Lumbard, Chief Judge, Hays, Circuit Judge, and Blumenfeld,*fn* District Judge. Hays, Circuit Judge (concurring). Lumbard, Chief Judge (dissenting).
BLUMENFELD, District Judge.
Appellant is a doctor of medicine. While obtaining his education, he was classified II-S (student deferment), and upon graduation and while serving as an intern, he was classified II-A (occupational deferment). In September 1967, while still II-A, he wrote to the local board stating his conscientious objection to war and requesting the appropriate forms. He filed an application for a I-O (conscientious objector) classification and appeared before the local board. Finding that Fein did not qualify for a I-O "at that time," the board retained him in his II-A status. In February 1968 he was classified I-A by the local board, but following a personal appearance on May 22, 1968, that board found that he qualified as a conscientious objector and classified him I-O.
About two weeks later, this classification was appealed to the state appeal board by the State Director of Selective Service. 32 C.F.R. § 1626.1 (1951). Appellant sought from both the local and appeal boards a statement of reasons for the appeal, notification of the standards to be applied on appeal, advice as to whether additional information outside his file was to be presented, and an opportunity to rebut findings by the appeal board as to the appropriateness of his classification. He received no pertinent response before the decision of the appeal board was rendered. On June 20, 1968, the appeal board, by a vote of 4-0, reversed the local board and reinstated appellant in class I-A. It gave no reason for that action.
On September 16, 1968, the National Selective Service Director, at Fein's request (no right of appeal by the registrant being available from an unanimous vote of the appeal board, 32 C.F.R. § 1627.3 (1967)), appealed the decision to the Presidential Appeal Board. 32 C.F.R. § 1627.1(a) (1948). Meanwhile, on October 31, 1968, the state director wrote to Fein stating that in his opinion Fein did not qualify as a conscientious objector and that his decision to appeal the local board's I-O classification was based on information in Fein's selective service file. On November 26, 1968, the Presidential Board, without a statement of reasons, upheld the appeal board.
The appellant then brought this action in the district court seeking an injunction against his induction into the armed forces and a judgment that his reclassification from I-O to I-A was null and void.
Jurisdiction was predicated on 28 U.S.C. §§ 1331, 1343, 1361, 1391 and 2201, and on an allegation that the matter in controversy exceeded the value of $10,000 exclusive of interest and costs.*fn1
The plaintiff claimed that his reclassification from I-O to I-A violated his fifth amendment right to due process in that the regulations contained no provisions requiring notice to the registrant of the reasons for appeal by the State Selective Service Director, nor for a statement of the bases of decision by the respective appeal boards and did not provide for an opportunity to present evidence to rebut the state director's appeal.
Deciding that pre-induction judicial review of the plaintiff's classification was explicitly barred by 50 U.S.C. App. § 460(b) (3) (§ 10(b) (3) of the Selective Service Act of 1967), Judge Tyler in a well-considered opinion denied the plaintiff's motion for summary judgment and dismissed the complaint for lack of subject matter jurisdiction. We agree.
Congress amended § 10(b) (3) in 1967 to add an explicit bar to judicial review
"of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution * * * after the registrant has responded either affirmatively or negatively to an order to report for induction. * * *"
in answer to Wolff v. Selective Serv. Bd., 372 F.2d 817 (2d Cir. 1967), which had permitted pre-induction judicial review of local board reclassifications of two II-S registrants into class I-A because of their participation in a demonstration protesting American involvement in Vietnam. Within a year after the amendment, a challenge to its scope reached the Supreme Court in Oestereich v. Selective Serv. Bd., 393 U.S. 233, 89 S. Ct. 414, 21 L. Ed. 2d 402 (1968). Oestereich was a divinity student admittedly entitled to a statutory exemption from military service under § 6(g) of the Act, 50 U.S.C. App. § 456(g) (1967). His draft board declared that he was a delinquent and simultaneously reclassified him as I-A for having turned in his draft card in protest to American participation in the Vietnam war. Finding that the board had acted in a "blatantly lawless manner" by depriving him of his "statutory right" to an exemption, id. at 238-39, 89 S. Ct. 414, the Court held that to read the amendment literally to deny pre-induction review in such a case would be "to construe the Act with unnecessary harshness." Id. at 238, 89 S. Ct. at 416.
Having departed to that extent from a literal reading of § 10(b) (3),*fn2 the Court undertook to elaborate its Oestereich holding through its opinion in Clark v. Gabriel, 393 U.S. 256, 89 S. Ct. 424, 21 L. Ed. 2d 418 (1968), decided the same day. Clark v. Gabriel held that § 10(b) (3) of the Act barred preinduction review of the denial of a claim to classification as a conscientious objector. The Court explained Oestereich as a case where the board action was "without statutory basis and in conflict with petitioner's rights explicitly established by the statute and not dependent upon an act of judgment by the Board. Oestereich, as a divinity student, was by statute unconditionally entitled to exemption." Id. at 258, 89 S. Ct. at 426. Sharply distinguishing that situation*fn3 from the one before it, the Court said:
"Here, by contrast, there is no doubt of the Board's statutory authority to take action which appellee challenges, and that action inescapably involves a determination of fact and an exercise of judgment." Id.
And, to avoid any risk of being misunderstood, Mr. Justice Douglas, who wrote for the majority in Oestereich, concurred in Gabriel, and after noting some hypothetical examples of lawless board action, went on to say: "It takes the extreme case where the Board can be said to flout the law, as it did in Oestereich [393 U.S. at 233, 89 S. Ct. 414, 21 L. Ed. 2d 402], to warrant pre-induction review of its actions." Id. at 260, 89 S. Ct. at 427.
These two decisions by the Court convincingly dispel the notion that pre-induction review may be obtained simply by framing issues in terms of purely legal questions divorced from their factual context,*fn4 a tour de force attempted by the appellant in this case.
The limitation of pre-induction review to cases of "blatantly lawless" action by the board gained further confirmation in Boyd v. Clark, 393 U.S. 316, 89 S. Ct. 553, 21 L. Ed. 2d 511 (1969), which affirmed a denial of pre-induction review to registrants classified I-A, in a one sentence per curiam opinion: "The judgment is affirmed, Clark v. Gabriel [393 U.S. at 256, 89 S. Ct. 424, 21 L. Ed. 2d 418], without reaching the jurisdictional question raised under 28 U.S.C. § 1331." In Boyd, the plaintiffs challenged their classification on several legal grounds without in any way contesting the discretionary or fact-finding aspects of the local board's decision to classify them I-A. See opinion below, Boyd v. Clark, 287 F. Supp. 561 (S.D.N.Y.1968). Indeed, among the constitutional claims asserted in Boyd were some which had a source in common with those asserted by the appellant here: the due process clause of the fifth amendment. See Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954).
Although the law of new cases may never be open and shut,*fn5 we have been furnished with sufficient guidance to hold that an appeal board does not flout the law in a blatantly lawless manner merely because the President has not provided certain procedural safeguards to govern the Selective Service System's administrative tribunals in determining whether a registrant is a genuine conscientious objector not "subject" to combatant training or service under § 6(j) of the Act, 50 U.S.C. App. § 456(j) (1967). See Falbo v. United States, 320 U.S. 549, 554, 64 S. Ct. 346, 88 L. Ed. 305 (1944). Cf. Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567 (1946).
The appellant had no clear statutory right to a I-O classification. Allegations of constitutional infirmities in the classification procedures did not bring this case within any exception to the bar of § 10(b) (3).
Accordingly, the order of Judge Tyler dismissing the ...