Benjamin Spock v. Bert A. David, Commander, Fort Dix Military Reservation, and Melvin Laird, Secretary of Defense

Appellants, al., Benjamin et SPOCK Commander, DAVID, Dix

Bert A. Laird, Military Reservation, and Melvin Secretary of Defense.

No. 72-1934. Appeals, States Court

United Circuit. Third 12(6) Third Circuit Rule Under

Submitted Oct.

Decided Oct. Kairys, Kairys Rudovsky,

David & Philadelphia, Pa., appellants. Hill, Atty., Richard W. Asst. U. S. Trenton, J., appellees. N. Before and GIBBONS JAMES RO- Judges, SEN, LAYTON, Circuit Judge. District THE OPINION OF COURT GIBBONS, Judge. Circuit appeal This is authorized U. 1292(a)(1) from an order S.C. F.Supp. court, 349 injunction. fusing panel ap- before this as a result of the pellants’ injunction pend- motion for an 8(a), appeal pursuant Fed. Rule R.App.P. expe- or the alternative appeal. dited consideration of We granted expe- motion alternative dited and the case was consideration argument pur- submitted without oral 12(6). suant to Local Rule appellants, plaintiffs below, categories. are, Spock two and Hobson respectively, People’s candidates Party for President President Vice in the election United to be States held November Jenness and Pulley are, repeetively, candidates for President and President of the Vice Party. organi- Socialist Workers zation, party, political is also national plaintiff. Workers Par- Socialist Pulley, request Hobson, to visit ty, Spock, candidates Jenness collectively denied. Dix and referred to will be Hardy, Ginaven, Misch, Regula- letter referred Fort Dix candidates. which, said, prohib- activists No. he individual tion 210-26 Stanton past political speeches leaflets activi- have distributed and similar who in the its Military Military Reserva- Dix all Dix Res- the Fort ties on of the Fort within have, tion, Jersey, as a Dix and who referred to Fort in New ervation. It also activity which, said, Regulation received from he result of that Commanding No. 210-27 base letters prohibits Officer that of literature the distribution ejecting prior approval headquar- and Fort Dix bar- them from without any ring reentry. bar orders These their advised The letter also ters. entering pur- of 18 the sanction person are enforced Dix for Ginaven, Misch, Hardy Regulations and prohibited by C. 210-26 poses 1382.1 collectively referred to U.S.C. will be violate 18 Stanton 210-27 would and appel- 1972, pamphleteers. 23, September candi- as the barred 1382. On Commanding Pulley Spock Officer to Fort David is the lee and went dates Military Reservation, acting and Dix, Dix the Fort on David’s an officer where Secretary appellee Laird is them the base refused to admit behalf 1972, 29, September prevented On Defense. their entrance. and pamphleteers and barred candidates alleged pamphleteers each The barred seeking complaint in- one count filed a past in the each various times that at junctive relief aid of the exercise distributing peacefully on literature be- both claimed first amendment custody base, into taken each was fore and after the 1972 election. base, ejected and each from the and barring him from the letter ceived a alleged Sep- on The candidates in the future and reservation 9, 1972, they joint had written a tember warning reentry might constitute advising letter him of their in- David violation of 18 U.S.C. § 23, September tent to enter Fort Dix on distributing 1972', purpose complaint for the was filed a motion With the holding expedit- preliminary injunction, literature and of an meeting hearing to discuss election issues with and an order to show cause. ed personnel dependents. service and their order di- court issued an district expressed willingness recting The letter on to show cause the defendants campaigning 6, 1972, why preliminary confine their to such times in- October places might designated by junction and On not issued. Octo- should 18, 1972, Attorney September filed On David David. ber States United replied pre- opposition a letter which advised affidavits three “Whoever, prohibited will within the and similar activities are States, goes upon any military, the Fort Dix Mili- United not be conducted on naval, reservation, post, tary or Coast Guard Reservation.” fort, arsenal, station, yard, or installa- 3. “3. PROHIBITED PRACTICES: any purpose prohibited by tion, law posting any a. The distribution or regulation; or or lawful maga- newspapers, publication, including or Whoever reenters is found within zines, circulars, pam- handbills, flyers, reservation, fort, post, arsenal, such issued, published phlets writings, or other yard, station, installation, or after hav- by any person, prepared or otherwise ing been or removed therefrom ordered agencies persons, agency other or by any person not to reenter or officer paragraph above, forth in those set charge or command thereof— 5, below, prohibited paragraph Shall be $500 fined more than or Military with- Reservation Fort Dix imprisoned months, not more than six approval proper Ad- written out or both.” headquarters.” jutant General, 2. “2. PROHIBITED PRACTICES: Demonstrations, sit-ins, picketing, a. protest marches, political speeches liminary injunction pur- 538, 547, Corp., a motion nance 405 U.S. 20(b) order suant to Fed.R.Civ.P. 31 L.Ed.2d 424 com- allegation severing plaint from the candidate does contain the controversy pamphleteer plaintiffs. No the matter the barred exceeds filed, $10,000.00 interest and the district sum of exclusive of answer has been allegation upon costs, yet does ruled the sever- but that mere evidentiary inquiry. g., Tanzymore not end the E. ance An motion. day Corp., was held on the return the order Bethlehem 457 F.2d 1320 Steel (3d cause, 1972); Keefer, and on October Cir. Nelson v. show deny- (3d opinion court filed an F.2d 289 application in- incongruous may seem aif junction. An order to that effect was Commanding state officer such as the signed 13, 1972, ap- on October and this of a Officer National Guard base were peal followed. charged with violations of first amend rights ju ment there would be federal

