Russell M. Morgan v. Bert Melchar

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This case is presently before this court by virtue of an order of the Supreme Court, vacating our earlier opinion, Morgan v. Melchar, 442 F.2d 1082 (3d Cir. 1971), and remanding “for further consideration in light of Fein v. Selective Service System Local Board No. 7, Yonkers, N. Y., et al., 405 U.S. 365, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972),” Morgan v. Melchar, 405 U.S. 1014, 92 S.Ct. 1280, 31 L.Ed.2d 477 (1972). Upon careful consideration of the Court’s decision in Fein and the circumstances of the instant case, we again affirm the district court’s order dismissing the complaint for lack of subject matter jurisdiction.

In Fein, the Court summarized the law relevant to the jurisdiction of the federal courts under § 10(b)(3) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 460(b)(3), as follows:

“Thus Oestereich, [Oestereich v. Selective Service System Local Board, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402] Gabriel, [Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418] Breen, [Breen v. Selective Service Local Board, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653] and Boyd [Boyd v. Clark, 287 F.Supp. 561 (S.D.N.Y.1968)] together establish the principles (a) that § 10(b)(3) does not foreclose pre-induction judicial review in that rather rare instance where administrative action, based on reasons unrelated to the merits of the claim to exemption or deferment, deprives the registrant of the classification to which, otherwise and eoncededly, he is entitled by statute, and (b) that § 10(b)(3) does foreclose pre-induction judicial review in the more common situation where the board, authoritatively, has used its discretion and judgment in determining facts and in arriving at a classification for the registrant.”

Further, at a later point in the opinion, the Court in Fein declared:

“We again conclude that the line drawn by the Court between Oester-eich and Breen, on the one hand, and Gabriel and, inferentially, Boyd, on the other, is the appropriate place at which, in the face of the bar of § 10(b)(3), to distinguish between availability and unavailability of pre-induction review. We therefore adhere to the principles established by those cases.”

We have concluded that this language in Fein, as well as the Court’s actual decision, lends support to our original decision that the district court lacked jurisdiction under § 10(b)(3) for the following reasons:

1. There is no allegation in the complaint that the actions of Morgan’s local board in classifying him I-A and in failing to reopen and grant him a III-A hardship deferment were “based on reasons unrelated to the merits of the claim to exemption or deferment,”¹ as the Court’s decision in Fein suggests is necessary in order to fall within the exceptions to § 10(b)(3) involved in Oestereich v. Selective Service Board, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968) (delinquency reclassification for Oestereich’s return of his draft registration certificate to the Government as an expression of dissent from the United States’ participation in the war in Vietnam), and Breen v. Selective Service, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970) (delinquency reclassification for Breen’s surrender of his draft registration card at a public gathering to protest United States involvement in the Vietnam war).² See Fein, supra, 405 U.S. at 374-375, 92 S.Ct. 1062. Morgan argues essentially that the actions of the Selective Service System in reclassifying him from III-A (hardship deferment) to I-A and in refusing to reclassify him back to III-A were arbitrary and without basis in fact and involved violations of his constitutional rights to due process of law. Even if these claims may be sustained on their merits, however, the result in Fein makes it clear that the actions of the Selective Service System were not “based on reasons unrelated to the merits of the claim to exemption or deferment,” as this factor is interpreted by the Supreme Court. Thus, in Fein, the registrant specifically argued that the actions of the Selective Service System in reclassifying him I-A after he had received a conscientious objector classification from his local board were based upon unconstitutional administrative procedures (a claim which the Court appears to concede has substantial merit — see 405 U.S. at 377-381, 92 S.Ct. 1062). The Court held, however, that notwithstanding the merits of these procedural due process arguments, the federal courts had no jurisdiction to review such claims prior to induction, apparently on the basis of the character of Fein’s underlying claim for a deferment. See Fein, supra at 375-377, 92 S.Ct. 1062. Thus the decision in Fein supports our earlier holding that the district court in the instant case was without jurisdiction to review Morgan’s claims prior to induction. Strople v. Local Board No. 60, 466 F.2d 601 (3d Cir. 1972).

