Edwards v. Selective Service Local Board No. 111

• Citation: 432 F.2d 287
• Decision Date: 02 December 1970
• Docket Number: No. 28910.,28910.
• Parties: Jack L. EDWARDS, Plaintiff-Appellant, v. SELECTIVE SERVICE LOCAL BOARD NO. 111, Newton County, Georgia, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

432 F.2d 287 (1970)

Jack L. EDWARDS, Plaintiff-Appellant, v. SELECTIVE SERVICE LOCAL BOARD NO. 111, Newton County, Georgia, et al., Defendants-Appellees.

No. 28910.

United States Court of Appeals, Fifth Circuit.

September 15, 1970.

Rehearing Denied and Rehearing Denied December 2, 1970.

Howard Moore, Jr., Peter Rindskopf, Atlanta, Ga., for plaintiff-appellant.

John W. Stokes, Jr., U. S. Atty., Robert E. Whitley, Asst. U. S. Atty., Atlanta, Ga., Morton Hollander, Chief, Appellate Section, J. F. Bishop, Atty., U. S. Dept. of Justice, Washington, D. C., for defendants-appellants.

Before TUTTLE, DYER and CLARK, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied December 2, 1970.

CLARK, Circuit Judge:

In this preinduction review case, the plaintiff-appellant, Jack L. Edwards (Edwards), seeks to enjoin his induction into the armed forces, alleging that he was deprived of procedural due process when Selective Service Local Board No. 111 of Covington, Georgia (Board) failed to notify him of its action on an additional ground for an occupational deferment which he submitted to the Board while his classification was on appeal to the President. This failure to notify allegedly precluded a right on the part of Edwards to make another personal appearance before the Board and to take a subsequent appeal if his deferment was not granted. The court below granted the Board's motion to dismiss on the basis that the prohibition found in Section 10 (b) (3) of the Military Selective Service Act of 1967¹ barred jurisdiction to entertain preinduction review in this case. We agree that jurisdiction to consider Edwards' complaint at this stage is precluded and therefore affirm.

Since this appeal is from the dismissal of a complaint, the facts alleged in that document form the factual base for our review. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

The complaint is succinct and the background setting is most readily provided by directly quoting the following portion:

"The applicable facts are as follows:

a. In January, 1968, while he was classified II-S student deferment by defendant Selective Service Local Branch No. 111 (hereafter defendant Board), plaintiff applied for II-A occupational deferment classification on grounds that his occupation doing research in psychology under contract from the Office of Naval Research was in the national interest;

b. On September 17, 1968, plaintiff was classified II-A by defendant Board, said classification to run until September 1, 1969;

c. On December 17, 1968, plaintiff was notified by defendant Board that he was classified I-A available for military service, his change in classification, on information and belief, due to an opinion rendered his board by the State Director;

d. On January 14, 1969, plaintiff requested a personal appearance before his local board;

e. The personal appearance having been unavailing, plaintiff appealed to the State Appeal Board from his I-A classification on February 18, 1969;

f. On March 25, 1969 said State Appeal Board denied plaintiff\'s request and continued him in Class I-A, by a vote of 2 to 1;

g. On April 14, 1969, plaintiff received word from Hon. Jack Vaughn, Director of the Peace Corps, that he was invited to `train for Peace Corps service in Brazil, to work in fishing cooperatives;\'

h. On April 20, 1969, plaintiff appealed denial of his request for II-A to the President;

i. On April 30, 1969, plaintiff sent in a second request for II-A classification, on grounds of his acceptance in the Peace Corps;

j. On June 11, 1969, plaintiff was classified I-A by the President;

k. On June 17, 1969, plaintiff inquired of defendant Calloway as to the status of his request for deferment on grounds of service in the Peace Corps. She informed defendant that his request for that second deferment had been denied by the Presidential appeal board along with his first request. She further informed plaintiff he could not appeal from this denial;

l. On June 19, 1969, plaintiff received orders to report for induction from defendant Board, to report on July 1, 1969, at either his local board or the Armed Forces Entrance and Examining Station in Atlanta, Georgia.

