(dissenting) :
I must respectfully dissent.
On December 5, 1969 and December 18, 1969, plaintiffs, The Fort Bragg Leafletting Committee of the United Citizens for Peace, submitted identical requests to the Provost Marshal’s Office of Fort Bragg requesting permission “to distribute the attached leaflet” respectively on December 13, 1969 and January 30 or 31, 1970. The request stated “Distribution will be in public areas on a postwide basis, and will be accomplished in such a manner as not to interfere with or disrupt military functions and activities.” Plaintiffs stated in their application they would accomplish “proper police and cleanliness.” The leaflet contained remarks which, at least, must be considered uncomplimentary to the Army command and could not have helped troop morale. Among other things, the Commanding General was “of the opinion that each of the two proffered publications had as their only possible goals the undermining of military loyalty, discipline, and morale at Fort Bragg.”
In this setting, the Provost Marshal denied the requests on December 10 and December 23, 1969.
On January 2, 1970, plaintiffs sued the Commanding General and the Secretary of the Army, claiming jurisdiction under 28 U.S.C. §§ 1341, 1343, 1346 and 1361, and 42 U.S.C. § 1983, and the First and Fifth Amendments to the Constitution. The matter in controversy, exclusive of interest, was alleged to exceed the value of $10,000. The com*884plaint stated the action is .brought “For a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2203, and for a preliminary and permanent injunction.” The prayer of the complaint prayed for a declaratory judgment pursuant to 28 U.S.C. § 2201, declaring the Fort Bragg regulations concerning distribution of literature to be unconstitutional; for an order declaring the plaintiffs to be constitutionally entitled to distribute leaflets “On those areas of Fort Bragg open to the public in the manner specified in the written requests;” and for a preliminary and permanent injunction enjoining the defendants from prohibiting the plaintiffs “from a peaceful distribution of leaflets to willing takers on those areas of Fort Bragg open to the public.” It is quite noteworthy that nowhere did the plaintiffs pray that the refused permit issue.
The defendants filed an answer which included motions to dismiss for lack of jurisdiction and failure to state a claim. They also filed an affidavit of the Commanding General at Fort Bragg explaining in some detail his reasons for refusing to issue the permit, the conclusions of which have been copied above.
The situation stood here when the district court granted the motion to dismiss on March 9, 1972 because it lacked jurisdiction over the subject matter under 28 U.S.C. §§ 1331 and 1361. The plaintiffs appealed.
28 U.S.C. § 1331(a), provides:
“The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1361, provides:
“The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”
JURISDICTION UNDER § 1331(a)
The holding of the majority is that “We hold that on the allegations of the Complaint in this case there is jurisdiction in the District Court under 28 U.S. C. § 1361 to try the case and to thereupon consider whether or not the plaintiffs may be entitled to a Writ of Mandamus, or an injunction, or a declaratory judgment.” A footnote indicates that mandamus jurisdiction permits a flexibility in remedy.
Insofar as injunctive or declaratory relief is concerned, the most recent expression of the Supreme Court is that in Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), where the court said:
“. . .in suits against federal officials for alleged deprivation of constitutional rights, it is necessary to satisfy the amount in controversy requirement for federal jurisdiction.” 405 U.S. 538, 547, 92 S.Ct. 1113, 1119.
Although the majority opinion here notes that Lynch is “not favorable to [plaintiffs’] contentions,” the holding is in direct contradiction to the expressed command of Lynch insofar as injunctive and declaratory relief is concerned. The majority opinion here overlooks the fact that conflicts between the various circuits have been settled by Lynch, as it does a very recent decision of this court, McGaw v. Farrow, 472 F.2d 952 (4th Cir. 1973), in which we held in a remarkably similar fact situation (a chapel) arising at Fort Eustis:
“There seems little doubt that this conclusion denying jurisdiction under Section 1331 was sound. Though a few decisions have held contrariwise, a like conclusion has been reached in a majority of decisions of Circuit Courts of Appeals. Whatever differences there may have previously been in these decisions would appear, however, to have been set at rest by the recent decision in Lynch. . . .” Id., at 954.
