U.S. Court of Appeals for the D.C. Circuit, 1967

Robert Luftig v. Robert S. McNamara Secretary of Defense

U.S. Court of Appeals for the D.C. Circuit · Decided February 6, 1967 · Miller, Burger, Coffin

373 F.2d 664; 126 U.S. App. D.C. 4; 1967 U.S. App. LEXIS 7544 (Federal Reporter, Second Series)

Counsel

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, forappellees.

Cases that cite this one

61 later published cases cite this decision. The 24 that cite it most often are listed here.

Great Prince Michael v. United States (District Court, District of Columbia 2003)
Mahorner v. Bush (District Court, District of Columbia 2002)
Michael Waldo Simmons v. United States (5th Cir. 1969)
El-Shifa Pharmaceutical Industries Co. v. United States (D.C. Cir. 2009)
Michael B. Anderson v. Melvin R. Laird, Secretary of Defense of the United States of America (D.C. Cir. 1972)
Gravel v. Laird (District Court, District of Columbia 1972)
Commonwealth of Massachusetts v. Laird (District Court, D. Massachusetts 1971)
United States v. Valentine (District Court, D. Puerto Rico 1968)
State v. Marley (Haw. 1973)
Atlee v. Laird (District Court, E.D. Pennsylvania 1972)
Morbeto v. United States (United States District Court for the Central District of California 1968)
Oryszak v. Sullivan (D.C. Cir. 2009)
Bancoult v. McNamara (District Court, District of Columbia 2004)
Arthur D. Little, Inc. v. Commissioner of Health & Hospitals (Mass. 1985)
Temistocles Ramirez De Arellano v. Caspar W. Weinberger, Secretary of Defense (D.C. Cir. 1984)
Lane v. Secretary of Army (District Court, D. Maryland 1980)
National Treasury Employees Union v. Richard M. Nixon, Individually and as President of the United States (D.C. Cir. 1974)
Harrington v. Schlesinger (District Court, E.D. North Carolina 1974)
McDonald v. McLucas (District Court, S.D. New York 1974)
The Honorable Parren J. Mitchell v. Melvin R. Laird (D.C. Cir. 1973)
DaCosta v. Laird, Secretary of Defense, Et Al. (Supreme Court of the United States 1972)
Irving Sarnoff v. John B. Connally, Secretary of the Treasury, Dorothy A. Elston, Treasurer of the United States (9th Cir. 1972)
Atlee v. Laird (District Court, E.D. Pennsylvania 1972)
Head v. Nixon (United States District Court Eastern District of Louisiana 1972)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

PER CURIAM:

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 *666 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).

Affirmed.

. 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.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.