Opinion for the Court filed by Senior District Judge JAMESON.
JAMESON, Senior District Judge:
This is an appeal from an order of the district court declaring unconstitutional
Recognizing "that drug abuse is a profoundly serious national problem that is having a grave effect on the Armed Forces",
In an order denying plaintiffs' motion for a preliminary injunction, the district court directed that the Secretary of the Army file "a detailed written statement of the procedures and directives it intend[ed] to use in carrying out the drug elimination program in the German Command". In response to this directive, the Secretary of the Army promulgated USAREUR Circular 600-85, outlining the rehabilitation and prevention procedures of the drug program and eliminating some of the objectionable features previously urged by the plaintiffs. The action was thereby narrowed to the constitutionality of the Circular.
The Drug Control Program
The purpose of the drug control program as outlined in Circular 600-85 is to restore to effective and reliable functioning members of the Armed Forces with problems attributable to alcohol and other drugs; and to eliminate from the service those who cannot be effectively restored in a reasonable period of time. The program consists primarily of three phases: identification, evaluation, and rehabilitation. The Circular classifies abusers as (a) those suspected
When a soldier has been identified as a possible drug user, on the basis of an inspection or otherwise, he is subject to mandatory drug processing. Initially, he is confronted by his commanding officer, who informs him of the evidence against him, warns him of his rights and gives him the opportunity to provide additional evidence on his behalf.
At the end of the 60 day rehabilitation period, the commanding officer, with the assistance of the CDAAC, makes a determination as to rehabilitative success or failure. If the soldier is determined to be a "rehabilitative failure", he is processed for administrative discharge under circumstances that may adversely affect his military record.
While the primary purpose of the drug control program is the rehabilitation of
The USAREUR's poster regulation (Circular 600-85, para. 14d(4)) permits commanding officers to prohibit the display on barrack walls of posters which in their judgment constitute a "clear danger to military loyalty, discipline or morale". The regulation does not provide for confiscation of the poster; nor does it prohibit a soldier from showing the poster to others. The regulation explicitly refers to and incorporates the guidelines set forth in a letter entitled "Guidance on Dissent", AGAM-P, Headquarters, Department of the Army, 23 June 1969, which provides in part:
Decision of the District Court
By memorandum opinion dated January 14, 1974, D.C., 370 F.Supp. 934, and order entered February 8, 1974, the district court on cross-motions for summary judgment granted the plaintiffs-appellees partial relief by holding certain provisions of USAREUR Circular 600-85 unconstitutional and issuing a mandatory injunction. Specifically, the court held that the warrantless drug inspections authorized by the Circular without a showing of probable cause were not justified by military necessity and that the use of the information gained by the searches as a basis for imposing punitive sanctions, including less than honorable discharge, violated the soldier's rights under the Fourth Amendment. The court did, however, state in its order of February 8, 1974 that the Army could continue "conducting drug inspections or requiring participation in a drug testing and rehabilitation program without probable cause, so long as evidence or information obtained as a result of such procedures is not used as a basis for any punitive action . . .".
Issues on Appeal
The following issues are presented:
(1) Whether the court lacked jurisdiction by reason of plaintiffs-appellees' (a) lack of standing, (b) failure to establish the requisite jurisdictional amount, and (c) failure to exhaust military remedies.
(2) Whether the Army's warrantless drug inspections conducted without probable cause and designed to ferret out illegal drugs constituted a violation of the Fourth Amendment.
(3) Whether the Army was required under the Due Process Clause of the Fifth Amendment to afford a soldier a hearing before imposing non-medical administrative remedies intended to aid the soldier in his drug rehabilitation program.
(4) Whether the "clear danger to military loyalty, discipline, or morale" standard found in the poster regulation was unconstitutionally vague and infringed on the GI's First Amendment rights.
Appellants contend that appellees do not have standing to challenge the entire drug control program, but rather under their allegations of "injury in fact" are confined "to the drug inspections and those few administrative measures which they themselves have incurred". Appellants argue that at the very most appellees have standing to raise only the following issues:
In the context of the Army drug prevention and control program, we conclude that appellants have taken too narrow a view of standing. It is, of course, well settled by Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962) and many subsequent decisions of the Supreme Court that the "gist of the question of standing" is whether the party seeking relief has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions". Whether a party has the requisite personal stake in the outcome depends "upon the circumstances of the particular case". Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968).
