Gibbons and James Rosen, Circuit Judges, and Layton, District Judge.
This is an appeal authorized by 28 U.S.C. § 1292(a)(1) from an order of the district court, 349 F. Supp. 179, refusing a preliminary injunction. It is before this panel as a result of the appellants' motion for an injunction pending appeal pursuant to Rule 8(a), Fed. R. App. P. or in the alternative for expedited consideration of the appeal. We granted the alternative motion for expedited consideration and the case was submitted without oral argument pursuant to Local Rule 12(6).
The appellants, plaintiffs below, are in two categories. Spock and Hobson are, respectively, candidates of the People's Party for President and Vice President of the United States in the election to be held on November 7, 1972. Jenness and Pulley are, repectively, the candidates for President and Vice President of the Socialist Workers Party. That organization, a national political party, is also a plaintiff. The Socialist Workers Party, Spock, Hobson, Jenness and Pulley, will be referred to collectively as the candidates. Ginaven, Misch, Hardy, and Stanton are individual political activists who in the past have distributed leaflets within the Fort Dix Military Reservation, in New Jersey, and who have, as a result of that activity received from the Commanding Officer of that base letters ejecting them from Fort Dix and barring their reentry. These bar orders are enforced by the sanction of 18 U.S.C. § 1382.*fn1 Ginaven, Misch, Hardy and Stanton will be referred to collectively as the barred pamphleteers. The appellee David is the Commanding Officer of the Fort Dix Military Reservation, and the appellee Laird is the Secretary of Defense. On September 29, 1972, the candidates and the barred pamphleteers filed a one count complaint seeking injunctive relief in aid of the exercise of claimed first amendment rights both before and after the 1972 election.
The candidates alleged that on September 9, 1972, they had written a joint letter to David advising him of their intent to enter Fort Dix on September 23, 1972, for the purpose of distributing campaign literature and of holding a meeting to discuss election issues with service personnel and their dependents. The letter expressed their willingness to confine their campaigning to such times and places as might be designated by David. On September 18, 1972, David replied by a letter which advised the candidates that their request to visit Fort Dix and campaign was denied. The letter referred to Fort Dix Regulation No. 210-26*fn2 which, he said, prohibits political speeches and similar activities on all of the Fort Dix Military Reservation. It also referred to Fort Dix Regulation No. 210-27*fn3 which, he said, prohibits the distribution of literature without the prior approval of headquarters. The letter also advised that any person entering Fort Dix for the purposes prohibited by Regulations 210-26 and 210-27 would violate 18 U.S.C. § 1382. On September 23, 1972, candidates Spock and Pulley went to Fort Dix, where an officer acting on David's behalf refused to admit them to the base and prevented their entrance.
The barred pamphleteers each alleged that at various times in the past each was peacefully distributing literature on the base, each was taken into custody and ejected from the base, and each received a letter barring him from the military reservation in the future and warning that reentry might constitute a violation of 18 U.S.C. § 1382.
With the complaint was filed a motion for a preliminary injunction, an expedited hearing and an order to show cause. The district court issued an order directing the defendants to show cause on October 6, 1972, why a preliminary injunction should not be issued. On October 4, the United States Attorney filed three affidavits in opposition to the preliminary injunction and a motion pursuant to Fed.R.Civ.P. 20(b) for an order severing the candidate plaintiffs from the barred pamphleteer plaintiffs. No answer has been filed, and the district court has not yet ruled upon the severance motion. An evidentiary hearing was held on the return day of the order to show cause, and on October 12, 1972, the district court filed an opinion denying the application for a preliminary injunction. An order to that effect was signed on October 13, 1972, and this appeal followed.
We are confronted at the outset with the appellees' contention that the appeal should be dismissed for lack of federal jurisdiction. The district court opinion states, without discussion, that the allegations of the complaint are sufficient to establish jurisdiction under 28 U.S.C. § 1331. The jurisdictional statement of the complaint refers to 28 U.S.C. §§ 1331, 1343 and 1361, and to several other federal statutes*fn4 of a non-jurisdictional character. 28 U.S.C. § 1343 is inapplicable. It deals only with state action. This case involves actions taken solely on federal authority. 28 U.S.C. § 1361 is one of the grants of federal jurisdiction to which no jurisdictional amount is attached. But by no fair reading could the complaint be construed as alleging an action in mandamus to compel David and Laird to perform a duty owed to the plaintiffs. Under plaintiffs' theory in the complaint defendants are acting outside of their authority. It sets forth a suit in equity for an injunction against interference with civil rights protected by the first amendment. The only basis for federal jurisdiction is the general grant of federal question jurisdiction found in 28 U.S.C. § 1331, and to that grant Congress has attached a jurisdictional amount. See Lynch v. Household Finance Corp., 405 U.S. 538, 547, 92 S. Ct. 1113, 31 L. Ed. 2d 424 (1972). The complaint does contain the allegation that the matter in controversy exceeds the sum of $10,000.00 exclusive of interest and costs, but that mere allegation does not end the inquiry. E.g., Tanzymore v. Bethlehem Steel Corp., 457 F.2d 1320 (3d Cir. 1972); Nelson v. Keefer, 451 F.2d 289 (3d Cir. 1971).
It may seem incongruous that if a state officer such as the Commanding Officer of a National Guard base were charged with violations of first amendment rights there would be federal jurisdiction regardless of jurisdictional amount, see Lasher v. Shafer, 460 F.2d 343 (3d Cir. 1972), but that when a federal officer is so charged the plaintiff must assume the added burden of establishing that the matter in controversy exceeds the sum or value of $10,000.00. Some courts and commentators have suggested that Congress cannot constitutionally require that more than $10,000.00 be in controversy if the effect is to bar any federal judicial review of a constitutional claim. See Cortright v. Resor, 325 F. Supp. 797, 808-811 (E.D.N.Y.), rev'd on other grounds, 447 F.2d 245, 250-251 (2d Cir. 1971), cert. denied, 405 U.S. 965, 92 S. Ct. 1172, 31 L. Ed. 2d 240 (1972); Murray v. Vaughn, 300 F. Supp. 688, 695 (D.R.I.1969); Note, The Constitutional Implications of the Jurisdictional Amount Provision in Injunction Suits Against Federal Officers, 71 Colum.L.Rev. 1474 (1971); cf. West End Neighborhood Corp. v. Stans,*fn5 312 F. Supp. 1066, 1068 (D.D.C.1970). Compare the above with Goldsmith v. Sutherland, 426 F.2d 1395 (6th Cir.), cert. denied, 400 U.S. 960, 91 S. Ct. 353, 27 L. Ed. 2d 270 (1970). That view, however, is hardly consistent with the history of federal question jurisdiction. The lower federal courts had no general federal question jurisdiction until the Judiciary Act of 1875. Prior to 1875 the enforcement of the Bill of Rights was the responsibility of the state courts, subject only to review of their decisions by the Supreme Court. When the lower federal courts were first granted federal question jurisdiction a jurisdictional amount requirement was attached, and such a requirement has remained ever since. The jurisdiction of the state courts, however, was in no way affected by the grant to federal courts of concurrent jurisdiction in federal question cases. In this case, for example, David could have been sued in the state courts of New Jersey. He would undoubtedly have removed to the federal courts pursuant to 28 U.S.C. § 1442(a)(1), since the suit is for acts which were done under color of his federal office. In the removed action the jurisdictional amount requirement would have been inapplicable because § 1442 is a separate jurisdictional grant without regard to amount in controversy. Willingham v. Morgan, 395 U.S. 402, 89 S. Ct. 1813, 23 L. Ed. 2d 396 (1969); Venable v. Richards, 105 U.S. 636, 26 L. Ed. 1196 (1882). But if he did not elect to remove, the suit could proceed in the state court. The availability of that remedy would probably suffice to answer any contention that Congress could not constitutionally impose a jurisdictional amount requirement applicable to civil rights cases against federal officers. See Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv.L.Rev. 1362, 1401 (1953). In any event, that constitutional issue, if it is one, does not seem to concern the Supreme Court, for it recently said:
"Thus, for example, in suits against federal officials for alleged deprivations of constitutional rights, it is necessary to satisfy the amount in controversy requirement for federal jurisdiction. See Oestereich v. Selective Service Board, 393 U.S. 233, 89 S. Ct. 414, 21 L. Ed. 2d 402; Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619." Lynch v. Household Finance Corp., supra, 405 U.S. at 547, 92 S. Ct. at 1119.
The plaintiffs must, then, meet the amount-in-controversy requirement.
The Government contends, relying principally upon Hague v. CIO, 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423 (1939), that the rights of freedom of speech and assembly are of such a nature as not to be susceptible of valuation in money and are thus beyond the reach of the jurisdiction conferred by § 1331. There is dicta in Justice Stone's opinion suggesting as much. Id. at 527-532, 59 S. Ct. 969-972. But his was not the opinion of the Court, and the Supreme Court has never so held. The Sixth Circuit, in Goldsmith v. Sutherland, supra, relying on Justice Stone's dictum, has accepted the Government's position. In addition to Hague v. CIO, supra, the Sixth Circuit relied, for authority for the proposition that claims of infringement of the right of free speech are incapable of monetary valuation on Giancana v. Johnson, 335 F.2d 366 (7th Cir. 1964), cert. denied, 379 U.S. 1001, 85 S. Ct. 718, 13 L. Ed. 2d 702 (1965), and Carroll v. Somervell, 116 F.2d 918 (2d Cir. 1941). Giancana was a complaint based upon an allegedly unlawful surveillance by agents of the FBI. The complaint did not allege and the plaintiff did not show that the allegedly unlawful activities of the agents subjected him to damages in excess of $10,000.00. To the extent that Giancana decides anything beyond the failure to allege and show the jurisdictional amount in controversy, it must be regarded as overruled by Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), which ...