440 F.2d 645 (8th Cir. 1971), 20391, Liese v. Local Bd. 102

Docket Nº:20391.
Citation:440 F.2d 645
Party Name:Terry T. LIESE et al., Appellees, v. LOCAL BOARD NO. 102 et al., Appellants.
Case Date:March 29, 1971
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 645

440 F.2d 645 (8th Cir. 1971)

Terry T. LIESE et al., Appellees,

v.

LOCAL BOARD NO. 102 et al., Appellants.

No. 20391.

United States Court of Appeals, Eighth Circuit.

March 29, 1971

Reed Johnston, Jr., Atty., William D. Ruckelshaus, Asst. Atty. Gen., Daniel Bartlett, Jr., U.S. Atty., J. F. Bishop, Atty., Dept of Justice, Washington, D.C., for appellants.

Louis Gilden, St. Louis, Mo., for appellees.

Before GIBSON and BRIGHT Circuit Judges, and McMANUS, Chief District judge.

McMANUS, Chief District Judge.

Appellees brought this action in the Eastern District of Missouri seeking to have Terry A. Liese's induction into the Armed Services enjoined. Judge Meredith dismissed the action as to all plaintiffs except Terry A. Liese, and ordered his induction order cancelled and his induction enjoined except as may be eligible under the Random Selection Sequence, 314 F.Supp. 521, and the Government appealed. We affirm.

Page 646

Terry Liese was classified III-A by his local on July 2, 1968, after having been intermittently classified I-A and II-S since February, 1965. The III-A classification resulted from the death of a brother in Vietnam and extended until August 12, 1969, when he was again classified I-A. He was then ordered to report for induction on December 3, 1969.

Prior to his reporting date, Liese was arrested for peace disturbance in Berkeley, Missouri. His trial was set for February 18, 1970, and he was released on bond. When the local board learned of this, he was orally notified by the Executive Secretary that he was not to report on December 3, 1969, and to inform the board when this matter was cleared up. He was given no specific date nor was he mailed SSS Form 264 as required by 32 CFR 1632.2(b).

After being acquitted on February 18, 1970, Liese was mailed a letter dated March 2, by the Executive Secretary ordering him to report for induction on March 30, 1970. This action was begun on March 16, 1970, and Judge Meredith granted relief on April 15, 1970.

On appeal, Appellants urge that review of this action is barred by 50 U.S.C. App. § 460(b)(3) because the board's action was neither 'blatantly lawless' nor a 'clear departure from its statutory mandate,' as the terms were used in Oestereich 1 and Breen. 2 We do not agree.

In Zerillo v. Local Board No. 102 et al., 440 F.2d 136 (8th Cir.), we discussed the scope of pre-induction review in cases of this type concluding that, where solely legal questions which are not clearly unmeritorious are presented, the court must examine the merits in some detail to determine the applicability of section 460(b)(3). Here we agree with the District Court that the irregularities in the procedures surrounding Liese's postponement of induction had the effect of cancelling his order to report and returned him to the overall pool, bringing him under the Random Selection Sequence. Accoringly, since his lottery number has not yet been reached, his induction was...

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