JURISDICTION regardless jurisdictional risdiction of Shafer, We are confronted at the outset amount, see Lasher v. 460 F.2d appellees’ with contention that (3d 1972), 343 Cir. that when a but fed appeal should be dismissed for lack of charged plaintiff eral officer is so- jurisdiction. federal The district court estab must assume added burden of states, opinion discussion, without lishing controversy the matter in allegations complaint are suf $10,000.00. exceeds the sum or value-of jurisdiction ficient to establish under 28 courts Some and commentators have jurisdictional The suggested U.S.C. 1331. state Congress § cannot constitu complaint ment of the refers to 28 tionally U.S. require $10,000.- more 1331, C. 1343 and and to sev 1361, controversy §§ 00 if the effect is 4 non-ju eral other federal statutes of a judicial bar of a con federal review risdictional character. 28 Cortright U.S.C. 1343 § stitutional claim. v. Re See inapplicable. only is It deals with state sor, F.Supp. 797, (E.D.N. 325 808-811 action. This case 245, involves actions taken Y.), grounds, rev’d on other 447 F.2d solely authority. on federal 28 (2d denied, U.S.C. 1971), § cert. 250-251 405 grants ju 1361 is one of the 965, 1172, of federal U.S. 92 S.Ct. L.Ed.2d 240 31 jurisdictional risdiction to which no (1972); Murray Vaughn, F.Supp. v. 300 amount by is attached. But no (D.R.I.1969); fair Note, 688, 695 The Con reading complaint could the be construed Implications stitutional of the Jurisdic alleging an action in Injunction mandamus to tional Amount Provision in compel perform David and Laird Against Officers, Federal 71 Col Suits duty plaintiffs. owed to the (1971); Under um.L.Rev. 1474 End West cf. plaintiffs’ theory complaint in the Neighborhood de Stans,5 Corp. F. v. 312 acting fendants are outside of their Supp. 1066, (D.D.C.1970). au 1068 Com thority. equity forth pare sets suit with above Goldsmith v. Suth injunction against for an interference erland, (6th Cir.), 426 F.2d cert. 1395 rights protected by with civil denied, the first 960, 353, 400 L. U.S. 91 S.Ct. 27 only amendment. The however, basis federal view, Ed.2d 270 jurisdiction general grant is the hardly of fed history consistent with the question jurisdiction eral found in 28 question jurisdiction. federal lower The 1331, grant U.S.C. and to that general § Con federal courts had no federal gress jurisdictional has attached jurisdiction question Judiciary until Lynch amount. See v. Household Fi- Act of 1875. Prior to enforce- 1875 the 4. seq.; § U.S.C. 701 et juris U.S.C. it §§ U.S.C. also has the dictional attributes of a state court. See 5. While the Moore, District [3], Court for the District 2A Federal Practice ¶8.07 of Columbia court, (2d is an article III at 1640 ed. Lynch Rights Corp., the re- su- was v. Household Finance Bill of ment courts, subject pra, 405 U.S. at at 1119. sponsibility of the state 92 S.Ct. by the their decisions only to review of must, then, The meet federal Supreme the lower Court. When requirement. amount-in-controversy ques- granted federal first courts were contends, rely Government jurisdiction tion upon Hague CIO, principally attached, such a requirement was L.Ed. 1423 59 S.Ct. ever since. requirement remained of freedom courts, jurisdiction of the state speech assembly are of such na way however, in no affected was susceptible ture to be of valuation as not ju- grant of concurrent to federal courts money beyond and are thus the reach question federal cases. risdiction conferred example, case, have David could opinion There is dicta in Justice Stone’s New courts of the state been sued suggesting 527-532, Id. as much. undoubtedly Jersey. He would opin his 969-972. But not the pursuant to courts to the federal moved Court, Supreme Court ion of and the 1442(a) (1), the suit since 28 U.S.C. § Circuit, in has never so held. Sixth color done under which were for acts Sutherland, supra, relying Goldsmith removed ac- In the federal office. his dictum, accepted on Justice Stone’s require- jurisdictional amount tion the position. In addition the Government’s inapplicable be- have been ment would supra, Hague CIO, Circuit Sixth v. the to separate jurisdictional is a 1442 cause § authority proposition relied, for the for grant regard in con- to amount without right infringement of the of that claims Morgan, troversy. Willingham v. 395 monetary incapable speech of of free are 402, 1813, L.Ed.2d 396 23 89 S.Ct. U.S. Johnson, v. 335 valuation on Giancana Richards, (1969); v. 105 U.S. Venable denied, 1964), (7th cert. 366 F.2d 636, (1882). But if he L.Ed. 1196 26 718, 1001, L.Ed.2d 13 85 S.Ct. 379 U.S. remove, suit could not to the did elect Somervell, (1965), v. and Carroll 702 proceed The availa- in the state court. (2d Cir. Giancana 918 116 F.2d bility remedy probably of that would allegedly upon complaint an was based any contention that answer suffice Congress by agents