Babcock v. Local Board No. 5 for State of Delaware

• Court: U.S. District Court — District of Delaware
• Writing for the Court: STAPLETON
• Citation: Babcock v. Local Board No. 5 for State of Delaware, 321 F.Supp. 1017 (D. Del. 1970)
• Decision Date: 29 December 1970
• Docket Number: Civ. A. No. 4026.
• Parties: William Lane BABCOCK, Jr., Plaintiff, v. LOCAL BOARD NO. 5 for the STATE OF DELAWARE, Selective Service System, Composed of Howard F. Dobson, Chairman, Horace H. Ulmer, Member, Gilbert J. Sloan, Member, John R. Doherty, Jr., Member and George F. Dunn, Member, Clifford E. Hall, State Director of Selective Service for the State of Delaware, and Curtis W. Tarr, Director of Selective Service, Defendants.

321 F. Supp. 1017

William Lane BABCOCK, Jr., Plaintiff, v. LOCAL BOARD NO. 5 for the STATE OF DELAWARE, Selective Service System, Composed of Howard F. Dobson, Chairman, Horace H. Ulmer, Member, Gilbert J. Sloan, Member, John R. Doherty, Jr., Member and George F. Dunn, Member, Clifford E. Hall, State Director of Selective Service for the State of Delaware, and Curtis W. Tarr, Director of Selective Service, Defendants.

Civ. A. No. 4026.

United States District Court, D. Delaware.

December 29, 1970.

Alfred J. Lindh, of Taylor, Lindh & Paul, Wilmington, Del., for plaintiff.

F. L. Peter Stone, U. S. Atty., Norman Levine, Asst. U. S. Atty., Wilmington, Del., for defendants.

OPINION

STAPLETON, District Judge.

Plaintiff is a registrant under the Selective Service Act. On June 18, 1969, after having had a student deferment during college, plaintiff was reclassified I-A by his draft board, Local Board No. 89 in the State of Louisiana. On November 25, 1969, Local Board No. 89 ordered the plaintiff to report for induction on December 8, 1969. His induction was postponed by subsequent orders until the issuance of the pending order to report for induction on December 4, 1970. Plaintiff currently resides in Delaware and jurisdiction over him for the purpose of his induction has been transferred to Local Board No. 5 in the State of Delaware.

On June 5, 1970, plaintiff mailed to Local Board No. 89 an application for a reclassification from class I-A to class I-O on Selective Service Form 150. The facts set forth in said application were such as would demonstrate, if believed and unrebutted, that plaintiff is a conscientious objector and that his conscientious objection matured and crystallized after the issuance and receipt of the November 25, 1969 order to report for induction. Local Board No. 89 afforded plaintiff two opportunities to appear before it before considering whether to reopen his classification, but plaintiff was then working in Maine and did not avail himself of these opportunities. The Board, at a meeting held on September 23, 1970, considered plaintiff's application to reopen his classification and declined to grant that application. A three page memorandum, signed by the members of the board, was inserted in plaintiff's file explaining the board's reasons for declining the application. This memorandum concluded:

"For the reasons stated herein, this board cannot accept the sincerity of registrant's claim to Conscientious Objection to Military Service. I-A classification is continued under 1626.2(b) SSR."

By letter of September 24, 1970, the board informed plaintiff as follows:

"This is to advise that the Local Board met on 23 September 1970 and your entire was reviewed and the reopening of your classification was not warranted." (sic.)

Plaintiff was not mailed a copy of the board's memorandum.

Plaintiff filed this action on December 2, 1970 seeking an order staying the induction order of Local Board No. 5 and declaring that plaintiff may not be ordered to report for induction into the Armed Services unless and until plaintiff's classification is reopened and his application for reclassification is considered on the merits in accordance with the law and the facts. Plaintiff immediately moved for a temporary restraining order. Pursuant to an agreement between the parties, plaintiff's induction was deferred until December 30, 1970 in order to allow time to obtain plaintiff's selective service file from Louisiana. The case is now before the Court on plaintiff's motion for a preliminary injunction. The record consists of plaintiff's verified pleadings and his entire selective service file from Local Board No. 89. The verified complaint alleges that the Court has jurisdiction under 28 U.S.C. §§ 1331 and 1361.

