373 F2d 664 Luftig v. S McNamara

373 F.2d 664

Robert LUFTIG, Appellant,
Robert S. McNAMARA, Secretary of Defense et al., Appellees.

No. 20129.

United States Court of Appeals District of Columbia Circuit.

Argued December 13, 1966.

Decided February 6, 1967.

Mr. Stanley Faulkner, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Mrs. Selma W. Samols, Washington, D. C., was on the brief, for appellant.

Mr. Richard S. Salzman, Atty., Dept. of Justice, with whom Asst. Atty. Gen. John W. Douglas, Messrs. David G. Bress, U. S. Atty., and Morton Hollander, Atty., Dept. of Justice, were on the brief, for appellees.

Before WILBUR K. MILLER, Senior Circuit Judge, BURGER, Circuit Judge, and COFFIN,* Circuit Judge of the United States Court of Appeals for the First Circuit.


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This is an appeal from dismissal of a suit for declaratory judgment and injunctive relief brought by Appellant, a private in the Army of the United States, to enjoin the Secretary of Defense and the Secretary of the Army from sending him to Viet Nam. He claims that American military action in Viet Nam is unconstitutional and illegal and that Appellees have no lawful authority to assign him there.1 Appellant does not challenge the legality of his induction and does not seek release from military duty.


The complaint is entitled in terms of a suit against individual officials of the United States government; in legal effect it is plainly a suit against the United States acting through these officials.


The District Court sua sponte ordered dismissal of the complaint on the ground that the relief sought represented a claim for judicial review of political questions beyond its jurisdiction and that it was an unconsented suit against the United States.


The District Court was, of course, eminently correct on both its primary and alternative grounds for dismissal; these propositions are so clear that no discussion or citation of authority is needed. The only purpose to be accomplished by saying this much on the subject is to make it clear to others comparably situated and similarly inclined that resort to the courts is futile, in addition to being wasteful of judicial time, for which there are urgent legitimate demands.


It is difficult to think of an area less suited for judicial action than that into which Appellant would have us intrude. The fundamental division of authority and power established by the Constitution precludes judges from overseeing the conduct of foreign policy or the use and disposition of military power; these matters are plainly the exclusive province of Congress and the Executive. Johnson v. Eisentrager, 339 U.S. 763, 789, 70 S.Ct. 936, 94 L.Ed. 1255 (1950); Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 92 L.Ed. 568 (1948); Eminente v. Johnson, 124 U.S. App.D.C. 56, 361 F.2d 73, cert. denied, 385 U.S. 929, 87 S.Ct. 287, 17 L.Ed.2d 211 (1966); Pauling v. McNamara, 118 U.S.App.D.C. 50, 331 F.2d 796 (1963), cert. denied, 377 U.S. 933, 84 S.Ct. 1336, 12 L.Ed.2d 297 (1964); Pauling v. McElroy, 107 U.S.App.D.C. 372, 278 F.2d 252, cert. denied, 364 U.S. 835, 81 S.Ct. 61, 5 L.Ed.2d 60 (1960).





Sitting by designation pursuant to Section 291(a), Title 28 U.S.Code

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This is Appellant's second attempt to have a Federal court hold the war illegal. His prior suit was dismissed, Luftig v. Ferguson, No. 44700, N.D.Cal., Feb. 18, 1966