the of unlawful surveillance constitutionally im- not could allege complaint did not FBI. require- jurisdictional pose amount alleg the plaintiff not that the show did rights applicable cases ment to civil agents edly activities of the unlawful Hart, against federal officers. See damages subjected of in him to excess Congress to Limit Jurisdic- Power the $10,000.00. To the extent Giancana in tion of Federal Dialectic, An Exercise Courts: anything beyond the failure decides 1362, 66 Harv.L.Rev. allege jurisdictional the show event, that constitution- be re controversy, it must in amount issue, one, al if it not is seem does by garded v. Bivens Six overruled as Court, Supreme it re- concern for the 388, Agents, Named Unknown cently said: 1999, 29 L.Ed.2d 619 91 S.Ct. “Thus, against example, in damages for suits for a claim holds that which alleged depriva- federal officials for amendment fourth violation rights, is tions of constitutional necessary it rights justiciable Car under is satisfy in the amount amendment first not hold that roll does controversy requirement federal rights incapable of valuation. jurisdiction. Selec- See Oestereich v. case only record holds 233, Board, tive 393 U.S. Service controversy the amount established 402; 21 L.Ed.2d Bivens $1,138.- S.Ct. specific wages, of lost amount Agents, applica Named Six Unknown 403 U.S. the then was less which jurisdictional amount. 619.” 29 L.Ed.2d ble $3000.00 RELIEF AND PRELIMINARY refers both Section AMOUNT JURISDICTIONAL in which In cases value. and to sum remedy law, adequate the at is an there course, point is, There the damages, jurisdictional recovery the hearing plaintiffs’ motion for on the the by reference determined must be amount injunction proof preliminary no was damages. In cases of those sum specifically to establish- offered directed remedy adequate is no where there rights civil ment the value of law, measure sought. protection From sought protected value of urges that the denial the Government situations by injunctive In some relief. injunctive relief should be types of cases two line between going merits without to the affirmed for dam action blur as tends agree. do not We have the claims. We infringement ages fourth amend rejected first amend- the contention that rights. g., See, e. Six Bivens ment incapable of valuation ment supra. Agents, But Named Unknown nonjusticiable hence in a intangible many interests there are complaint alleged requi- case. The quite difficult of which will be invasion jurisdictional amount. When site One of these is in dollars. to value preliminary injunction was for a motion System interest of Selective Service the district on October before registrant being lawfully classified. 1972', day of the order the return obviously must be measur That interest allegation cause, show had been proper intangible value ed byor either answer affida- traversed Though conten- of that vit. The the value classification. urged upon tion was not precise right may mea difficult court. The directed sure, difficulty does make alleged infringement incidents nonjusticiable under claim rights justi- first amendment Board Local v. Service Wolff Selective justification fication or lack of for those (2d F.2d 826 Cir. No. 372 infringements. The district court as- injunction 1967). federal courts jurisdiction that of the federal sumed frequent- 1331 or 1332 actions under § issue, not in least with court at was intangibles ly protect such asked to injunction. spect preliminary In adhering good to a trade- as the will understanda- these circumstances it was Ray Schering g., Corp. v. E. Sun mark. no introduce effort was made to ble (3d 1963); Drug Co., specifically 72 Cir. value F.2d 320 evidence directed was, rights. after Orsatti, Inc., This of the claimed East, Inc. v. Ambassador hearing, all, final but a not a (3d in- If these 257 F.2d 79 injunction. preliminary a motion for capa- sufficiently tangible interests the record of the as Since jurisdiction- meet ble of valuation to allegation juris- before us the comes requirement no reason al amount there is untraversed, remains amount dictional rights lay rule of law that the down a legal certainty say as a and we cannot assembly present speech of free and free plaintiffs never able will be nonjusticiable problems of valuation. jurisdictional amount their establish legal certainty say we cannot as a Thus claim, proceed as- on the same we must hearing'will at final sumption did the district court. justify jurisdictional unable to Indeed, in the on the evidence they pleaded. de- claims which We juncture far at record it seems Sutherland, cline to follow Goldsmith v. likely than not that the district more suggests supra, insofar as that case ultimately value hold that the court will dismissing propriety for lack of fed- sought pro rights of the to be of some jurisdiction. $10,000.00. eral Four of tected exceeds

