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May 7, 1969

Diego Ricardo ITZCOVITZ, a permanent resident alien residing in New York, New York, Plaintiff,
SELECTIVE SERVICE LOCAL BOARD NUMBER 6, NEW YORK, New York; Colonel Paul Akst, Director of the New York City Headquarters of the Selective Service System; Colonel William H. Boughton, Director of the New York State Headquarters of the Selective Service System; and P. A. Esperdy, New York District Director of the Immigration and Naturalization Service, Defendants

Herlands, District Judge.

The opinion of the court was delivered by: HERLANDS

HERLANDS, District Judge:

By this motion, plaintiff seeks to enjoin pendente lite two federal agencies: the Selective Service System and the Immigration and Naturalization Service of the Department of Justice.

 With respect to the Selective Service System, plaintiff asks this Court to declare his outstanding induction order invalid and to direct that he be reclassified as an alien exempt from compulsory military service pursuant to a treaty between the United States and Argentina. The branch of the motion is granted in part.

 With respect to the Immigration and Naturalization Service, plaintiff requests the Court to restrain that agency from impeding plaintiff's return to the United States and to order it to permit him to resume his permanent residence in this country. This branch of the motion is denied.

 The facts relevant to the issues posed by this motion are recited in this opinion. Except as otherwise expressly indicated, the facts are essentially undisputed.

 Plaintiff is an Argentine citizen, born in 1943. He served one year in the Argentine armed forces and received an honorable discharge.

 On March 27, 1966, with his parents and sister, he was admitted to the United States on a permanent resident immigration visa.

 As required, plaintiff registered with Local Board No. 6 of the Selective Service System, located in Manhattan, on September 27, 1966. He was classified 1-A by Local Board No. 6, on October 20, 1966; he received such notice on October 24, 1966; and he took no appeal from such classification. Plaintiff reported for a physical examination, was found acceptable for military service on December 6, 1966, and completed, on January 24, 1967, a questionnaire which did not reflect any disability or any ground for exemption or disability other than the one which is involved in this suit.

 On March 29, 1967, plaintiff received an order to report for induction into the United States armed forces on April 12, 1967. This order had been issued and mailed by Local Board No. 6 on March 27, 1967.

 On the day plaintiff received his induction notice, he communicated with the Argentine Consul General in New York, Senor Carlos de Posada, and requested information about his military obligation to the United States. Senor de Posada informed plaintiff that an existing treaty between Argentina and the United States exempted plaintiff, as an Argentine citizen, from any military service in the United States armed forces. *fn1" Senor de Posado stated he would obtain, prior to the date set for plaintiff's induction, exemption papers for plaintiff to complete.

 In April, 1967, uncertainty surrounded the legal right of a treaty alien to an exemption from military service. As a factual matter, however, at that period, Selective Service did follow a procedure whereby a resident treaty alien could elect not to serve in the United States armed forces. *fn2" Thus, in accordance with recognized procedure, the Argentine Consul General communicated with the Argentine Embassy in Washington, D.C. about Itzcovitz's desire to be exempted. The Embassy, on or before April 7, 1967, made a request of the Department of State for the exemption forms.

 Mr. H. Rowan Gaither, an attorney in the Office of the Legal Advisor to the State Department, called the office of the Deputy Director of the Selective Service System, on April 7, 1967 and requested that office to forward the necessary forms to Local Board No. 6 for plaintiff to complete.

 In his affidavit sworn to December 20, 1968, Gaither states that, after his call of April 7, 1967, he was uncertain whether Selective Service would forward the forms they administratively required of aliens seeking to avoid military service, in view of their internal administrative policy of not transmitting these forms unless they could reach the local board, through state headquarters, by regular mail. Nor, Gaither states, was he certain, if Selective Service did transmit the forms, whether they would arrive at the local board prior to the date set for plaintiff's induction.

 As a result of this uncertainty, Gaither called the Argentine Embassy on April 10, 1967, and told someone of the possible difficulty in securing an exemption for plaintiff. He suggested that the Embassy contact Itzcovitz and advise him to check with Local Board No. 6 on April 11, to see whether the forms had arrived. Gaither states that he also suggested that Itzcovitz be told that, if the forms did not arrive, he was required to report for induction, and, in that event, Gaither would make arrangements to have plaintiff separated from the military.

 Gaither alleges that the Argentine Embassy was fully aware that Selective Service required that exemption from military service be claimed prior to the induction date, and that, if the treaty alien did not "communicate" his desire for exemption prior to the induction date, the individual was obliged to report for induction and that the Department of State would, at that time, intercede and obtain his separation directly from the Department of Defense.

 On April 11, 1967, in response to inquiries made by counsel plaintiff had retained for this purpose, the State Department stated that they would communicate with plaintiff's counsel and inform him whether plaintiff would have to report for induction.

