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WESTERBEKE v. LOCAL DRAFT BD. NO. 2

February 2, 1954

WESTERBEKE
v.
LOCAL DRAFT BOARD NO. 2, ISLIP, N.Y. et al.



The opinion of the court was delivered by: GALSTON

The plaintiff seeks to have the defendants restrained from re-classifying the plaintiff or ordering the induction of the plaintiff pending the trial of this action for a review of the action of the defendants.

The complaint alleges that the defendants, as a Local Draft Board, and the Appeal Board, classified the plaintiff in Class I-S and II-S, after June 19, 1951, which action permitted the plaintiff to complete his third year at Hofstra College, ending June 6, 1953. The complaint also alleges that he is now a senior class student.

 It is alleged that the Local Board erred as a matter of law in failing voluntarily to release the plaintiff from its custody and jurisdiction.

 The complaint, which is not always too clear in distinguishing between statements of fact and conclusions of law, continues by alleging that the plaintiff is no longer deferred, as the National Board classified him I-A on or about December 14, 1953, and that he is therefore no longer liable for induction under Sec. 6(h) of the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 456(h). Plaintiff alleges that he passed his twenty-sixth birthday on June 30, 1953, and therefore is not liable for induction under Sec. 4(a), 50 U.S.C.A.Appendix, § 454(a) and that he should be released from the jurisdiction of the Local Board. The complaint adds that on or about July 24, 1953, the Local Board improperly and illegally classified the plaintiff in I-A, and alleges that on information and belief the Local Board is now preparing to order the plaintiff to report for induction under Class I-A. He alleges that he has exhausted all administrative remedies to the point of carrying his appeal for II-S classification to the Local Board and to the National Appeal Board, and alleges that unless the defendants are restrained by this court, the plaintiff will suffer irreparable damage.

 The plaintiff alleges that the actions of the Local Board and the Appeal Board are arbitrary, capricious, improper and illegal.

 In a second and separate cause of action he alleges that he is entitled to a classification as a student under the provisions of the 'Regulations', and to a deferment for the senior or fourth class year covering the academic year for September 1953 to June 1954.

 In his prayer for relief, plaintiff seeks to have the classification from II-S to I-A set aside, and pending the trial of this action, to have a temporary restraining order issued enjoining the defendant from enforcing its order of re-classification.

 The complaint was filed on December 19, 1953 and as yet no answer has been filed by the defendants; but the motion for the temporary restraining order is vigorously opposed by the defendants, who submitted in opposition their complete file. The defendants contend that the plaintiff has failed to exhaust administrative remedies available to him under the selective service system, and that the relief sought should be denied, for this court lacks jurisdiction of this action.

 No express provision for judicial review to test the validity of a selective service classification is to be found in the Universal Military Training and Service Act of 1951, 50 U.S.C.A.Appendix, § 451 et seq. The Act provides that the decisions of the local boards shall be final, except for administrative appeals as authorized therein. 50 U.S.C.A.Appendix, § 460(b)(3). As the Supreme Court has noted, careful and detailed provisions have been made by Congress for the fair administration of the Act within the framework of the selective service process. Falbo v. United States, 320 U.S. 549, 64 S. Ct. 346, 88 L. Ed. 305; Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567. With these factors in mind, the Court has ruled that in order to invoke judicial review, whether the right thereto be based on the Constitution or on the Court's exercise of the general jurisdiction conferred on it by Congress, the administrative procedure for induction into military service, or its equivalent, must first be fully completed. Falbo v. United States, supra.

 In the Falbo case, the petitioner was prosecuted for knowingly failing to obey a selective service board's order to report for assignment to work of national importance. He had been classified as a conscientious objector, and the order was in lieu of the usual order to report for military service. He contended that he was entitled to a statutory exemption from all forms of national service as a 'regular or duly ordained' minister. He argued, therefore, that the board's classification being erroneous, no crime was committed because there was no 'duty' to comply with a mistaken order. In affirming the petitioner's conviction, the Court found that a local board's order to report was 'no more than a necessary intermediate step to a united and continuous process designed to raise an army speedily and efficiently' (320 U.S. 549, 64 S. Ct. 348), and held that no judicial review was available 'before final acceptance of an individual for national service.'

 The plaintiff in the instant case contends that there is a right to judicial review here because, as alleged in his complaint, the Local Board acted beyond its jurisdiction when it classified him I-A. He cites the case of Estep v. United States, supra, as supporting this contention. Admittedly the authority of the local boards to hear and determine all questions of deferment from training and service is limited to action 'within the respective jurisdictions' of such boards. 50 U.S.C.A.Appendix, § 460(b)(3). However, the Estep case, in ruling that judicial review of the local board's classification was authorized, did not distinguish the Falbo case on the ground that the local board acted beyond its jurisdiction. Rather, in the Court's own language:

 'Falbo v. United States, supra, does not preclude such a defense (lack of jurisdiction) in the present case. In the Falbo case the defendant challenged the order of his local board before he had exhausted his administrative remedies. Here these registrants had pursued their administrative remedies to the end. All had been done which could be done.' 327 U.S. 114, 123, 66 S. Ct. 423, 428.

 The basis for distinguishing the two cases in respect to judicial review, therefore, is that in the Falbo case the petitioner attempted to challenge the local board's classification by refusing its order to report for the required service, regarded as a challenge before completion of the administrative process, whereas in the Estep case, the registrants' challenge of the local boards' classification was made by reporting for induction, being accepted, but refusing to submit to induction, regarded as a challenge after 'all had been done which could be done' in the administrative procedure of induction.

 In both the Falbo and Estep cases, the registrants sought judicial review of a local board's classification in the course of a criminal prosecution for alleged violation of the provisions of the selective service laws then in effect. In the case at bar, the plaintiff seeks a reclassification of his selective service status and an injunction preventing his induction even before making a decision as to whether he will obey or refuse to obey an order to report for induction. It is clear from the Falbo case that the attempted ...


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