The plaintiffs have been and continue to be subjected to drug inspections which
B. Jurisdictional Amount
The district court found jurisdiction under 28 U.S.C. § 1331(a).
In Tatum v. Laird this court held that the amount in controversy may be measured either by the "value of the right sought to be gained by the plaintiff or the cost of enforcing that right to the defendant". Id. at 951. Quoting from Ronzio v. Denver & R. G. W. R. R., 116 F.2d 604, 606 (10 Cir. 1940), the court noted ". . . the test for determining the amount in controversy is the pecuniary result to either party which the judgment would directly produce". 444 F.2d at 951, n. 6 (1973). Viewing this case either from the standpoint of the plaintiffs or the defendants, we conclude that the jurisdictional amount was satisfied with respect to each member of the plaintiff class.
Determining jurisdictional amount from the plaintiffs' position is a difficult, if not impossible, task in view of the fact that basic civil rights are at stake and the claim is for injunctive rather than financial relief. Nevertheless, as this court said in Gomez v. Wilson, 155 U.S. App.D.C. 242, 477 F.2d 411, 420, n. 51 (1973):
Alternatively, we agree with the district court that the jurisdictional amount is also satisfied with respect to all of the plaintiffs because of the costs that the Army would incur if the plaintiffs prevailed. The cost to the Army in that event would be the cost of (1) stopping the drug inspections entirely or providing a warrant procedure for inspections; (2) providing a hearing prior to the imposition of administrative measures; (3) eliminating other challenged aspects of the drug program, i. e., the poster regulation. Considering both the prospective tangible cost of additional hearings and intangible cost of drug abuse among personnel as the result of an adverse ruling, we agree with the district court that the cost to the defendants might well exceed $10,000.
C. Exhaustion of Military Remedies
Appellants contend that the federal courts lack jurisdiction because plaintiffs-appellees failed to exhaust their military remedies and that the exercise of jurisdiction interferes with pending military proceedings. They argue that (1) military proceedings under Article 138 of the Uniform Code of Military Justice (10 U.S.C. § 938) and before the Inspector General (Army Regulation 20-1) are available for purposes of challenging various aspects of the Circular, and (2) objections to the Circular could be raised as a defense in a court martial or in an action commenced by a GI before the Board for the Correction of Military Records (10 U.S.C. § 1552) and the Discharge Review Board (10 U.S.C. § 1553) for purposes of correcting his military records and challenging his discharge from the military service.
As a general rule, the exhaustion of administrative remedies provided by the military service is a required predicate to relief in the civil courts. McGee v. United States, 402 U.S. 479, 483-488, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971); United States ex rel. Taylor v.
In this case no significant interest is served by forcing the plaintiffs-appellees to proceed through military channels. The issues involved are purely legal, requiring no exercise of military discretion or expertise. The federal courts are in a better position to consider the constitutional issues presented than are the various military bodies referred to by the appellants. Moreover, the military tribunals are not designed to handle actions involving so large a class and seeking declaratory and injunctive relief. Rather, actions before the Inspector General as well as court martials and other military proceedings are designed primarily to deal with cases involving some specific misconduct by or complaint on the part of an individual GI. To require exhaustion of military remedies would merely delay a decision by the federal courts.
II. Constitutional Issues
Subsequent to the district court's opinion and order, a number of cases have been decided by the Supreme Court and this court which have recognized the differences between military and civilian life and the constitutional standards to be applied to each. See, e. g., Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); Secretary of the Navy v. Avrech, 418 U.S. 676, 94 S.Ct. 3039, 41 L.Ed.2d 1033 (1974); Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975); and Carlson v. Schlesinger, 167 U.S.App.D.C. 325, 511 F.2d 1327 (1975). While reaffirming the general principle that the members of the Armed Forces are entitled to constitutional protections, these cases stress that "the different character of the military community and of the military mission require a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside of it." Parker v. Levy, supra, 417 U.S. at 758, 94 S.Ct. at 2563. We rely on that standard in reversing the district court and holding Circular 600-85 constitutional.
A. Fourth Amendment Violation — Drug Inspections
USAREUR Circular 600-85, Annex I para. 3a authorizes warrantless drug inspections without probable cause. As stated by the Circular,
The Circular stresses that a drug inspection must not be a "subterfuge for searching the person or property of one or more individuals who are suspected of misconduct before the inspection and, thereby, the actual reason for the inspection". Cir. 600-85, Annex I para. 3b.
