Hastings, Senior Circuit Judge, and Stevens and Sprecher, Circuit Judges.
In this class action plaintiffs claim that the United States Army collects and retains more information about civilians than iit needs. They pray for an injunction against the Army's massive domestic intelligence operation because it discourages the free expression of ideas.
Plaintiffs are members of the class represented by Arlo Tatum and other named plaintiffs in litigation commenced in the United States District Court for the District of Columbia on February 17, 1970, in which the same claims are asserted. After that case was filed and the public became aware of the scope of the Army's domestic intelligence activities, hearings were held by a committee of the United States Senate in which the Army was severely criticized. On or about June 7, 1970, the Army discontinued most of the unnecessary speech inhibiting intelligence activities of which plaintiffs complain.
On April 29, 1970, the District Court for the District of Columbia dismissed the Tatum complaint on the ground that it raised issues which were not justiciable. On May 4, 1970, notices of appeal were filed, and on April 27, 1971, the Court of Appeals for the District of Columbia rendered scholarly opinions, Tatum v. Laird, 144 U.S.App.D.C. 72, 444 F.2d 947, exhaustively discussing the legal issues, reversed the district court order and remanded the case for trial. Subsequently, the Supreme Court granted certiorari, heard oral argument, and now has the Tatum case under advisement.
The case before us was filed on December 21, 1970. Immediately thereafter plaintiffs moved for a preliminary injunction and defendants filed a motion to dismiss the complaint. In response to defendants' motion to dismiss, plaintiffs' counsel repeatedly urged the court to listen to the evidence to be offered in support of the application for a preliminary injunction and to evaluate the sufficiency of the pleading in the light of that evidence. Accordingly, the trial judge heard evidence for four days, found that the Army had indeed engaged in some unnecessary -- in fact some stupid and wasteful -- intelligence activities, but found no significant threat to First Amendment freedoms, and therefore denied injunctive relief and dismissed the complaint.
We are satisfied that the complaint was properly dismissed. Since the Supreme Court opinion in Tatum will no doubt render our discussion of the law obsolete, we shall only briefly identify the reasons for our conclusion which, we are convinced, will be the same whether Tatum is affirmed or reversed.
First, we assume, without deciding, that a "massive" domestic intelligence operation conducted by the United States Army can have a sufficient deterrent effect on the free expression of political ideas to give individual citizens affected thereby standing to challenge the legitimacy of such an operation.
Second, we assume, without deciding, that the domestic intelligence activities as conducted by the Army prior to June 7, 1970, were illegitimate, and that the excesses could be excised by judicial decree.
Third, the evidence in the record, as appraised both by the district court and by this court, establishes that the Army's intelligence activities subsequent to June 7, 1970 -- or more specifically on December 21, 1970, when the complaint was filed -- were not of the massive, overly broad character described in the complaint and in counsel's argument. Thus, the claimed intrusion on First Amendment rights was clearly less significant at the time this complaint was filed than it was at the time the Tatum complaint was filed.
Fourth, to the extent plaintiffs' claims are justiciable, they can be most effectively asserted in the Tatum N litigation. Both this complaint and the Tatum complaint*fn1 are class actions; except for different named class representatives and other differences of no significant import, the allegations of the two complaints and the prayers for relief are identical -- in most instances the complaint in this case reproduces verbatim the language of the Tatum complaint; a reading of the complaint leads one to the inescapable conclusion that the two classes are identical; the evidence adduced at the hearing on the preliminary injunction indicates, even if the parallel complaints did not, that there is cooperation between the Tatum plaintiffs and the plaintiffs in this case and that the same witnesses would give important testimony in both proceedings. If there is some difference in the allegations of the two complaints which we have overlooked, it would be a simple matter to amend the Tatum complaint if the Supreme Court affirms the remand of that case for trial.
If the Supreme Court holds that the allegations in the Tatum complaint may not be tried, that ruling will certainly dispose of this case as well. If, however, that Court affirms the Court of Appeals for the District of Columbia and Tatum is remanded for trial, no purpose will be served by conducting a duplicate trial in this Circuit.
We conclude that if the issues presented by this complaint are to be tried, the principle of comity dictates that they be tried in the District Court for the District of Columbia. Though rejecting its application on the facts of the case before him, Judge Hastings has concisely stated the relevant principle:
"Briefly, the comity doctrine is one based on notions of sound judicial administration and requires that when two identical actions are filed in courts of concurrent jurisdiction, the one which first acquired jurisdiction should be the one to try the lawsuit. The purposes of the rule are to avoid unnecessarily burdening courts and to avoid possible embarrassment from conflicting results." Great ...