Carey v. Local Board No. 2, Hartford, Connecticut

• Decision Date: 13 February 1969
• Docket Number: Civ. No. 12966.
• Citation: 297 F. Supp. 252
• Court: U.S. District Court — District of Connecticut
• Parties: James CAREY v. LOCAL BOARD NO. 2, HARTFORD, CONNECTICUT.

297 F. Supp. 252

James CAREY v. LOCAL BOARD NO. 2, HARTFORD, CONNECTICUT.

Civ. No. 12966.

United States District Court D. Connecticut.

February 13, 1969.

Karl Fleischmann, Satter & Fleischmann, Hartford, Conn., for plaintiff.

Jon O. Newman, Hartford, Conn., for defendant.

MEMORANDUM OF DECISION FINDINGS OF FACT CONCLUSIONS OF LAW

BLUMENFELD, District Judge.

This case presents a question under the Military Selective Service Act of 1967, 50 App.U.S.C. § 451 et seq., which is of importance to the present class of second year graduate students. The plaintiff, James Carey, in his second year of study at Yale Law School, brings this suit in the nature of mandamus, under 28 U.S.C. § 1361,¹ to compel the defendant, his local draft board, to classify him I-S and thereby defer his induction into the Armed Forces until the end of the academic year. The plaintiff's claim is that the Act affords to him, as a graduate student not otherwise deferred and who has not been deferred as an undergraduate student since June 30, 1967, an absolute right to a I-S deferment to complete the academic year notwithstanding he has been called for induction.

Carey graduated from college in June 1965. He then spent two years doing graduate study in England. In September 1967 he entered the Yale Law School. From the beginning of his junior year in undergraduate school until the end of his first year in law school (June 1968), Carey received II-S deferments from his local board.

In June 1968, the defendant reclassified Carey from II-S to I-A, and on October 14, 1968, after he had commenced his second year in law school, Carey was ordered to report for induction on November 6, 1968. When he received this order, Carey wrote to the draft board requesting a deferment until the end of the academic year. The draft board's response to this letter was to postpone his induction until February 3, 1969. Carey again requested a deferment until the end of the academic year. The defendant refused this request.²

Jurisdiction

The defendant moves to dismiss on the grounds that: (1) this is not a proper suit in the nature of mandamus, and, therefore, there is no jurisdiction under 28 U.S.C. § 1361; and (2) even if this is a proper suit in the nature of mandamus, the jurisdiction of this court to entertain it is barred by § 10(b) (3) of the Selective Service Act of 1967, 50 App.U.S.C. § 460(b) (3).

1. Mandamus: On the first ground the defendant makes three contentions. The first is that mandamus is appropriate only where the relief sought is affirmative in nature. The defendant concedes that the specific relief that the plaintiff requests—an order compelling the defendant to classify plaintiff I-S— is affirmative; however, it argues that what the plaintiff seeks in reality is negative relief—an order barring his induction. Assuming that what the plaintiff ultimately desires is a postponement of his induction until the end of the academic year, this will not require a negative injunction, but will flow automatically from the order requested of the court. By its very terms, a classification of the plaintiff into I-S will defer him until the end of the academic year. There is no need to look beyond the relief requested in the complaint. The form of relief sought in this case does not bar relief by way of mandamus.

Secondly, the defendant contends that mandamus is appropriate only where there is a clear statutory duty on the part of the defendant, free from doubt and devoid of any discretion. Cf. Prairie Band of Pottawatomie Tribe of Indians v. Udall, 355 F.2d 364 (10th Cir.), cert. denied, 385 U.S. 831, 87 S.Ct. 70, 17 L.Ed.2d 67 (1966). The defendant contends that there is an apparent conflict between the statute and the regulations. This would necessarily involve a construction of the statute by the administrative official (or a court). Consequently, any duty imposed by that statute is not clear and, therefore, mandamus is not appropriate. However, the fact that a statute may require administrative or judicial construction in order to determine what duties it creates does not mean that mandamus is not proper to compel the officer to perform that duty, once it is determined. In an opinion which affirmed the award of a writ of mandamus, the Supreme Court rejected the same argument tendered by the defendant here:

