Friendly, Chief Judge, and Hays and Oakes, Circuit Judges. Oakes, Circuit Judge (dissenting).
In Orloff v. Willoughby, 345 U.S. 83, 94, 73 S. Ct. 534, 540, 97 L. Ed. 842 (1953), clearly the Supreme Court decision most closely in point, the Court stated it had "found no case where this Court has assumed to revise duty orders as to one lawfully in the [armed] service." So far as has been shown by the research of counsel, that statement remained true, not only for the Supreme Court but for any other civilian court, with respect to duty orders not transgressing statute or regulations, until the order here under review. The limitations on the civilian courts in this respect were recently recognized by Judge Gesell in Sanders v. Westmoreland, 2 SSLR 3157 (D.D.C.1969). The order here is sought to be justified on the ground that the Army's transfer of Specialist Cortright from the 26th Army Band at Fort Wadsworth, New York, to the 62nd Army Band at Fort Bliss, Texas, violated the First Amendment. We do not say that a case could never arise where a transfer order could be invalidated by a civilian court on such a basis. But any such judicial intrusion into the area broadly confided by the Constitution to the President as commander-in-chief and his authorized subordinates must await a stronger case than this one.
There is little dispute concerning the basic facts. After receiving an induction notice, David B. Cortright, recently graduated from college, enlisted in the Army in August 1968 for three years under an agreement that he be assigned to the 26th Army Band, Fort Wadsworth, N. Y., which was part of the First Army, for a minimum of one year. About half of the Band was composed of college graduates similarly recruited. After receiving basic training, Cortright joined the Band in November 1968, serving as a drum major and baritone player. The authorized complement of the Band was 64 until August 1969 when the Continental Army Command reduced it to 42, effective May 1970. The special missions of the Band, as set forth in Fort Hamilton Pamphlet No. 220-90, were:
a. To promote and maintain the morale and esprit-de-corps of the troops by providing appropriate music for military ceremonies, concerts, entertainment and recreational activities.
b. To assist in maintaining an effective community relations program through participation in suitable local events.
c. To support the Army Recruiting Program by performing at senior high schools and colleges.
In addition, as stated by Major General Ciccolella, the Chief of Staff of the First Army, members of the Band shared the Army's general mission of being "able to fight and be[ing] able to defend vital installations and be[ing] responsive immediately to orders without any question."
On November 9, 1969, there appeared in the New York Times an advertisement signed by 1,366 active duty servicemen, including 39 from Fort Wadsworth, all but one of whom were members of the Band. The petition called for the immediate withdrawal of United States forces from Vietnam and urged members of the armed forces to participate in protest marches in Washington, D.C. and San Francisco. Cortright's name appeared on the petition and he had initiated its circulation among the bandsmen. The Government does not dispute that this was an entirely proper exercise of the signers' First Amendment rights "to petition the Government for a redress of grievances." However, the Band's leader, CW4 Shettle, a noncommissioned officer, took it upon himself to call a special formation of the Band, where he discussed the advertisement, warned that General Higgins, Commanding General of the Fort Hamilton Complex (which includes Fort Wadsworth) was aware of the signers' activities, and advised them that under similar circumstances the 7th Army Symphony had been disbanded.*fn1 There is no proof that Shettle's self-styled "word to the wise" was directed or even authorized by General Higgins or any other high officer, although there is evidence that the General knew of Cortright's role.
In the spring of 1970 Cortright and others distributed a new protest petition among the members of the Band. This petition engendered a good deal of discussion. A meeting was called at the urging of those opposed to signing the petition; it was agreed that the petition would be published only if a majority approved. There is no suggestion that this action was stimulated by any responsible officer of the command. By mid-June 1970, 35 members had signed the new petition. At this point the new head of the Band, a non-commissioned officer, CW3 Patrick Flores, called into his office one Sicola, a Band member who had reservations about the petition, and advised against its publication. Flores also addressed the Band. While stating his belief that the petition was legal, he warned of possible repercussions if it were published. Again there is no evidence that this was anything more than Flores' personal decision. After discussing the matter with other members and taking a poll, Cortright, who had assumed a position of leadership, told the civilian group sponsoring the petition not to publish the names of any Band members.
In all likelihood this would have been the end of the matter but for an incident on July 4, 1970. As the Band was about to head a parade on Staten Island, five women -- Cortright's fiancee and the wives of four other Band members -- sought to march along with the Band, making it known that they were related to members. They were carrying signs, such as "Military Wives for Peace," "Nix-On War," and "Kill Poverty Not People."*fn2 The marshals refused to allow the women to march with the Band but did allow them to march behind the parade. The spectators and one parade participant reacted with hostility. Cortright's fiancee was struck by a thrown object, a veteran hit another woman, and the crowd tore up the signs. Toward the end of the parade the women again walked beside the Band until Flores ordered them away. The incident was reported in the local press.
This was too much for Flores. On July 8, after conferences with General Higgins, he announced ten changes in the Band's duties, including extension to an eight-hour day, mandatory attendance at reveille, withdrawal of exemption from full police detail, and the termination of private music lessons during duty hours. It is not contended that any of these changes transgressed Army regulations; the Band apparently had been enjoying a favored position. However, as the district judge permissibly found, "Flores explained [to the Band] that the changes were instituted because of the men's anti-war activities" and advised that if they did not end such action and accept the duty changes, others might follow.
Cortright and 35 other members of the Band thereupon dispatched a letter to General Higgins, informing him of this and asking for rescission of the duty changes. The General took the matter with appropriate seriousness, and immediately instructed his Deputy, Colonel Merrick, other officers and Flores to conduct "an open door policy meeting" with the Band.
Colonel Merrick told the Band that their anti-war activities were protected, that the new duty orders were not intended to be punitive, and that Flores should be reprimanded for characterizing the changes as punishment for the expression of dissent.*fn3 He justified the changes, except a few which he apparently modified in a slight degree, on sound military grounds. At the conclusion of his talk, he invited questions. The only one was from Cortright, who asked if this constituted General Higgins' official reply to his letter. Colonel Merrick said that it did unless the Band members were dissatisfied. There is nothing to indicate that any further representations were made to Colonel Merrick or General Higgins.
On the other hand, the incident had its expectable repercussions with the Band. Although the new duties were ones which the Army could have ordered to be performed all along, many of the bandsmen resented the sudden changes. Morale declined and tension built up within the unit. One member of the Band swung at another. Another applied for a transfer because he "did not approve of what was going on in the band from both sides." While the country could doubtless have survived continued dissension within the 26th Army Band, the fact remains that the unit was no longer geared to render optimum performance of its peacetime and potential wartime missions. Furthermore, there was no assurance that Cortright, Lovallo and others might not cause a repetition of something like the July 4 incident.
Accordingly the matter was brought to the attention of Major General Ciccolella, Chief of Staff of the First Army at Fort Meade, Maryland, with the recommendation of Cortright's immediate command that he be transferred. As earlier indicated, prior to any of the incidents here recited, General Higgins had been under orders to reduce the strength of the Band to 42 by May 1970, but, as General Ciccolella was informed by his staff, the Band was still 10 to 12 over its authorized strength. Believing that what Cortright "was doing in the band was weakening its general morale, its discipline and effectiveness" and knowing that he was eligible for transfer,*fn4 the General, on July 17, 1970, directed his transfer to the Fourth Army at Fort Bliss, Texas, which had requested additional bandsmen. He testified he "intended to accomplish the strengthening of the [26th Army] band and making it a better military unit, a unit that would accomplish its mission" -- not to "punish" Cortright. Other transfers were made to bring the 26th Army Band down to its authorized strength. There is no evidence of ...