greenham-women-against-cruise-missiles-an-unincorporated-association , 755 F.2d 34 ( 1985 )

755 F.2d 34

GREENHAM WOMEN AGAINST CRUISE MISSILES, an unincorporated
association; Rebecca Johnson; Christine King, on behalf of
herself and her minor child Bethen King; Jean Hutchinson;
Susan Lamb, on behalf of herself and her minor children
Jodie Lamb and Angharad Lamb; Carole Harwood, on behalf of
herself and her minor child Albert Harwood; Deborah Law;
Lynne Fortt, on behalf of herself and her minor children
Aaron Fortt and Ryan Fortt; Nell Logan; Angela Phillips,
on behalf of herself and her minor children, Clara Phillips
and Jacob Phillips; Elizabeth Forder, on behalf of herself
and her minor children Daniel Forder and Joseph Forder;
Carrie Pester; Susan Bolton, on behalf of herself and her
minor children Adam Pereira, Sophie Pereira, Jacob Pereira
and Luke Bolton; Simone Wilkinson, on behalf of herself and
her minor children James Wilkinson and Victoria Wilkinson;
Congressman Ronald Dellums and Congressman Ted Weiss,
Plaintiffs-Appellants,
v.
Ronald Wilson REAGAN, President of the United States;
Caspar Weinberger, Secretary of Defense; Vern Orr,
Secretary of the Air Force; and John O. Marsh, Secretary of
the Army, sued in their official capacities, Defendants-Appellees.

No. 706, Docket 84-6290.

United States Court of Appeals,
Second Circuit.

Argued Jan. 21, 1985.
Decided Feb. 8, 1985.

Anne E. Simon, New York City (Sarah Wunsch, Ellen Yaroshefsky, Peter Weiss, Robert L. Boehm, Center for Constitutional Rights, New York City, Jane Hickman, Fisher, Meredith & Partners, London, Great Britain, Eleanor Jaclson Piel, Lawyers Committee on Nuclear Policy, New York City, for plaintiffs-appellants.

Christine King, on behalf of herself and her minor child Bethan King, Simone Wilkinson, on behalf of herself and her minor children, James Wilkinson and Victoria Wilkinson and Carrie Pester, c/o Center for Constitutional Rights, plaintiffs-appellants, pro se.

Carolyn L. Simpson, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., Steven E. Obus, Asst. U.S. Atty., S.D.N.Y., New York City, of counsel), for defendants-appellees.

