343 F.Supp. 1120 (N.D.Cal. 1972), C-72 448, Piercy v. Tarr

Docket Nº:C-72 448, C-72 458.
Citation:343 F.Supp. 1120
Party Name:Thomas Edward PIERCY et al., Plaintiffs, v. Dr. Curtis W. TARR, National Director, Selective Service System, et al., Defendants. Lawrence Remley LEVI et al., Plaintiffs, v. Dr. Curtis W. TARR, National Director, Selective Service System, et al., Defendants.
Case Date:June 01, 1972
Court:United States District Courts, 9th Circuit
 
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Page 1120

343 F.Supp. 1120 (N.D.Cal. 1972)

Thomas Edward PIERCY et al., Plaintiffs,

v.

Dr. Curtis W. TARR, National Director, Selective Service System, et al., Defendants.

Lawrence Remley LEVI et al., Plaintiffs,

v.

Dr. Curtis W. TARR, National Director, Selective Service System, et al., Defendants.

Nos. C-72 448, C-72 458.

United States District Court, D. California.

June 1, 1972

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Scott J. Tepper, San Francisco, Cal., Martha Goldin, Saltzman & Goldin, Hollywood, Cal., Jerry E. Berg, Collins, Hays, Stewart, Berg, Pott & Sanford, San Jose, Cal., for plaintiffs.

James L. Browning, Jr., U. S. Atty., John F. Cooney, Jr., Asst. U. S. Atty., San Francisco, Cal., for defendants.

MEMORANDUM OPINION

ZIRPOLI, District Judge.

Plaintiffs are selective service registrants classified as conscientious objectors (I-O) by the Selective Service System. The thrust of their complaint is twofold: First, plaintiffs complain that they are being ordered to report for alternate civilian employment, at a time when comparable registrants classified I-A and I-A-O are not being ordered to report for induction, in violation of Section 6(j) of the Military Selective Service Act and the regulations adopted pursuant thereto. Second, the plaintiffs attack the promulgation of those informal directives which purport to validate the issuance of civilian work orders as contrary to the mandatory publication requirements of Section 13(b) of the Act and the implementing executive order. On March 15, 1972, the court issued a temporary restraining order enjoining the defendants, Curtis Tarr, National Director of the Selective Service System, and Carlos Ogden, State Director of California, from enforcing any civilian work orders issued to plaintiffs herein or the class they purported to represent pending determination of these issues.

Jurisdiction

Before proceeding to the merits of plaintiffs' claim, the court must determine whether it has jurisdiction over the subject matter of this action. Section 10(b) (3) of the Act, 50 U.S.C.A.App. § 460(b) (3), provides in pertinent part:

"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, or for

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civilian work in the case of a registrant determined to be opposed to participation in war in any form."

Notwithstanding this apparent statutory bar to all preinduction judicial review, in several recent cases the Supreme Court has interpreted Section 10(b) (3) not always to preclude such review. Although both plaintiffs and defendants rely on language extracted from those cases in support of their respective positions on the jurisdictional question, in the court's view, the issues this case raises fall within the ambit of the "exception" to Section 10(b) (3) which the Supreme Court has created in the cases discussed below.

What has emerged from those cases is a recognition of the propriety of pre-induction judicial review where there is no exercise of discretion by a local board in evaluating evidence and in resolving issues of fact, but rather simply a question of law. In Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 238, 89 S.Ct. 414, 416, 21 L.Ed.2d 402 (1968), the Supreme Court interpreted Section 10(b) (3) to permit pre-induction judicial review where it was clear that the use of delinquency regulations to deprive a registrant of a statutory exemption was "blatantly lawless." The Court thus implicitly approved pre-induction judicial review whenever there was "a clear departure by the Board from its statutory mandate." At least one question about the scope of this exception to Section 10(b) (3) was promptly resolved by Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968), decided the same day. In that case, the registrant sought to challenge his local board's denial of his application for conscientious objector status. Holding that Section 10(b) (3) barred pre-induction review in such circumstances, the Court noted that the board's action, unlike in Oestereich, "inescapably involves a determination of fact and an exercise of judgment." 393 U.S. at 258, 89 S.Ct. at 426. This distinction, which the Supreme Court has reiterated and applied in several succeeding cases, 1 is the crucial determinant of the court's jurisdiction.