1053 distributing against literature the nation’s bition plaintiffs are candidates which not been highest political submitted offices. The approval by they prior assembly restraint an speech for which seek Adjutant pursuant intimately Dix of Fort connected with General protection are Regulation in to Fort Dix No. 210-27. quest for that office. Just as competition we . unfair an action States, 407 Under Flower v. United value the trademark look would at 653 L.Ed.2d U.S. S.Ct. 32 in- of the the extent rather (1972), re these a resolution of issues Schering Ray Corp. fringement, v.' Sun quires description Fort Dix Mil of the East, Drug Co., supra; Inc. Ambassador itary Flower the Court Reservation. supra, Orsatti, Inc., in a so v. power made clear campaign value of look at the should we general access authorities restrict than at the extent rather recognized military facility, in Cafete infringement constitutionally of the McElroy, ria & Restaurant Workers pursue protected it. 1743, L.Ed.2d claimed apply did not to those quite may pamphleteers so barred facility public parts to which the them, however, with- clear. Even as freely reversed has been admitted. suggesting position final out what our of 18 conviction violation Flower’s may us after be if the ease comes before charged The violation U.S.C. § say hearing, we cannot final within was the distribution leaflets by Judge expressed view Weinstein Houston, of Fort Sam boundaries Resor, supra, Cortright is unreasona- Antonio, having Texas, after been San He ble. wrote: post from the for similar distri barred place on butions. distribution took definition, speech “Free is almost passed New Braunfels Avenue which $10,000, so that the more than worth fort, through open post, over an allegation upon based 17,740 day passed vehicles a with subject ought not be to denial.” military. out interference from the F.Supp. at 810. The district court held Fort stage, in the state At this Dix, Houston, unlike Sam us, of the record before it seems more finding open post. clearly likely will, appellants than not that the The erroneous. record establishes assumed, satisfy the the as district Dix, fifty- of Fort a reservation over requirement at fi- miles, square ten is crossed five hearing. juris- reject nal Thus the we including major paved state roads dictional amount contention as a basis highway, 68, of which unre Route all on injunctive for denial of traffic, as well stricted vehicular civilian lief. military, permitted is at all times. as unpaved addition, many there are THE OF CLAIM MERITS THE paved on the roads and trails. On the above, complaint pedestrian As we is have said the traffic trails unrestricted alleges groups operated permitted. on common claims behalf of two as Buses, separate carriers, interests, with somewhat the use on the base. the roads discharge pamphleteers. They up pick passengers, candidates and' the barred and alleges separate military. It au violations which are raise civilian and Civilians applicable post. two issues. isOne to the can- on the There numer are thorized only. didates employed The other is common to ous civilians. conces Business groups. applicable post. both The issue conducted on the Civil to the sions are barring only legality candidates the is of welcome to visit soldiers. ians are them from the base of their Entertainments because sta- are welcome. Tourists tus as occasionally provided candidates. at as issue common to are groups prohi- may congregate legality people both many is the of at the as 5000

