Armendariz v. Hershey

Citation413 F.2d 1006
Decision Date17 July 1969
Docket NumberNo. 27554.,27554.
CourtU.S. Court of Appeals — Fifth Circuit
PartiesAlbert ARMENDARIZ, Jr., Plaintiff-Appellee, v. Lewis B. HERSHEY, Director, Selective Service, et al., Defendants-Appellants.

Ted Butler, U. S. Atty., Reese L. Harrison, Jr., Warren N. Weir, Asst. U. S. Attys., San Antonio, Tex., for appellants.

Pete Tijernia, Mario Obledo, San Antonio, Tex., Jack Greenberg, William L. Robinson, Elizabeth Dubois, New York City, for appellee.

Before AINSWORTH and GODBOLD, Circuit Judges, and DAWKINS, District Judge.

PER CURIAM:

On January 17, 1969, appellee, a second year law student at the University of Texas Law School, brought this action in the United States District Court for the Western District of Texas, alleging that Section 6(i) (2) of the Military Service Act of 1967, 50 U.S.C.App. § 456(i) (2),1 mandated that he receive a I-S student deferment until the end of the academic year, and that the failure of his selective service board to grant this deferment was a lawless departure from a statutory mandate, and thus he was entitled to preinduction judicial relief. Foley v. Hershey, 7 Cir., 1969, 409 F.2d 827; Bowen v. Hershey, 1 Cir., 1969, 410 F.2d 962. See generally Oestereich v. Selective Serv. Sys. L. Bd. No. 11, Cheyenne, Wyo., 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968). On January 28, 1969, the District Court enjoined appellee's induction into the Armed Forces of the United States over appellants' objection that a federal court is without jurisdiction to adjudicate a registrant's claim for a I-S student deferment in a preinduction judicial proceeding.2 50 U. S.C.App. § 460(b) (3);3 Rich v. Hershey, 10 Cir., 1969, 408 F.2d 944. On April 3, 1969, the appeal was docketed, and on April 23, 1969, a panel of this Court granted appellants' motion for advancement of the cause for hearing. Oral argument was heard on May 26, 1969. After a careful review of the unusual circumstances of the present case, we conclude that the issues raised herein are moot, and thus we dismiss the appeal. See, e. g., Maner v. Maner, 5 Cir., 1968, 401 F.2d 616.

Pursuant to the stipulation of the parties of which we take cognizance, and in the absence of a statutory definition of "academic year" in the context of a I-S deferment, we find that appellee's academic year terminated on June 1, 1969. Thus, were we to affirm the District Court on substantive grounds, appellee, at this late date, would not gain any additional relief. Conversely, were we to reverse the lower court, such a reversal would have the same effect as an affirmance, since appellee already obtained a deferment until the end of the academic year. In these circumstances, where appellants have lost their case irrespective of this Court's disposition on appeal, "`A federal court is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it. * * *' St. Pierre v. United States, 1943, 319 U.S. 41, 42, 63 S.Ct. 910, 911, 87 L.Ed. 1199." Amalgamated Ass'n, Etc. v. Wisconsin Employ. Rel. Bd., 340 U.S. 416, 418, 71 S.Ct. 373, 375, 95 L.Ed. 389 (1951). See also Maner v. Maner, 5 Cir., 1968, 401 F.2d 616.

Appeal dismissed.

ON PETITION FOR REHEARING

It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied.*

1 "(2) 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: Provided, That any person who has heretofore had his induction postponed under the provisions of section 6(i) (2) of the Selective Service Act of 1948 former subsection (i) (2) of this section; or any person who has heretofore been deferred as a student under section 6(h) of such Act former subsection (h) of this section; or any person who hereafter is deferred under the provision of this subsection, shall not be further deferred by reason of pursuit of a course of instruction at a college, university, or similar institution of learning * * *. Nothing in this paragraph shall be deemed to preclude the President from providing,...

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  • Concerned Citizens of Vicksburg v. Sills
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • February 13, 1978
    ...404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971). See also Shupack v. Groh, 498 F.2d 675 (5th Cir. 1974); Armendariz v. Hershey, 413 F.2d 1006 (5th Cir. 1969). Furthermore, "an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date t......
  • Nestor v. Hershey
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • December 16, 1969
    ...1954).33 Appellees' argument that the appeal is moot rests primarily on two cases recently decided by other circuits, Armendariz v. Hershey, 413 F.2d 1006 (5th Cir. 1969), and Robinson v. Hershey, 2 SSLR 3191 (7th Cir. July 14, 1969), rehearing den., 2 SSLR 3191 (7th Cir. July 29, 1969). We......
  • Waguespack v. Tarr, Civ. A. No. 70-1715
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • September 21, 1970
    ...Cir. 1969); Nestor v. Hershey, 425 F.2d 504 (D.C. Cir. 1969); Armendariz v. Hershey, 295 F.Supp. 1351 (W.D. Tex. 1969), aff'd 413 F.2d 1006 (5th Cir. 1969).5 Plaintiffs claim they were denied mandatory deferments under the Selective Service Act of 1967. This matter is subject to judicial re......
  • Runnels v. Local Board 102
    • United States
    • U.S. District Court — Eastern District of Missouri
    • October 24, 1969
    ...graduate student; Carey v. Local Board No. 2, 412 F.2d 71 (2d Cir. 1969), granted to second-year law student; Armendariz v. Hershey, 413 F.2d 1006 (5th Cir. 1969), granted to second-year law student; Foley v. Hershey, 409 F.2d 827 (7th Cir. 1969), granted to second-year graduate student. Th......
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