In the case before the court, the plaintiffs do not seek review of "the numerous discretionary, factual and mixed law-fact determinations which a Selective Service Board must make prior to issuing an order to report for induction." Oestereich v. Selective Service System Local Board No. 11, supra, 393 U.S. at 240, 89 S.Ct. 414 (Harlan, J., concurring). Rather, plaintiffs argue that the actions of the Selective Service System in ordering conscientious objectors to report for civilian work at a time when other registrants were not being ordered to report for induction is a clear departure from the System's statutory mandate. This claim, raised by registrants

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whose entitlement to conscientious objector status is an objective certainty, presents an undiluted question of law which is appropriate for resolution in pre-induction judicial proceedings. See, e. g., Swift v. Director of Selective Service, 145 U.S.App.D.C. 224, 448 F.2d 1147 (1971); Liese v. Local Board No. 102, 440 F.2d 645 (8th Cir. 1971); Nestor v. Hershey, 138 U.S.App.D.C. 73, 425 F.2d 504 (1969); Shea v. Mitchell, 137 U.S.App.D.C. 227, 421 F.2d 1162 (1970); National Student Ass'n v. Hershey, 134 U.S.App.D.C. 56, 412 F.2d 1103 (1969). Accordingly, the court concludes that jurisdiction is proper. 2

Class Action

The named plaintiffs also seek to prosecute this suit as a class action. The court is satisfied that plaintiffs have met the requirements of Rule 23 of the Federal Rules of Civil Procedure. The class is numerous; the question presented is a pure question of law common to all members of the class; the claims and defenses of the representative parties are typical; and the named plaintiffs will fairly and adequately protect the interests of the entire class. Moreover, if this suit were not permitted to proceed as a class action, the defendants might be subjected to inconsistent or varying adjudications with respect to individual members of the class. Especially when it is plain, as it is here, that the defendants are acting on precisely the same grounds as to each member of the proposed class, the courts should avoid creating a situation which might result in establishing incompatible standards of conduct for the defendants. Accordingly, the court concludes that this suit should proceed as a class action. See Gregory v. Hershey, 311 F.Supp. 1 (E.D.Mich. 1969), rev'd on other grounds sub nom. Gregory v. Tarr, 436 F.2d 513 (6th Cir. 1971).

Factual Background

The operative facts with regard to plaintiffs' claims center about the implementation of what have been labelled the "order of call" provisions of the Act and regulations. Section 6(j) of both the 1967 and 1971 versions of the Military Selective Service Act, 50 U.S.C.App. § 456(j), provides that registrants determined to be conscientious objectors to participation in war shall be ordered to perform civilian work in lieu of induction. The implementing regulation, 32 C.F.R. § 1660.20, specified that a civilian work order "shall not be issued prior to the time that the registrant would have been ordered to report for induction if he had not been classified in Class I-O, unless he has volunteered for such work." The new regulations, effective December 9, 1971, contain a parallel statement. 32 C.F.R. § 1660.4.

The order of call regulations are intricate. Under 32 C.F.R. § 1631.7(b), registrants are to be inducted in the following order:

(1) Volunteers who have not attained the age of 26 years in the sequence

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in which they have volunteered for induction.

(2) Nonvolunteers in the Extended Priority Selection Group in the order of their random sequence number ....

(3) Nonvolunteers in the First Priority Selection Group in the order of their random sequence number ..

(4) Nonvolunteers in each of the lower priority selection groups, in turn, within the group in the order of their random sequence number ....

(5) ....

(6) ....

(7) ....

32 C.F.R. § 1631.7(c) defined the various priority selection groups as follows:

(1) Extended Priority Selection Group consists of registrants who on December 31 were members of the First Priority Selection Group whose random sequence number had been reached but who had not been issued

Orders to Report for Induction.

(2) First Priority Selection Group:

(i) 1970. In the calendar year 1970, nonvolunteers in Class I-A or Class I-A-O born on or after January 1, 1944, and on or before December 31, 1950, who have not attained the 26th anniversary of the dates of their birth.

(ii) 1971 and later years. In the calendar year 1971 and each calendar year thereafter, nonvolunteers in Class I-A or Class I-A-O who prior to January of each such calendar year have attained the age of 19 years but not of 20 years and nonvolunteers who prior to January 1 of each such calendar year have attained the age of 19 but not of 26 years and who during that year are classified into Class I-A or Class I-A-O.

(3) Lower priority selection groups. One or more priority selection groups lower than the First Priority Selection Group in a given year.

A registrant's random sequence number was deemed to have been reached whenever his local board had issued at any time during the calendar year an order to report for induction to another registrant in the same priority selection group and subgroup who had been assigned that or a higher random sequence number.

32 C.F.R. § 1631.7(d) provided...

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