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June 26, 1968

James BOYD, Bernard Hughes, Cecil Ralph Hendrix, and Charter Taylor, Jr., Plaintiffs,
Ramsey CLARK, as Attorney General of the United States, Lewis B. Hershey, as Director of Selective Service of the United States, Paul Akst, as Director of Selective Service of the City of New York, Selective Service Board No. 44 of the City of New York and Selective Service Board No. 2 of the City of New York, Defendants

The opinion of the court was delivered by: HAYS

HAYS, Circuit Judge:

This is an action brought by four Selective Service registrants challenging the constitutionality of the student deferments provided in Section 6(h)(1) of the Military Selective Service Act of 1967, 50 U.S.C.A. App. § 456(h)(1) (Supp.1967), on the grounds that student deferments (1) discriminate against persons who are economically unable to attend college and (2) are arbitrary and bear no reasonable relationship to the purpose of the Act. *fn1" Plaintiffs, who are all classified I-A,* allege that they are unable to secure student deferments solely because they lack the financial means to attend college. The injury claimed is an increased likelihood of induction, because, so the plaintiffs allege, registrants who are deferred as students thereby ordinarily postpone their induction for several years and in many cases escape service entirely by acquiring other deferments. The relief sought is a decree that the Act is unconstitutional as applied to plaintiffs and an injunction restraining defendants from ordering plaintiffs inducted and from prosecuting them for violation of the Act.

 At plaintiffs' request a three-judge court was convened pursuant to 28 U.S.C. §§ 2282 and 2284.

 We turn first to a consideration of defendants' motion to dismiss the complaint for lack of jurisdiction over the subject matter and for failure to state a claim upon which relief can be granted.


 Defendants urge that this court is deprived of jurisdiction of the subject matter by Section 10(b)(3) of the Act, 50 U.S.C.A. App. § 460(b)(3) (Supp.1967):

"* * * No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, 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, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant."

 Although the section makes no mention of the availability of habeas corpus after induction, it is doubtful that Congress intended to eliminate that traditional remedy for challenging draft classification. The legislative history indicates that the statutory provision was intended merely as a codification of existing case law. See 113 Cong.Rec. 8052 (Daily ed. June 12, 1967) (statement of Sen. Russell); H.R.Rep. No. 267, 90th Cong., 1st Sess. pp. 30-31 (1967); U.S. Code Congressional and Administrative News p. 1308.

 Plaintiffs claim that Section 10(b)(3) was not designed to cover this kind of suit. They cite references in the statute and legislative history, supra, to the "no basis in fact" test and "exhaustion of administrative remedies" as evidence that Congress was concerned only with the typical case of the registrant who claims that his local Selective Service Board classified him in the wrong category. (Plaintiffs concede that they are properly classified in I-A.)

 Even if plaintiffs' argument as to the inapplicability of the statute were to be accepted, they would gain little. It would still be necessary for them to establish the inapplicability of the pre-1967 decisions holding that defense to a criminal proceeding and post-induction writ of habeas corpus are the exclusive means by which classifications may be challenged. See, e.g., Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567 (1946); Witmer v. United States, 348 U.S. 375, 377, 75 S. Ct. 392, 99 L. Ed. 428 (1955); Watkins v. Rupert, 224 F.2d 47 (2d Cir. 1955); Schwartz v. Strauss, 114 F. Supp. 438 (S.D.N.Y.), aff'd on opinion below, 206 F.2d 767 (2d Cir. 1953).

 A registrant who has not received and acted on an order of induction cannot get injunctive relief because he cannot show "irreparable harm," Watkins v. Rupert, supra, 224 F.2d at 48; Muhammad Ali v. Breathitt, 268 F. Supp. 63, 65 (W.D.Ky.1967); because he is not "aggrieved," Daniels v. United States, 372 F.2d 407, 414 (9th Cir. 1967); because he lacks "standing" in light of the lack of immediate danger of direct injury, Katz v. United States, 287 F. Supp. 29 (S.D.N.Y. Aug. 8, 1966); because the action is "premature" or "not ripe," Feldman v. Local Board No. 22, 239 F. Supp. 102, 105-106 (S.D.N.Y.1964), Westerbeke v. Local Draft Board No. 2, 118 F. Supp. 441, 444 (S.D.N.Y.1954); and because the dispute may become "moot" or "academic," Wolff v. Selective Service Local Board No. 16, 372 F.2d 817, 823 (2d Cir. 1967), Feldman v. Local Board No. 22, supra, 239 F. Supp. at 105.

 In Wolff v. Selective Service Local Board No. 16, supra, plaintiffs alleged that they were reclassified I-A for participating in a draft protest. The court expressed itself as concerned with the chilling effect on the exercise of first amendment rights created by the threat of reclassification and held that plaintiffs had sustained a legally cognizable injury for which they could seek injunctive relief. *fn2" However, the court said that in the ordinary case, injunctive relief would be inappropriate.

"* * * in the usual run of Selective Service case, the registrant must wait until he receives an induction order, and has either obeyed it or is prosecuted for refusing to obey it, before the courts may review his classification. This is so because, in nearly all cases, it is service in the armed forces itself, and not the mere classification, that constitutes the alleged injury. Thus, should it develop that for independent reasons such as physical disability the registrant is not actually wanted by the armed forces, he will never have sustained a legally redressible injury. Perhaps it is true that a mere adverse classification will cause a disarray of plans and emotional upset but this is an acceptable price to pay for the efficient functioning of the Selective Service * * *." Id., 372 F.2d at 823.

 Courts, commentators and Congress agree that any incidental inconvenience to plaintiffs is outweighed by the value of keeping the Selective Service System from becoming entangled in litigation which may prove unnecessary. See, e.g., Falbo v. United States, 320 U.S. 549, 554-555, 64 S. Ct. 346, 88 L. Ed. 305 (1944); Comment, Fairness and Due Process Under the Selective Service ...

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