"The action of defendant Board in not informing defendant of their action upon his request for deferment because of Peace Corps service was a substantial denial of due process. Because his local board never informed him that they acted on his claim, plaintiff was not able to ask for a personal appearance or for an appeal to the State Appeal Board or for an appeal in proper channels to the President. The action of the defendant board in denying due process violates the Fifth and Fourteenth Amendments, United States Constitution, and the law and regulations of the Selective Service System."

Edwards moved the district court for a temporary restraining order and was given a hearing on June 30, 1969, the day preceding his scheduled induction. At that hearing the case was submitted upon the facts as stated in the verified complaint. The court declined to enjoin his scheduled induction. It subsequently refused declaratory relief and dismissed the action.

At the outset, we emphasize that this appeal does not decide whether the Selective Service System properly classified Edwards nor do we decide whether their procedures were free of error. We only decide that the trial court correctly ruled that Section 10(b) (3) bars judicial review of the Board's actions in processing his classification prior to his actual induction. Thus, we do not pass upon the merits of the registrant's ultimate right to the classification he sought.

This court and the court whose order we review are each and both inferior courts of limited jurisdiction. The route of our reasoning properly starts with the presumption that we lack subject matter jurisdiction until it is demonstrated to exist. This has long been a basic tenet of federal jurisprudence. Turner v. Bank of North America, 4 Dall. 8, 1 L.Ed. 718 (1799). The power to ordain and establish these courts is vested in the Congress; and, with exceptions not pertinent here,² Congress has the power to give, withhold and restrict our jurisdiction. See e.g., C. A. Wright, Federal Courts § 10, at 22-26.

The path of the search for statutory authority to proceed is narrow and short, for rather than even an equivocal grant of jurisdiction, we find a specific bar to jurisdiction over the subject matter of this case in its preinduction status. This prohibition is expressed as part of Section 10(b) (3) of the Military Selective Service Act of 1967. The pertinent portion reads as follows:

"* * * 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 under section 12 of this title section 462 of 50 U.S.C. App., after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant. * * *" (*This emphasis supplied)

There is one constitutional exception to the above statutory language — the writ of habeas corpus — which obviously can only be employed as a post-induction remedy and is therefore not pertinent to the cause sub judice.³ In addition, there is a much narrower court-made exception, which found its genesis in Oestereich v. Selective Service Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1969), its only Supreme Court reiteration in Breen v. United States, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970) and its limits defined in Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968).⁴ Oestereich and Breen involved draft board actions which utilized delinquency regulations⁵ to deprive otherwise qualified registrants of a ministerial exemption⁶ and an undergraduate collegiate deferment which Congress had expressly granted.⁷ Preinduction judicial review of these actions was permitted.⁸ Clark v. Gabriel refused to sanction an application of the exception which would permit preinduction judicial review of a draft board action which allegedly refused a discretionary classification without basis in fact and because of hostility and bias.⁹

Fundamentally, these controlling precedents hold that 10(b) (3) cannot sustain such a literal reading as would forbid preinduction judicial interruption of classification or processing of any registrant by local boards, appeal boards or the President where such classification or processing is (1) without statutory basis, (2) conflicts with rights explicitly established by statute and (3) is not dependent upon an act of judgment by selective service officials. Such action is blatantly lawless and may be interdicted by judicial action when it occurs. On the other hand, such classifications or procedures as are (a) within the statutory authority of the Selective Service System and (b) involve the exercise of discretion, cannot be interfered with by court action before induction.

The heart of Edwards' complaint was the allegation that the failure of the Board to inform Edwards that they had acted on his claim for an occupational deferment on the basis of his invitation to train for Peace Corps work deprived him of his procedural right to ask for a personal appearance and an additional subsequent appeal from his classification as I-A. Thus, the type of classification that Edwards sought is not altogether controlling as it was in Oestereich and Breen. The paramount issue in the present appeal is the manner in which Edwards was processed. His requested occupational deferment classification is of only...