Lane v. Local Board No. 17, Civ. A. No. 70-913-G.

• Decision Date: 04 August 1970
• Docket Number: Civ. A. No. 70-913-G.
• Citation: 315 F. Supp. 1355
• Parties: Chester T. LANE, Jr., Plaintiff, v. LOCAL BOARD NO. 17 (Selective Service System, Cambridge, Massachusetts, composed of members Oscar Burrows, Gerard Verrier, Joseph Downes, Arthur N. Ashley and George Pierce), Defendant.
• Court: U.S. District Court — District of Massachusetts

315 F. Supp. 1355

Chester T. LANE, Jr., Plaintiff, v. LOCAL BOARD NO. 17 (Selective Service System, Cambridge, Massachusetts, composed of members Oscar Burrows, Gerard Verrier, Joseph Downes, Arthur N. Ashley and George Pierce), Defendant.

Civ. A. No. 70-913-G.

United States District Court, D. Massachusetts.

August 4, 1970.

James P. Lynch, Nutter, McClennen & Fish, Boston, Mass., for plaintiff.

George Higgins, Asst. U. S. Atty., for defendant.

MEMORANDUM AND PERMANENT INJUNCTION

GARRITY, District Judge.

Plaintiff, Chester T. Lane, was advised on June 18, 1970 by the defendant, Local Draft Board No. 17, that on July 14, 1970 he was to report for induction into the armed services. On July 10 he filed this action seeking pre-induction judicial review of the validity of the Local Board's actions in connection with his request for reclassification as a conscientious objector.¹ Jurisdiction was invoked under 28 U.S.C. §§ 1331 and 1361. It was alleged that the matter in controversy exceeded $10,000. At oral argument defendant waived any challenge based on a lack of the jurisdictional amount.

Plaintiff, who was born on January 21, 1947, was first classified I-A by his Local Board on October 20, 1965. Because he was attending college he was reclassified II-S on December 7, 1965, with annual renewals until June 10, 1969. On that date he was again classified I-A. On November 19, 1969 he was sent an order to report for induction on December 2, 1969. At this time plaintiff was attending graduate school and on November 23, 1969 he wrote his Local Board requesting postponement of his induction until the completion of the academic year in June of 1970. On November 28 the Local Board sent him Selective Service Form No. 264 advising him that his order to report was postponed until June of 1970.²

On March 5, 1970 Lane requested Selective Service Form No. 150. This is the form used by registrants claiming exemption from the armed services by reason of conscientious objection. The completed form was returned to the Local Board, along with supporting documents, on April 13, 1970. In his application the plaintiff stated that his beliefs did not mature or crystallize until after he received his notice for induction. In his transmittal letter plaintiff requested that the Local Board reopen his classification and consider his claim as a conscientious objector.

By letter dated May 28, 1970 the Local Board scheduled a personal appearance for plaintiff before it on June 9, 1970. On that date the plaintiff appeared and answered questions concerning the beliefs and views he expressed in his application for exemption. On June 12, 1970 the Board mailed plaintiff a letter advising him that "it was the recent decision of this local board to decline your recent request for Class 1-0." He was further advised that he could expect a new induction date in the near future. On June 18, 1970 he was sent notice that he was to report for induction on July 14. Although the Board did not specifically advise Lane that it had refused to reopen his classification, see 32 C.F.R. § 1625.4, and although the language of the letter sent him is somewhat equivocal, refusal to reopen is alone consistent with the subsequent handling of his case. For had the Board actually reopened Lane's classification, then it would automatically have had to consider his classification anew as if he had never been classified, 32 C.F.R. § 1625.11, mail him a notice of classification (SSS Form No. 110) once it was redetermined, 32 C.F.R. § 1625.12, and provide him a right of appeal, 32 C.F.R. § 1625.13. None of this was done.

Plaintiff has contended that there was a de facto reopening of his classification because of the scheduling of a personal appearance and the questioning of plaintiff and apparent consideration of his claim on the merits. This contention is rejected. In the court's opinion, a finding of a de facto reopening is precluded by the regulatory proviso that after a registrant has been mailed an order to report for induction his classification "shall not be reopened * * * unless the local board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control." (Emphasis added.) 32 C. F.R. § 1625.2. Cases in which federal courts have found de facto reopenings, e.g., United States v. Westphal, supra, Miller v. United States, 9 Cir., 1967, 388 F.2d 973, have involved situations where there were no valid outstanding induction notices and are inapposite.