The opinion further holds that claims, such as the ones in McGaw and in the *885instant case, . . not measurable in ‘dollars and cents’ fail[s] to meet the jurisdictional test of amount-in controversy.” Id., at 954.
By refusing to use the measuring stick of Lynch, as construed by McGaw in this circuit less than a month ago, the majority, by invoking jurisdiction under 28 U.S.C. § 1361, actually will have the district court consider whether to give injunctive or declaratory relief under § 1331(a), which is expressly prohibited by Lynch and McGaw unless the amount in controversy test may be met.
JURISDICTION UNDER 28 U.S.C. § 1361
If my premise is correct that the district court was without jurisdiction under § 1331(a), the only avenue for relief for plaintiffs is by way of action “in the nature of mandamus” under § 1361.
The panel properly sets out three elements which must be met before mandamus may issue:
1. A clear right in the plaintiff to the relief sought.
2. A clear duty on the part of the defendant to do the act in question.
3. No other adequate remedy available.
These three elements must coexist. The existence of one is not sufficient, as the majority notes.
My principal objection to the reversal of the district court on this ground is that neither is there a clear right in the plaintiffs to the relief sought, nor is there a clear duty on the part of the defendants to do the act in question. The act in question, of course, is to issue the permit to distribute the leaflets, although such was not prayed for in the complaint.
When plaintiffs filed their suit, they modified the request which had been made to the Provost Marshal. The request which had been made to the Provost Marshal was to distribute the leaflets “in public areas on a postwide basis.” The complaint, in paragraph 5, mentions distribution of the leaflets “on the public areas of Fort Bragg.” It later, in paragraph 8, states that plaintiffs intend to confine their activities to “these public areas, which include the shopping center, the post exchange, the post office, and the motion picture thea-tre,” and that “members of the Civilian Public circulate in these areas of Fort Bragg without restrictions and of course are free to converse with off-duty servicemen.”
It thus appears that the permission sought in the request and the permission sought in the complaint are somewhat different. The generally accepted definition of public places, which I equate with public areas, is a place at which people assemble or to which they commonly resort for the purpose of business, amusement, recreation, or other lawful purpose. See 35 Words and Phrases, p. 433, et seq., and cases there cited. Of course, this would include banks, stores, theatres, dispensaries, hospitals, apartment and housing complexes, athletic fields, and all the thousand and one areas in which servicemen and their families live in which the Commanding General had allowed civilians to circulate in an effort to make military life somewhat less onerous for the numbers of servicemen stationed at Fort Bragg. We have here a case of all “public areas” in Fort Bragg, not only streets, sidewalks, and parks which have been historically associated with First Amendment rights. See Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972).
At the time the request was refused by the Provost Marshal, the applicable law with relation to the Post Commander’s obligation was stated in Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) as follows :
“It is well settled that a Post Commander can, under the authority conferred on him by statutes and regulations, in his discretion, exclude private persons and property therefrom, or admit them under such restrictions as he may prescribe in the interest of *886good order and military discipline.” [Emphasis added] 367 U.S. 886, 893, 81 S.Ct. 1743, 1748.
At the point, then, when the Provost Marshal denied the requests, in view of the affidavit submitted by the Commanding General, it was in his discretion whether or not to exclude the leaf-leteers from the base, it being obvious from the affidavit that in the opinion of the Commanding General such exclusion was necessary in the interest of good order and military discipline. The same state of law appertained at the time the district court dismissed the complaint March 9, 1972.
On June 12, 1972, the Supreme Court decided Flower v. United States, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653. Flower decided that a street on Fort Sam Houston was a place upon which a base Commander could not prohibit distribution of literature without a permit. The court said:
“The base commandant can no more order petitioner off of this public street because he was distributing leaflets than could the city police order any leafleteer off of any public street. . . . ‘[S]treets are natural and proper places for the dissemination of information and opinion.’ . ‘[0]ne who is rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional right to express his views in an orderly fashion.’” 407 U.S. 197, 198, 92 S.Ct. 1842, 1843.
