Breen v. SELECTIVE SERVICE LOCAL BD. NO. 16, BRIDGEPORT, CONN.

• Decision Date: 13 March 1968
• Docket Number: Civ. No. 12422.
• Citation: 284 F. Supp. 749
• Court: U.S. District Court — District of Connecticut
• Parties: Timothy J. BREEN, Plaintiff, v. SELECTIVE SERVICE LOCAL BOARD NO. 16, BRIDGEPORT, CONNECTICUT and Brig. Gen. Ernest E. Novey, Individually and as Director of the Selective Service System for Connecticut, Defendants.

284 F. Supp. 749

Timothy J. BREEN, Plaintiff, v. SELECTIVE SERVICE LOCAL BOARD NO. 16, BRIDGEPORT, CONNECTICUT and Brig. Gen. Ernest E. Novey, Individually and as Director of the Selective Service System for Connecticut, Defendants.

Civ. No. 12422.

United States District Court D. Connecticut.

March 13, 1968.

Lawrence P. Weisman, of Cohen & Wolf, Bridgeport, Conn., and Emanuel Margolis, Stamford, Conn., for plaintiff.

Jon O. Newman, U. S. Atty., Hartford, Conn., for defendants.

TIMBERS, Chief Judge.

STATEMENT OF PROCEEDINGS AND COURT'S RULINGS

In this action brought to challenge defendants' right to induct plaintiff into the armed forces, plaintiff has moved for a preliminary injunction to restrain defendants from continuing to process him for induction. Defendants oppose this motion and have moved for dismissal of the complaint on the ground that jurisdiction is lacking in this Court. Since the Court agrees that plaintiff's complaint fails to state a cause of action over which the Court has jurisdiction, plaintiff's motion for a preliminary injunction is denied and the complaint is dismissed. Plaintiff's motion for the convening of a three-judge district court to consider the issues here presented is also denied.

On November 16, 1967, plaintiff delivered his draft card to a clergyman in Boston, Massachusetts, for return to the government. Allegedly the sole purpose of this act was to protest United States' involvement in the war in Vietnam.

PLAINTIFF'S STATUS AS A DELINQUENT AND APPLICABLE REGULATIONS

The Military Selective Service Act of 1967, 50 App. U.S.C. § 451 et seq., authorizes the President of the United States to prescribe necessary rules and regulations to carry out its provisions. 50 App. U.S.C. § 460(b) (1). Pursuant to this authorization, Sections 1617.1 and 1623.5 of the Selective Service regulations (32 C.F.R. §§ 1617.1 and 1623.5 (1967)) require a person registered and classified by the selective service to have at all times in his personal possession his Registration Certificate and a valid Notice of Classification. Both items are commonly referred to as draft cards. In addition, § 1602.4 of the regulations (32 C.F.R. § 1602.4 (1967)) defines a "delinquent" as "a person required to be registered under the selective service law who fails or neglects to perform any duty required of him under the provisions of the selective service law." Sections 1642.1-1642.46 (32 C.F.R. §§ 1642.1-1642.46 (1967)) govern the treatment of delinquents. In relevant part they provide that a person failing to perform any duty required under the law may be declared a delinquent by the Board. (32 C.F.R. § 1642.4(a) (1967)). When this is done the Board must send a Delinquency Notice to the registrant setting forth the duty which the registrant has failed to perform. (32 C.F.R. § 1642.4 (b) (1967)). Once having declared a registrant delinquent the Board may proceed to reclassify the registrant into Class I-A (32 C.F.R. § 1642.12 (1967)), and having done so, the Board must order him to report for induction before all others, even before volunteers (32 C.F.R. §§ 1642.13 and 1631.7 (1967)).

On January 9, 1968, plaintiff's draft-board, located in Bridgeport, Connecticut, mailed him a Delinquency Notice, informing him that on January 8, 1968, he had been "declared delinquent" because of "Failure to have Registration Certificate in your possession." Also on January 9, 1968, plaintiff was reclassified from Class II-S (student deferment) to Class I-A. On January 11, 1968 he was ordered to report for a pre-induction physical, but, at his request, the examination was transferred to Boston, Massachusetts, and postponed until March 4, 1968.

RELIEF SOUGHT

Plaintiff filed the original complaint in this action on February 20, 1968. On March 1, 1968, plaintiff filed a substituted complaint and the instant motion for a preliminary injunction. Plaintiff also sought and obtained at that time an ex parte temporary restraining order.

A hearing was held on March 8, 1968, on plaintiff's motion for a preliminary injunction. Also filed and heard at that time was plaintiff's motion for the convening of a three-judge district court pursuant to 28 U.S.C. § 2282 to consider the request for a preliminary injunction and for the extension of the temporary restraining order until the three-judge district court could act. In addition, defendants' counsel filed, and the Court heard, a motion to dismiss the complaint for lack of jurisdiction.