The Circular further provides:
In holding invalid the warrantless inspections authorized by the Circular, the district court noted that by reason of their intrusive nature the inspections were "not analogous to the Army's traditional preparedness inspections", but constituted mass searches which "would be illegal in a civilian context in the absence of particularized probable cause", citing Lankford v. Gelston, 364 F.2d 197 (4 Cir. 1966). The court concluded that the Army had failed to establish military necessity for its program and since the drug inspections were not based on probable cause they violated appellees' Fourth Amendment rights. The court emphasized that the inherent difficulty with the USAREUR drug program "is that it attempts to deal with the drug abuse problem not only as a health problem, as Congress intended, but also as a disciplinary problem". Recognizing the value of the drug inspections for rehabilitative purposes, the court permitted the inspections to continue so long as evidence thereby obtained was not used as a basis for punitive action.
To permit an intrusive search without probable cause for purposes of a drug rehabilitation program but deny the use of the results of the search for purposes of discipline presents both practical and legal problems. If the inspections are legal, any evidence of crime obtained therefrom may be used in subsequent criminal action. See United States v. Skipwith, 482 F.2d 1272, 1277-1279 (5 Cir. 1973), cf. United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).
There are a number of factors to consider in determining whether the challenged drug inspections are unreasonable under the Fourth Amendment. While no one factor is controlling, we conclude that in totality the following factors compel a conclusion that in the military context the procedures set forth in the Circular are not unreasonable:
1. The increased incidence of drug abuse in the Armed Forces poses a substantial threat to the readiness and efficiency of our military forces.
2. The "expectation of privacy", Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J. concurring), is different in the military than it is in civilian life. Military inspections have been traditionally accepted and are expected by soldiers. From his first day in boot camp, the soldier has come to realize that unlike his civilian counterpart he is subject to extensive regulation by his military superiors. The soldier cannot reasonably expect the Army barracks to be a sanctuary like his civilian home.
3. The primary purpose of the drug inspections is to ferret out illegal drugs as a means of protecting the health of the unit and assuring its fitness to accomplish its mission. Any punitive actions that might subsequently follow are incidental.
4. Given the nature of drugs and the paraphernalia associated therewith, unannounced drug inspections appear to be the most effective means of identifying drug users so that they might receive treatment and eliminating illegal and debilitating drugs from a unit.
5. In authorizing drug inspections, the Army has attempted to guard the dignity and privacy of the soldier insofar as practical.
When these factors are balanced against the GI's interest in his own personal privacy and security, the balance weighs heavily in favor of the drug inspections. We find the drug inspections to be reasonable.
The fact that the inspections are accomplished without a warrant does not change the result. While as a general rule, searches and administrative inspections may not be initiated in the absence of a warrant or consent by the person or persons being searched or inspected, Camara, supra, 387 U.S. at 528, 529, 87 S.Ct. 1727, conducting the drug inspections without a warrant does not render them per se unreasonable. As noted by the Court in Camara, supra, at 533, 87 S.Ct. at 1733: "In assessing whether the public interest demands creation of a general exception to the Fourth Amendment's warrant requirement, the question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search".
We agree with amici curiae that to require a warrant as a precondition for a valid drug inspection would prove unduly burdensome and would severely undermine the effectiveness of the drug inspections. Given the great number of Army units that are periodically subjected to unannounced drug inspections under the program, the time and effort that would be required if a warrant procedure were necessary would discourage Army administrators from conducting drug inspections. Furthermore, the possibility of advance notice of inspections would be significantly increased. This would give drug abusers the opportunity to conceal illegal drugs, thus to some extent minimizing the effectiveness of the drug inspections.
In summary, we conclude that the warrantless drug inspections under the procedures prescribed in USAREUR Circular 600-85 are reasonable and constitutionally permissible under the Fourth Amendment.