Plaintiff alleges that he is a conscientious objector, that his conscientious opposition to war matured and crystallized during the months of the postponement of his order to be inducted, that prior to induction but subsequent to the issuance of an induction notice he presented to his local board a prima facie claim for reclassification as a conscientious objector, and that his local board denied him due process in failing to reopen his classification.

Under 32 C.F.R. § 1625.2 a local board may reopen the classification of a registrant if it is presented with facts not considered when the registrant was classified which, if true, would justify a change in his classification. On the other hand, when in the opinion of the Board no new facts are presented or when the facts presented even if true would not justify a change in classification, then the Board need not reopen. 32 C.F.R. § 1625.4. However, as already mentioned, if the reclassification is sought after an order to report for induction has been mailed, then the Board must first specifically find that the basis for seeking the reclassification was induced by circumstances beyond the registrant's control. 32 C.F.R. § 1625.2.

If for any of the above reasons the Board refuses to reopen a classification, the registrant has no right to a personal appearance or an appeal. If the Board does reopen and then subsequently reclassifies, it is a new classification, and even if the registrant is placed in the same classification as before, the new classification allows a right of appearance before the local board and the right of an appeal as in the case of an original classification. 32 C.F.R. § 1625.13.

The United States Supreme Court has recently said that because a refusal to reopen a classification denies a registrant an opportunity for an administrative appeal from the rejection of his claim, an improper refusal wrongfully deprives him of an essential procedural right. Mulloy v. United States, 1970, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362. It therefore held that where a prima facie case for reclassification has been made, the Board may not deprive the registrant of an administrative review by simply refusing to reopen his file, stating:

"Where a registrant makes nonfrivolous allegations of facts that have not been previously considered by his Board, and that, if true, would be sufficient under regulation or statute to warrant granting the requested reclassification, the Board must reopen the registrant's classification unless the truth of these new allegations is conclusively refuted by other reliable information in the registrant's file. See United States v. Burlich, D.C., 257 F.Supp. 906, 911. For in the absence of such refutation there can be no basis for the Board's refusal to reopen except an evaluative determination adverse to the registrant's claim on the merits. And it is just this sort of determination that cannot be made without affording the registrant a chance to be heard and an opportunity for an administrative appeal." Mulloy v. United States, supra 416, 90 S.Ct. 1771.

There are two major factors distinguishing the instant case and the Mulloy case. First, Mulloy's request for reclassification preceded any notice to report for induction. Therefore the Board's ability to reopen his file did not depend upon a prior specific finding that the alleged change in his status was due to circumstances beyond his control. Secondly, in the Mulloy case the review of the validity of the Board's actions occurred after Mulloy was convicted for the crime of refusing to submit to induction. Here the plaintiff is seeking in a civil action pre-induction relief from the Board's refusal to reopen his file.

This latter distinction brings into play § 10(b) (3) of the Selective Service Act of 1967, which provides that "No judicial review shall be made of the classification or processing of any registrant * * * except as a defense to a criminal prosecution after the registrant has responded either affirmatively or negatively to an order to report for induction." 50 App. U.S.C. § 460(b) (3). Although by its literal terms § 10(b) (3) might seem to preclude any pre-induction judicial review of board proceedings, such a reading was rejected in Oestereich v. Selective Service System Local Board, 1968, 393 U.S. 233, 89 S.Ct. 414, 21 L. Ed.2d 402. In that case pre-induction review was warranted despite § 10(b) (3) because "the delinqency procedure by which the registrant was reclassified was without statutory basis and in conflict with petitioner's rights explicitly established by the statute and not dependent upon an act of judgment by the board." Clark v. Gabriel, 1968, 393 U.S. 256, 258, 89 S.Ct. 424, 426, 21 L.Ed.2d 418. In the Clark case, decided the same day as Oestereich, pre-induction judicial review of a board's decision denying a registrant conscientious objector status was precluded because that decision inescapably involved a determination of fact and an exercise of judgment in an area where there was no doubt that the Board had statutory authority to take the type of...