Grosfeld v. Morris

• Citation: 448 F.2d 1004
• Decision Date: 01 September 1971
• Docket Number: No. 14016,14155.,14016
• Parties: Gerson GROSFELD, Appellant, v. Dr. Harold P. MORRIS et al., Appellees. Gerson GROSFELD, Appellant, v. Maj. James R. McCARTER et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

448 F.2d 1004 (1971)

Gerson GROSFELD, Appellant, v. Dr. Harold P. MORRIS et al., Appellees.

Gerson GROSFELD, Appellant, v. Maj. James R. McCARTER et al., Appellees.

Nos. 14016, 14155.

United States Court of Appeals, Fourth Circuit.

Argued April 10, 1970.

Decided September 1, 1971.

COPYRIGHT MATERIAL OMITTED

Gaillard T. Hunt, Washington, D. C. (Elsbeth Levy Bothe, Baltimore, Md., on brief), for appellant.

Reed Johnston, Jr., Atty., Dept. of Justice (William D. Ruckelshaus, Asst. Atty. Gen., and Morton Hollander, Atty., Dept. of Justice, and Stephen H. Sachs, U. S. Atty. on brief), for appellees.

Before BOREMAN,^* WINTER and CRAVEN, Circuit Judges.

WINTER, Circuit Judge:

As submitted to us, these two appeals required us to determine, with particular reference to the Supreme Court's decisions in Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970), and Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970), whether a local board may refuse to reopen a registrant's classification when presented with a prima facie claim for a deferment after an order for induction had issued, and, if not, whether such illegal board conduct may be challenged prior to the registrant's induction or prosecution for failure to submit to induction. No. 14,016 concerned a late request for a III-A hardship deferment. No. 14,155 concerned a belated crystallization of conscientious objection views.

After initial argument, we suggested rehearing en banc together with United States v. Collins, 445 F.2d 653 (4 Cir. 1971), which also presented the question of a claim of belated crystallization of conscientious objection views. Counsel then suggested that we defer disposition of the cases until the decision in Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), which was then pending. Ehlert is now decided, and we have concluded to return the instant appeals to the original panel which heard them for decision. Ehlert was decided adversely to registrant and requires affirmance in No. 14,155. But in No. 14,016, we have concluded that there was illegal board conduct reviewable by pre-induction proceedings. In that case we, therefore, reverse and remand for further proceedings.

I

The registrant, Gerson Grosfeld, was a college student from September, 1964, until June, 1968. For each of these four undergraduate years he requested and was granted a II-S student deferment. Upon graduation he was classified I-A. Thereafter, he entered the University of Arizona as a full-time graduate student and a part-time teaching assistant. On the basis of these positions, Grosfeld requested his board to grant him a II-S graduate student deferment or a II-A occupational deferment. His board treated these requests as an appeal from his I-A classification and forwarded them to the appeal board along with the rest of Grosfeld's file. The appeal board affirmed Grosfeld's I-A classification on December 5, 1968.

On March 26, 1969, Grosfeld received an order to report for induction on April 15, 1969. He immediately wrote to his board to request a I-S graduate deferment in order to finish the school year. The board refused this request for a change in classification but notified him that his actual induction would be delayed until June so he could complete his course of study.

Grosfeld then requested a III-A hardship deferment. In a letter to his board he claimed that he had just learned for the first time that his mother, who suffered from a serious disease, would be gravely affected by his induction. Thereafter, the board was supplied with evidence which tended to support his claim.¹ Almost two months later the board notified him that it had refused to reopen his classification to consider his claim for a III-A deferment. Simultaneously he was ordered to report for induction on August 12, 1969.

On August 5, Grosfeld instituted an action (No. 14,016) to compel his board to reopen his classification and consider the claims for deferments which he had advanced. The district court denied relief. It ruled that under § 6(h) (1) of the Selective Service Act of 1967, 50 U.S.C.A. App. § 456(h) (1), Grosfeld was not entitled to a I-S graduate deferment because he had requested and received an undergraduate II-S deferment and baccalaureate degree after the effective date of the Act.² The district court also held that judicial review of Grosfeld's claim to a III-A hardship deferment was barred by § 10(b) (3) of the Act, 50 U.S.C.A. App. § 460(b) (3).

