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July 13, 1972

Salvatore SPATOLA, Plaintiff,
U.S. DEPARTMENT OF DEFENSE and U.S. Selective Service System, Defendants

Tenney, District Judge.

The opinion of the court was delivered by: TENNEY


TENNEY, District Judge.

 This is a rather unusual action whereby the plaintiff, Salvatore Spatola, is seeking an order from the Court directing the "Defense Department" and the Selective Service System to either immediately induct him into the armed forces or in the alternative to order defendants to permit him to retake the mental examination and if he passes to induct him and to order the Selective Service System to reclassify him 1-A. While the relief requested is a bit out of the ordinary, especially in light of the efforts of many young men today to avoid military service, plaintiff is faced with what he apparently considers the less attractive alternative, deportation to Italy.

 The essentially undisputed facts are as follows. Plaintiff is a single, male alien, twenty-five years of age and a native and citizen of Italy. He first entered the United States as a stowaway in 1962, was shortly thereafter apprehended and deported to Italy. Sometime in June 1963 he illegally reentered this country and managed to avoid discovery until October 1970 when he was again apprehended by the immigration authorities. Proceedings to deport Mr. Spatola were begun on October 13, 1970, and three days later he applied to the Selective Service System for voluntary induction into the armed forces.

 At the deportation hearing held on November 16, 1970 Mr. Spatola apparently conceded he was an alien deportable to Italy pursuant to 8 U.S.C. § 1251(a)(1) and an order of deportation was duly entered by the Special Inquiry Officer. The Board of Immigration Appeals affirmed that order and the Court of Appeals for the Second Circuit dismissed a petition to review the order. Plaintiff is presently under an outstanding order of deportation and if his attempt to gain induction into the army fails will be returned to Italy.

 While the deportation proceedings were pending, Spatola was notified by Selective Service Local Board No. 29B to report on December 17, 1970 for induction. Plaintiff reported to the Armed Forces Examining and Entrance Station ("AFEES") in New York City and after passing the physical examination proceeded to take the mental qualification test. Plaintiff was administered the Armed Forces Qualification Test ("AFQT") which consists of 100 multiple choice questions with a minimum passing score for induction purposes of 10. Plaintiff received a score of 9 and a review of the answer sheet by Lt. Davis C. Tracy confirmed the failure. When his test score was considered in light of his fifth grade education, plaintiff was found mentally unacceptable for induction.

 On January 6, 1971, Local Draft Board No. 29 received a request from Spatola for permission to retake the mental exam. The request was approved and the local board notified plaintiff to report for induction on March 25, 1971. Plaintiff did as he was instructed and when recognized by Lt. Tracy was directed to leave the examining room and was denied permission to retake the exam. The incident was reported to the Acting Commanding Officer of the induction center, Captain Vopri, who upon inquiry determined that plaintiff had been sent for re-examination without any indication of his previous rejection and that the request for re-examination had not been in conformity with Army Regulation 601-270 para. 4-9d. Plaintiff was not permitted to retake the mental exam and a letter dated March 25, 1971 was mailed to the New York City Headquarters, Selective Service System and to the local draft board informing them of the irregularity and the applicable regulations.

 In April 1971 the New York City Headquarters, Selective Service System requested by letter addressed to Colonel Weall, the Commanding Officer of AFEES, permission for plaintiff to retake the mental exam. Col. Weall informed the Director of the New York City Headquarters that he would submit a negative recommendation on the request because plaintiff, as a deportable alien, was ineligible for induction under AR 601-270 para. 3-12. The New York City Headquarters then withdrew its request and notified the local draft board which subsequently reclassified plaintiff 4-F, not qualified for any military service.

 Plaintiff then filed the within complaint setting forth two causes of action which in essence claim that he has a right to be inducted into the armed forces of the United States; that he had a right to retake the mental examination within six months of his initial failure; and that he has a right to be reclassified 1-A. He further claims the actions of the defendants in denying him these "rights" were arbitrary, capricious, and in violation of his statutory and constitutional rights. Significantly, however, Spatola does not identify the sources of these rights other than to make a general reference to equal protection and the fifth amendment. Plaintiff has not been able to cite one case or one statute in his favor. Jurisdiction is founded on 5 U.S.C. § 702 and 28 U.S.C. § 1361. Defendants have now moved pursuant to Fed.R.Civ.P. 12(b)(1) and (6) to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.

 Before turning to the merits of defendants' motion, it would be helpful to set out the applicable statutory and regulatory framework. The Military Selective Service Act of 1967, section 10(b)(3), 50 U.S.C. App. § 460(b)(3) (Supp. I, 1971) provides in pertinent part:

"No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title [section 462 of this Appendix] . . .: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant." (Emphasis added.)

 Army Regulation 601-270 provides in part:

para. 3-12 Registrants ineligible for induction --
"Registrants who fail to meet the prescribed medical, mental, and moral standards are ...

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