The opinion of the court was delivered by: WYATT
This is a motion by plaintiff (Victor) for a preliminary injunction restraining defendants from inducting plaintiff into the Armed Forces of the United States during the pendency of this action. Fed. R. Civ. P. 65.
Plaintiff is a registrant in the Selective Service System at defendant Local Board No. 8 of Providence, Rhode Island. The other defendants are a Transfer Board and various officials in the Selective Service System.
The questions arise under a part of the Military Selective Service Act of 1967 (50 App. U.S.C. § 451 and following; "the Act"). The specific part provides for a deferment until the end of the academic year of a student who is ordered to report for induction "while satisfactorily pursuing a full-time course of instruction" (50 App. U.S.C. § 456(i)(2)).
The motion for a preliminary injunction must be denied.
When Victor became 18 years old and required to register (50 App. U.S.C. § 453) he was living in Providence, Rhode Island; he duly registered with Local Board No. 8 in Providence about May 7, 1963.
Because he was then an undergraduate student at Lehigh University, the Board on May 20, 1964 placed Victor in a deferred class, II-S (32 CFR § 1622.25).
After physical examination and in May, 1966, Victor was found qualified for service in the Armed Forces and fully acceptable for induction (32 CFR § 1628.25).
Victor received his baccalaureate degree from Lehigh in June 1966.
After leaving Lehigh, Victor entered New York University School of Law (NYU).
Under date of May 4, 1966, NYU submitted to the Board for Victor a "Student Certificate", an official form (SSS Form 109). This stated that Victor had been accepted by NYU as a "full time student * * * for the class beginning on September 12, 1966".
Under date of "9/66", NYU submitted to the Board for Victor a "Graduate or Professional College Student Certificate", an official form (SSS Form 103). This stated that Victor had entered upon the first year of his professional studies and was "pursuing a fulltime course of study", with the notation "9/12/66-5/26/67" which must indicate the beginning and the end of the academic year. It was stated that the course would lead to a degree "on or about June 1969".
Under date of "9/67", NYU submitted to the Board for Victor the same form of certificate for the second year, with the notation "9/11/67-5/28/68".
Under date of "9/68", NYU submitted to the Board for Victor the same form of certificate for the third year. This time, however, the notation read as follows: "Student entered third year on 9/12/68. The academic year will end on 5/27/69".
Having been advised by the NYU certificate that the academic year would end on May 27, 1969 -- which would mark the completion of the three year course of study -- the Board on June 18, 1969 placed Victor in Class I-A "available for military service" (32 CFR § 1622.10) and on the next day notice of classification was mailed to Victor (32 CFR § 1623.4(a)).
Every registrant is entitled to "an opportunity to appear in person" before the Board if he "files" a request within 30 days after the Board has mailed him a Notice of Classification. 32 CFR § 1624.1.
On the 29th day after the mailing by the Board of the Notice of Classification, Victor filed a request with the Board for a personal appearance before the Board, and also for a conference with the Government Appeal Agent (32 CFR § 1604.71).
On the same day, Victor separately filed a request to be placed in Class II-A as, in Victor's language, "an occupational deferment as I feel my skills are necessary for the maintenance of the national interest".
Class II-A is for registrants deferred "because of civilian occupation (except agriculture and activity in study)". 32 CFR § 1622.22. This deferment derives from a section of the Act (50 App. U.S.C. § 456(h)(2)) separate from that dealing with student deferments (50 App. U.S.C. § 456(h)(1)). In relevant part, the Act provides for deferment of persons whose "occupations or employment * * * or whose activity in * * * other endeavors is found to be necessary to the maintenance of the national health, safety or interest * * *" (50 App. U.S.C. § 456(h)(2)).
Class II-A, though deriving from the same part of the Act as the deferment for graduate study, has nothing whatever to do with graduate study. Class II-S (such as Victor enjoyed while in law school) includes those deferred because of graduate study. The regulations for Class II-S are separate and different from those for II-A. Thus, the regulations for II-A properly make it clear that the II-A deferment is not for "activity in study". 32 CFR § 1622.22.
The occupational deferment sought by Victor was for work as a "Vista Volunteer". This work was described as providing "legal counsel to community groups composed of indigenous poor under the supervision of faculty members of the New York University Law School" (July 16, 1969 letter to the Board of Professor Norman Redlich).
Because the deferment sought was Class II-A, occupational deferment, no suggestion was made that Victor would be "pursuing" any "course of instruction" at NYU, "full-time" or otherwise. Indeed, such a suggestion would have been entirely inconsistent with the deferment sought.
A conference with the Agent was arranged for August 4, 1969 but Victor requested a postponement because, until August 19, he had to be in Colorado concerning his "future employment"; presumably this was employment after the Vista Volunteer work. The post-ponement was allowed.
Victor did meet with the Agent on August 20, 1969, basing his claim for reclassification on his employment in a two year Vista program.
Victor asked that his personal appearance before the Board be transferred to a Board in New York City. The personal appearance must be before the same Board which made the classification. The transfer to New York City thus could not be made.
The Board on December 2, 1969 mailed Victor notice that it had fixed December 9, 1969 at 7:30 p.m. as the date for Victor's personal appearance. Victor asked for a postponement, saying it was "practically impossible" for him to travel to Providence for the personal appearance because he had to appear in court that day. The postponement was not allowed.
The Board noted Victor's failure to appear and on December 9, 1969 determined not to reopen Victor's classification. 32 CFR § 1624.2(c). On December 11, 1969, Notice of Classification -- I-A -- was mailed to Victor. 32 CFR § 1642.2(d).
It seems clear that Victor was given the required "opportunity to appear in person" but declined to avail himself of it. The alleged court appearance on December 9, 1969 could scarcely interfere with an appearance at 7:30 p.m. in Providence; moreover, no attempt was made by Victor to suggest a later hour that evening. He simply chose not to appear.
It would seem that the Board would have been justified, after Victor's failure to appear in person, in treating his right to appeal as lost. He did not appeal within 30 days of the mailing to him on June 19, 1969, of the Notice of Classification. The requirement that another Notice of Classification be mailed is only after registrant "has ...