Breen v. SELECTIVE SERV. LOCAL BD. NO. 16, BRIDGEPORT, CONN.
Decision Date | 10 January 1969 |
Docket Number | Docket 32345.,No. 47,47 |
Citation | 406 F.2d 636 |
Parties | Timothy J. BREEN, Plaintiff-Appellant, v. SELECTIVE SERVICE LOCAL BOARD NO. 16, BRIDGEPORT, CONNECTICUT and Brig. Gen. Ernest E. Novey, Individually and as Director of the Selective Service System for Connecticut, Defendants-Appellees. |
Court | U.S. Court of Appeals — Second Circuit |
Emanuel Margolis, Stamford, Conn. (Lawrence P. Weisman, Bridgeport, Conn.), for plaintiff-appellant.
Jon O. Newman, U. S. Atty., Hartford, Conn., for defendants-appellees.
Before MOORE, FRIENDLY and FEINBERG, Circuit Judges.
Plaintiff Breen, a 20-year old resident of Connecticut, is a registrant under the Selective Service System. He had held a II-S (student) deferment, 50 U.S.C. App. § 456(h) (1), 32 C.F.R. § 1622.25, because of being an undergraduate at the Berkeley School of Music in Boston. In mid-November, 1967, he delivered his Selective Service Registration Certificate to a clergyman in Boston for the purpose of protesting United States involvement in the war in Vietnam. On January 9, 1968, his Local Board mailed him a notice, 32 C.F.R. § 1642.4(b), that he had been declared a delinquent for failure to have the Certificate in his possession as required by 32 C.F.R. § 1617.1. At the same time the Local Board reclassified him from Class II-S to Class I-A because of his delinquency, pursuant to 32 C.F.R. § 1642.12, which authorizes such reclassification "regardless of other circumstances." These actions of the Board were in line with a memorandum and a letter dated respectively October 24 and 26, 1967, from the Director of Selective Service. The Local Board ordered Breen to report for a physical examination on January 29 but subsequently postponed this. Apparently Breen did not seek a personal appearance under 32 C.F.R. § 1642.14. However, he appealed his reclassification under that same section.
In February 1968 Breen brought this action in the District Court for Connecticut, seeking a judgment that the declaration of his delinquency and his reclassification were null and void, an injunction against his induction into the armed forces, and $20,000 damages. Although jurisdiction was predicated on 28 U.S.C. §§ 1331, 1343 and 2201, only the first could afford a basis.1 The Government moved to dismiss the complaint and Breen to have a three-judge court convoked. Believing that the court was deprived of jurisdiction by § 8(c) of the Military Service Act of 1967, 81 Stat. 104, which amended § 10(b) (3) of the Selective Service Act, 50 U.S.C. App. § 460(b) (3), by including the provision set forth in the margin,2 Chief Judge Timbers, in a considered opinion, 284 F.Supp. 749 granted the Government's motion and denied Breen's.
After the decision of the district court, Breen's administrative appeal was denied and he was ordered to report for induction, but the order was stayed pending the determination of this appeal. When the appeal reached us in September, we deferred decision because the Supreme Court had set for early argument Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402, which also involved the applicability and validity of the amendment to § 10(b) (3) although in a somewhat different context.
We now have the benefit of the Court's decisions in Oestereich, 393 U.S. 233, 89 S.Ct. 414 (1968), holding the amendment inapplicable to a claim by an exempt theological student that the delinquency regulations could not be applied to him, and in Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968), holding the amendment valid and applicable to the rejection of a claim of conscientious objection. While neither decision reads precisely on the issue here tendered, applying their teaching as best we can, we affirm the judgment of the district court.
Oestereich, a student at a theological school preparing for the ministry, who had been declared delinquent for having turned in his registration certificate, was entitled under § 6(g) to an exemption from military service and not merely to a deferment of his obligation. The element critical to the holding that the amendment to § 10(b) (3) was inapplicable in his case was the Court's view that:
Once a person registers and qualifies for a statutory exemption, we find no legislative authority to deprive him of that exemption because of conduct or activities unrelated to the merits of granting or continuing that exemption.
Since the Board's action in depriving a divinity student of the exemption which was his "statutory right" was therefore "blatantly lawless" and "involved a clear departure by the Board from its statutory mandate," to read the statute as forcing Oestereich to choose between induction and a criminal prosecution before he could vindicate his rights would be "to construe the Act with unnecessary harshness."
In contrast, § 6(h) (1) of the Selective Service Act, 50 U.S.C. App. § 456(h) (1), dealing with the deferment of undergraduates, on which Breen relies, directs:
The conflict between statute and regulations that arose in Oestereich is therefore not present here.
We consequently find no sufficient justification in this case for denying to the words of the 1967 amendment to § 10(b) (3), see fn. 2, the meaning which they so plainly have and which the Committee reports, set forth in the dissenting opinion in Oestereich, 393 U.S. at 248, 89 S.Ct. at 422, show they were intended to have. As recognized in Mr. Justice Harlan's concurring opinion in Oestereich, 393 U.S. at 245, fn. 7, 89 S. Ct. at 420, "Section 10(b) (3) was likely precipitated by the Second Circuit's well publicized decision in Wolff v. Selective Service Local Board No. 16, 372 F.2d 817 (1967)." See, to the same effect, the dissenting opinion of Mr. Justice Stewart, joined by Justices Brennan and White, 393 U.S. at 247 & fn. 5, 89 S.Ct. at 422. If Congress meant to withhold the preinduction review we had granted in Wolff to students enjoying deferments who had been declared delinquent for acts not within the regulations, it surely must have intended to do this where, as here, there has been an undisputed violation of 32 C.F.R. § 1617.1 requiring continued possession of a certificate — a requirement which the Supreme Court has characterized as serving "a legitimate and substantial purpose in the system's administration." United States v. O'Brien, 391 U.S. 367, 378, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). As said by Mr. Justice Douglas, the author of Oestereich, in his concurring opinion in Clark v. Gabriel, supra, 393 U.S. at 260, 89 S.Ct. at 427, "it takes the extreme case where the Board can be said to flout the law, as it did in Oestereich v. Selective Service, etc., 393 U.S. 233, 89 S.Ct. 414, to give preinduction review of its actions."
We do not intimate that Breen's claims that his reclassification because of the return of his certificate violated his First Amendment rights to protest, as to which see United States v. O'Brien, supra, and his Fifth Amendment rights to adequate standards and notice, are not substantial. We hold only that they must be asserted in the ways to which Congress...
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