Liese v. LOCAL BOARD 102
| Decision Date | 15 April 1970 |
| Docket Number | No. 70 C 121(2).,70 C 121(2). |
| Citation | 314 F. Supp. 521 |
| Parties | Terry A. LIESE, Nancy Joan Liese, Edward R. Liese, Frances L. Liese, Edward Thomas Liese, Mary Liese, By Her Mother and Next Friend, Lawrence Edward Liese, By His Mother and Next Friend, Deborah Liese, By Her Mother and Next Friend, and Anne Liese, By Her Mother and Next Friend v. LOCAL BOARD 102, Frederic David Kehl, Robert G. Bierer, George Henry Davis, Sr., Jack Harrison Hearst, Napoleon Williams, the National Director of Selective Service and Col. Ralph McCain. |
| Court | U.S. District Court — Eastern District of Missouri |
Louis Gilden, St. Louis, Mo., for plaintiffs.
Daniel Bartlett, Jr., U. S. Atty., James M. Gordon, Asst. U. S. Atty., St. Louis, Mo., for respondents.
This matter is before the Court on the petition of Terry A. Liese requesting a preliminary and permanent injunction against his induction into the armed services. Petitioner Liese resides in St. Louis County, Missouri, and is a registrant of Local Board 102 of the Selective Service System, Ferguson, Missouri. The respondents are the members of the Local Board, Frederic David Kehl, Robert G. Bierer, George Henry Davis, Sr., and Jack Harrison Hearst; Napoleon Williams, the National Director of the Selective Service System; and Colonel Ralph McCain, State Director of the Selective Service System. The petitioner alleges jurisdiction under 28 U.S.C. §§ 1361, 1331, and 1651, and under the Fifth, Ninth, and Fourteenth Amendments to the Constitution of the United States. He also alleges that he will be injured in an amount in excess of $10,000.00.
Petitioner Terry A. Liese was classified I-A on February 2, 1965. He attended college and was given a II-S on March 8, 1966. On February 7, 1967, he was classified I-A, but was reclassified II-S on March 7, 1967. On November 7, 1967, he was again classified I-A. On July 2, 1968, he was classified III-A. The III-A classification came as the result of petitioner's brother, Timothy Francis Liese, being killed in Vietnam on August 29, 1967. Petitioner did not request the III-A classification, but did inform the Local Board that his brother had been killed in Vietnam. At the time the Local Board granted the III-A classification (by a 4-0 vote), it stated:
"Board feels if a family has one son killed in this War, they have done more than their share for their Country, and that this registrant should be deferred * * * Even though there is no provision in the present Selective Service Law."
Petitioner retained this III-A classification until August 12, 1969, when he was classified I-A. On November 13, 1969, he was ordered to report for induction on December 3, 1969. Prior to December 3, 1969, petitioner was arrested for peace disturbance in Berkeley, Missouri. He was released on bond and a trial date of February 18, 1970, was set. He was notified orally by the Secretary of the Local Board not to report on December 3, 1969. He did not receive an official selective service form or any other writing cancelling or postponing his induction.
On February 18, 1970, petitioner was found not guilty on the peace disturbance charge in Berkeley, Missouri. A letter dated March 2, 1970, from the executive secretary of the Local Board ordered the petitioner to report for induction on March 30, 1970.
On March 16, 1970, petitioner began this action seeking a preliminary and permanent injunction and writ of mandamus against the respondents, directing them to cancel his order of induction. A hearing was held on March 26, 1970, and the Court has been further informed by the briefs and arguments of the parties.
The petitioner alleges three grounds for relief in his petition. First, he alleges that he was neither inducted nor was his induction order postponed prior to December 31, 1969, and that, therefore, he can be inducted only under the Random Selection Sequence (draft lottery) which went into effect January 1, 1970. Petitioner's random selection sequence number is 326 and under 32 C. F.R. 1631.7 he cannot be ordered to report for induction until that number is called. The second ground asserted by petitioner is that the Local Board re-opened his III-A classification without a request from petitioner and ended his deferment without any change in the facts which led them to give him a III-A. His third ground for relief is that the section of the Military Service Act of 1967, 50 U.S.C. App. § 456(o), is unconstitutional in that it denies equal protection of the law by discriminating against a family which has more than one surviving son. The respondents challenge the jurisdiction of this Court to hear and determine this action because 50 U.S.C. App. § 460(b) (3) prohibits pre-induction judicial review of the classification or processing of any registrant.
The Court will consider the allegation that the sole surviving son statute, 50 U.S.C. App. § 456(o) is unconstitutional. It is the opinion of the Court that petitioner has failed to allege or prove the statute is so discriminatory that it is violative of the equal protection provisions of the Constitution and that it is unconstitutional. Therefore, the Court will deny relief on this ground.
Petitioner's second allegation deals with his reclassification from III-A to I-A. Petitioner on July 2, 1968, was classified as III-A until July 1, 1969, because of the death of his brother in Vietnam. The service-related death of a brother is not a proper basis for granting a III-A classification. Petitioner was properly classified I-A on August 12, 1969,...
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Swift v. Director of Selective Service, 24137.
...advised that his acceptability for induction is undetermined pending the above determinations and that he will be further advised by his Local Board." This is consistent with the idea that all information to the registrant is to come from one source, his local It may be helpful to look at w......
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Corbo v. SELECTIVE SERV. SYS., LOCAL BD.# 15 FOR NEW JERSEY
...At no time did Corbo request the Board to order his induction sooner than it did. This case is not similar to Liese v. Local Board, 314 F.Supp. 521 (E.D. Mo. 1970), where the postponement was oral, none of the proper procedures were followed by the Board, and the registrant was in a state o......