 35-15 creates no categories of petitions or cir-

cumstances to be exempted from the prior authoriza-

tion requirement. The commander is clearly to pass

upon all petitions to be circulated. The guidelines per-

mit the commander to prohibit petition circulation

upon a determination that it presents a “clear danger

“to loyalty, discipline or morale’ or that it materially

interferes with “accomplishment of a military mis-

sion’”’.* These guidelines are, therefore, substantially

broader than those prescribed by Congress in 10

U.S.C. §1034, which permits only such regulation as

is “necessary to the security of the United States”.

Arguably, under Parker v. Levy, supra, the limiting

construction given the terms “loyalty, discipline and

morale” by long military usage and interpretation

might narrow the scope of AFR 35-15. But, as pointed

® Moreover, the caveat in AFR 35-15 that signature gather-

ing “may not be prohibited solely on the ground that the ma-

terial is critical of government policies or officials” (emphasis

added) implies that the critical nature of the material may

properly be at least a secondary ground for denying per-

mission.

24a

out in the dissenting opinion in Carlson v. Schlesinger,

supra, at 1342-1348, guidelines regulating conduct

which are narrow enough to pass constitutional muster

may not be sufficiently narrow when they regulate pro-

tected speech instead.* Furthermore, even narrowly

construed, the terms are far broader than the outer

limits on restriction set by Congress.

On their face, therefore, the regulations suffer from

considerable overbreadth.’ A law is overbroad “if in

its reach it prohibits constitutionally protected con-

duct.” Grayned v. City of Rockford, 408 U.S. 104,

114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972).

Even without actual prohibition, the chilling effect

which inheres in overly broad restrictions in general °

is particularly apparent in a military setting, where

petitions addressed to members of Congress are very

likely to involve complaints about military policies or

about the administration of military affairs by su-

*The Supreme Court in Parker v. Levy, supra, at 756, 94

S.Ct. 2547, also notes this rule, citing Smith v. Goguen, 415

U.S. 566, 573, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974).

5’ They may also suffer from vagueness, but vagueness is

not an issue here since plaintiff has no standing to raise it.

Since AFR 30-1(9) requires prior permission for circulating

any petition, plaintiff could have had no doubt of its applica-

bility to him. See Parker v. Levy, supra, at 756, 94 S.Ct. 2547.

* Steffel v. Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209, 39

L.Ed.2d 505 (1974) ; Grayned v. City of Rockford, supra, at

114, 94 S.Ct. 2294; Dombrowski v. Pfister, 380 U.S. 479, 486-

487, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) ; NAACP v. Button,

371 U.S. 415, 483, 883 S.Ct. 328, 9 L.Ed.2d 405 (1963).

25a

perior officers.’ To require that all petitions to be

circulated be passed upon first by the base com-

mander imposes a considerable burden upon the free

exercise of the First Amendment right of petition for

redress of grievances.

Balanced against that burden is the legitimate need

of the military to restrict the circulation of certain

petitions under certain circumstances. Those circum-

stances are spelled out by Congress in 10 U.S.C.

§ 1034,° and it would be improper for this Court to

imply the existence of any others.’ It is not seriously

disputed that a petition like plaintiff’s, involving a

subject as innocuous as Air Force grooming standards

and circulated without fanfare, falls far outside those

legitimate areas of military concern. It must, of

course, be recognized that the Supreme Court has

indicated First Amendment restrictions should not be

declared unconstitutional for overbreadth where they

could validly be applied to numerous situations and

invalidly to only “marginal” situations. Parker v.

Levy, supra, at 760. But that is not the case here.

7 Such was the case here, as well as in Carlson v. Schles-

inger, supra, Callison v. United States, supra, and Allen Vv.

Monger, C-73-745RFP and Moses v. Foley, C-73-1012RFP

(N.D.Cal. Aug. 28, 1974) decided by Judge Peckham of this

Court.

8 See, supra, Note 1.

® As the Court of Military Appeals stated in United States

v. Schmidt, 16 USCMA 57, 59 (1966):

“(T]he purpose behind this legislation is obvious and

the right absolute within the strictures specifically de-

lineated therein.”

26a

On the contrary, the military need to control peti-

tioning arises only in extraordinary circumstances

(such as in a combat zone as in Carlson v. Schlesing-

er, supra, or in an induction center where disruption

is threatened as in Callison v. United States, supra),

and thus it is the exception rather than the rule.

Clearly such governmental interests are inadequate

to outweigh the burden on personal liberty imposed

by the regulations, especially where the regulations

could be rewritten so as to apply only in those situa-

tions where they might be reasonably necessary.”

Consequently, I must conclude that the regulations,

AFR 30-1(9) and the petinent parts of AFR 35-15,

taken together, failed to meet the test of constitu-

tionality under the First Amendment and the applica-

ble case law. They are, therefore, invalid, and plain-

tiff was improperly disciplined for having breached

them. Plaintiff is entitled to restoration of all bene-

fits and privileges to which he was entitled prior to

his removal from active duty status on April 17,

1974, including future active duty, compensation for

wages lost as a result of said removal, and injunctive

relief against all punitive actions taken or threatened

by defendants by reason of the petitioning activities

which are the subject of this lawsuit. Accordingly,

It is hereby ordered that plaintiff’s motion for sum-

mary judgment is granted.

10 Chief Judge Bazelon suggests a format for alternative

regulations in Carlson v. Schlesinger, supra, at 13844-1345

(dissenting opinion). This Court notes also that it is a much

simpler matter for an administrative office to redraft its own

regulations than for a legislature to revise its statutes.

~ nal neatel

27a

It is further ordered that defendants’ motion for

summary judgment is denied.

Counsel for plaintiff shall prepare and file a judg-

ment in accordance with this memorandum opinion

and order in form approved by defendants on or be-

fore June 13, 1975.

SY UV. S. GOVERNMENT PRINTING OFFICE; 1978 279677 233