The rationale of thus excluding streets from the rule of Cafeteria Workers v. McElroy was:
“Under such circumstances the military has abandoned any claim that it has special interests in who walks, talks, or distributes leaflets on the avenue.” 407 U.S. 197, 198, 92 S.Ct. 1842, 1843.
The court did not exempt from the operation of the rule in Cafeteria Workers v. McElroy all places on a military base where civilians may circulate without restriction but only those places to which “the military has abandoned any claim that it has special interests in. . . .” 407 U.S. 197, 198, 92 S.Ct. 1842, 1843. The mere fact that the civilian public may circulate freely in some areas of Fort Bragg without restriction is no indication that the military has abandoned any claim to a special interest in such areas. The requests made and turned down by the Provost Marshal were much broader than the streets of Fort Bragg, or the areas of Fort Bragg in which the military had abandoned any special interest, as indeed was the complaint filed. Under such circumstances, at the time the request was made and at the time of the dismissal by the district court, the Commanding General was acting well within his discretionary authority in declining to issue the permit. Even under Flower, the request and the complaint seek permission to distribute leaflets in a much broader area than the narrow exception annunciated by Flower. In such a case, the discretion which should be exercised in the first instance should be that of the Commanding General and not that of the district court.
In United States v. Wilbur, 283 U.S. 414, 51 S.Ct. 502, 75 L.Ed. 1148 (1931), the court stated that mandamus will issue “. . . only where the duty to be performed is ministerial and the obligation to act peremptory and plainly defined. The law must not only authorize the demanded action, but require it; the duty must be clear and indisputable.” 283 U.S. 414, 420, 51 S.Ct. 502, 504.
In discussing what acts are ministerial and therefore subject to mandamus, the court said in Wilbur v. United States, 281 U.S. 206, 218, 50 S.Ct. 320, 324, 74 L.Ed. 809 (1930):
“Where the duty in a particular situation is so plainly prescribed as to be free from doubt and equivalent to a positive command it is regarded as being so far ministerial that its performance may be compelled by mandamus, unless there be provision or implication to the contrary. But *887where the duty is not thus plainly prescribed, but depends upon a statute or statutes the construction or application of which is not free from doubt, it is regarded as involving the character of judgment or discretion which cannot be controlled by mandamus.” [Footnotes omitted] 281 U.S. at 218, 50 S.Ct. at 324.
Neither the request, then, nor the complaint states a case in the light of Cafeteria Workers v. McElroy as modified by Flower. The duty of the Commanding General to issue the permit is neither clear nor indisputable. Indeed, considering the broad scope of the application, declining to issue the permit was well within his discretionary authority.
Should plaintiffs’ application have been framed so as to place it within the narrow confines of Flower, perhaps we should have had another case, but there is no non-discretionary obligation on the part of the Commanding General to issue a permit when the permission sought is broader than that required by Flower, as was the case here. Neither was there any obligation on the part of the district court to fashion equitable relief upon an application for mandamus; indeed, it had no jurisdiction to so act in the premises. Mandamus commands a public official to perform his ministerial, non-discretionary duty. If the permit sought were within the duty prescribed, the Commanding General might have had an obligation to issue it. Since the permit sought was broader than the Commanding General’s non-discretionary obligation, the district court may not substitute its discretion for the Commanding General’s and assume equitable or declaratory jurisdiction of the matter contrary to the express commands of Lynch and McGaw.
Had this case been treated as a simple remand reciting the fact that Flower was not available to the district judge at the time of his decision, and requiring him to reconsider in the light of Flower should plaintiffs wish to amend their request, many of my reservations might be removed. I doubt we would hear of the matter again. The broad overtones of the majority opinion, however, and, indeed, its express command, as it directs consideration of injunctive and declaratory relief, in the face of, and contrary to, Lynch and McGaw, under the guise of mandamus jurisdiction, make if necessary that I express my views.
This is a clear case of federal courts extending the jurisdiction conferred on them by Congress. See McGaw, 472 F.2d at 954-957, for an excellent analysis of the question.