1054 sports post. on arena the Outside from intrusion those areas of Fort Dix religious chaplains conduct services on which have fact been closed to the post post. public. Florida, can visit Adderly the One the See v. 385 U.S. all, all, 39, except 242, (1966). or no reason at reason at 87 17 L.Ed.2d 149 S.Ct. political apparently, open post to of- And it on is clear that even an unapproved military fice or distribute leaflets. the to authorities are as free as gate Spock counterparts impose which candidates and civil rea- Wrights- stopped Pulley regulations is on the prevent disruption were sonable road, primary five from town about feet the com- facility. mission Wrightstown. Louisiana, 559, mercial is It Cox See v. 379 U.S. 85 normally open unguarded, 476, but L.Ed.2d But guarded apparently by representatives here the record clear makes that distri- September military personnel bution of defendant David leaflets anticipation housing, occupied A visit. the base military personnel dependents, traffic count taken the most re- and their available, daily cent permitted disclosed ap- vehicle is if the leaflets first through 66,000 proved count the reservation of as to content. The record makes world-at-large, There are few vehicles. restricted clear almost reservation, exception areas as such the am- with the candi- magazine dates, munition area and stock- free to on the is come base and ade, off, living working these are persons but either or fenced talk to there. off, by signs if not fenced large marked as re- The record makes clear as- patrolled by or occasionally place. stricted areas sentries. semblies take Thus Only personnel permitted authorized we cannot find that distribution of leaf- areas, restricted lets, the remain- but campaigning, face face or even open general der of the base holding meetings per would se public, political candidates, except for or disruptive facility. mission persons distributing unapproved military litera- authorities themselves ture, except persons those decided otherwise. whom commander of the fort is- The district court refers the recent Dix, sued bar order. Fort when com- Lloyd Corp. Tanner, decision in pared Houston, Sam is a fortiori Forbes, L.Ed.2d 92 S.Ct. post. open See Jenness authority denial (D.R.I.1972). F.Supp. preliminary injunction. ease The Federal Government exer point. not in of a involved cises over entire reser private shopping of a center to is- owner military policemen vation. Its enforce place sue invitations his business regulations traffic and the criminal laws private pub- for selected rather than for applicable to offenses on federal Amalga- purposes. lic limits The case But reservations. of the fact exer Employees mated Food Local v. Lo- imply cise of such does not gan Plaza, Valley U.S. power selectively persons exclude and Marsh L.Ed.2d 603 solely ground on the of exercise of Alabama, 66 S.Ct. rights protected by the first amendment. line 90 L.Ed. That entire open If the reservation is to all the rest however, cases, upon the extent turns public, of the there is no basis for hold have, private parties by to which under- may closed, it selectively, that be to< generally taking functions of a nature political or candidates to distributors thought public, as themselves made unapproved literature. subject the first strictures ordinarily applica- which are amendment suggest any not We do lack governmental Lloyd ble to actions. principle vitality to the announced enlighten Corp. not the issues does supra. McElroy, Cafeteria Workers v. principle case, undoubtedly protects presented involves in this which Restrictions, Army partici- first which the governmental 2-2. pation action a. (and cooperation) applies. one is clearly It is au- not amendment may participation such thing say private thorized when directly landowner that a (indorse public for indirectly or or selec- invitations may issue favor), tively) (or appear or thereby benefit exclude purposes and selective (or (indorse selectively) is benefit premises. or from his demonstrations individual, favor) group, governmental private say quite another profit custody (whether corporation or charged with official organiza- sect, may nonprofit), is- fraternal publicly lands owned control of using ideological quasi-religious tion, or invitations such or withhold sue political group, by movement, first or commer- forbidden classification charge venture, al- or be so- cial associated with latter is The amendment. political elec- leged licitation of votes case. tion. military imply do we Nor regula- (1) post purpose open may not be of this For of an commander prohibiting tion— bar orders issue free post. persons entire from the some Providing (a) use Government- have such orders record discloses that transportation, facilities, such as posses- issued for such been offenses housing, messing, or at Government assault, narcotics, marijuana or sion expense Army is a form considered possession property, solicita- of stolen participation.” carrying prostitution, concealed tion Regulation Army This seems on its face contributing offenses, weapons, traffic inapplicable. appellants did minor, imperson- delinquency of a government transporta- seek use of ating female, fraud, and unauthorized tion, housing, messing. They sought or ac- of an card. For all these use ID public same access as af- is appropriate. may be tivities bar orders publie-at-large. Moreover, forded to the been issued But bar orders also permitting political campaigning even if distributing publications.” “unauthorized open and leaflet distribution in