Arlo Tatum, Central Committee for Conscientious Objectors v. Melvin R. Laird, Secretary of Defense ( 1971 )

MacKINNON, Circuit Judge

(concurring in part and dissenting in part):

While I concur in many of the pronouncements in the majority opinion I respectfully dissent from the result. My opinion is based on the facts of the ease which emerge from the pleadings, affidavits and the admissions made to the trial court. In the hearing before the trial judge, counsel admitted that in the facts upon which they based their complaint the named plaintiffs were not aggrieved by the acts of the appellees:

Our Plaintiffs this morning, for example, are not people, obviously, who are cowed and chilled; they’ve come into Court, but they have to represent millions of Americans not nearly as forward, as courageous, as willing as them to open themselves up to public investigation and public scrutiny. We’re not — you know, every citizen is not a Tom Payne; they’re few and far between.

Tr. 17 (emphasis added).

This admission that the governmental activities they attack did not cause any substantial infringement of their constitutional rights constitutes a basic denial of practically their whole case. There still remains the allegation that the existence of the files and information operates to deny them their constitutional right of association with others who are chilled, but the chill to this amorphous group in turn is grounded in the unrealistic and speculative fear that the Government will improperly use the information against them.¹ The critical information relates to reports of public activities of individuals who publicly participate in gatherings and demonstrations which tend to civil disorders and in related activities.² Appellees gathered this information from public sources and open meetings in much the same manner that newspapers cull information. However, there is one difference, 1. e., the newspapers publish much of the information they obtain, whereas the Army merely retains it for possible use by it in the future and this may not necessarily include any publication of the information. Such information is intended to be used to help suppress civil disorders in the event the military are called out in conformance with statute ³ for that purpose. Other obvious proper uses by the Army for such information may be judicially noticed from public incidents of the period and would include helping prevent and solve crimes involving destruction, threat of destruction, or theft of military draft records, military supplies, military research and other Government property and facilities at draft centers, armories, military bases, forts, arsenals, military training centers and military suppliers and research centers operating under military contract.

In the instant complaint there are no allegations or claims that any of the information gathered by the Army has been used in a manner that has injured plaintiffs or imposed on them any penalty attributable to their exercise of their First Amendment rights. In fact, appellants acknowledge in their brief that the uses to which the collected information might be put by the Army are unknown:

In the case at bar there is something more subtle at stake than the threat of prosecution and criminal sanctions present in Dombrowski, supra. There is a threat of unknown surveillance, unknown purpose, and unknown future use of the information gathered and recorded in connection with the defendants’ civilian intelligence network. This creates a substantial chilling effect upon the free and uninhibited exercise of First Amendment rights.

(Emphasis added) (App. br. p. 40).

£>iich indefinite and abstract assertions of amorphous fears do not present a case involving facts of a concrete nature. Appellants’ admission, supra, that the “threat” of which they complain is “unknown,” as the latter word is used by appellants, means that the threat is

“Not knowable * * * cannot be comprehended * * * beyond the limits of human experience, or of human powers of apprehension or understanding.” Webster’s International Dictionary (2d ed.)

Such indefinite claims of highly visionary apprehensions that are admittedly based in abstractions which cannot be comprehended, or are beyond human experience or understanding, do not present a case involving facts of sufficient realism and definiteness to confer jurisdiction on the court to make a sweeping constitutional decision affecting important activities of the federal Government. There is nothing more here than a highly abstract claim based on an imaginary fear that governmental power to collect information for a valid purpose will be misused for an improper purpose. Similar fears might exist with respect to any governmental power. All power is susceptible of misuse, but that truism when coupled with unfounded fear alone is not sufficient to make out a case for judicial jurisdiction. What is necessary before a court is authorized to assume jurisdiction is some allegation from which it can be concluded that the apprehension of the misuse of governmental power is a realistic possibility. Because of the absence of any such allegation here it is my view that a proper case or controversy does not exist. Davis v. Ichord, 143 U.S.App.D.C. -, 442 F.2d 1207 (1970); Golden v. Zwickler, 394 U.S. 103, 108, 110, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969).

Since the claim of the named plaintiffs does not present a case or controversy, nothing is added by the fact that it has been framed as a class action. Davis v. Ichord, supra, at 1215 n. 19. See generally 2 Barron & Holtzoff, Federal Practice and Procedure § 567 at 308 (Wright rev. 1961); 3 J. Moore, Federal Practice ,jf24.04 (1969). As Judge Johnsen remarked in Kansas City, Mo. v. Williams, 205 F.2d 47, 51 (8th Cir.), cert. denied, 346 U.S. 826, 74 S.Ct. 45, 98 L.Ed. 351 (1953):

It is of course necessary generally • that a plaintiff be able to show injury to himself in order to entitle him to seek judicial relief. He cannot.be a mere volunteer and ask judicial intervention simply “because someone else may be hurt”, but he “must present facts sufficient to show that his individual need requires the remedy for which he asks.” McCabe v. Atchison, T. & S. F. Ry. Co., 235 U.S. 151, 162, 164, 35 S.Ct. 69, 71, 59 L.Ed. 169.