Rob Hager, Christic Institute, Washington, D.C., Madeleine Colvin, London, Great Britain, of counsel, submitted a brief for amici curiae American Friends Service Committee; Artists and Musicians United for a Safe Environment; Asian American Legal Defense and Educ. Fund; Austin Peace and Justice Coalition; Bergen SANE; Berks County Citizens Concerned About Nuclear War; Big Island Women's Intern. League for Peace and Freedom; Bloomington Normal Nuclear Freeze Coalition; Boston Mobilization for Survival; Boulder, Colorado WILPF; Bucks County Quarterly Meeting of Friends, Peace and Service Committee; Campaign For Peace and Democracy East and West; Cape Cod Fellowship of Reconciliation; The Catholic Worker; Charlotte Chapter, Clergy and Laity Concerned; Chicago Branch, WILPF; Chicago Disarmament Program-AFSC; Christians Concerned About the Nuclear Arms Race; Citizen Action for Lasting Security; Citizens Against Nuclear Threats; Citizens Against Nuclear War; Citizens Concerned for Tomorrow; Citizens for a Nuclear Free Whatcom County; Clergy and Laity Concerned; Coalition Against Cruise and Pershing II Missiles; Columbia, Missouri WILPF; Connecticut Campaign for a U.S./U.S.S.R. Nuclear Arms Freeze; Cruise Resistance Coalition; Cumberland County Peace Fellowship; The Different Drummers/Kutztown University; Dorea Peace Community; Dunn County Peace Project; Erie County Nuclear Freeze Campaign; Essex County WILPF; Fellowship of Reconciliation; Floyd County Peace Fellowship; Great Neck Chapter, New Jewish Agenda; Greenwich Village Coalition Against Nuclear Arms; Help End the Arms Race; Honeywell Project; Hudson County Coalition for a Nuclear Freeze; Hudson County MFS; Indianapolis Chapter, SANE; International Wages for Housework Campaign; Iowa Peace Network; Islanders for Nuclear Arms Control; Jackson County Citizens for a Nuclear Arms Freeze; Jewish Peace Fellowship; Lee County Coalition for Peace; Little Rock SANE; Livermore Action Group; Lorain County Peace Coalition; Loretto Disarmament/Economic Conversion Committee; Los Angeles Chapter, Women Strike for Peace; Madison, Wisconsin, WILPF; Maryland Campaign for a Nuclear Weapons Freeze; Milwaukee MFS; Minnesota Clergy and Laity Concerned; Mobilization for Survival; Monmouth County War Resisters League; Montana Chapter, CALC; Nashua Peace Center; National Peace College of Abbeyhills; National Women's Health Network; New Hampshire CALC; New Jersey Campaign for Nuclear Weapons Freeze; New Jersey Sea Alliance; New Jewish Agenda; New Patriot Alliance; New York Chapter, Women Strike for Peace; North Carolina Peace Network; North Coast WRL; Northeast Indiana Nat. Organization for Women; North Puget Sound Coalition; Nuclear Arms Freeze Campaign/Greater Hartford Area; Nuclear Free America; Orange County Alliance for Survival; Parenting in the Nuclear Age; Pax Christi East; Peace ... First of All; Peace House; Fellowship of Reconciliation; Pelican Alliance for Safe Energy; People for Nuclear Responsibility; Philadelphia Yearly Meeting; Religious Soc. of Friends; Pikes Peak Justice and Peace Commission; Placer County Freeze Campaign; Port Townsend Peace Coalition; Porter County Peace Coalition; Puget Sound Women's Peace Camp; Registration and Draft Counseling Center/WRL; Religious Task Force, MFS; Resource Center for Nonviolence; Richmond, Virginia WILPF; Riverside Church Disarmament Program; Rochester Peace and Justice Educ. Center, CALC; Rockland County Chapter, Nuclear Weapons Freeze; San Mateo County Freeze/Peace Action; Seneca Women's Encampment for a Future of Peace and Justice; Shomray Shalom; Sierra Foothills Branch, WILPF; Socialist Party USA; Sojourners; South Dakota Peace and Justice Center; Southern California Alliance for Survival; South Plains Alternative Resources Coalition; Southland Jewish Organization; St. Joseph, Minnesota Branch, WILPF; St. Louis Chapter, CALC; Survival Network; Texans for a Bilateral Nuclear Weapons Freeze; Traprock Peace Center; Tulsa Peace Fellowship; U.S. Friends of COMISO; U.S. Peace Council; U.S. Section, WILPF; War Resisters League; Waukesha County Peace Council; Westchester Area CALC; Western Massachusetts AFSC; Western New York Peace Center; Western Washington Fellowship of Reconciliation; West Suburban Interfaith Peace Initiative; Women Against Military Madness; Women Against Nuclear Destruction; Women for a Non-Nuclear Future; Women for Peace; Women for Racial and Economic Equality; Women Strike for Peace; Women's Intern. Resource Exchange; Women's Pentagon Action; Women's Party for Survival; World Peace Makers; Ypsilanti, Ann Arbor Branch, WILPF.)

