Armendariz v. Hershey, Civ. A. No. A-69-CA-6.

Decision Date05 February 1969
Docket NumberCiv. A. No. A-69-CA-6.
Citation295 F. Supp. 1351
PartiesAlbert ARMENDARIZ, Jr. v. Lewis B. HERSHEY, Director of Selective Service, Morris S. Schwartz, State Director of Selective Service, Local Board No. 39, Selective Service System; Theodore Arnold, Edwin Howrey, Duana Juvrud, Paul Key, Rudolph Miles, as Members of Local Board No. 39.
CourtU.S. District Court — Western District of Texas

Pete Tijerina and Mario G. Obledo, San Antonio, Tex., Jack Greenberg, William L. Robinson and Elizabeth Dubois, New York City, for plaintiff.

Ted Butler, U. S. Atty., Western Dist. of Tex., Warren N. Weir, Asst. U. S. Atty., Western Dist. of Tex., San Antonio, Tex., for defendants.


ROBERTS, District Judge.

This case was filed by Plaintiff on January 17, 1969. A hearing was held on January 27, 1969, after which the Court made an oral ruling from the Bench in favor of Plaintiff, Albert Armendariz, Jr. On January 28, 1969, a brief judgment was filed by the Court, and notice of appeal has been filed by the Defendants. To more fully satisfy Rule 52, Federal Rules of Civil Procedure, and to clarify this Court's ruling and the reasons therefor, this Memorandum Opinion is submitted.

Plaintiff is a second year full-time graduate student at the University of Texas Law School, Austin, Texas. During his first year in law school he received a "graduate II-S" deferment under the provisions of § 6(h) (2) of the Military Selective Service Act of 1967, being considered a person "whose activity in graduate study * * * is found to be necessary to the maintenance of the national health, safety, or interest."

This deferment expired in July, 1968, and Plaintiff was classified I-A. He appealed the classification and was unanimously denied re-classification. After being found physically qualified for military service, Plaintiff was ordered to report for induction on February 3, 1969. He applied for and was denied a I-S deferment under § 6(i) (2) of the Act which provides in part:

Any person who while satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution is ordered to report for induction under this title, shall, upon the facts being presented to the local board, be deferred (A) until the end of such academic year, or (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier. * * *

Claiming that he is entitled to a I-S deferment as a matter of right, Plaintiff brings this suit to enjoin his induction.

The threshold question before the Court is one of its jurisdiction. The question is twofold: is there a statute under which this Court has jurisdiction, and if so, does § 10(b) (3) of the Act prohibit the Court from exercising its jurisdiction?

Plaintiff alleges jurisdiction is established by 28 U.S.C. § 1331 and by 28 U. S.C. § 1361. § 1331(a) provides:

The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.

This is clearly a Federal question case, arising under the Constitution and laws of the United States. While "it is difficult to understand * * * why there should ever be a monetary requirement in federal question cases," the $10,000 requirement remains. Wright, Federal Courts § 32 (1963). It is that requirement in contest here. Although it is difficult to determine the pecuniary value of the I-S deferment to the Plaintiff, it is not so difficult that it "cannot be translated into terms of money." Id. at § 33. Rather, the Court finds "there is a present probability that the value of the matter in controversy will exceed the jurisdictional amount." Id.

Plaintiff also pleads jurisdiction under § 1361, which provides:

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

Assuming, as we must at this point, that Plaintiff is clearly entitled to a I-S deferment, his local board has an affirmative duty to give him the classification. § 1361 gives this Court authority to compel the Board to perform that duty.

Assuming arguendo that this Court would otherwise have jurisdiction under either § 1331 or § 1361 or both, the Defendants claim that the jurisdiction has been specifically denied by § 10(b) (3) of the Act, which provides in part:

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 * * * after the registrant has responded either affirmatively or negatively to an order to report for induction * * *.

There is no escaping that this is essentially a case of pre-induction judicial review of the classification or processing of a registrant by a local selective service board, so, read literally, § 10(b) (3) would indeed preclude this Court from exercising jurisdiction over the case. But, "no one, we believe, suggests that § 10(b) (3) can sustain a literal reading." Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 238, 89 S.Ct. 414, 417, 21 L.Ed.2d 402, 406. The Supreme Court, in two recent cases, has set out the guidelines for deciding when there is to be an exception to § 10(b) (3), when there can be pre-induction judicial review of draft classifications.

In Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418, the Court in a per curiam opinion said the constitutional § 10(b) (3) precluded review of the I-A classification of a registrant claiming to be a conscientious objector. The Court pointed out that the question of whether or not a registrant should properly be classified as a conscientious objector "inescapably involves a determination of fact and an exercise of judgment." Id., 393 U.S. at 258, 89 S.Ct. at 426, 21 L.Ed.2d at 421. The Board must use "its statutory discretion to pass on a particular request for classification, `evaluating evidence and * * * determining whether a claimed exemption is deserved.'" Id. Thus, to allow pre-induction review would make the District Courts super draft boards and would interrupt and delay the procedure of providing adequate military manpower. Id.

In Oestereich, supra, the Court allowed pre-induction review of a I-A classification of a registrant claiming a ministerial student exemption. Acting on such a claim, the Court states, involves "no exercise of discretion by a Board in evaluating evidence and in determining whether a claimed exemption is deserved", because ...

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21 cases
  • Murray v. Vaughn
    • United States
    • U.S. District Court — District of Rhode Island
    • June 6, 1969
    ...jurisdictional amount question expressly left open, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 511 (Jan. 13, 1969), Armendariz v. Hershey, 295 F.Supp. 1351 (W.D.Texas Feb. 5, 1969). However, there are several reasons why the defendants' arguments cannot be accepted. First, it is clear that, whe......
  • Nestor v. Hershey
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • December 16, 1969
    ...May 19, 1969) (Gesell, J.). Other district court decisions which have accepted appellant's view on the merits are: Armendariz v. Hershey, 295 F.Supp. 1351 (W.D.Texas 1969), appeal dismissed as moot, 413 F.2d 1006 (5th Cir. 1969); Ellis v. Hershey, 302 F.Supp. 347 (E.D. Mich.1969); Catano v.......
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    ...332 F.Supp. 723 (S.D.Iowa 1971); Fifth Avenue Peace Parade Committee v. Hoover, 327 F.Supp. 238 (S.D.N.Y.1971); Armendariz v. Hershey, 295 F.Supp. 1351 (W. D.Tex.1969), and Berk v. Laird, 429 F. 2d 302 (2d Cir. 1970). For purposes of such an evaluation the Eighth Circuit has set forth the r......
  • Huntsville City Board of Education v. Brown, Civ. A. No. 74-62-N.
    • United States
    • U.S. District Court — Middle District of Alabama
    • July 15, 1974
    ...393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968); Walsh v. Local Board No. 10, 305 F.Supp. 1274 (D.C.N.Y.1967); Armendariz v. Hershey, 295 F.Supp. 1351 (W.D.Tex. 1965); Connelly v. Univ. of Vermont & State Agricultural College, 244 F.Supp. 156, 159 (D.C.Vt.1965). Defendants cite Johnson v.......
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