McLaughlin, Staley and Adams, Circuit Judges.
The vexing problem of the power of civilian courts to review decisions of a military commander concerning actions of civilians within an area under his command has become ever more acute since the historic decision in Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 18 L. Ed. 281 (1866). The present case raises the issue whether a United States District Court has jurisdiction to review the denial by a military commander of a request by civilians to demonstrate on post property which is under the authority of the commander. A closely related issue is whether such denial raises a justiciable controversy. Also presented is the question of when such a case becomes moot.
Since this case comes to us as a result of a dismissal of the complaint, we assume for purposes of review that the following facts alleged in the complaint and accompanying affidavits are true.
Appellants organized to protest stockade conditions at Fort Dix and the treatment of a group of 38 prisoners known as the "Fort Dix 38." They first planned a demonstration at Fort Dix for September 28, 1969, but postponed the demonstration until October 12, 1969. Upon conferring with a representative of the Adjutant General of Fort Dix, the appellants were told to submit a written request for permission to enter the military base to conduct their proposed protest. Appellants planned to demonstrate at Fort Dix on highways which, while under the authority of the base commander, are used by the public as open roads. Persons using these highways do not ordinarily encounter either guards or checkpoints. The reply from appellee Lt. Col. R. D. Medaugh, Adjutant General at Fort Dix, with respect to the September 28th proposal crossed in the mails the appellants' request for post-ponement of the demonstration until October 12th. The reply, however, was the same in both cases: no demonstration would be permitted because "such a demonstration would interfere with the orderly accomplishment of the mission of Fort Dix."
Appellants then filed a complaint on October 9, 1969, in the District Court for New Jersey seeking injunctive relief against enforcement of the military commander's orders as they pertained to the use of the military post on October 12, 1969. Appellants also sought a declaratory judgment declaring pertinent Fort Dix regulations and the above decision of the adjutant general's office unconstitutional. Finally, the appellants sought a temporary restraining order to forbid the commander of Fort Dix from excluding the appellants from the military base on October 12, 1969.
In the District Court, Judge Reynier J. Wortendyke, Jr., denied the application for a temporary restraining order and dismissed sua sponte the complaint for lack of jurisdiction and for lack of a justiciable controversy. Appellants immediately applied to this Court for a temporary restraining order against the base commander's order denying appellants permission to enter the base on October 12, 1969. After oral argument on October 10, 1969, the application for such order was denied.
Admittedly, the authority of a military commander over his post, as conferred on him by statute and regulations,*fn1 is broad. Judicial review of an exercise of that authority must necessarily be limited.
We are not here asked to review an exercise of the commander's discretion per se, but rather to consider whether it is the proper function of the judiciary, and whether subject matter jurisdiction lies, to decide at what point the Constitution sets forth boundaries to that discretion. Preliminarily, we may note that the issue presented in this case would appear to be within the "arising under" jurisdiction of the federal district courts as specified in 28 U.S.C. § 1331(a).*fn2 See e.g. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 379, 5 L. Ed. 257 (1821); Powell v. McCormack, 395 U.S. 486, 514, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969). But as the Supreme Court in Powell stated (p. 515, 89 S. Ct. at p. 1961), "the grant of jurisdiction in § 1331(a), while made in the language used in Art. III [of the Constitution], is not in all respects co-extensive with the potential for federal jurisdiction found in Art. III." We must, therefore, consider whether other authority has circumscribed our power under § 1331(a) to review decisions of military commanders respecting bases under their command vis a vis civilians.
The most direct authority on this question is Cafeteria and Restaurant Workers Union, Local 473, A.F.L.-C.I.O. v. McElroy, 367 U.S. 886, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961). In that case, a civilian employee of a restaurant operated on the premises of the Naval Gun Factory was barred from military property without a hearing, and thereby from civilian employment on the base, by the military commander on the ground that the employee failed to meet the security requirements of the installation. While the Supreme Court upheld summary judgment for the government, there was no intimation that the district court lacked jurisdiction to hear the matter. On the contrary, Mr. Justice Stewart, speaking for the majority stated at p. 898, 81 S. Ct. at p. 1750:
"We may assume that [Appellant] could not constitutionally have been excluded from the Gun Factory if the announced grounds for her exclusion had been patently arbitrary or discriminatory -- that she could not have been kept out because she was a Democrat or a Methodist."
This statement assumes that jurisdiction exists in order to determine whether the commander's decision is "arbitrary or discriminatory." Such view is bolstered by Mr. Justice Brennan's dissent in Cafeteria Workers where he stated at pages 899-900, 81 S. Ct. at page 1751 what he understood the majority to be holding:
"I read the Court's opinion to acknowledge that petitioner's status as an employee at the Gun Factory was an interest of sufficient definiteness to be protected by the Federal Constitution from some kinds of governmental injury. * * * In other words, if petitioner['s] * * * badge had been lifted avowedly on grounds of her race, religion, or political opinions, the Court would concede that some ...