"Unless the writ of mandamus is to become practically valueless, and is to be refused even where a public officer is commanded to do a particular act by virtue of a particular statute, this writ should be granted. Every statute to some extent requires construction by the public officer whose duties may be defined therein. Such officer must read the law, and he must therefore, in a certain sense, construe it, in order to form a judgment from its language what duty he is directed by the statute to perform. * * * If the law direct him to perform an act in regard to which no discretion is committed to him, and which, upon the facts existing, he is bound to perform, then that act is ministerial, although depending upon a statute which requires, in some degree, a construction of its language by the officer." Roberts v. United States, 176 U.S. 221, 231, 20 S.Ct. 376, 379, 44 L. Ed. 443 (1900) (emphasis added).³

See Udall v. Wisconsin, 113 U.S.App.D. C. 183, 306 F.2d 790, 793 (1962), cert. denied, 371 U.S. 969, 83 S.Ct. 552, 9 L. Ed.2d 539 (1963). The fact that the duty involved becomes clear only after a construction of the statute does not preclude relief under 28 U.S.C. § 1361.

Thirdly, the defendant contends that § 1361 relief is inappropriate because the order sought by the plaintiff would have the effect of requiring the local board to disregard a Presidential regulation which it is required by law to follow. But this argument begs the question. The plaintiff not only challenges the validity of the regulation, but also asserts that if properly interpreted the local board will not be faced with the necessity to disregard it. Since these claims of the plaintiff go to the heart of the merits, determination of this point will be deferred until the merits are resolved.

2. Section 10(b) (3): The defendant further contends that even if the plaintiff's claim is suitable for relief by mandamus, the court has been deprived of jurisdiction by § 10(b) (3) of the Selective Service Act of 1967, 50 App.U.S.C. § 460(b) (3). Section 10(b) (3) reads in 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 * * *." While this language appears to be a rather clear command barring preinduction judicial review, the statute must be read in light of its most recent interpretation by the Supreme Court.

In Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), the Supreme Court held that § 10(b) (3) will not bar preinduction judicial review of the classification or processing of a registrant where the registrant can show (1) a clear statutory grant of a deferment; (2) involving no discretion on the part of the local board; and (3) that the board's action in denying the deferment contravened the express statutory command.

Whether these elements are present in this case can be more readily determined after a fuller examination of the merits of the plaintiff's claim.

The Merits

I begin with a brief outline of the provisions of the law affecting liability of university students for induction into the armed services. Section 6(h) (1) of the Act, 50 App.U.S.C. § 456(h) (1), directs that the President shall provide for the granting of deferments to students who are satisfactorily pursuing a full time course of instruction in a college at the undergraduate level. This statutory undergraduate deferment continues until the student receives a baccalaureate degree or reaches age twenty-four, whichever occurs earliest. This subsection has no predecessor in the earlier selective service acts. It was enacted in 1967 and became effective on June 30, 1967. Pursuant to 32 C.F.R. § 1622.25, students in this category are classified as II-S (undergraduate II-S deferment).

Another category of deferments is provided for in § 6(h) (2) of the Act. This section includes an authorization for the President to provide by regulation for the deferment of graduate students whose deferment he considers essential to the national interest. This section was also enacted with the 1967 amendments, but an almost identical provision was present in the 1948 and 1951 Acts. Section 6(h) of those earlier Acts authorized the President to provide for the deferment of both graduate and undergraduate students, there having been no equivalent in those Acts to the mandatory deferment of undergraduates now found in the current § 6(h) (1). Graduate students deferred under the President's rule-making power are also classified as II-S under 32 C.F.R. § 1622.26 (graduate II-S deferments).

There is a third category of student deferment which applies to all university students, whether graduates or undergraduates. Under 32 C.F.R. § 1622.15(b) this type of deferment is designated as I-S. Its source is § 6(i) (2) of the Act, which has remained unchanged since 1951. Because this case is mainly concerned with the application of its provisions, it is set out in full:

"Any person who while satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution is ordered to report for induction under this title, shall, upon the facts being presented to the local board, be deferred (A) until the end of such academic year, or (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier: Provided, That any person who has heretofore had his induction postponed under the provisions of section 6(i) (2) of the Selective Service Act of 1948 former subsection (i) (2) of

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