389 F2d 929 Levy v. F Corcoran

389 F.2d 929

128 U.S.App.D.C. 388

Captain Howard Brett LEVY, for himself and for all others
similarly situated, Petitioner,
Honorable Howard F. CORCORAN, United States District Judge,

No. 20972.

United States Court of Appeals District of Columbia Circuit.

Argued May 9, 1967, Rehearing Denied June 7, 1967.

Mr. Anthony G. Amsterdam, Philadelphia, Pa., with whom Messrs. Ralph J. Temple and Lawrence Speiser, Washington, D.C., were on the pleadings, for petitioner.

Mr. Irwin Goldbloom, Washington, D.C., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. Morton Hollander and Harland F. Leathers, Attys., Dept. of Justice, were on the pleadings, for respondent. Messrs. David G. Bress, U.S. Atty., and Frank Q. Nebeker, Gil Zimmerman and Joseph M. Hannon, Asst. U.S. Attys., also entered appearances for respondent.

Before BAZELON, Chief Judge, and TAMM and LEVENTHAL, Circuit judges.



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This cause came on for hearing on petitioner's petition for writ of mandamus and application for a stay and said petition and application were argued by counsel.

Upon consideration whereof, it is


Ordered by the court that petitioner's aforesaid petition for writ of mandamus and application for a stay are denied.


BAZELON, Chief Judge, dissents from the foregoing order for the reasons stated in his dissenting opinion filed herewith.


TAMM, Circuit Judge.


I join in denying the application for the stay and the petition for writ of mandamus. I am of the view that this case is not properly before this court at the present time. I am of the opinion that the record discloses that our present petitioner has an adequate remedy at law. It is my view that he cannot at this time show imminent, irreparable injury. In the event of his conviction by a court martial, which at this time is problematical, there is then available to him, through court martial proceedings, review of those proceedings as specifically provided by law, including an ultimate appeal to the United States Court of Military Appeals, which is in itself a court entirely composed of civilians and which court within the last week has ruled that the principles of the Supreme Court's holding in the Miranda case are applicable to court martial proceedings. United States v. Tempia, 35 L.W. 2625 (April 25, 1967).


In addition, there is available to this petitioner, in due course and if he is convicted, the right of appeal to the civil courts through habeas corpus or other appropriate proceedings.


Against this background, I feel that at this time this court is without any jurisdiction in this matter.

LEVENTHAL, Circuit Judge:

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The refusal of the District Judge to take steps to convene a three-judge court seems to me sound for want of equity jurisdiction to restrain defendants from proceeding with a general court-martial scheduled to commence May 10, 1967.


The lack of equity jurisdiction to issue an injunction seems to me to inhere in the relationship of the civil courts and military tribunals, a relationship which looks to habeas corpus or kindred remedies as the technique by which the civil courts exercise such limited intervention as may be proper in cases taken before military tribunals. There may be want of equity jurisdiction for such reasons of governmental relationships even where there is no truly adequate remedy at law.1 But the conclusion is strengthened by our awareness that petitioner can preserve his constitutional defenses before the general court-martial, and in due course can present them to the Court of Military Appeals. That court has indicated its readiness to apply to men in the military service the protection of pertinent Supreme Court decisions based on constitutional grounds.2


These considerations do not wholly answer petitioner's contention that the ability of the military to use the broad provisions of articles 133 and 134 of the Uniform Code of Military Justice (10 U.S.C. 933, 934) to punish expressions of views within the continental United States forebodes such a 'chilling effect' on speech that is protected by the Constitution as to call for the application of Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).


The argument is not without logic. Where it breaks down, it seems to me, is where it runs into a judicial tradition which for more than 150 years has resisted all efforts to issue mandates intended to obviate exposure to court-martials or anticipate the results of proceedings before military tribunals.3


It is not necessary to consider now whether this pattern of decisions is absolutely inviolate. It is formidable enough to obviate injunctive relief based on an expansion of the implications of Dombrowski. Nothwithstanding the language of Dombrowski, some individuals and groups will be denied injunctions and relegated to protecting their First Amendment freedoms by way of defense in other proceedings.4 Furthermore, I cannot accept petitioner's argument that a court should be as ready to enjoin the proceeding of a military tribunal as a Federal court to enjoin a state court proceeding.


Freedoms of speech and expression stand on the highest constitutional ground. And the fact of war does not obliterate freedom to dissent from the war. It may be assumed at least for discussion that although the balance between freedom and discipline is different for men in the military service than for civilians, at least some part of these freedoms is retained when civilians enter the military service. It may further be assumed that if these freedoms are unlawfully disregarded by military tribunals, there may in due course be recourse to the civil courts. But that does not compel this recourse to be by way of injunctive relief.


Whether the foregoing decision was reserved by Congress for three judges, rather than one, is not an easy question. It suffices to say that when the district judge is presented with a motion that is insubstantial insofar as it requests injunctive relief, the law does not contemplate a three-judge court. The district judge can preclude a three-judge court only when it is clear that injunctive relief is not available. I think this is such a case.

BAZELON, Chief Judge, (dissenting):


Petitioner filed his papers at 5:00 p.m. yesterday evening. The Government filed its response at 11:00 a.m. today, and we heard this case at 11:45 a.m. Consequently, there has not been sufficient time for the consideration which the case deserves. However, as presently advised, I am compelled to dissent from the order issued today.