 On the morning of April 12th, exemption papers had not as yet been received by Local Board No. 6 for plaintiff to complete. Nor did Itzcovitz report to the induction center, as ordered. Mr. Fred Smith, a State Department officer, spoke to plaintiff's counsel and informed him that plaintiff's local board was being advised that they should not report plaintiff as a delinquent, and that the State Department was giving due consideration to plaintiff's claim of exemption. On the same day, Mr. Gomez of the Argentine Embassy informed the local board that plaintiff had not reported for induction, but that plaintiff was requesting, through the Argentine Embassy, to be exempted from service.

 Gaither was also informed that plaintiff did not report for induction. He too telephoned Local Board No. 6 on April 12th, asked it not to classify plaintiff as a delinquent, stating that he believed the difficulties relating to plaintiff's status were a result of a problem not of plaintiff's making and that, with plaintiff's cooperation, these difficulties would be resolved. *fn3"

 Apparently before he called the local board, Gaither also spoke to plaintiff that day. He states that, at that time, he explained to Itzcovitz that he planned to arrange for plaintiff to consent to induction, and that discharge would follow shortly.

 Thereafter, Gaither arranged with Local Board No. 6 to have plaintiff report for induction on May 12, 1967. Apparently, before making final the discharge arrangements through the Defense Department, Gaither contacted the Argentine Embassy and informed it of the new induction date and of his plans for facilitating separation. The Embassy indicated that it would pass along this information to Itzcovitz; and Gaither alleges that he also advised plaintiff of the new arrangements.

 Plaintiff, through his counsel, alleges, however, that the instructions he received were to report to the induction center on May 12, 1967, and there to execute the exemption papers.

 On May 12, 1967, plaintiff and his father went to the Argentine Consulate in New York to learn whether the exemption papers had arrived. Consuls Sagasta and Street advised plaintiff and his father to report to the induction center "where they would give [plaintiff] an extension until the papers arrived from Washington." Certified English Translation of Affidavit of Senor Itzcovitz [plaintiff's father], sworn to January 14, 1969, at 1.

 Plaintiff and his father then proceeded to the induction center. Plaintiff apparently informed a Captain Schmidt that he had come to request an exemption from military service as an Argentine citizen. Captain Schmidt referred plaintiff to Godofredo Le Bron, the Selective Service liaison officer stationed at the induction center.

 Le Bron talked to plaintiff and Senor Itzcovitz in his office. While the substance of the conversation is not disputed, the evidence concerning the manner and exact phraseology (which are important) is in sharp conflict. Plaintiff informed Le Bron that he was an Argentine citizen and that his Embassy and the State Department were attempting to have him exempted from military service. Not having any information regarding plaintiff, Le Bron called Local Board No. 6 and was advised that plaintiff was supposed to have reported for induction on April 12, 1967.

 Plaintiff claims that Le Bron told him that he was subject to an outstanding order of induction and was a delinquent.

 Plaintiff's father alleges that Le Bron spoke to plaintiff in "a tough, arrogant and disrespectful manner * * *" and "* * * in a violent manner * * *". He states that "* * * Lebron's tone was a little threatening * * *." Affidavit of Senor Itzcovitz at 1. Le Bron states: "* * * I never told Itzcovitz that he was a common delinquent or attempted to intimidate him in any manner." Affidavit of Godofredo Le Bron, sworn to December 19, 1968, P6. He states he suggested that plaintiff go to Local Board No. 6 and "get his situation straightened out with the local board or he might end up in a delinquent status as there was an outstanding notice of induction." P4.

 Someone at the induction center called Gaither and informed him that plaintiff refused induction, claiming his rights under the treaty. Gaither recounts that he was informed that plaintiff's statement was made pursuant to advice of the Argentine Consulate in New York. Gaither Affidavit, p.5.

 Plaintiff and his father then reported to Local Board No. 6, pursuant to Le Bron's suggestion. There plaintiff (whether on his own or at the request of Edward Martin, the Clerk of Local Board No. 6, being disputed) wrote the following:

"I wish to be exempt from military service by reason of my being an Argentine National.
* * *
Diego Ricardo Itzcovitz"

 On or shortly after May 12, 1967, Gaither called Itzcovitz and apologized for his inability to enable plaintiff to obtain exemption papers in time, and once again informed him that he would have to submit to induction and that thereafter he would be separated. He told plaintiff that he would arrange another date for this induction.

 Selective Service records disclose that Gaither called Local Board No. 6 on May 12, 1967 and informed it that documentation regarding plaintiff "is not forthcoming." Instruction was given by Gaither that plaintiff be inducted and that Gaither would secure his discharge later. (S.S.S. Form No. 119, May 12, 1967).

 Plaintiff's Selective Service records include a report of a telephone call received by Martin from plaintiff to the effect that plaintiff would report to the local board on May 15, 1967 with his attorney. On May 15, 1967 Martin received a call from a Mr. Souza, who identified himself as plaintiff's attorney. Martin explained to Souza that plaintiff was a ...

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