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September 9, 1968

Lawrence R. FAULKNER, Plaintiff,
Clark CLIFFORD, as Secretary of Defense, Stanley Resor, as Secretary of the Army, Ramsey Clark, as Attorney General of the United States, Lewis B. Hershey, as Director of Selective Service of the United States, Col. John W. Brokaw, as Deputy State Director, Selective Service System of the State of New York, and Charles E. Artale, Robert J. Glasser, Thomas D. Kearney, Bernard Lavin and Joseph Noonan, as members of Selective Service Board No. 3, Defendants

The opinion of the court was delivered by: TRAVIA


 TRAVIA, District Judge.

 In this action, Plaintiff, Lawrence R. Faulkner, seeks: 1.) a preliminary injunction against his induction into the armed services; and 2.) the convening of a three-judge court under 28 U.S.C. §§ 2282 and 2284 (1964). He alleges that his threatened induction violates his rights under the First, Fifth and Sixth Amendments to the Federal Constitution. The Defendants, represented by the United States Attorney, contest the jurisdiction of this Court to consider the questions presented, citing 50 U.S.C. App. § 460(b)(3) (Supp.1968). The Defendants also oppose the request for a three-judge court. Because of the complexity of the issues involved, this opinion will deal first with the request for a three-judge court; second, with the question of jurisdiction; third, with the merits of the action; and lastly, with other procedural issues raised.


 The request for a three-judge court is the problem that may most easily be resolved. Plaintiff has requested an injunction against the enforcement of § 460(b)(3) on the ground that it is unconstitutional. While ordinarily such a request would fall withing the statutory grounds for calling a three-judge court, in this situation, the request must be denied. Here, in fact, the Plaintiff is seeking to anticipate what is a defense to the primary action for an injunction against his induction into the armed services. The question is ancillary to the primary question before the Court; it is a question that goes to the jurisdiction of this Court in an action pending before it, and therefore is a question which must be resolved by this Court. An almost identical question was considered by a three-judge District Court in Petersen v. Clark, 285 F. Supp. 698 (N.D.Cal.1968), and that Court decided that it should dissolve itself and refer the question of jurisdiction to a single-judge Court. In the Petersen case, the court relied upon International Ladies' Garment Workers' Union v. Donnelly Garment Co., 304 U.S. 243, 58 S. Ct. 875, 82 L. Ed. 1316 (1938) and Flemming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960). The constitutional question, decision of which would merely permit a court to take jurisdiction of the real questions in this action, would not appear to be a "case" within the meaning of 28 U.S.C. § 2282. See also Breen v. Selective Service Local Board No. 16, 284 F. Supp. 749 (D.Conn.1968), which reached the same decision on this point, also citing Flemming v. Nestor.


 On the primary question of a preliminary injunction, the threshold issue that this Court must face is that of jurisdiction. In the 1967 amendment to 50 U.S.C. App. § 460(b)(3), the following limitations were incorporated into the Universal Military Service and Training Act of 1940:

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 [462], after the registrant has responded either affirmatively or negatively to an order to report for induction * * *: 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.

 This prohibition on the exercise of judicial power in selective service cases might be interpreted in a number of ways. Literally, the statute would appear to suspend the writ of habeas corpus in these cases, leaving as the only remedy for an illegal classification the defense of a criminal prosecution. This interpretation of the statute, in the absence of clear Congressional intent to achieve this result, cannot be accepted. Constitution, Art. I, § 9; Mr. Justice Brandeis concurring in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345-348, 56 S. Ct. 466, 80 L. Ed. 688 (1936); Brief of the Solicitor General in Oestereich v. Selective Service Local Board No. 11, No. 46, October Term, 1968. The amendment, it has been suggested, might be interpreted merely to restate pre-existing law, in an effort to prevent erosion of earlier-existing constructions of the statute. "Changes in the Draft: The Military Selective Service Act of 1967," 4 Columbia Journal of Law and Social Problems, 120, 156 (1968). While this interpretation has much to recommend it, there is no real support for it in either the Congressional debates or Committee Reports. Instead, the proper interpretation to be accorded this recent change in the law would appear to lie midway between these two extremes. It has been suggested that the Congressional intent in so amending the law was not to limit the federal courts in those instances in which a local selective service board violated an express statutory command in awarding a classification. Brief of the Solicitor General, supra. However, this is not really the problem presented here. Instead, the question is whether a proper interpretation of the statute would reveal a congressional purpose to restrict review of action in violation of an asserted constitutional right, such as that to freedom of speech, by a local draft board. It appears clearly from the language of the statute, the legislative history, and the interpretation placed upon the law by other courts, that judicial review in such a situation is prohibited by the 1967 amendment. See the House Armed Services Committee Report, H.R.Rep. No. 267, 90th Cong., 1st Sess. 30 (1967), U.S.Code Cong. & Admin.News 1967, p. 1308:

The committee was disturbed by the apparent inclination of some courts to review the classification action of local or appeal boards before the registrant * * * has been ordered to report for induction and has responded either affirmatively or negatively to such an order. In view of this inclination of the courts to prematurely inquire into the classification action of local boards, the committee has rewritten this provision of the law so as to more clearly enunciate this principle. The committee was prompted to take this action since continued disregard for the principle of the law by various courts could seriously affect the administration of the Selective Service System.

 See also "Changes in the Draft: The Military Selective Service Act of 1967," supra at 157-59; Breen v. Selective Service Local Board No. 16, supra; Oestereich v. Selective Service System Local Board No. 11, 280 F. Supp. 78 (D.C.1968), aff'd 390 F.2d 100 (10th Cir. 1968), cert. granted, 391 U.S. 912, 88 S. Ct. 1804, 20 L. Ed. 2d 651 (1968).

 Accepting the fact that such a limitation on judicial power was intended by Congress, the question of the constitutionality of the statute then arises. *fn1" There can be no doubt of the power of Congress to limit the jurisdiction of Federal Courts in ordinary matters. Constitution, Art. III. "One hundred and seventy years of history stand in the way of those who would claim that Congress must vest the entire judicial power." Wright, Federal Courts 24 (1963). The problem nevertheless remains: is there any provision of the Federal Constitution which would limit the exercise of such power, and, if so, is this one of the instances in which exercise of an unquestioned Congressional power is limited by the express prohibition of another constitutional provision?

 There can be little doubt today that there are some limits on the scope of Congressional action in this field. The cases decided under the Fifth Amendment indicate clearly that such limits on Congressional power do exist. It has been held in this Circuit that:

while Congress has the undoubted power to give, withhold and restrict the jurisdiction of the courts other than the Supreme Court, it must not so exercise that power so as to deprive any person of life, liberty, or property without due process of ...

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