At the conclusion of the hearing the Court dissolved the temporary restraining order but otherwise reserved decision on the pending motions.

Plaintiff's complaint avers that the draftboard was without jurisdiction to declare plaintiff a delinquent and to reclassify him, and that its conduct in so doing was unconstitutional. The Board's actions, plaintiff claims, were meant as a penalty and will have the effect of inhibiting the exercise of First Amendment rights by himself and others. Plaintiff also attacks the regulations described above as being unconstitutional on their face and as applied, claiming that they violate the First, Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States. Plaintiff further claims that his reclassification into Class I-A simultaneously with the mailing to him of notice that he was "delinquent" and prior to his receipt of that notice violated Selective Service regulations and due process of law. Finally, plaintiff contends that his reclassification resulted from an improper "directive" concerning reclassification sent by the Director of the Selective Service System, Lt. Gen. Lewis B. Hershey, to draftboards on October 26, 1967.

Plaintiff asks the Court in his complaint to declare that the designation of plaintiff as delinquent and his reclassification are null and void; to enjoin defendants from taking further steps to induct or reclassify him on the basis of his turning in his draft card; to declare the Selective Service regulations referred to above unconstitutional on their face and as applied; and to declare the Hershey "directive" void on its face and as applied. Plaintiff also demands $20,000 in damages.

JURISDICTIONAL QUESTION RAISED

The threshold question raised by plaintiff's complaint and motion for a preliminary injunction, and brought into focus by defendants' motion to dismiss, is whether plaintiff states a cause of action over which this Court has jurisdiction.

Plaintiff claims jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343 and 2201, and asserts that the matter in controversy exceeds the value of $10,000, exclusive of interest and costs, and arises under the Constitution and laws of the United States, including 42 U.S.C. §§ 1981 and 1983.

It is clear that 28 U.S.C. § 2201 does not confer jurisdiction but merely creates a remedy where jurisdiction otherwise exists. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950).

Nor is 28 U.S.C. § 1343 of any help to plaintiff. Subsections (1) and (2) of that provision only confer jurisdiction in instances where damages are sought with respect to violations of 42 U.S.C. § 1985; plaintiff does not allege, nor could he properly allege, a violation of that section. Subsection (3) applies only where a state law, statute, ordinance, regulation, custom or usage is involved; none of these is involved here. Subsection (4) confers jurisdiction where relief is sought under an Act of Congress providing for the protection of civil rights. The only such laws relied upon by plaintiff, 42 U.S.C. §§ 1981 and 1983, require state action; no state action is alleged here. See Oestereich v. Selective Service System Local Bd. No. 11, 280 F. Supp. 78 (D.Wyo.1968), aff'd, per curiam, 390 F.2d 100 (10 Cir. 1968).

Nevertheless, this action does arise under the Constitution and laws of the United States and as such 28 U.S.C. § 1331 would generally confer jurisdiction if the matter in controversy exceeded the sum or value of $10,000, exclusive of interest and costs. Although plaintiff alleges that the action involves the requisite jurisdictional amount and seeks to recover $20,000 in damages, a very real question exists whether the necessary amount is in fact in controversy. See Wolff v. Selective Service Local Bd. No. 16, 372 F.2d 817, 826 (2 Cir. 1967). Cf. Oestereich v. Selective Service System Local Bd. No. 11, supra.

SECTION 8(c) OF MILITARY SERVICE ACT OF 1967 (AMENDING SECTION 10(b) (3) OF UNIVERSAL MILITARY TRAINING AND SERVICE ACT)

Assuming the requisite jurisdictional amount has been sufficiently demonstrated, the Court is convinced that § 8(c) of the Military Selective Service Act of 1967, amending Section 10(b) (3) of the Universal Military Training and Service Act (50 App. U.S.C. § 460(b) (3)), specifically deprives this Court of whatever jurisdiction it might otherwise have over this action.

Prior to its amendment in June, 1967, Section 10(b) (3) provided that decisions of local draftboards with respect to classifications "shall be final, except where an appeal is authorized and is taken in accordance with such rules and regulations as the President may prescribe." The United States Supreme Court in Estep v. United States, 327 U.S. 114, 122-23 (1946), interpreted this to mean that:

". . . Congress chose not to give administrative action under this Act the customary scope of judicial review which obtains under other statutes. It means that the Courts are not to weigh the evidence to determine whether the classification made by the local boards was justified. The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant."

Having thus defined the narrow scope of judicial review, the Court proceeded to interpret Congressional intent as to when that review could take place. A...