Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

WALSH v. LOCAL BD. NO. 10

October 22, 1969

Thomas J. WALSH, Jr., Plaintiff,
v.
LOCAL BOARD NO. 10, MOUNT VERNON, NEW YORK, Defendant


MacMahon, District Judge.


The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

Petitioner, Thomas J. Walsh, Jr., moves pursuant to Rule 65, Fed.R.Civ.P., for a preliminary injunction restraining his induction into the United States armed forces until defendant, Local Board No. 10 of the Selective Service System (the draft board), properly determines his asserted right to a deferment.

 The action is for a declaratory judgment of petitioner's right to a I-S(C) student deferment classification under the Military Selective Service Act of 1967 (the Act), 50 U.S.C. § 451 ff., and for an injunction directing the draft board to classify him as I-S(C), to reopen his case, to consider anew his request for a I-S(C) classification, and to restrain the draft board from enforcing its order directing petitioner to report for induction until, by due and proper proceedings, the draft board has determined that petitioner is not entitled to a I-S(C) classification.

 Jurisdiction is based on 28 U.S.C. § 1331(a). The complaint alleges that the action arises under the laws of the United States and that the matter in controversy exceeds $10,000 in value.

 Defendant argues that we lack jurisdiction because it is impossible to assign a monetary value to this kind of case and petitioner, therefore, cannot demonstrate the requisite jurisdictional amount. *fn1" Were we to accept defendant's argument, federal courts would never have jurisdiction over pre-induction cases, yet the Supreme Court and the Second Circuit have decided such cases thus implicitly recognizing jurisdiction. *fn2" The jurisdictional amount requirement is intended to give the United States district courts jurisdiction in all "substantial controversies where other elements of Federal jurisdiction are present." *fn3" The controversy here concerning petitioner's alleged "blatantly lawless" draft classification and eventual induction into the armed forces is, to be sure, a substantial controversy, and, with an appropriate allegation coupled with judicial notice of the pecuniary rewards of a college education, we can assume, as the Supreme Court did in Oestereich v. Selective Service System Local Bd. No. 11, 393 U.S. 233, 89 S. Ct. 414, 21 L. Ed. 2d 402 (1968), that the amount involved exceeds $10,000. We turn, now, to the operative facts.

 Petitioner is a full-time student at the University of Bridgeport, having commenced his junior year on September 23, 1968. He expects to receive his bachelor's degree in June 1970. Until December 12, 1969, the draft board classified petitioner as II-S, the usual student deferment classification granted to registrants who are "satisfactorily pursuing a full-time course of instruction" at a college or university. *fn4" Unfortunately, petitioner fell behind his class. He thereby lost his right to be continued in II-S because he was not "satisfactorily pursuing a full-time course of instruction" within the meaning of § 6(h)(1) of the Act. *fn5" Consequently, on December 12, 1968, the draft board reclassified him I-A, that is, available for military service. He appealed the reclassification, but it was upheld by the Appeals Board.

 On June 10, 1969, the draft board ordered petitioner to report for induction on July 9, 1969. Petitioner did not, however, receive the notification until late in July. Earlier, on July 3, 1969, he had applied for a I-S(C) classification and had requested a personal appearance, but four days later, on July 7, 1969, without granting petitioner a personal appearance, the draft board notified him that his request was denied. Petitioner then applied to the State Director of Selective Service for an order directing the draft board to reopen and consider anew his request for a I-S(C) classification. The draft board stayed petitioner's induction pending the State Director's determination. The State Director denied petitioner's application on July 10, 1969, and the draft board reordered his induction for August 13, 1969. Petitioner then requested similar relief from the National Director, and his application was once again denied.

 Petitioner claims that the draft board never considered his request for a reopening of his classification and for a I-S(C) deferment, because it was denied out of hand by the Board Chairman and the Executive Secretary in a telephone conversation, instead of by the entire board at a duly convened meeting. Procedural irregularities at the administrative level, however, may or may not be reviewable in the present posture of this case and, in any event, are immaterial to our decision.

 Petitioner commenced this action on August 11, 1969 and brought on this application by order to show cause returnable August 12. We stayed petitioner's induction pending oral argument, and following oral argument on August 12 extended the stay pending final determination of the motion. Despite the stay, on the very next day, August 13, 1969, the draft board, at a regular meeting, implicitly branding its earlier procedures as irregular, finally considered petitioner's request for a reopening of his classification and for a I-S(C) deferment and, not surprisingly, denied his application.

 Defendant argues that the draft board's meeting of August 13 constituted the exact relief petitioner seeks and, therefore, this motion for a preliminary injunction is moot. The argument is without merit.

 Petitioner ultimately seeks broader relief than a preliminary injunction. He also seeks a declaratory judgment and other relief.

 The provisional remedy of a preliminary injunction is equitable in nature and, even though the exact relief requested may no longer be necessary, the court, in its discretion, can and should fashion the preliminary restraint necessary to preserve the subject of the action and the status quo pending final determination. The draft board's impetuous disturbance of the status quo on August 13 flouts the spirit, if not the letter, of the court's temporary restraining order. Surely a court of equity is not ousted of jurisdiction over the subject matter of a pending suit, while considering a motion for a preliminary injunction, by the draft board's nunc pro tunc procedure in the face of a temporary restraining order. *fn6"

 Our concern, however, is not with procedural irregularities, for, however abhorrent, they are immaterial in this case. Decision here turns on the applicable substantive law. The function of the temporary restraining order was to preserve the status quo pending decision of this motion. The preliminary injunction which petitioner seeks by the motion would restrain petitioner's induction into the armed forces and maintain the status quo pending a final determination of his legal right to a I-S(C) classification.

 A preliminary injunction is granted, in the discretion of the court, when petitioner can demonstrate immediate and irreparable harm if the injunction is not granted and a substantial likelihood of ultimate success on the merits. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.