436 F.2d 513 (6th Cir. 1971), 20497, Gregory v. Tarr

Docket Nº:20497.
Citation:436 F.2d 513
Party Name:Stephen L. GREGORY, James E. Hovis, John B. Sharpless II, Richard J. Silverman, Plaintiffs-Appellees, v. Curtis W. TARR, National Director of Selective Service, et al., Defendants-Appellants.
Case Date:January 26, 1971
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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436 F.2d 513 (6th Cir. 1971)

Stephen L. GREGORY, James E. Hovis, John B. Sharpless II, Richard J. Silverman, Plaintiffs-Appellees,


Curtis W. TARR, National Director of Selective Service, et al., Defendants-Appellants.

No. 20497.

United States Court of Appeals, Sixth Circuit.

January 26, 1971

Reed Johnston, Jr., Atty., Dept. of Justice, Washington, D.C., for defendants-appellants; William D. Ruckelshaus, Asst. Atty. Gen., Morton Hollander, Atty., Dept. of Justice, Washington, D.C., James H. Brickley, U.S. Atty., Detroit, Mich., on brief.

Charles Donahue, Jr., Ann Arbor, Mich., for plaintiffs-appellees; James Lafferty, Marc Stickgold, Lafferty, Reosti, Jabara, Papakhian, James, Stickgold & Smith, Detroit, Mich., on brief.

Before WEICK, McCREE, and BROOKS, Circuit Judges.

WEICK, Circuit Judge.

Plaintiffs filed a class action in the District Court challenging the application and validity of a Selective Service Regulation defining eligibility of draft registrants for what is known as a 'fatherhood deferment' under deferment classification III-A. 1 The plaintiffs are

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draft registrants who have been re-classified I-A (available for military service) and ordered to report for induction. The defendants are the National Director of Selective Service, the State Directors of Selective Service of the states of Michigan, Indiana, Illinois and Minnesota, and a number of local boards and their members in said states. The class sought to be protected is limited to Selective Service registrants who have one or more children with whom they maintain a bona fide family relationship in their homes, who are not physicians, dentists or veterinarians or in an allied specialist category, and who have a post-baccalaureate student deferment (graduate II-S), but have not received a pre-baccalaureate student deferment (undergraduate II-S), under authority of the Military Selective Service Act of 1967, 81 Stat. 100, 50 U.S.C.A. App. § 451 et seq. Plaintiffs seek a declaratory judgment that the challenged regulation is invalid, at least as it is presently applied, and a mandatory injunction ordering classification in Class III-A (fatherhood deferment) for themselves and the class they seek to protect. Plaintiffs also seek to have declared void the orders to report for induction which each of them has received. Jurisdiction is allegedly founded on 28 U.S.C.A. § 1331, 1343, 1361, & 2201, 2202.

The action was submitted to the court upon the plaintiffs' motion for summary judgment and the defendants' motion to dismiss for lack of subject-matter jurisdiction and, in the alternative, for failure to state a claim upon which relief could be granted. The court had previously determined, upon plaintiffs' motion, the validity of the class action. The district court filed an opinion granting the plaintiffs' motion for summary judgment in which it determined that it had subject-matter jurisdiction over the action and that plaintiffs had presented an issue on which they were entitled to relief. 2 Defendants appeal

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from that judgment, contending that the federal courts are deprived of jurisdiction of this case by virtue of section 10(b)(3) of the Military Selective Service Act of 1967 (hereinafer 'the Act'), 50 U.S.C.A. App. § 460(b) (3), and that the plaintiffs were properly denied fatherhood deferments under the authority of section 6(h)(2) of the Act, 50 U.S.C.A. App. § 456(h)(2), and the pertinent regulation, 32 C.F.R. § 1622.30(a) (1970). We reverse.

In considering the 1967 Act, Congress was concerned about the decisions of some federal courts permitting earlier review of Selective Service decisions than had previously been thought permissible. Thus, Congress statutorily imposed the rule of judicial review which presently defines jurisdiction:

'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 (for refusing to report) 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: Provided, That such review shall go to the question of jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant.' 50 U.S.C.A. App. § 460(b)(3) (1968).

As interpreted, the constitutionality of this provision has been upheld. Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968). It has long been recognized that Congress has a legitimate interest in protecting from litigious delays and interruptions a governmental activity so inextricably intertwined with national security as the procurement and training of military personnel. See, e.g. Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305 (1944). In interpreting section 10(b)(3) of the Act, however, the Supreme Court has held that a literal interpretation of the provision was not justified, in Oestereich v. Selective Serv. Bd., 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968). A literal reading would, in the first instance, suspend the constitutionally protected writ of habeas corpus. 393 U.S. at 238, 89 S.Ct. 414. The...

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