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KIMBALL v. SELECTIVE SERV. LOCAL BD. NO. 15

June 12, 1968

John P. KIMBALL et al., Plaintiffs,
v.
SELECTIVE SERVICE LOCAL BOARD NO. 15, NEW YORK, New York, et al., Defendants



The opinion of the court was delivered by: MOTLEY

Memorandum Decision and Order on Motion for Preliminary Injunction

 MOTLEY, District Judge.

 Plaintiff, Alexander Jack, is a full-time student at Boston University School of Theology. He, along with several other plaintiffs, brought this action seeking an adjudication that:

 1) the declarations of plaintiffs as delinquents are null and void;

 2) the reclassification of certain plaintiffs was null and void;

 3) Selective Service Regulations §§ 1602.4, 1617.1, 1623.5 and 1642.1-1642.46 violate the United States Constitution. *fn1"

 Plaintiffs also seek a permanent injunction enjoining defendants from inducting plaintiffs into the Armed Services.

 Plaintiff Jack turned in his notice of classification following an anti-Vietnam War protest demonstration in Boston, Massachusetts on October 16, 1967. Thereafter, on November 6, 1967, Jack's local draft board mailed to him a notice that it had declared him a delinquent. Subsequently, on May 27, 1968, Jack was ordered to report for induction on June 10, 1968.

 On June 6, 1968, Jack moved for an order pursuant to Rule 65, Fed.R.Civ.P. staying his induction and for an order restraining his induction until the determination of this motion. Counsel for both parties appeared and after oral argument, the court orally restrained Jack's induction until the determination of his motion. *fn2" The motion was heard on June 10, 1968.

 Although Jack is now a full-time divinity student, he has not sought to be reclassified IV-D. He was previously classified I-A. Because Jack was not present at the hearing of this motion and because defendants did not produce his file, it is not clear whether, before this motion, his draft board was aware of his entitlement to a clear statutory exemption from military service. 50 U.S.C. App. § 456(g).

 The Supreme Court has granted certiorari in Oestereich v. Local Board No. 11, 280 F. Supp. 78 (D.Wyo. Feb. 6, 1968) aff'd 390 F.2d 100 (10th Cir. Feb. 21, 1968), cert. granted, 391 U.S. 912, 88 S. Ct. 1804, 20 L. Ed. 2d 651 (May 20, 1968), a case in which a registrant who had been classified IV-D had his classification changed by his local board to I-A when he turned in his draft card following an anti-war demonstration.

 The Supreme Court granted certiorari after the Solicitor General urged that the lower court decision be reversed on the ground that Oestereich's statutory exemption could not be affected by his turning in his draft card. The questions presented by petitioner Oestereich are much broader and involve many of the same issues as in this case -- 391 U.S. 912, 88 S. Ct. 1804, 20 L. Ed. 2d 651 (May 20, 1968).

 On the basis of Oestereich, Chief Judge Zavatt deferred determination of a government motion to dismiss similar complaints (but not by anyone classified I-A or IV-D) by plaintiffs who have turned in their draft cards. Linzer v. Local Board No. 64, 293 F. Supp. 772 (E.D.N.Y. April 29, 1968). Judge Zavatt stated:

 
It is possible, however, that the Supreme Court may pass upon the question as to whether or not the returning of a draft card or a registration card comes within the constitutional right of freedom of speech; whether the delinquency provisions of the Regulations violate the due process clause of the Constitution; how section 10(b)(3) is ...

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