425 F.2d 504 (D.C. Cir. 1969), 23314, Nestor v. Hershey

Docket Nº:23314.
Citation:425 F.2d 504
Party Name:James R. NESTOR, Appellant, v. Lewis B. HERSHEY et al.
Case Date:December 16, 1969
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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425 F.2d 504 (D.C. Cir. 1969)

James R. NESTOR, Appellant,


Lewis B. HERSHEY et al.

No. 23314.

United States Court of Appeals, District of Columbia Circuit.

December 16, 1969

Argued Aug. 19, 1969.

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Fred R. Joseph, with whom Karl G. Feissner, William L. Kaplan, Thomas P. Smith, and Andrew E. Greenwald, Hyattsville, Md., were on the brief, for appellant.

Ralph A. Fine, Atty., Department of Justice, with whom William D. Ruckelshaus, Asst. Atty. Gen., Thomas A. Flannery, U.S. Atty., and Morton Hollander, Atty., Department of Justice, were on the brief, for appellees. John A. Terry and Joseph Hannon, Asst. U.S. Attys., also entered appearances for appellees.

Alan Dranitzke, Washington, D.C. (appointed by this court) as amicus curiae.

Before LEVENTHAL, ROBINSON and ROBB, Circuit Judges.

ROBB, Circuit Judge:

Upon receipt of an order to report for induction into military service, appellant, a second-year graduate student in chemistry at the University of Maryland, sought from his local draft board and was denied a deferment from service until the completion of his then current academic year. Following appropriate but unsuccessful appeals through the Selective Service System, appellant invoked the jurisdiction of the District Court under the authority of the Supreme Court's decision in Oestereich v. Selective Service Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), to compel appellees to confer the deferment. We reverse the judgment of the District Court dismissing appellant's complaint.

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Appellant's Selective Service file 1 indicates that he received a student deferment, Class II-S, 2 during four years in college prior to receiving his baccalaureate degree in June of 1967. In September of 1967, appellant entered

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graduate school at the University of Maryland and was granted a II-S graduate student deferment for his first year of study at that institution. On July 24, 1968, at the end of his first year in graduate school, appellant was reclassified I-A, as immediately available for military service. Unsuccessful in his personal appearance before his draft board, Local Board No. 101, in Clayton, Missouri, and in his appeals to the Missouri State Appeal Board and to the President, appellant had exhausted all available appellate procedures by March of 1969. During this interval appellant commenced his second year of graduate studies. On April 11, 1969, when appellant received a notice to report for induction in St. Louis, Missouri on May 13, 1969, he made a timely request that his induction order be cancelled and that he be reclassified I-S until the end of his current academic year. Appellant's request was denied, although at the request of Maryland University officials his induction was postponed until the first draft call of June 1969. Finally, appellant asked that his June induction order be transferred to Local Board No. 55 in Hyattsville, Maryland. This request was granted, and appellant was ordered to report for induction on August 6, 1969.

On June 2, 1969, having received no affirmative action on his request for I-S classification from his local board or the Missouri State Headquarters, appellant began the present action in the United States District Court for the District of Columbia. He named as defendants Selective Service Director Lewis B. Hershey, the Missouri local board, the Maryland transfer board, and various members of the Selective Service System. He requested a preliminary injunction against the pending induction order and a writ of mandamus compelling the defendants to reclassify him I-S. On July 16, 1969 the District Court entered an order granting appellees' motion to dismiss the complaint for failure to state a claim upon which relief can be granted. The court first held that 'the academic year at the University of Maryland has ended and plaintiff has not been subjected to induction into the armed forces. His action for a I-S deferment is therefore moot.' Second, the court concluded that the classification of registrants is the responsibility of local draft boards and that the Director of Selective Service was therefore not a proper party defendant and venue did not lie in this district. On July 28, 1969, a notice of appeal was filed, and on August 1, 1969, this Court heard argument on appellant's emergency motion for a stay of induction pending appeal. Appellant's induction was stayed pending further argument and consideration of the appeal.


