Florencio Merced Rosa, Etc., Plaintiff, Appellant, v. Blas C. Herrero, Jr., Etc., Defendants, Appellees, 423 F.2d 591 (1st Cir. 1970)

Plaintiff Merced Rosa, having failed to report for induction, was indicted under the Selective Service Act, 50 U.S.C.App. §§ 454, 462(a). Following two years of preliminary matters, two days before the date assigned for trial he filed the present suit seeking the appointment of a three-judge district court under 28 U.S.C. § 2282 to obtain a declaratory judgment and to enjoin his prosecution, alleging various infringements of his constitutional rights. The district judge with, possibly, oversolicitude,¹  requested the chief judge to convene a three-judge court and one was accordingly, constituted.²  After a hearing, the three-judge court dismissed the complaint for want of equity, without reaching the constitutional issues, and the single district judge did likewise, adopting the opinion of the three-judge court as his own.

If there were originally any question whether plaintiff's appeal lay exclusively to this court, but cf. Mengelkoch v. Industrial Welfare Commission, 1968, 393 U.S. 83, 89 S. Ct. 60, 21 L. Ed. 2d 215, it no longer exists. See D. Currie, Appellate Review of the Decision Whether or Not to Empanel a Three-Judge Federal Court, 37 U. Chi. L. Rev. 159 (1969). Shortly before the appeal was to be heard, the Supreme Court decided Gutknecht v. United States, 1970, 396 U.S. 295, 90 S. Ct. 506, 24 L. Ed. 2d 532, and in the light of that decision the government concluded that plaintiff's indictment must be dismissed. It so notified him, just before oral argument, and the case was argued on the assumption that the dismissal was an accomplished fact. Hence plaintiff no longer seeks an injunction, but only a declaratory judgment. This is a single judge matter. Kennedy v. Mendoza-Martinez, 1963, 372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644. Indeed, we do not understand the basis of plaintiff's present contention that, if his appeal is upheld, the case should be sent back for determination by three judges.

In view of this change of circumstance, the first question is mootness. A petition for a declaratory judgment is no exception to the rule that mootness is to be judged at the present moment, not as of the date of the filing of the complaint. Golden v. Zwickler, 1969, 394 U.S. 103, 89 S. Ct. 956, 22 L. Ed. 2d 113. The present situation is this. Plaintiff is a member of the Puerto Rico "Independentista" party, and the president of a political organization, the Federacion de Universitarios Pro Independencia. He asserts that his right of free speech on political matters relating to the Selective Service Act is chilled until it is declared that the Act cannot constitutionally apply to conscientious objectors whose objections are to particular wars, that is, to selective conscientious objectors. Plaintiff says that the reason for his delay in commencing suit was that he was awaiting respectable judicial support for this argument, which came in the form of United States v. Sisson, D. Mass., 1969, 297 F. Supp. 902, now under consideration by the Supreme Court. As an excuse for a delay in seeking declaratory relief, we find this reasoning singularly unpersuasive. The travel of the Sisson case to the Supreme Court seems precisely a reason for not duplicating the decisional process.

Plaintiff points out, and we recognize, that Sisson may not be decided on the merits. Even should that occur, we are not impressed with the basis for plaintiff's procedure. During argument we sought to explore the double-headed issue of standing and the existence of a justiciable controversy. Cf. Association of Data Processing Service Organizations, Inc. v. Camp, 1970, 396 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184; Barlow v. Collins, 1970, 396 U.S. 159, 90 S. Ct. 832, 25 L. Ed. 2d 192. Plaintiff made a general answer. He conceded that not everyone could obtain a declaratory judgment as to the constitutionality of a criminal statute, but said that the removal of the chilling effect upon the right of free speech of persons like himself, who wish to advocate disobedience of the statute, is of paramount importance. It is enough, he says, that he can "demonstrably show in his complaint in good faith that he has taken such action and intends to continue it."

Plaintiff cites no case supporting this broad proposition. It is directly contradicted by United Public Workers of America v. Mitchell, 1947, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754.³  Indeed, plaintiff has even less nexus. In Mitchell the plaintiffs alleged that, in the exercise of their rights of free speech, they wanted to violate the Hatch Act. The Court said, at p. 90, 67 S. Ct. at p. 564,

"We can only speculate as to the kinds of political activity the appellants desire to engage in or as to the contents of their proposed public statements or the circumstances of their publication."

In the case at bar, plaintiff's proposed advocacy may well not violate the Selective Service Act at all. Cf. United States v. Spock, 1 Cir., 1969, 416 F.2d 165.

Even if we could disregard the teaching of Mitchell, and assume that plaintiff proposes to violate the act in the most definite manner, we do not quarrel with the district court's unwillingness to grant relief, where plaintiff concedes, as he must, that the governmental authorities are acting in good faith. See Douglas v. City of Jeannette, 1943, 319 U.S. 157, 163, 63 S. Ct. 877, 87 L. Ed. 1324. This is not a case where the defect, if any, in the statute is the possibility of deliberate, or even unintentional, abuse from its susceptibility to an overbroad construction. Cf. Dombrowski v. Pfister, 1965, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22. The statute is plain. Plaintiff, if he wishes to engage in speech, must have the willingness to take his chances.

Affirmed.