Moreover, even if I were to agree with the majority that appellants’ claim was ripe, I would seriously question whether the action was an appropriate class action. When one considers the great number of people that the named plaintiffs seek to represent, their highly varied backgrounds and activities, and that it is the constitutional right of the individual that is sought to be protected, it is obvious that a great many highly individualized questions would be presented. The record of each protestor, and each protest activity, might have to be considered separately and might necessarily result in different determinations as to whether the Army was justified in making a record of his public activities for possible future reference. Under such circumstances there is a serious question whether the complaint presents “questions of law or fact common to the class.” Fed.R.Civ.P. 23(a) (2) ⁴ See generally Green v. Wolf Corp., 406 F.2d 291 (2d Cir. 1968), cert. denied, Troster, Singer & Co. v. Green, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969). The importance of this requirement is heightened by recognition of the vast numbers of people appellants seek to have rise or fall on the strength of the showing they make in this suit. See Fed.R.Civ.P. 23 (c) (3).

It should also be noted that it is Congress that is empowered by the Constitution “to make rules for the Government and regulation of the land and Naval forces” (U.S.Const. Art. I, § 8, cl. 14) and judicial notice may be taken that Congress is presently conducting public hearings upon the policy questions involved in this very area where the named plaintiffs here seek judicial intrusion.⁵

Finally, the trial court here concluded:

The Court holds that what in effect the plaintiffs are complaining of here is that the Army is keeping the type of information that is available to all news media in this country, covered by all news media in this country, and which is in the morgues of the newspapers in this country and magazines,⁶ and the Court holds that they state no cause of action; they show no unconstitutional action on the part of the Army; they show no threats to their rights. And I will sustain the motion to dismiss and I will deny the preliminary injunction. * * *

It is my view that we should affirm the action of the trial court and wait until a case appears involving some person who alleges a more tangible basis for the claimed threat to his rights. Certainly since these investigative activities began in 1965, if they were the great peril to the populace that appellants argue, there must be one individual who can be found to complain of an injury caused by a concrete threat of the actual misuse of such information. To the extent indicated above, I respectfully dissent.

1 . As the majority points out, appellants vigorously assert that they are not here attacking the legality of the many uses the Army might make of tlie information it is presently gathering; they are not basing their complaint on the possibility of future injury. Rather they assert that the present inhibitory effect of the Army’s surveillance system is the only injury about which they complain; the nature of the sanctions which might be imposed on them at some future time is to them here irrelevant.

To my mind, this attempted distinction is untenable. Any present inhibition which they suffer must be based wholly on a fear, specific or general, of future consequences stemming from use of the Army’s information. At the same time, they have alleged no present use, preparation for use or selectivity in gathering information by the Army which would reasonably justify such fears. This is not a situation comparable to the one facing the Court in Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1905), where, in order to receive certain mail, a person was required to tell the Government that he desired to receive “communist propaganda” or in Shelton v. Tucker, 364 U.S. 479, 486 & n. 7, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960) where there was a realistic fear that information gathered from individuals would be misused. Any inhibition which appellants in this case suffer is attributable, not to what the Army is presently doing, but to their own imagination as to what it might do at some unknown time in the future. Therefore, it is inaccurate to contend that the Army’s present surveillance activity is the source of the inhibitions which appellants allege. Compare Bee See Books, Inc. v. Leary, 291 F.Supp. 622 (S.D.N.Y.1968).

2 . There are no allegations that the Army has conducted surveillance of wholly private activity and at oral argument appellants indicated, in effect, that they did not have any witnesses who would testify that the Army had engaged in such activity. Compare Local 309, United Furniture Workers of America v. Gates, 75 F.Supp. 620 (N.D.Ind.1948).

3 . Statutory authority for the Army’s activity in relation to civil disorders is contained in 10 U.S.C. §§ 331-33 (1964):

Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.

10 U.S.C. § 332.

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

10 U.S.C. § 333.

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—

(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

10 U.S.C. § 333.

4 . Fed.R.Civ.P. 23(a) provides:

Prerequisites to a, Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3)' the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

5 . 117 Cong.Rec.S. 985 (daily ed., Febru-

ary 8, 1971) reports the announcement by Senator Ervin that the Senate Judiciary Subcommittee on Constitutional Rights had scheduled hearings on Computers, Data Banks and the Bill of Rights. On September 8, 1970, Senator Ervin outlined the purpose and scope of the study. In this regard, it is well to note that the issues appellants seek to have litigated in this suit are tremendously complex, involving broad questions of both law and policy. Recognition of this complexity, recognition of the fact that courts generally become less and less able to deal competently with controversies the farther removed they are from the “impact of actuality” and recognition of the “legitimating function” of a judicial decree, see A. Bickel, The Least Dangerous Branch 30-31 (19G2), all counsel against finding the present, controversy ripe too early. In my view, resolution of the issues presented by auv pellants is much better undertaken, at this juncture, by the Congress than it is by this court.

6 . There was a great deal of material in which the Army had an obviously legitimate interest stemming from the following factual situation, as outlined in the brief of appellee:

[0]ur Nation, during the Summer of 1967, witnessed the tragic riots in Detroit and Newark and, for the first time in 25 years, the Army was called in to assist the local civilian authorities in quelling the Detroit disturbances. During the period 1967-68, the National Guard was called upon 83 times and the Army four times to quell cases of civil disorder. The March on the Pentagon, the disturbances at the Democratic Convention, and the rioting in the Nation’s Capital, which left large areas of the City leveled, all required the use of the armed forces to bring order out of the chaos. It has been reported that during the month of April 1968 alone, there were 237 civil disorders, 27,000 arrests, 43 deaths, over 58 million dollars in property damages, and over 58,000 National Guard and Army troops had to be used 25 times to quell the civil disturbances. U.S. News and World Report, September 2, 1968. See also the Brandéis University Lemberg Center for Study of Violence Reports; Disorders — 1968, by the General Adjustment Bureau, Ine.; Riot and/or Civil Commotion Report by the American Insurance Association.