B. Administrative Sanctions — Denial of Due Process
Once a soldier has been determined to be a confirmed drug abuser, various non-medical administrative tools may be employed by the commanding officer as part of a "rehabilitative program coordinated with the community drug and alcohol abuse center". Among those tools are:
(1) withdrawal of the drug abuser's privilege of wearing civilian clothing and requiring him to remove his civilian clothing from the barrack area;
(2) denial of pass privileges, thus confining the soldier to the installation;
(3) suspension of his privately owned vehicle or military driver's license;
(4) prohibition against the burning of odor-producing substances other than tobacco in the barracks;
(5) requiring abusers, whether married or single, to move into the barracks;
(6) segregation of abusers in one part of the barracks;
(7) suspension or revocation of class VI privileges; and
(8) requiring the soldier to keep his or her room unlocked when the room is occupied. Cir. 600-85, Annex J para. 2. The tools may be utilized by the unit commander when he believes that they will aid the medically confirmed drug abuser in the rehabilitation process by making it more difficult for him to purchase, use or possess illegal drugs.
Other administrative measures authorized by the Circular include (1) confinement in a live-in/work-out rehabilitation facility, Cir. 600-85, Annex A;
Appellees contend, and the district court found, that the failure to afford a hearing prior to the imposition of these administrative "sanctions" constituted a violation of the due process rights of the GIs.
The concept of due process was aptly described in Hagopian v. Knowlton, 470 F.2d 201, 207 (2 Cir. 1972):
In considering the administrative measures authorized by the Circular, we again stress that they must be viewed in the military context. While not medical remedies, these administrative tools are medically related. They constitute an integral part of the rehabilitation program designed for GI drug abusers. As discussed previously, vital national interests require an effective drug prevention and rehabilitation program in the Armed Forces.
The Circular specifically requires that "any rehabilitation program must be . . . carefully monitored by the commander as to duration and austerity, in coordination with the CDAAC and the medical treatment facility". Annex J para. 1. Thus, those administrative measures applied to a particular GI are not simply imposed on an ex parte basis by the commander. Furthermore, contrary to the position of appellees, a strict time limitation is placed on the measures. The administrative tools as set forth in Annex J of the Circular, may only be imposed during the active rehabilitation process, i. e. for 60 days.
Given the nature and purpose of the administrative measures authorized by the Circular, together with the vital governmental interests involved, we hold that the Army need not provide a GI a hearing prior to the imposition of the measures. The individual GI cannot be said to suffer any "grievous loss" which "outweighs the governmental interest in summary adjudication". Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970). To require the Army to provide a GI with a hearing prior to the imposition of any action which would affect his liberty or property interests would seriously erode the Army's ability to maintain a disciplined and ready fighting force. In addition, it would impose substantial administrative burdens by requiring the Army to conduct a significantly greater number of hearings each month. Finally, a GI who desires to challenge the imposition of an administrative measure can do so by a complaint procedure after the measure has been imposed. 10 U.S.C. § 938.
C. The Poster Regulation
The sole question with respect to the poster regulation is whether the "clear danger to military loyalty, discipline, or morale" standard by which officers are to judge posters is impermissibly vague. In Secretary of the Navy v. Avrech, supra, the Court upheld a clause of the Uniform Code of Military Justice making criminal the publication of statements disloyal to the United States "with design to promote disloyalty and disaffection among the troops".
Maintaining the proper balance between the legitimate needs of the military and the rights of the individual soldier presents a complex problem which lends itself to no easy solution. With the advent of the all volunteer Army in recent years, the Armed Forces have improved conditions of military life by providing greater benefits and a broader scope of individual freedom to the enlisted man. Nevertheless, the fact remains that discipline and fitness are prerequisites of an effective military force. We have set out in some detail the regulations of the USAREUR Circular to show the precautions taken by the Army to safeguard the constitutional rights of the GI in the drug program. Recognizing the inherent differences between military life and civilian life and the vital interest of the nation in maintaining the readiness and fitness of its Armed Forces, we conclude that all of the challenged regulations are reasonable and constitutionally valid.
The exemption policy does not insulate from disciplinary action incidents of personal drug use or possession which were previously known to military officials. (Annex I para. 2b). Nor does it apply to the sale of drugs or to other offenses which may be motivated by drug abuse. (Annex I para. 2a).
The Supreme Court has stressed that even "in suits against federal officers for alleged deprivations of constitutional rights, it is necessary to satisfy the amount-in-controversy requirement for federal jurisdiction". Lynch v. Household Finance Corp., 405 U.S. 538, 547, 92 S.Ct. 1113, 1119, 31 L.Ed.2d 424 (1972).
Annex C para. 5c, permitting the use of detector dog teams in public areas and billets, provides that: