Armendariz v. Hershey
Citation | 413 F.2d 1006 |
Decision Date | 17 July 1969 |
Docket Number | No. 27554.,27554. |
Court | U.S. Court of Appeals — Fifth Circuit |
Parties | Albert 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.
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, " * * *' 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.
It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied.*
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