Plaintiff challenges the pending induction order on three grounds. He argues (1) that his prima facie showing that he is entitled to an I-O classification and that his beliefs matured after the issuance of his order to report for induction required the board to reopen his classification as a matter of law, (2) that the Board's memorandum demonstrates that its conclusion of insincerity had no basis in fact and, on the contrary, that the board's denial of his application resulted from the fact that the board disagreed with his political and moral beliefs, and (3) that the board's failure to communicate to him the reasons for the denial of his application and the fact that he was erroneously advised that an appeal would lie from an adverse decision on his application resulted in a denial of due process.

The availability of preliminary injunctive relief depends upon four criteria:

(1) Irreparable harm to the petitioner unless preliminary relief is granted;

(2) Absence of substantial harm to other interested parties;

(3) Absence of harm to the public interest; and

(4) A likelihood that the petitioner will prevail on the merits of his case. Nelson v. Miller, 373 F.2d 474, 477 (3 Cir. 1967).

Plaintiff has here shown to the satisfaction of the Court that irreparable harm will result to him unless a stay is granted. Although the Court believes that some harm to the public interest would result from the granting of the preliminary injunction sought, the Court believes that this is outweighed by the harm which will result to the petitioner from denial of the application and, on balance, would be inclined to grant the relief sought if plaintiff had demonstrated a likelihood that he will prevail on the merits of his case. The Court concludes, however, that there is little, if any, likelihood of plaintiff's ultimate success and, accordingly, declines plaintiff's application. Charles Simkin & Sons v. Massiah, 289 F.2d 26 (3 Cir. 1961). The Court's conclusion with respect to the fourth criteria results from its finding (1) that plaintiff's first challenge to the validity of the induction order has been considered and rejected by the Court of Appeals for the Third Circuit, (2) that this Court has no jurisdiction to entertain plaintiff's second challenge, and (3) that the alleged irregularities which provide the basis for plaintiff's third challenge, if true, would not justify the ultimate relief here sought.

I.

The applicable regulation, 32 C.F.R. § 1625.2, prescribes:

"The local board may reopen and consider anew the classification of a registrant (a) upon the written request of the registrant, the government appeal agent, any person who claims to be a dependent of the registrant, or any person who has on file a written request for the current deferment of the registrant in a case involving occupational deferment, if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant's classification; or (b) upon its motion if such action is based upon facts not considered when the registrant was classified which, if true, would justify a change in the registrant's classification; provided, in either event, the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction (SSS Form No. 252) or an Order to Report for Civilian Work and Statement of Employer (SSS Form No. 153) unless the local board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant has no control."

Reopening has important consequences. It rescinds the outstanding classification and entitles the registrant to be classified anew. 32 C.F.R. § 1625.11. When the new classification is issued, the registrant has the same rights to personal appearance and appeal as upon his initial classification. 32 C.F.R. § 1625.13. If the board refuses to reopen, neither of these rights is accorded.

Plaintiff argues that this regulation, as construed by the Supreme Court in Mulloy v. United States, 398 U.S. 410, 416, 90 S.Ct. 1766, 1771, 26 L.Ed.2d 362 (1970) requires that:

"* * * `where a registrant makes nonfrivolous allegations of facts that have not been previously considered by his Board, and that, if true, would be sufficient under regulation or statute to warrant granting the requested reclassification, the Board must reopen the registrant's classification unless the truth of these new allegations is conclusively refuted by other reliable information in the registrant's file.' * * *"

It seems to the Court, however, that this argument was held by the United States Court of Appeals for the Third Circuit in Scott v. Commanding Officer, 431 F.2d 1132 (1970), to be without merit in the context of an application for reopening filed after an induction order has been issued. The Court there distinguished the Mulloy case as follows:

"The request for reopening in Mulloy, however, came prior to the issuance of an induction order, while petitioner's was made after he had been ordered to report for induction. In post-induction-order requests for reopening, the following proviso to 32 C.F.R. § 1625.2 is also applicable:

`Provided * * * the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * * unless the local board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control.' (emphasis added)" 431 F.2d at 1135.

The Court in the Scott case then went on to outline the proper procedure for a post-induction-order claim for conscientious objector status. It observed as follows:

"Initially, we point out that the regulation is quite explicit in requiring that before the local board may reopen after an induction order has been issued there must be (1) a prima facie showing of entitlement to a new classification; (2) a specific finding of a `change in the registrant's status' since the induction order; and (3) a specific finding that this

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