Berrigan v. Sigler

ORDER

PER CURIAM:

This case came on for consideration of the motion for emergency relief by way of summary reversal, and the court heard argument of counsel. While the. denial of a temporary restraining order is normally not appealable, an exception is made where the denial serves for all practical purposes to render the cause of action moot or where appellant’s rights will be irretrievably lost absent review. See McSurely v. McClellan, 138 U.S.App.D.C. 187, 191, 426 F.2d 664, 668 (1970); Dilworth v. Riner, 5 Cir., 343 F.2d 226, 229 (1965). Since it is evident that invitations to visit North Vietnam are granted sparingly and that the present invitation is subject to a time restriction which is soon to expire, the Parole Board’s refusal to grant appellants permission to travel to North Vietnam and the District Court’s order denying a temporary restraining order against such refusal will irretrievably deny appellants the opportunity presently afforded them and may well moot this case. Accordingly, we find that this court has jurisdiction to hear this appeal.

With respect to the question of the likelihood of success on the merits as it pertains to the District Court's denial of a temporary restraining order, it is uncontroverted that the Parole Board’s refusal to approve appellants’ proposed visit to North Vietnam interferes with their right to travel and their First Amendment right to freedom of association. The Parole Board has offered two justifications for this interference, arguing that the trip will interfere with Parole Board efforts to rehabilitate appellants and is contrary to the national interest as determined by the State Department. We find neither justification persuasive. The proposed visit to North Vietnam will be of short duration, and it is clear that it will not interfere with the rehabilitation of appellants, especially since the Board has made no active effort to rehabilitate appellants since the date of their release. While the proposed trip undoubtedly raises questions of the national interest in light of the current status of relationships between the United States and the government of North Vietnam, the Parole Board has no special competence in the area of foreign policy and such matters as these are best left in the control of the State Department, subject to the limitations imposed by law. See Lynd v. Rusk, 128 U.S.App.D.C. 399, 389 F.2d 940 (1967).

In view of the foregoing, we can find no interest, compelling or otherwise, served by the Board’s refusal to approve appellants’ proposed trip, and their right to travel and to freedom of association must prevail. See Sobell v. Reed, S.D. N.Y., 327 F.Supp. 1294 (1971).

It is therefore ordered by this court that the order of the District Court denying a temporary restraining order be, and it is hereby, vacated; and

It is further ordered by the court that appellee Parole Board members be, and they are hereby, temporarily restrained from withholding their approval of appellants’ proposed trip to North Vietnam ; and

It is further ordered by the court that this case is remanded to the District Court for further proceedings not inconsistent with this order.

Chief Judge BAZELON’S statement concurring, joined in by Circuit Judge J. SKELLY WRIGHT, is attached. Circuit Judge MacKINNON’s statement dissenting is also attached.

It is further ordered by the court that, on application of the United States, this order is stayed until 6:00 p. m. today, January 17, 1973.