Judith Levin, New York City, submitted briefs for amici curiae County Council of the County of South Glamorgan; The Barnsley Metropolitan Borough Council; The Cumnock and Doon Valley District Council; The Council of the London Borough of Hackney and the OGWR Borough Council; Campaign for Nuclear Disarmament; INLAW: Scottish Campaign for Nuclear Disarmament; Gosforth Campaign for Nuclear Disarmament; Trades Union Congress; Hull Women for Peace; Quaker Peace Action Group of Warwickshire Monthly Meeting Society of Friends; Newcastle Upon Tyne Society of Friends; Women's Intern. League for Peace and Freedom (British Section); and Women's Peace Alliance; Women for Peace in Sweden; Fellowship of Reconciliation; The Swedish Peace and Arbitration Soc.; The Swedish Peace Committee; Women's Intern. League for Peace and Freedom; The Association for Christian Humanism and Social Concern; The World Federation of Methodist Women; Architects Against Nuclear Weapons; Printers Against Nuclear Power and Nuclear Weapons; The Swedish Ass'n of Employees in Public Health Services; Social Workers for Peace; Swedish Women's Left Federation; The Future in Our Hands; Swedish Nurses and Medical Technologists Against Nuclear Weapons; and Psychologists Against Nuclear Weapons; Den Internationale Liga for Fred Og Friehed; Nej Til Atomvaben; Aldrig Mere Krig; Upper Austrian Peace Movement; Working Group for Independent Peace Initiates in Austria; Alternative List Graz; Friends of the Earth Austria; Initiative of Austrian Anti-Nukes; Women for Peace; Echo; Alternative Section of Austrian Students' Union; Declaration of Graz; Forum of Conscientious Objectors, Salzburg; Communication Center for Active Non-Violence; Global 2000; War on Want Campaigns, Limited; Women's Peace Bus; Ecology Party of Britain; Medical Campaign against Nuclear Weapons; St. Paul's Advice Centre; Concertation Paix et Developpement).

Frank C. Newman, Sandra Coliver, Berkeley, Cal., Ephraim Margolin, San Francisco, Cal., submitted a brief for amicus curiae Human Rights Advocates.

Lord Jenkins of Putney, House of Lords, London, Great Britain, submitted a brief amicus curiae pro se.

Wes Wagnon, Diane Beaufait, Randall Padgett, San Francisco, Cal., submitted a brief for amici curiae The National Lawyers Guild; The National Conference of Black Lawyers; and The Asian American Legal Defense and Education Fund.

Daniel J. Popeo, Paul D. Kamenar, Washington Legal Foundation, Washington, D.C., Thomas A. Bolan, Saxe, Bacon & Bolan, New York City, submitted a brief for amici curiae U.S. Senators Jeremiah Denton; Steven Symms; Jesse Helms; Paul Laxalt; Orrin Hatch; Congressman Mickey Edwards, and the Washington Legal Foundation.

Before VAN GRAAFEILAND, MESKILL and WINTER, Circuit Judges.

PER CURIAM:

1

Plaintiffs appeal from Judge Edelstein's decision dismissing their complaint on the ground that it raises non-justiciable political questions. Familiarity with Judge Edelstein's opinion, 591 F. Supp. 1332 (S.D.N.Y.1984), is assumed. Judge Edelstein held that decisions regarding the deployment of cruise missiles cannot be resolved by courts because of the lack of judicially discoverable and manageable standards. Without suggesting that his analysis is in any way incorrect, we believe it even clearer that the complaint of the non-congressional plaintiffs raises issues which have been committed by the Constitution to coordinate political departments, see Barry v. United States ex rel. Cunningham, 279 U.S. 597, 613, 49 S. Ct. 452, 455, 73 L. Ed. 867 (1929); Powell v. McCormack, 395 U.S. 486, 518-549, 89 S. Ct. 1944, 1962-1978, 23 L. Ed. 2d 491 (1969), and requests relief which cannot be granted absent an initial policy determination of a kind clearly for nonjudicial discretion. Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 710, 7 L. Ed. 2d 663 (1962), Holtzman v. Schlesinger, 484 F.2d 1307, 1310-12 (2d Cir.1973), cert. denied, 416 U.S. 936, 94 S. Ct. 1935, 40 L. Ed. 2d 286 (1974).

2

So far as the allegations made by the congressional plaintiffs are concerned, we believe the claims they raise are not ripe for decision, see Goldwater v. Carter, 444 U.S. 996, 997-8, 100 S. Ct. 533, 533-34, 62 L. Ed. 2d 428 (1979) (Powell, J., concurring), even assuming they have standing to raise such claims, see Holtzman v. Schlesinger, 484 F.2d at 1315.

3

We therefore affirm.