Breen v. Selective Service Local Board No. 16, Bridgeport , 406 F.2d 636 ( 1969 )

FRIENDLY, Circuit Judge:

Plaintiff Breen, a 20-year old resident of Connecticut, is a registrant under the Selective Service System. He had held a II-S (student) deferment, 50 U.S.C. App. § 456(h) (1), 32 C.F.R. § 1622.25, because of being an undergraduate at the Berkeley School of Music in Boston. In mid-November, 1967, he delivered his Selective Service Registration Certificate to a clergyman in Boston for the purpose of protesting United States involvement in the war in Vietnam. Oh January 9, 1968, his Local Board mailed him a notice, 32 C.F.R. § 1642.4(b), that he had been declared a delinquent for failure to have the Certificate in his possession as required by 32 C.F.R. § 1617.1. At the same time the Local Board reclassified him from Class II-S to Class I-A because of his delinquency, pursuant to 32 C.F.R. § 1642.12, which authorizes such reclassification “regardless of other circumstances.” These actions of the Board were in line with a memorandum and a letter dated respectively October 24 and 26, 1967, from the Director of Selective Service. The Local Board ordered Breen to report for a physical examination on January 29 but subsequently postponed this. Apparently Breen did not seek a personal appearance under 32 C.F.R. § 1642.14. However, he appealed his reclassification under that same section.

In February 1968 Breen brought this action in the District Court for Connecticut, seeking a judgment that the declaration of his delinquency and his reclassification were null and void, an injunction against his induction into the armed forces, and $20,000 damages. Although jurisdiction was predicated on 28 U.S.C. §§ 1331, 1343 and 2201, only the first could afford a basis.¹ The Government moved to dismiss the complaint and Breen to have a three-judge court convoked. Believing that the court was deprived of jurisdiction by § 8(c) of the Military Service Act of 1967, 81 Stat. 104, which amended § 10(b) (3) of the Selective Service Act, 50 U.S.C. App. § 460(b) (3), by including the provision set forth in the margin,² Chief Judge Timbers, in a considered opinion, 284 F.Supp. 749 granted the Government’s motion and denied Breen’s.

After the decision of the district court, Breen’s administrative appeal was denied and he was ordered to report for induction, but the order was stayed pending the determination of this appeal. When the appeal reached us in September, we deferred decision because the Supreme Court had set for early argument Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402, which also involved the applicability and validity of the amendment to § 10(b) (3) although in a somewhat different context.

We now have the benefit of the Court’s decisions in Oestereich, 393 U.S. 233, 89 S.Ct. 414 (1968), holding the amendment inapplicable to a claim by an exempt theological student that the delinquency regulations could not be applied to him, and in Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968), holding the amendment valid and applicable to the rejection of a claim of conscientious objection. While neither decision reads precisely on the issue here tendered, applying their teaching as best we can, we affirm the judgment of the district court.

Oestereich, a student at a theological school preparing for the ministry, who had been declared delinquent for having turned in his registration certificate, was entitled under § 6(g) to an exemption from military service and not merely to a deferment of his obligation. The element critical to the holding that the amendment to § 10(b) (3) was inapplicable in his case was the Court’s view that:

Once a person registers and qualifies for a statutory exemption, we find no legislative authority to deprive him of that exemption because of conduct or activities unrelated to the merits of granting or continuing that exemption.

Since the Board’s action in depriving a divinity student of the exemption which was his “statutory right” was therefore “blatantly lawless” and “involve[d] a clear departure by the Board from its statutory mandate,” to read the statute as forcing Oestereich to choose between induction and a criminal prosecution before he could vindicate his rights would be “to construe the Act with unnecessary harshness.”

In contrast, § 6(h) (1) of the Selective Service Act, 50 U.S.C. App. § 456(h) (1), dealing with the deferment of undergraduates, on which Breen relies, directs:-

Except as otherwise provided in this paragraph, the President shall, under such rules and regulations as he may prescribe, provide for the deferment from training and service in the Armed Forces of persons satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution of learning and who request such deferment. (Emphasis supplied.)

While 32 C.F.R. § 1622.25 provides for the placing of undergraduates in Class II-S, § 1642.12, promulgated by the President on July 4, 1967, Ex. Order No. 11360, 32 F.R. 9794, authorizes their removal from that classification on a declaration of delinquency. Arguments that this provision offends the “Except as otherwise provided” language with which § 6(h) (1) begins or that the “rules and regulations” must be relevant to the deferment (e. g., the obtaining of certain grades), collide with the fact that in the last sentence of § 6(h) (1) ³ Congress expressly recognized the longstanding provision for reclassification and„early induction of delinquents with respect to student deferments. This is clear evidence that Congress did not suppose that reclassification pursuant to the delinquency regulations would violate the provision of § 6(h) (1) that

Student deferments provided for under this paragraph may be substantially restricted or terminated by the President only upon a finding by him that the needs of the Armed Forces require such action.

