237 F.2d 376 (6th Cir. 1956), 12896, Townsend v. Zimmerman

Docket Nº:12896.
Citation:237 F.2d 376
Party Name:Hayden TOWNSEND, Appellant, v. Lt. Col. Horace ZIMMERMAN et al., Appellees.
Case Date:October 25, 1956
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 376

237 F.2d 376 (6th Cir. 1956)

Hayden TOWNSEND, Appellant,

v.

Lt. Col. Horace ZIMMERMAN et al., Appellees.

No. 12896.

United States Court of Appeals, Sixth Circuit.

October 25, 1956

John A. McCrea and Richard H. Nash, Louisville, Ky., for appellant.

Page 377

James C. Jernigan, Asst. U.S. Atty., Louisville, Ky., for appellees. J. Leonard Walker, Louisville, Ky., on the brief.

Before ALLEN, McALLISTER and STEWART, Circuit Judges.

STEWART, Circuit Judge.

The appellant, Hayden Townsend, is married and has two young children. He lives in the small community of Dixon, Kentucky. Townsend was originally placed by his draft board in Class 3-A pursuant to the Selective Service regulation providing for the deferment of married men who have dependent children with whom they maintain a bona fide home. 32 CFR, 1622.30. On July 28, 1955, Townsend and his wife separated. For that reason he was reclassified 1-A on September 7, 1955. He did not appeal from this reclassification.

On December 13, 1955, Townsend and his wife reconciled their differences, and he returned to his home and family. That same day Townsend visited the chairman of his draft board and orally notified him of the reconciliation. Despite this notification of change of status the draft board failed to change Townsend's classification.

On January 3, 1956, Townsend was sent an induction notice. Upon receiving it he contacted the chairman of the draft board and was told to appear at the next meeting of the board. At this meeting the two board members present voted to postpone his induction for thirty days pending a meeting of the full board. On February 15, 1956, the board met and voted two to one to draft Townsend.

Townsend filed an appeal with the local board on February 24, 1956. The appeal was ignored by the board and shortly thereafter Townsend received a notice to report for induction on March 28, 1956.

Townsend then brought suit in the Western District of Kentucky to enjoin his induction. This appeal is from an order denying the injunction.

It is claimed by the appellees that Townsend waived any right to deferment that he might have had by failure to appeal within ten days from the date of his reclassification to 1-A in September, 1955. But Townsend had no grounds on which to appeal at that time, since he was not then living with his wife and children. Not until December 13, 1955, when Townsend returned to his wife and children did he have any basis for requesting reclassification back to 3-A.

If Townsend at that time had notified the draft board in writing of his change of status with a written request that his classification be reopened, refusal of the draft board to reopen his classification would have amounted to an abuse of discretion. 32 CFR, 1625.2; United States v. Vincelli, 2 Cir., 1954, 215 F.2d 210, 212. In the Vincelli case it was pointed out in reference to the cited regulation: 'Though the language in the regulation is permissive merely that does...

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32 practice notes
  • 372 F.2d 817 (2nd Cir. 1967), 213, Wolff v. Selective Service Local Bd. No. 16
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • January 30, 1967
    ...was manifest. On the merits, however, he found that the board had acted properly as a matter of law. And in Townsend v. Zimmerman, 237 F.2d 376 (6 Cir. 1956) Judge Stewart, now Justice Stewart, enjoined a threatened induction when it appeared clearly as a matter of law that the board had vi......
  • 426 F.2d 137 (5th Cir. 1970), 27940, Magaro v. Cassidy
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • April 23, 1970
    ...[6] Later courts have still further refined the Olvera test and the companion, 'abuse of discretion' test, Townsend v. Zimmerman, 237 F.2d 376 (6th Cir. 1954). Many courts have stated that local boards are under a duty to reopen where the registrant presents a prima facie case for a new cla......
  • 303 F.Supp. 227 (D.Md. 1969), Civ. 21054, Grosfeld v. Morris
    • United States
    • Federal Cases United States District Courts 4th Circuit District of Maryland
    • August 15, 1969
    ...the courts can review the classification only in a criminal prosecution or a habeas corpus proceeding.' In Townsend v. Zimmerman, 237 F.2d 376 (6th Cir. 1956), cited with apparent approval by Mr. Justice Douglas in Oestereich, supra at 238 of 393 U.S., 89 S.Ct. 414, the Sixth Circuit, in an......
  • 438 F.2d 271 (6th Cir. 1970), 20292, Winfield v. Riebel
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • December 24, 1970
    ...new classification, refusal of the draft board to reopen his classification would amount to an abuse of discretion. Townsend v. Zimmerman, 237 F.2d 376, 377 (6th Cir. 1956). Stated differently, this court's inquiry is limited to whether the local board had a 'basis in fact' for declining to......
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32 cases
  • 372 F.2d 817 (2nd Cir. 1967), 213, Wolff v. Selective Service Local Bd. No. 16
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • January 30, 1967
    ...was manifest. On the merits, however, he found that the board had acted properly as a matter of law. And in Townsend v. Zimmerman, 237 F.2d 376 (6 Cir. 1956) Judge Stewart, now Justice Stewart, enjoined a threatened induction when it appeared clearly as a matter of law that the board had vi......
  • 426 F.2d 137 (5th Cir. 1970), 27940, Magaro v. Cassidy
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • April 23, 1970
    ...[6] Later courts have still further refined the Olvera test and the companion, 'abuse of discretion' test, Townsend v. Zimmerman, 237 F.2d 376 (6th Cir. 1954). Many courts have stated that local boards are under a duty to reopen where the registrant presents a prima facie case for a new cla......
  • 303 F.Supp. 227 (D.Md. 1969), Civ. 21054, Grosfeld v. Morris
    • United States
    • Federal Cases United States District Courts 4th Circuit District of Maryland
    • August 15, 1969
    ...the courts can review the classification only in a criminal prosecution or a habeas corpus proceeding.' In Townsend v. Zimmerman, 237 F.2d 376 (6th Cir. 1956), cited with apparent approval by Mr. Justice Douglas in Oestereich, supra at 238 of 393 U.S., 89 S.Ct. 414, the Sixth Circuit, in an......
  • 438 F.2d 271 (6th Cir. 1970), 20292, Winfield v. Riebel
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • December 24, 1970
    ...new classification, refusal of the draft board to reopen his classification would amount to an abuse of discretion. Townsend v. Zimmerman, 237 F.2d 376, 377 (6th Cir. 1956). Stated differently, this court's inquiry is limited to whether the local board had a 'basis in fact' for declining to......
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