MR. JUSTICE POWELL delivered the opinion of the Court.
The District Court for the District of Columbia preliminarily enjoined appellants, the Secretary of the Air Force and five Air Force officers,
Article 134 provides, inter alia, that "crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense . . . ." This clause of the article is an assimilative crimes provision, conferring court-martial jurisdiction over service-connected, noncapital federal offenses not covered by specific provisions of the Code.
The military authorities then prepared to retry DeChamplain before a general court-martial on substantially the same charges. The charges were amended, however, to delete all allegations pertaining to three of the classified documents, the Air Force choosing to forgo prosecution as to these documents rather than compromise their confidentiality. The Air Force also decided not to introduce
At a pretrial hearing conducted pursuant to 10 U. S. C. § 839, DeChamplain challenged these restrictions. The presiding military judge sustained the restrictions, but granted the civilian defense team access to portions of the original record pertaining to the nine documents still at issue, subject to the restrictions applicable to the documents themselves. DeChamplain also moved to dismiss the charges on various grounds, claiming, inter alia, that Art. 134 was unconstitutional. The presiding judge denied the motion. DeChamplain made the same claims in three petitions to the Court of Military Appeals for extraordinary relief. That court denied the petitions,
DeChamplain's second court-martial was to begin on November 15, 1973. On October 3, he filed this action in the District Court seeking injunctive relief and asserting, among other claims, that Art. 134 was unconstitutionally vague and that the limitations on access to and use of the classified documents denied him due process and effective assistance of counsel. The defendant military authorities moved to dismiss for lack of subject-matter jurisdiction and failure to state a claim upon which relief could be granted. The Court denied the motion. It agreed with the military authorities that "generally a serviceman must first exhaust his military remedies before a federal court will interfere with court martial proceedings." 367 F. Supp., at 1294. The court believed, however, that the circumstances of the case justified an exception to the rule. Because the issues presented in the case were "purely legal" and did "not necessitate determinations which the military forum is best equipped to make," and because "Sergeant DeChamplain [would] be denied fundamental constitutional guarantees" unless the court intervened, the court concluded that there was no justification for deferring consideration of the issues until after DeChamplain's court-martial and subsequent military appellate review. Ibid.
The District Court further concluded that DeChamplain had satisfied the requirements for a preliminary injunction. It ruled that the unconstitutionality of Art. 134 was clear from the decisions of the Courts of Appeals in Avrech v. Secretary of the Navy, 155 U. S. App. D. C. 352, 477 F.2d 1237 (1973), and Levy v. Parker,
Finally, the court concluded that DeChamplain adequately had demonstrated irreparable injury: he had been in confinement since before his original court-martial and, if again convicted, would remain confined pending review by the military appellate courts.
The case comes to us in a most unusual posture. Insofar as the complaint sought an injunction against enforcement
The District Court here, however, obviously did not consider DeChamplain's constitutional claim insubstantial; on the contrary, the court denied the motion to dismiss and went on to grant a preliminary injunction. According to DeChamplain, a three-judge court was deemed unnecessary at the time the complaint was filed, not because his claim was insubstantial, but because the unconstitutionality of the statute appeared settled by the Court of Appeals decision in Avrech v. Secretary of the Navy, supra, a decision binding on the District Court.
But the prediction proved to be ill-founded; subsequently, the Court of Appeals decision in Avrech was reversed by this Court. Secretary of the Navy v. Avrech, 418 U.S. 676 (1974). In consequence of this, appellee DeChamplain argued in his motion to dismiss and brief to this Court that the question of Art. 134's constitutionality was substantial and thus a three-judge court was required. Moreover, if this is so, appellee urges, this Court has no jurisdiction of the appeal, and the appeal must be dismissed.
Appellee bases this argument on our decisions concerning appellate jurisdiction under 28 U. S. C. § 1253. That section allows a direct appeal to this Court "from an order granting or denying . . . an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges." On its face, this provision would seem to allow a direct appeal to this Court if a single district judge grants or denies an injunction, when under 28 U. S. C. § 2281 or § 2282 the case was "required . . . to be heard and determined" by a three-judge court. This Court has read the statute, however, as allowing direct appeals only from
Appellants here, however, premise this Court's jurisdiction on 28 U. S. C. § 1252, rather than § 1253. Section 1252 provides in pertinent part:
The requisites of this provision are met in this case. This is a civil action; the appellant military authorities are, of course, officers of the United States, acting in their official capacities; and Art. 134 is an "Act of Congress." It might be argued that, in deciding to issue the preliminary injunction, the District Court made only an interlocutory determination of appellee's probability of success on the merits and did not finally "hold" the article unconstitutional. By its terms, however, § 1252 applies to interlocutory as well as final judgments, decrees, and orders, and this Court previously has found the section properly invoked when the court below has made only an interlocutory determination of unconstitutionality, at least if, as here, that determination forms the necessary predicate to the grant or denial of preliminary equitable relief. Fleming v. Rhodes, 331 U.S. 100 (1947). In
In his motion to dismiss, appellee argued that § 1252 should be subject to the limitations placed on direct appeals to this Court under § 1253. In other words, § 1252 should not be read as allowing a direct appeal from an injunctive order erroneously entered by a single district judge, and instead appeal should be allowed only when the district court acted within its jurisdiction.
Proper disposition of the case does not require extended discussion. Appellants argue that, in fact, DeChamplain's constitutional claim was always insubstantial. The Courts of Appeals decisions in Levy v. Parker and Avrech v. Secretary of the Navy, which concluded that Art. 134 suffered from unconstitutional vagueness, concerned only the first two clauses of that article making punishable "all disorders and neglects to the prejudice of good order and discipline in the armed forces" and "all conduct of a nature to bring discredit upon the armed forces." DeChamplain, however, was charged under the assimilative crimes clause of the article, and was accused of having committed specific federal offenses. Thus, any possible vagueness in other parts of the article could not have affected DeChamplain. At this point, however, no purpose could be served by our deciding whether, when the complaint was filed, DeChamplain's constitutional claim was or was not substantial. Under our decisions in Levy and Avrech, DeChamplain's claim is, as he concedes,
We hold that relief as to the access claim is precluded squarely by our holding in Schlesinger v. Councilman, 420 U. S., at 758, that "when a serviceman charged with crimes by military authorities can show no harm other than that attendant to resolution of his case in the military court system, the federal district courts must refrain from intervention . . . ." The "unlimited access" aspect
Vacated and remanded.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, concurring in the judgment.
Although I concur in the judgment, I would direct dismissal of DeChamplain's suit, not as the Court does on the ground that "the federal district courts must refrain from intervention," but because DeChamplain makes no claim denying the right of the military to try him at all. Therefore, his claim of right of access to and use of classified documents is properly to be presented to the military tribunals. See my concurring and dissenting opinion in Schlesinger v. Councilman, 420 U.S. 738, 762 (1975).
"Though not specifically mentioned, in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court."