The Selective Service law has developed over the years into an intricate maze through which the uninitiated lawyer, let alone a young man subject to the law's provisions, cannot easily find his way. Accordingly, as an aid to an understanding of what follows, we

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begin our examination with a survey of the impact which recent changes in the Selective Service law have had upon appellant and many of his graduate school contemporaries.

Prior to the passage of the Military Selective Act of 1967, 50 U.S.C.App. 451 et seq. (Supp. IV, 1965-1968), eligibility for student deferment from induction depended on the discretionary determination by the individual registrant's local draft board that the classification was necessary to the maintenance of the national health, safety or interest. Universal Military Training and Service Act, Ch. 144, 6(h), 65 Stat. 84 (1951). Except on comparatively rare occasions when a local board experienced unusual shortages of immediately available men, however, student deferments were uniformly granted as a matter of course to undergraduates and usually granted to graduate students.

By the 1967 Act, Congress substantially revised the provisions dealing with student deferments. Undergraduate or pre-baccalaureate students were made the beneficiaries of a mandatory deferment, 50 U.S.C.App. 456(h)(1) (Supp. IV, 1965-1968), while graduate students continued to be granted discretionary deferments based upon a re-examination of the requirements of the national interest, 50 U.S.C.App. 456(h)(2) (Supp. IV, 1965-1968). It was generally anticipated that the policy of wholesale graduate deferments was to be discontinued and educational deferments in the national interest carefully limited. Accordingly, on April 19, 1968, the President, acting through the Director of the Selective Service and upon the advice of the National Security Council, restricted the fields of 'national interest' graduate study to the allied medical sciences. 32 C.F.R. 1622.26(a).

The combination of statutory changes and correlated regulations would have seriously disrupted the pursuit of graduate studies by those students who, in reliance upon the prior law, had already begun studies leading to a post-baccalaureate degree on the effective date of the 1967 Act, or who were planning immediately to begin such a program. In order to prevent a major dislocation within the nation's graduate schools, the President therefore chose to permit those students who were beginning their second or subsequent year of graduate studies on October 1, 1967 to complete the work required for their degrees. Those who were starting their first year of graduate school on that date, however, were to be granted only one additional year of deferment. Exec. Order No. 11, 360, 32 C.F.R. 1622.26(b).

Like appellant, many of those who started their graduate work in the fall of 1967 and who completed their first year in the spring of 1968 were reclassified I-A during that summer, but were not ordered to report for induction until they had begun their second year of study. When their induction orders were issued during their second academic year, some dropped out of school and promptly entered service, others merely sought a postponement of induction until the end of the school term, and still others, including appellant, sought a I-S deferment until the completion of the academic year.

The advantage of the deferment procedure as opposed to postponement of induction is clear. Once the postponement period lapses, the registrant is immediately subject to an outstanding induction order. With an induction order outstanding, even though it has been postponed, the local board ordinarily can reopen the registrant's classification only when his status has changed due to circumstances beyond his control. 32 C.F.R. 1625.2. On the other hand, at the end of the effective period of the I-S deferment, the local board is required to take affirmative action to reclassify the registrant, a process which is attended with the usual steps for appeal and review. The registrant in this situation is able to take steps such as seeking and accepting employment of a type which would justify his local board in granting an occupational deferment.

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For obvious reasons, then, appellant sought a deferment instead of contenting himself with postponement of induction. The question here is whether appellant is entitled under the Act to adopt what he believed to be the more advantageous procedure.

It is in the context of this survey that we now turn to the specific substantive matters raised on appeal. We treat the issues of subject matter jurisdiction and the proper construction of the student deferment statute first, since it is only through an understanding of these matters that we can properly examine the correctness of the District Court's rulings on venue and mootness.


Appellees first question the jurisdiction of this Court to review the withholding of a Selective Service deferment. Section 10(b)(3) of the 1967 Act, 50 U.S.C.App. 460(b)(3) (Supp. IV., 1965-1968) provides:

'No judicial review shall be...

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