Zigmond v. Selective Service Local Board No. 16, Misc. No. 262.

• Decision Date: 17 May 1968
• Docket Number: Misc. No. 262.
• Citation: 396 F.2d 290
• Parties: Michael J. ZIGMOND, Plaintiff, Movant, v. SELECTIVE SERVICE LOCAL BOARD NO. 16 et al., Defendants, Movees.
• Court: U.S. Court of Appeals — First Circuit

396 F.2d 290 (1968)

Michael J. ZIGMOND, Plaintiff, Movant, v. SELECTIVE SERVICE LOCAL BOARD NO. 16 et al., Defendants, Movees.

Misc. No. 262.

United States Court of Appeals First Circuit.

May 17, 1968.

Joseph D. Steinfield and Robert H. Johnson, Boston, Mass., with whom Hill & Barlow, Boston, Mass., was on brief, for movant.

Edward F. Harrington, Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., was on brief, for movees.

Before ALDRICH, Chief Judge, McENTEE AND COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

Petitioner asks us to enjoin, pending appeal, an order for induction into the United States Army. He is 26 years old and is, concededly, properly classified 1-A by his local Selective Service Board, defendants herein. Until recently he has been deferred as a student. Because he is 26 he has since been, until the events in question, in a 1-A group which is not subject to induction until those under 26 and over 19 in his local area have been called. This is pursuant to Selective Service Regulations, and is not, as in a case upon which petitioner relies, a statutory deferment. 32 C.F.R. § 1631.7. Assumably, for present purposes, such exhaustion of local younger men has not occurred.

On November 16, 1967, petitioner attended a mass demonstration protesting the Vietnam conflict and "turned in" his registration certificate and notice of classification, Selective Service System Forms 2 and 110, hereafter, collectively, draft card. When this came to the attention of his board, it designated him as a "delinquent," section 1602.4, for violation of sections 1617.1 and 1623.5 requiring him to have his draft card at all times in his possession. Under sections 1631.7 and 1642.13 delinquents are to be put at the head of the induction list. His board so placed him, as a result of which petitioner has now been ordered to report for induction. Prior to the date set he brought the present proceeding in the district court seeking to enjoin the defendants from continuing the effectiveness of this order, asserting violation of his First Amendment rights in that turning in his draft card was protected free speech or, alternatively, that the regulation requiring possession of his card is itself an unconstitutional requirement.

We pass, without further comment, a claim that petitioner is discriminated against in that, because of a certain directive from General Hershey, or otherwise, draft boards have classified protesting card surrenderers as delinquents but have not so classified those who are without their cards for other reasons. As to this nothing in the directive indicates that those whose wilful nonpossession was unconnected with protest were to be immune.

The present question is whether, prior to the hearing of his case on the merits, petitioner has made a sufficient showing, both as a matter of substance, and with respect to our jurisdiction, to warrant the issuance of a temporary restraining order. The district court thought not, for reasons set forth in an opinion dated May 9, 1968. 284 F.Supp. 732. Such an order is now asked of us.

So far as our jurisdiction to review the action of the board is concerned, Congress has in terms removed it. Except for his administrative remedies, of which, admittedly, petitioner presently has none, he asserts that his only recourse, under the statute, is to refuse induction and take his chances by resisting criminal prosecution.¹

"* * * 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 instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form * * *." 50 App. U.S.C. § 460(b) (3).

Petitioner says that this legislative deprivation of the court's jurisdiction is itself an unlawful abridgement of his constitutional rights.²

In this matter we see no absolutes. We start with the proposition, of which we entertain no substantial doubt, that the regulation requiring possession of a draft card is not unlawful. O'Brien v. United States, 1 Cir., 1967, 376 F.2d 538. Certiorari was granted in this case, 389 U.S. 814, 88 S.Ct. 61, 19 L.Ed.2d 65, but, we believe, for other reasons. Petitioner may feel that no great purpose is served by the regulation. This may be. But, correspondingly, no great burden is imposed, so long as consequences attach only to wilful noncompliance. We fail to see how petitioner's rights are infringed by a requirement that he carry a card to the degree that we must disregard a positive Congressional mandate.

Nor do we consider petitioner to be helped by his claim that surrendering his card was protected...