On September 10, 1965, Captain Howard Brett Levy wrote a letter to Sergeant Geoffrey Hancock, Jr. who was then stationed in Viet Nam. The letter strongly, and perhaps intemperately, criticized the foreign policy of the United States. Between February and December, 1966, Captain Levy made similar criticisms to various military personnel at his hospital base in South Carolina. On the basis of these two incidents, Levy's commanding officer charged him with violating Article 133 ('conduct unbecoming an officer and a gentleman') and Article 134 ('all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, * * *') of the Uniform Code of Military Justice. 10 U.S.C. 933, 934 (1964). Levy was also charged with a violation of Article 90 (wilfully disobeying 'a lawful command of his superior commissioned officer').1 10 U.S.C. 890 (1964). The court martial, at which Levy faces the possibility of a life sentence, begins tomorrow.


Levy claims that Articles 133 and 134 are unconstitutionally vague and that Article 90 is unconstitutional as applied to him. On April 17, 1967, he moved in our District Court to have a three-judge District Court convened to decide the question and to issue an injunction against his pending court martial. On May 3, the District Court denied the motion.


Under Idlewild Bon Voyage Liquor Corporation v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962), a three-judge District Court must hear and determine the case when (1) 'the constitutional question raised is substantial' and (2) 'the complaint at least formally alleges a basis for equitable relief.' 370 U.S. at 715, 82 S.Ct. at 1296.


Recent cases in this Circuit have interpreted the first requirement to mean that the constitutional claim must be 'patently frivolous' before one judge can dispose of it. Reed Enterprises v. Corcoran, 122 U.S.App.D.C. 387, 390, 354 F.2d 519, 522 (1965); Hobson v. Hansen, 252 F.Supp. 4, 7 (D.D.C.1966). Levy argues that Articles 133 and 134 are overly broad, and that their breadth impermissibly impinges upon First Amendment freedoms. A simple reading of the Articles shows that they are quite broad. Indeed, the Manual for Courts-Martial interprets Article 134 to include more than fifty different offenses ranging from abusing public animals to wearing an unauthorized insignia.2 Levy argues also that Article 90, though not unconstitutional on its face, is being applied as part of a scheme to punish him for exercising his First Amendment rights in the past and prevent him from exercising them in the future.3 For our present purposes we must take these allegations as true. And if they are true, the constitutionality of Article 90, as applied to Levy, is questionable. Dombrowski v. Pfister, 380 U.S. 479, 490, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).


The second requirement for convening a three-judge court is that the complaint allege a basis for equitable relief. Here Levy says that First Amendment rights will be 'chilled' if his prosecution proceeds on the basis of two statutes which are unconstitutional on their face and one which is being applied in order to harass people who exercise their First Amendment rights.4 This chilling effect, Levy claims, constitutes irreparable injury under Dombrowski v. Pfister, supra. If Article 90, though constitutional on its face, is being applied to harass Levy, then that part of his case fits within the first ground for the Dombrowski decision. 380 U.S. at 490, 85 S.Ct. 1116. And if Articles 133 and 134 are unconstitutionally broad then that part of Levy's case fits within the second ground for the Dombrowski decision. 380 U.S. at 490-491, 85 S.Ct. 1116.


Of course all of this assumes that Dombrowski would be read to allow interference with military courts. The Dombrowski opinion itself suggests no reason why it should not be read in this way, though there may be other reasons why its scope would be limited. In any event, the applicability of Dombrowski to our case has never been decided and is not a frivolous issue.5


Since neither the constitutional attack on the Articles nor the claim of irreparable injury is frivolous, this case should be heard and determined by a three-judge District Court. I think this much is abundantly clear. If Levy does have a right to have his case heard and determined by a three-judge District Court, then I think it is equally clear that the right must be made meaningful by a short stay of the court martial proceedings. Otherwise, with the beginning of the court martial tomorrow morning, the three-judge District Court would be left with a moot case.


These questions, whether the statutes are unconstitutional, whether there is irreparable injury, whether Dombrowski applies to military courts, are not easy, and they are not made any easier by the extreme time-pressure which confronts us. Moreover, they are not questions for us. They are for a three-judge District Court. I do not intimate any view on the merits. I would grant a short stay simply to preserve the jurisdiction of the three-judge District Court. Once that court is convened it can decide whether to issue a temporary restraining order or a temporary injunction while it considers the merits. Our responsibility is simply to preserve jurisdiction for the court Congress intended to hear this case.




Smith v. Katzenbach, 122 U.S.App.D.C. 113, 351 F.2d 810 (1965)


United States v. Tempia, April 25, 1967


Wales v. Whitney, 114 U.S. 564, 5 S.Ct. 1050, 29 L.Ed. 277 (1885); Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950); Beard v. Stahr, 370 U.S. 41, 82 S.Ct. 1105, 8 L.Ed.2d 321 (1962); Gorko v. Commanding Officer, 314 F.2d 858 (10th Cir. 1963)


W.E.B. DuBois Clubs v. Katzenbach, 277 F.Supp. 971, April 18, 1967 (Dist.Ct.Dist. of Col., 3-judge)


Apparently Levy would not give Special Forces Aidmen instruction in dermatology because the instruction would have involved exposing the private parts of his female patients who were suffering from venereal diseases. Levy thought this exposure, without the consent of the patients, violated professional ethics


One of the evils of an overly broad statute is that it leaves the definition, and therefore the creation, of crimes to the discretion of minor executive or military officials. The attached appendix (the Manual's suggested forms for drafting charges and specifications under Article 134) shows exactly how broad the discretion is. And the suggested forms do not purport to be exclusive


He alleges, among other things, that at first his commanding officer decided upon a minor form of non-judicial discipline and that only after he learned of Levy's political opinion was the court martial decided upon


The problem concerns not only Levy's First Amendment rights but also the First Amendment rights of others, both military personnel and civilians, who may view Levy's court martial as governmental dissatisfaction with dissent


The cases cited in Footnote 3 of Judge Leventhal's opinion do not deal with statutes which impinge upon First Amendment rights