Michael R. Locks v. Melvin Laird, Secretary of Defense

Our query is whether members of the military services may attack in the federal civilian courts the constitutionality of service regulations by seeking declaratory and injunctive relief subsequent to the commencement of court-martial proceedings against one of the complainants for violation of the regulation. Affirming the judgment of the trial court, D.C., 300 F.Supp. 915 , we hold that they may not.

Appellants, members of the Air Force Reserve, attack as violative of their First and Fifth Amendment rights an Air Force regulation prohibiting the wearing of the Air Force uniform “ * * * at any public meeting, demonstration, or interview if * * * a purpose of the meeting, demonstration, or interview is the advocacy, expression, or approval of opposition to the employment or use of the Armed Forces of the United States.”

Locks has been convicted by a general court-martial for disobeying the regulation and sentenced to reduction to grade of airman basic, forfeiture of all pay and allowances, confinement at hard labor for one year and bad conduct discharge. He has not yet exhausted the remedies available within the military judicial system for review of the court-martial conviction.…

(concurring and dissenting):

Although I agree with the majority opinion that Locks’ failure to exhaust his available remedies within the military justice system deprived the district court of jurisdiction to hear his claim (Younger v. Harris (1971) 401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 ; Samuels v. Mackell (1971) 401 U.S. 66 , 91 S.Ct. 764 , 27 L.Ed.2d 688 ), I am unable to concur in the majority’s disposition of the appeals of Bright, Williams, and O’Connell.

Bright, Williams, and O’Connell have no remedies to exhaust within the military justice system. None of them has violated the challenged regulation and none has been subjected to court martial. The military courts have not been given authority to grant declaratory relief or to issue injunctions, except as that authority may be incidental to the Court of Military Appeals’ jurisdiction over pending court martials. (See Gale v. United States, 17 U.S.C.M.A. 40 , 37 C.M.R. 304 ; United States v. Bevilacqua, 18 U.S.C.M.A. 10 , 39 C.M.R. 10 .)

The majority opinion recognizes that Bright, Williams, and O’Connell do not stand in Locks' shoes, but the opinion nevertheless forces the trio in Locks’ stance on the theory that a…

441 F.2d 479 Michael R. LOCKS et al., Appellants, v. Melvin LAIRD, Secretary of Defense, et al., Appellees. No. 24682. United States Court of Appeals, Ninth Circuit. April 20, 1971. Albert M. Bendich, Berkeley, Cal., Paul N. Halvonik, Charles C. Marson, American Civil Liberties Union, Richard J. Werthimer, San Francisco, Cal., for appellants. James L. Browning, Jr., U.S. Atty., Sheldon Deutsch, Asst. U.S. Atty., san Francisco, Cal., for appellees. Before CHAMBERS, Chief Judge, and MURRAH * and HUFSTEDLER, Circuit judges. MURRAH, Circuit Judge: 1 Our query is whether members of the military services may attack in the federal civilian courts the constitutionality of service regulations by seeking declaratory and injunctive relief subsequent to the commencement of court-martial proceedings against one of the complainants for violation of the regulation. Affirming the judgment of the trial court, D.C., 300 F.Supp. 915 , we hold that they may not. 2 Appellants, members of the Air Force Reserve, attack as violative of their First and Fifth Amendment rights an Air Force regulation prohibiting the wearing of the Air Force uniform '* * * at any public meeting, demonstration, or interview…