areas publications those Unauthorized of Fort Dix were be considered to be not been submitted to which have provision government facilities, it Adjutant General, by approved credulity per- stretches to assume that disapproval depends approval or his mitting such use would be an endorse- message. A upon the content of ment or selective benefit the candi- restraining prior more vivid instance aof All who in this relief. dates case seek protected on activities the first Regulation Army required by No. imagined. hardly amendment can 360-61, seem, even-handed it would The Government contends neutrality. Regulations 210-26, Fort Dix No. which require court would much prohibits political speeches, No. , neutrality. Its more even-handed 210-27, requires approval urges: opinion publications prior content of to their distribution, authorized, least, if “It is Amendment clear First required Regulation Army No. must care- regulation part 360-61. In relevant against weighed fully the interests of provides: prohibiting in the activity policy “2-1 De- in of the base General. The of the the confines partment the Army support the inimical to to and other exercises public military in events the civilian Fort Dix. domain mission at Regulations subject operational training reasoning to and the behind quirements, budget limitations, 210-26, and here Dix Nos. [Fort 210-27] guidelines urg- paragraph apparent. enumerated Aside from involved is ing vote, personnel clearly 2-3. its motive, military candidacy healthy the must re that at final their politically antiseptic.” $10,000.00. main 349 F. will be valued excess of brought Supp. promptly They at 182. this action after being September excluded on voting age eighteen years the With strong present Their cases likelihood 28,000 probably majority the the vast hearing. prelimi- of success at final A people living in Fort Dix are entitled nary injunction grant- should have been they vote. If are to exercise that fran- pamphleteers ed. The barred are in a intelligently they chise should have as position. somewhat Their in- different campaign information, free access to directly are neither connected terests so subject to the time strictures of their election, with the November nor military occupations, general- citizens promptly diligently pursued so and ly. policy antisepsis A the such as courts, as are the interests the district court envisioned would be showing They candidates. make a lesser consign military neutral. It would vot- irreparable injury pos- of immediate and category ers to the of the uninformed. showing sibly a lesser of likelihood of policy But in fact there is no such of an- meeting amount. tisepsis. The record discloses that think, was, case it their we within military permits circulation and dis- permissible bounds of for the discretion range tribution newspapers Fort Dix of a wide fi- district court withhold relief until magazines, and and ra- hearing. nal during dios and televisions are available living off-duty persons hours. Thus the Judge (1) in the result Rosen concurs exposed political Dix are Fort judge because the district court de- ideas those candidates whose cam- no termined prominent enough paigns are or well-fi- objection by made conclusion was to this enough widespread nanced to attract me- appellee court, in the district coverage. dia In these circumstances (2) squarely because this case is within antisepsis Regulations of Fort Dix parameters Supreme Court Nos, hardly 210-26 and 210-27 is a neu- holding States, in Flower v. United su- antisepsis. tral What the Fort Dix vot- pra. protected from, practically ers The order of court will be the district speaking, exposure and the case remanded reversed ideas of those minor candidates whose injunction entry of a direct- campaigns enough prominent are neither defendants cease from inter- sufficiently nor well-financed to attract fering by political campaigning with the coverage, media and who must make do Hobson, plaintiffs Spock, the candidate with the inore old fashioned face-to-face Pulley or Jenness and with distribu- style campaigning. feigned Such a campaign be- tion of literature neutrality military serves no diseernable half within the unrestricted areas purpose, outweigh and cannot the first Military Dix Reservation between amendment of the minor candi- hereof the date and November dates. may provide The order the candidates to and the dis- PRELIMINARY RELIEF campaign literature tribution of shall time, eq subject need for immediate to such restrictions as involved, uitable ap place persons relief for the candidates is numbers parent. 6, 1972, On October the election shown the defend- as shall been was away. Today than a prevent less month necessary interfer- ants only days thirteen remain. military functions of the ence with the held juris base, that there and the flow of and civil- diction. As candidates, provide traffic, for the ian shall not but record prior approval any authority establishes their status as such overwhelming there is communication. likelihood contents ly question more than the down for a fi- far valuable be set case should nevertheless, amount, hearing dispose promptly nal expand use for in- one cannot that belief to the candidate claims of 7, 1972, jurisdiction beyond of the federal courts junetive relief after November Congress, injunctive expressly authorized relief of the claims Lynch plaintiffs. Corp., Finance pamphleteer v. Household the barred 538, 547, forth- U.S. of this court will issue 31 L.Ed.2d mandate with. LAYTON, Judge. Senior deference, must dissent for I