The conflict between statute and regulations that arose in Oestereich is therefore not present here.

We consequently find no sufficient justification in this case for denying to the words of the 1967 amendment to § 10(b) (3), see fn. 2, the meaning which they so plainly have and which the Committee reports, set forth in the dissenting opinion in Oestereich, 393 U.S. at 248, 89 S.Ct. at 422, show they were intended to have. As recognized in Mr. Justice Harlan’s concurring opinion in Oestereich, 393 U.S. at 245, fn. 7, 89 S.Ct. at 420, “Section 10(b) (3) was likely precipitated by the Second Circuit’s well publicized decision in Wolff v. Selective Service Local Board No. 16, 372 F.2d 817 (1967).” See, to the same effect, the dissenting opinion of Mr. Justice Stewart, joined by Justices Brennan and White, 393 U.S. at 247 & fn. 5, 89 S.Ct. at 422. If Congress meant to withhold the preinduction review we had granted in Wolff to students enjoying deferments who had been declared delinquent for acts not within the regulations, it surely must have intended to do this where, as here, there has been an undisputed violation of 32 C.F.R. § 1617.1 requiring continued possession of a certificate — a requirement which the Supreme Court has characterized as serving “a legitimate and substantial purpose in the system’s administration.” United States v. O’Brien, 391 U.S. 367, 378, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). As said by Mr. Justice Douglas, the author of Oestereich, in his concurring opinion in Clark v. Gabriel, supra, 393 U.S. at 260, 89 S.Ct. at 427, “it takes the extreme case where the Board can be said to flout the law, as it did in Oestereich v. Selective Service, etc., 393 U.S. 233, 89 S.Ct. 414, to give preinduction review of its actions.”

The argument that the Board “flouts the law” so as to require preinduction review of its actions whenever its proceedings are claimed to violate the Constitution, although these were consistent with the Selective Service Act, was rejected sub silentio in Gabriel. Although the opinion in that case did not specifically refer to any constitutional issues raised, the Government’s Jurisdictional Statement shows that Gabriel asserted violations of First and Fifth Amendment rights, and also apparently claimed that the Selective Service system involves unconstitutional delegations of the legislative, executive, and judicial powers. The Court could readily have passed only on such of Gabriel’s points as did not require inquiry into the findings of fact or exercise of discretion of the individual Board. Instead, acting under § 10(b) (3), it refused to consider any of Gabriel’s claims, saying

We find no constitutional objection to Congress’ thus requiring that assertion of a conscientious objector’s claims such as those advanced by ap-pellee be deferred until after induction, if that is the course he chooses, whereupon habeas corpus would be an available remedy, or until defense of the criminal prosecution which would follow should he press his objections to his classification to the point of refusing to submit to induction.

We do not intimate that Breen’s claims that his reclassification because of the return of his certificate violated his First Amendment rights to protest, as to which see United States v. O’Brien, supra, and his Fifth Amendment rights to adequate standards and notice, are not substantial. We hold only that they must be asserted in the ways to which Congress plainly limited him, to wit, refusal to submit to induction or post-induction habeas corpus.

It remains only to add that the decision that a three-judge court was not required was correct. Breen did not seek an injunction “restraining the enforcement, operation or execution” of § 10(b) (3), 28 U.S.C. § 2282; rather the Government raised that statute as a bar. See International Ladies’ Garment Workers’ Union v. Donnelly Garment Co., 304 U.S. 243, 251, 58 S.Ct. 875, 82 L.Ed. 1316 (1938); Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960); Petersen v. Clark, 285 F.Supp. 698 (N.D.Cal.1968).

Affirmed.

1 . Plaintiff sought to meet the requirement of jurisdictional amount by a conclusory statement that the matter in controversy exceeds the value of $10,000 exclusive of interest and costs. See Wolff v. Selective Service Local Board No. 16, 372 F.2d 817, 826 (2 Cir. 1967). The Government has made no point about this, nor shall we.

2 . No judicial review shall be made of the classification or processing of any registrant by local boards, appeal hoards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction * * *.

3 . The congressional committee reports on the extensive amendments to the Selective Service Act in 1967 explicitly take note of the existence of the delinquency regulations. S.Rep. No. 209, 90th Cong., 1st Sess. 3, 6; H.Rep. No. 267, 90th Cong., 1st Sess. 17, U.S.Code Cong. & Admin. News 1967, p. 1308.