2. It is not alleged and does not appear that, but for the actions of the Selective Service System which Morgan complains of, he would have been “concededly” entitled to the III-A deferment which he claims, as was the case in Oestereich, supra, 393 U.S. at 235 n. 3, 89 S.Ct. 414, and Breen, supra, 396 U.S. at 463-464, 90 S.Ct. 661. See Fein, supra, 405 U.S. at 374-375, 92 S.Ct. 1062; Crowley v. Pierce, 461 F.2d 614 (5th Cir. 1972). But see Crowley, id. (concurring opinion of Judge Brown).

3. Morgan has been given by Congress no statutory right to a III-A hardship deferment comparable to the statutory right to a ministerial exemption involved in Oestereich,³ or the stat-uto-ry right to a student deferment at issue in Breen.⁴ Instead, Morgan’s underlying claim to a deferment is based upon the interpretation and implementation of regulations promulgated by the President pursuant to the discretionary authorization by Congress to provide for dependency and hardship deferments contained in 50 U.S.C. App. § 456(h) (2).⁵ This distinction is significant because in both Oestereich and Breen the Court justified pre-induction judicial review of the draft board’s actions in spite of the language of § 10(b)(3) largely on the ground that such exceptions to the jurisdictional bar contained in § 10(b)(3) were necessary to protect the statutory rights which Congress had clearly and unequivocally conferred upon ministers and students. Since the Court was required to interpret a jurisdiction statute (§ 10(b)(3)) which appeared inconsistent with rights which Congress had clearly conferred upon certain registrants, it was appropriate to construe this jurisdictional statute as not applying to bar pre-induction protection of such rights. In Morgan’s case, however, there is no such clash between § 10(b)(3) and a right conferred by Congress. 50 U.S.C. App. § 456(h)(2), upon which Morgan’s claim for a deferment is based, specifies that the President is “authorized under such rules and regulations as he may prescribe” to provide for dependency deferments to persons in situations “which [render] their deferment advisable,” language which contrasts markedly from that of the statutes involved in Oester-eich and Breen. See notes 3 and 4, supra.⁶

Indeed, the result in the instant case follows a fortiori from the Court’s decisions in Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968), and Fein, in which the right of the registrants to conscientious objector deferments was involved. 50 U.S.C. App. § 456(j) by its terms confers a specific statutory right to an exemption from military service for a conscientious objector “whose claim is sustained by the local board.” In both Clark v. Gabriel and Fein the Court noted that since the right to a statutory deferment was specifically conditioned on favorable action by the local board, there was not the reason to construé § 10(b)(3) to provide pre-induction judicial review in order to protect rights specifically protected by statute. In Morgan’s case this reasoning would apply with even greater force to preclude judicial review, since there must intervene not only favorable action by the local board but also favorable action by the President in exercis-in his discretionary authority to provide for hardship and dependency deferments in “advisable” circumstances.

4. It is clear that in Morgan’s case the local board, whatever the correctness of their determinations, “has used its discretion and judgment in determining facts and arriving at a classification for the registrant,” in which case “§ 10(b)(3) does foreclose pre-induction judicial review.” Fein, supra at 375, 92 S.Ct. at 1069. As the Court observed in contrasting Fein’s claim from those involved in Oestereich and Breen, “[h]is administrative classification action was, in contrast, a product of the ‘process’ and the ‘system of classification’ . . . . ” 405 U.S. at 376, 92 S.Ct. at 1070. As indicated above, Morgan essentially argues that the Selective Service System erred in not granting him the III-A deferment to which he was entitled. Since it is clear that the actions of the local board, whether correct or not, were “a product of the ‘process’ and the ‘system of classification,’ ” it follows that § 10(b)(3) as construed in Fein renders these actions not subject to review in the federal courts at this pre-in-duction stage. As the Second Circuit observed in its consideration of a comparable claim:

“Levine also claims that, assuming the board refused to reopen his classification, its refusal to do so in the face of his presentation of a prima, fa-cie claim for an occupational deferment was blatantly lawless conduct subject to review even under current 10(b)(3) doctrine. This contention is without merit. Not only are Levine’s factual assertions supporting his ‘pri-ma facie case’ for his occupational deferment wholly conclusory, but also his contention flies squarely in the face of Fein’s admonition that 10(b)(3) forecloses review where a board uses its discretion and judgment in determining facts and in arriving at a classification for the registrant.” (Emphasis added.) Levine v. Selective Service, 458 F.2d 1281, 1286 n. 19 (2nd Cir. 1972).

For the foregoing reasons, the order of the district court, dismissing the action for lack of jurisdiction, will be affirmed.

1 . But see note 6, infra.

2 . Compare Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968), in which the Court held that there was no jurisdiction to pre-induction judicial review of the local board’s denial of a conscientious objector classification where this denial was alleged to have no basis in fact and to be based upon a misapplication of the statutory definition, as well as the local board’s hostility and bias against such claims.

3 . Oestereich was concededly entitled to an exemption from military service under the terms of 50 U.S.C. App. § 456(g) of the Military Selective Service Act of 1967, which provided that ministers and students preparing for the ministry “shall be exempt from training and service . under this title.” (Emphasis added.)

4 . Breen was concededly entitled to a deferment under the terms of 50 U.S.C. App. § 456(h) (1) of the Military Selective Service Act of 1967, which provided that 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 and who request such deferment.” (Emphasis added.)

5 . 50 U.S.C. App. § 456(h)(2) provided, in relevant part, as follows:

“The President is also authorized, under such rules and regulations as he may prescribe, to provide for the deferment from training and service in the Armed Forces (1) of any or all categories of persons in a status with respect to persons (other than wives alone, except in cases of extreme hardship) dependent upon them for support which renders their deferment advisable. . . ” (Emphasis added.)

6 . Ia the third count of his complaint, Mor-, gan alleged that although he was originally ordered to report for induction in . October 1969, on November 26, 1969, an Executive Order was issued providing that inductions subsequent to January 1, 1970, would be by random selection. Morgan alleged that he comes under the terms of such Executive Order, but that the defendants failed to accord him such random selection procedure, which failure was “arbitrary, contrary to law and has no basis in fact.” Paragraph 26, complaint filed March 2, 1970.

We conclude that the federal courts are by virtue of the language of § 10(b) (3), without jurisdiction to consider such a claim at the pre-induction stage. This conclusion is based substantially on the fact that Morgan has been granted by Congress no statutory right to be processed in accordance with the random selection procedure announced by the President on November 26, 1969, in Proclamation 3945, 34 Fed.Reg. 19019, and the accompanying Executive Order 11497, 34 Fed.Reg. 19019 et seq. (Nov. 29, 1969). Section 5(a) (1) of the Military Selective Service Act of 1967, as amended, 50 U. 5. C. App. § 455(a) (1), pursuant to which the President acted, simply provides as follows:

“The selection of persons for training and service under section 4 shall be made in an impartial manner, under such rules and regulations as the President may prescribe. . . . ”

Thus, since there is no statutory claim to the rights asserted by Morgan, § 10(b) (3) operates to bar this court’s consideration of this claim at this pre-induction stage. See Fein, supra, 405 U.S. at 374-375, 92 S.Ct. 1062; Crowley v. Pierce, 461 F.2d 614, 617 (5th Cir. 1972) (concurring opinion of Brown, J.); McCarthy v. Director of Selective Service, 460 F.2d 1089 (7th Cir. 1972). But cf. Levine v. Selective Service Local Board No. 18, 458 F.2d 1281 (2d Cir. 1972), in which the Second Circuit, although “profess[ing] some difficulty interpreting the holding in Fein in light of the facts in Fein,” id. 458 F.2d at 1286 n. 19, held that § 10(b) (3) did not bar a claim that Levine’s liability to induction ended under the Selective Service regulations before his induction order was mailed.