Feldman v. LOCAL BOARD NO. 22 OF SELECTIVE SERVICE. SYS.

• Decision Date: 12 September 1964
• Citation: 239 F. Supp. 102
• Parties: Warren Ira FELDMAN, Plaintiff, v. LOCAL BOARD NO. 22 OF the SELECTIVE SERVICE SYSTEM and the Director of Selective Service of the City of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

239 F. Supp. 102

Warren Ira FELDMAN, Plaintiff, v. LOCAL BOARD NO. 22 OF the SELECTIVE SERVICE SYSTEM and the Director of Selective Service of the City of New York, Defendants.

United States District Court S. D. New York.

September 12, 1964.

Alfred W. Charles, New York City, for plaintiff.

Robert M. Morgenthau, U. S. Atty., for the Southern District of New York, for defendants; Arthur S. Olick, Asst. U. S. Atty., of counsel.

McLEAN, District Judge.

On August 11, 1964, plaintiff filed his "petition for review and complaint" in this court. It alleges that the court has jurisdiction by virtue of 5 U.S.C. § 1009 and 28 U.S.C. § 2201. It alleges that on August 7, 1964 defendants issued an order directing plaintiff to appear for induction into the Armed Forces of the United States on August 10, 1964, that the order was issued "pursuant to United States Code Title 50 Appendix, Section 456(c) (2) (D)," that that section does not apply to plaintiff, and that therefore the order was unlawful and void. The relief asked is that defendants be enjoined from "executing the outstanding order for the induction of the plaintiff," and "from inducting the plaintiff into the Armed Forces of the United States," and that this court render a declaratory judgment declaring that the order for induction is null and void.

On the same day, August 11, 1964, plaintiff moved, by order to show cause returnable on August 18, 1964, for an order "setting aside" the induction order issued by defendants. Defendants not only oppose this motion, but also suggest that this court lacks jurisdiction of the subject matter of this action and that the court should therefore dismiss the action on its own motion under Rule 12(h).

The first problem is to decide what kind of a motion this is. It is not in form a motion for a preliminary injunction, for it seeks final relief, not relief pendente lite. If plaintiff conceives it to be a motion for summary judgment, it obviously violates Rule 56 in that it was made on the very day that the complaint was filed. Contrary to Rule 9(d) of the General Rules of this court, the moving papers give no clue as to the Rule of Civil Procedure under which plaintiff believes he is proceeding. Rather than deny the motion out of hand as a premature attempt to obtain summary judgment, I will treat it as a motion for a preliminary injunction, of a semimandatory nature, i. e., for an order directing defendants to rescind the order of induction and restraining them from issuing a new one pending the final determination of this action.

Most of the facts are undisputed. Plaintiff was born on September 11, 1938. On his eighteenth birthday, September 11, 1956, he registered under the selective service system with Local Board 22 ("the Board") in the Bronx, where he then lived. He was first given a deferred status because he was a student. When he finished his schooling he was classified 1-A on March 11, 1959. On August 11, 1960 he enlisted in the Army Reserve, in Company A, 854th Engineers Battalion, stationed at Monticello, New York, where plaintiff was then sojourning. The Board thereupon on September 21, 1960, reclassified him as 1-D, a deferred classification.

After doing his six months' active military service, plaintiff returned to Company A for reserve duty. This involved attending meetings once a week and attending summer camp for two weeks each year for 5½ years. Plaintiff failed to attend the summer camp in 1963, although his commanding officer had declined to excuse him from attendance. He also failed to attend many weekly meetings. Concededly, plaintiff was an unsatisfactory reservist. In November 1963 his commanding officer so reported to the Board. The Board thereupon, on December 18, 1963, classified plaintiff 1-A. Plaintiff protested this classification and when the Board refused to change it, he appealed to the Appeal Board, which sustained the 1-A classification on June 18, 1964.

On June 23, 1964 the Board ordered plaintiff to report for induction on July 7. Plaintiff then claimed that he lived in Monticello, not the Bronx. The Monticello draft board took plaintiff at his word and on July 6, 1964 issued an order directing him to report for induction in Monticello on August 10. Plaintiff then filed a notice stating that he had moved back to the Bronx. The Monticello board notified Local Board 22 in the Bronx, with the result that Local Board 22 on August 7 directed plaintiff to report for induction on August 10 at 39 Whitehall Street, New York, N. Y. This is the order which plaintiff asks this court to set aside. Plaintiff has not complied with the order and has not appeared at 39 Whitehall Street for induction.

Up to this point there is no dispute. The only question of fact, if it can be called that, is plaintiff's assertion in his complaint and moving papers that the Board in issuing its induction order acted pursuant to United States Code Title 50 Appendix, Section 456(c) (2) (D). That section provides, as far as pertinent, as follows:

"Notwithstanding any other provision of this Act, the President, under such rules and regulations as he may prescribe, may provide that any person enlisted or appointed after October 4, 1961, in the Ready Reserve of any reserve component of the Armed Forces * * * or any person * * * enlisted in the Ready Reserve of any reserve component prior to attaining the age of eighteen years and six months and deferred under the prior provisions of this paragraph * * * who fails to serve satisfactorily during his obligated period of service as a member of such Ready Reserve * * may be selected for training and service and inducted into the armed force of which such reserve component is a part, prior to the selection and induction of other persons liable therefor."

This section does not fit plaintiff's case because plaintiff enlisted in the Ready Reserve before October 4, 1961 and he was more than 18½ years old at the time of his enlistment.

The Board denies that it acted pursuant to this section. It claims that it acted pursuant to Title 50 United States Code Appendix, Section 455(a) and regulations pursuant thereto, 32 C.F.R. § 1631.7. These are general provisions giving the Board power to classify registrants without particular reference to their previous unsatisfactory service in the Army Reserve. The Board's position is that plaintiff was originally granted a deferred status only as long as he was a satisfactory reservist, that when his commanding officer reported that he was not satisfactory, the deferred status was revoked, that plaintiff was then classified 1-A and that thereafter the induction order followed in due course as a matter of routine.

I believe it unnecessary to determine which section of the statute was in fact the basis of the Board's action, for reasons which will presently appear.

The question of the court's jurisdiction over the subject matter of this action must first be considered. Jurisdiction over the subject matter "means the kinds of issues which give right of entrance to federal courts." Skelly Oil Co. v. Phillips Co., 339 U.S. 667, 671, 70 S.Ct. 876, 879, 94 L.Ed. 1194 (1950)

This right of entrance must be afforded by a federal statute. The federal courts have power to entertain litigation only "within the restricted area to which the Constitution and Acts of Congress confine them." Skelly Oil Co v. Phillips Co., supra

As previously stated, the complaint alleges that this court has jurisdiction under 28 U.S.C. § 2201 and 5 U.S.C. § 1009. Plaintiff is clearly wrong on both counts. 28 U.S.C. § 2201 is the declaratory judgment statute which authorizes the court "in a case of actual controversy within its jurisdiction," to declare the rights and legal relations of the parties. This is not a jurisdictional statute. It merely empowers the court to grant this particular type of relief in a case of which it has jurisdiction by virtue of some other statute. Skelly Oil Co. v. Phillips Co., supra.

5 U.S.C. § 1009 is the section of the Administrative Procedure Act which provides for judicial review of the decisions of administrative agencies. This...