With

two reasons. view, orderly

First, my admin- in justice demands that

istration required jurisdic-

question whether the present be amount is here tional should Ralph MASCIOLA, Appellant, District remanded to the Court made no substantive determination UNITED STATES of America. un- issue for the reason that it was this challenged by No. 72-1261. government low- court, Lo- er Wolff v. Service Selective United Appeals, States Court (2d 16, 372 F.2d 817 Cir. cal Board No. Third Circuit. 1967).1 finding made, Once a Submitted Oct. 1972. question substantive can then decided Decided Nov. appeal. on further Court, But even should District upon some such

based rationale as ad by Judge Cortright

vanced Weinstein Resor, (E.D.N. F.Supp. 797, 810 requisite 1971),2 ju

Y. conclude that the present, amount

risdictional were I grave agreeing difficulty

would have

for the reason that such a result is finding rather, reality but, of fact3 expression judicial philosophy

an ing hav legislating judicially the effect of

plain gap jurisdiction statutory in the

the federal courts. See at 372 F. Wolff p. viewed, 2d the chance of Thus

success on final would be remote extremely likely.

rather than Although personal may one’s belief speech free is inherent- p. Judge injury factorily 1. At 826: “Because McLean in the amount show opinion $10,000 was of the this suit was remains and on but fact presently justiciable, he had no occa mand the District must determine Court appel question." (Emphasis added.) sion to determine whether or not presence lants could demonstrate speech 2. “Free is almost definition requisite controversy. $10,000.00.” worth more than gap statutory is an unfortunate in the Sutherland, 3. Goldsmith v. 426 F.2d 1395 of the federal courts (6th ability our hear a suit of this nature depends appellants on whether can satis-

Case Details

Case Name: Benjamin Spock v. Bert A. David, Commander, Fort Dix Military Reservation, and Melvin Laird, Secretary of Defense

Court Name: Court of Appeals for the Third Circuit

Date Published: Oct 27, 1972

Citation: 469 F.2d 1047

Docket Number: 72-1934

Court Abbreviation: 3rd Cir.