The opinion of the court was delivered by: LASKER
This case presents the question whether an Army reservist who submits an application for conscientious objector discharge subsequent to the receipt of his call-up order but prior to his actual activation date is entitled to have his application processed before, rather than after, his entry onto active duty.
Felton J. Earls III is a medical doctor holding the rank of Captain in the United States Army Reserve. In 1961, while an undergraduate at Howard University, he enlisted in the United States Army Reserve Officers Training Corps and, upon his graduation in June 1963, he was commissioned a Second Lieutenant in the United States Army Reserve. Thereafter, in June of 1967, upon graduation from Howard University Medical School, plaintiff was transferred to the Army Reserve Medical Corps. At that time, also, he enrolled in the "Berry" plan which entitled him to a deferred status pending the completion of his postgraduate medical training at the University of Wisconsin, where he was a Fellow in the Department of Neurophysiology, and at the New York College of Medicine, where he recently completed his internship.
Subsequently, plaintiff went to work in the Community Health Program of the New York College of Medicine at Metropolitan Hospital in New York City. On or about June 22, 1970, he received orders to report for active military duty at Fort Sam Houston, Texas, as of November 5, 1970, for training and subsequent assignment to Vietnam.
On July 29, 1970, plaintiff sent a letter to his commanding officer at Fort Benjamin Harrison, Indiana, indicating that he desired to apply for conscientious objector status and requesting the necessary forms. Thereafter, on or about August 7, 1970, he received a communication from Fort Benjamin Harrison, Office of Personnel Operations, advising him as to the form of the application and place of submission, and enclosing a copy of the applicable Army regulations, namely AR 135-25. Plaintiff was advised at that time to submit his completed forms to Fort Benjamin Harrison, which, as the analysis below indicates, may be of some significance.
On September 21, 1970, Dr. Earls returned his completed conscientious objector form, together with numerous letters of reference, to Fort Benjamin Harrison. In that application as well as in his affidavit dated November 2, 1970, in support of the instant motion, plaintiff stated (and it is nowhere contradicted) that his beliefs in regard to conscientious objection crystallized only after he had read the decision of the United States Supreme Court in Welsh v. United States, 398 U.S. 333, 90 S. Ct. 1792, 26 L. Ed. 2d 308 (June 15, 1970), and after he had received his active duty orders the following week. As he indicated at page 5 of his application:
"It has taken the reality of my activation to the military to congeal my belief in opposing participation for reasons of conscience. It has been a difficult decision to reach, but I think that I can honestly say today that I will never participate in a war of any kind, so long as human life and property are destroyed, no matter what the cause.
"I believe that the influences have been present in my life for a long while, but not until two months ago had they acted on my life in a way to lead me to become a conscientious objector."
Dr. Earls also noted in his application his willingness to work under the Selective Service civilian work program for conscientious objectors and to consent to the issuance of an order for such work by his local Selective Service Board.
Following the submission of his application, plaintiff received no further communication from the Reserve Center until October 29-30, 1970, when his attorney was advised by telephone that Dr. Earls' application for discharge as a conscientious objector could not be acted upon at Fort Benjamin Harrison before he reported for active duty on November 5, 1970, and would therefore be forwarded to the commanding officer at Fort Sam Houston for processing at his new duty station. Plaintiff's request for a delay of his activation date pending a decision on his application was denied.
Plaintiff thereupon commenced this action on November 3, 1970, on which day this court granted a stay enjoining defendants from requiring plaintiff to report to active duty on November 5, 1970, pending the return date of the order to show cause and a decision thereon.
Plaintiff brought on this petition for a writ of mandamus to require defendants to process plaintiff's application for conscientious objector discharge while he is in a reserve status and, pending such processing, to prohibit defendants from ordering him to active duty. Jurisdiction of this court is invoked, inter alia, under 28 U.S.C. § 1361. Plaintiff now moves for a preliminary injunction, pursuant to Rule 65 of the Federal Rules of Civil Procedure, restraining defendants from enforcing plaintiff's active duty order pending a full hearing and determination on the merits of his petition.
Of course, a preliminary injunction constitutes an extraordinary remedy which will not be granted except upon a clear showing of probable success on the merits and possible irreparable injury. However, "where the balance of hardships tips decidedly toward the party requesting the temporary relief," Dino De Laurentiis Cinematografica, S.P.A. v. D-150, Inc., 366 F.2d 373, 375 (2d Cir. 1966), the burden of demonstrating the likelihood of success is lessened. In such a case, it is sufficient if plaintiff "has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation." Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953). See also Semmes Motors, Inc. v. Ford Motor Company, 429 F.2d 1197, 1205-1206 (2d Cir. 1970); Checker Motors ...