Robert J. Crowley v. Peter P. Pierce, Jr., as State Director of Selective Service

461 F.2d 614

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 11, 1972
• Docket: 71-2714
• Status: Published

Opinions

LEWIS R. MORGAN, Circuit Judge:

The issue on this appeal is whether Section 10(b) (3) of the Military Service Act of 1967, 50 U.S.C. App. § 451 et seq., prohibits judicial consideration prior to induction of appellee’s claim that his local draft board erroneously assigned him to the First Priority Selection Group for I-A draft registrants. The district court reached the merits of appellee’s claim and enjoined his induction into the Military Service by holding that Section 10(b) (3), supra, did not destroy federal jurisdiction. We reverse.

The facts are undisputed. Robert J. Crowley was initially placed in Class II-A because of his civilian occupation as a public school teacher. When Crowley left the teaching profession his local draft board reclassified him I-A, available for military service, on October 21, 1970. Crowley personally appeared before the local board to contest the I-A classification, but the board refused to alter its original determination. On December 23, 1970, the local board informed Crowley that his file would be forwarded to the State Appeal Board and that he had been placed in the Extended Priority Selection Group (hereinafter Extended Group). Crowley immediately contended before the local board that he was improperly in the Extended Group and that he should have been placed in the First Priority Selection Group (hereinafter First Group).

On February 16, 1971, the State Appeal Board considered Crowley’s appeal and classified him I-A with no member dissenting. An induction order was issued instructing Crowley to report for duty on March 22, 1971.

At this point Crowley abandoned his claim that the I-A classification was erroneous and filed suit in federal district court to enjoin his induction on the ground that the draft board improperly assigned him to the Extended Group. The district judge agreed with Crowley and declared the induction order null and void on April 13,1971.

For I-A draft registrants such as Crowley the difference between being placed in the Extended Group or in the First Group meant the difference between being drafted and remaining a civilian in 1971. Because of his date of birth Crowley’s lottery number was 188. During 1970 the highest lottery number reached for induction by Crowley’s draft board was 195. Thus, absent any appeal on Crowley’s part, he probably would have been inducted in 1970 since his lottery number was within those numbers called for induction in that year. However, since Crowley appealed his I-A classification to the state draft board he could not be inducted while the appeal was pending. Thus, by the time the state board rendered its decision in February of 1971, a new reached number was in effect and the Selective Service System was inducting only those I-A registrants of the First Group with lottery numbers below 125.

However, as previously stated, Crowley’s draft board placed him in the Extended Group for 1971. Under pertinent Selective Service Regulations¹ the Extended Group was composed of I-A draft registrants with reached lottery numbers who had lost their deferments during 1970 and who were not called for induction by the end of that year. Members of the Extended Group, regardless of their lottery numbers, were subject to induction before members of the First Group.

The government contends on appeal, as it did before the district court, that Crowley was classified I-A on October 21, 1970, when his local draft board first made its determination. Under this theory Crowley met the requirements for the Extended Group since he was “in” Class I-A in 1970; his number was reached by the draft board; and he was not called for induction in 1970. On the other hand, Crowley argues that he was not “in” Class I-A until February 16, 1971, when the state board affirmed the prior classification by the local board. If this assertion is true, Crowley did not qualify for the Extended Group (since he was never “in” Class I-A in 1970) and the order to report for induction was invalid. On the merits, then, the legality of Crowley’s induction turns on the question of whether the decision of the State Appeal Board was a de novo determination or whether the decision relates back to 1970 to the time of classification by the local draft board.

We need not decide this question, however, since we hold that the district court was without jurisdiction of the merits by virtue of Section 10(b) (3) of the Military Service Act, supra. Under § 10(b) (3) judicial review of the “classification or processing of any registrant” is prohibited until “after the registrant has responded either affirmatively or negatively to an order to report for induction”. Of course this statute does not foreclose pre-induction review of every act of classification by the Selective Service System. Compare Oestereich v. Selective Service Board, 1968, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402, and Breen v. Selective Service Board, 1970, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653, with Clark v. Gabriel, 1968, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418, and Boyd v. Clark (S.D.N.Y. 1968) 287 F.Supp. 561, aff’d 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 511 (1969). Nevertheless, in the more recent case of Fein v. Selective Service System, 1972, 405 U.S. 365, 92 S.Ct. 1062, 31 L.Ed.2d 298 the Supreme Court once again confronted the issue of the availability of pre-induction review to a registrant who asserts an erroneous classification by his draft board. The court declined to review Fein’s claim to conscientious objector status prior to induction even though Fein contended the 1-0 classification was denied by the use of procedures which violated the Due Process Clause of the Fifth Amendment. Citing its previous decisions in Oestereich, Gabriel, Boyd and Breen, all supra, the court repeatedly stressed the fact that Fein was not asserting a classification to which he was concededly entitled:

“Thus Oestereich, Gabriel, Breen, and Boyd together establish the principles (a) that § 10(b) (3) does not foreclose pre-induction judicial review in that rather rare instance where administrative action, based on reasons unrelated to the merits of the claim to exemption or deferment, deprives the registrant of the classification to which, otherwise and concededly, he is entitled by statute, . . .” 405 U.S. at 374, 375, 92 S.Ct. at 1069.

“These principles do not automatically decide Fein’s case. The doctor, unlike Oestereich and unlike Breen, cannot and does not claim a statutory exemption or a statutory deferment on the basis of objectively established and conceded status.”

405 U.S. at 375, 92 S.Ct. at 1069.

“We further conclude that, as measured against the facts of Fein’s case, it is Gabriel, and not Oestereich and Breen, that is controlling. Unlike the registrants in Oestereich and Breen, Fein’s claimed status is not one that was factually conceded and thus was assured by the statute. . . . ”

405 U.S. at 376, 92 S.Ct. at 1070.

“We are not persuaded, as has been suggested, that the local hoard’s grant of the 1-0 classification equates with the conceded exemption and deferment involved in Oestereich and Breen. Objective certainty of status is lacking; . . . ”

405 U.S. at 376, 92 S.Ct. at 1070.

(All emphasis supplied).

By emphasizing the lack of objective certainty of the asserted status the court reaffirmed its holding in Oester-eich v. Selective Service Board, supra, where pre-induction review was allowed on the ground that the draft board’s classification procedure was “basically lawless”. 393 U.S. at 237, 89 S.Ct. at 414. See also Pasquier v. Tarr, 5 Cir. 1971, 444 F.2d 116, and Gregory v. Tarr, 6 Cir. 1971, 436 F.2d 513.

Turning to the ease at hand, Crowley contends he was not classified I-A until the State Appeal Board acted on his appeal in 1971. We express no views on the merits of this claim, but we hold that it falls far short of being an asserted status to which the registrant is con-cededly entitled. Fein v. Selective Service System, supra.

Accordingly, the order of the district court enjoining Crowley’s induction is reversed with directions to dissolve the injunction in accordance with the views expressed herein.

Reversed.

1 . 32 C.F.R. 1631.7, et seq.