II

On August 11, 1969, Grosfeld wrote again to his local board — this time claiming that he was a conscientious objector due to religious training and belief. Thereafter, he filled out and filed Selective Service Form 150 in which he alleged an upbringing in Orthodox Judaism, his belief in the basic ethical tenets of that tradition, and his realization upon receipt of his induction order that he could not in conscience serve in any war. Simultaneously he filed letters from two close friends and four rabbis which attested to the sincerity of his beliefs. On October 6, 1969, the board held what it termed a "courtesy interview" at which it took sworn testimony from Grosfeld and his father. On November 22, 1969, the board refused to reopen and ordered Grosfeld to report for induction on December 3, 1969.

On November 25, 1969, Grosfeld filed a second action (No. 14,155) in the district court in which he alleged a number of irregularities including a claim that the board had wrongfully refused to reopen. The district court denied relief on the ground that § 10(b) (3) precluded pre-induction judicial review.

III

In both actions, Grosfeld alleged that the district court had jurisdiction under the Mandamus and Venue Act of 1962, 28 U.S.C.A. § 1361, and the Federal Habeas Corpus Statute, 28 U.S.C.A. § 2241. In his second action he added 28 U.S.C.A. § 1331(a) as an alleged jurisdictional foundation. We need not consider, however, whether Grosfeld is now by virtue of his induction order "in custody" within the meaning of 28 U.S.C.A. § 2241(c) (1) or whether the $10,000 jurisdictional amount required by 28 U.S.C.A. § 1331(a) is present, because we consider § 1361 an adequate jurisdictional basis for these two actions. It provides that

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

Nor need we be concerned with the extent to which the traditional mandamus dichotomy between ministerial and discretionary administrative functions survives in § 1361 as a limitation on judicial review. See e. g., Byse & Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and "Nonstatutory" Judicial Review of Federal Administrative Action, 81 Harv.L.Rev. 308, 331-36 (1967); L. Jaffe, Judicial Control of Administrative Action, 181-82 (1965). That limitation on traditional mandamus relief reflected the policy that the judiciary should not control an administrative officer's valid exercise of a delegated power. Here, however, Grosfeld claims that his board has no authority under the Selective Service Act to refuse to reopen his classification, consider his new grounds for deferment, and permit him an administrative appeal from an adverse decision. If his argument is correct, judicial review would not interfere with the board's exercise of a legitimate discretionary power. Therefore, even under traditional mandamus principles, § 1361 confers jurisdiction to consider this claim. See Carey v. Local Board No. 2, 297 F.Supp. 252, 254-55 (D.Conn.), aff'd, 412 F.2d 71 (2 Cir. 1969) (per curiam).³

IV

The main issue raised by these appeals concerns the government's argument that § 10(b) (3) of the Selective Service Act of 1967, 50 U.S.C.A. App. § 460(b) (3), deprived the district court of jurisdiction to review the board's actions prior to induction or attempted induction. Section 10(b) (3) provides:

No judicial review shall be made of the classification or processing of any registrant by local boards * * * except as a defense to a criminal prosecution * * * after the registrant has responded either affirmatively or negatively to an order to report for induction. * * *

In Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), the Supreme Court rejected a literal reading of this legislation as a flat bar on all pre-induction judicial review. It held that § 10(b) (3) did not bar pre-induction judicial review of a registrant's claim that his draft board had unlawfully ordered him to report for induction as a delinquent when he was entitled to the statutory exemption for students preparing for the ministry. Since the statutory exemption contained no indication that it could be denied for "delinquency," Oestereich's classification was "blatantly lawless" and, therefore, subject to pre-induction review.

Oestereich was followed by Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968). There the Court upheld the constitutionality of § 10(b) (3) and concluded that it barred pre-induction judicial review of a registrant's claim that his board had made an erroneous factual determination of his status as a conscientious objector. Gabriel distinguished Oestereich on the following ground:

In Oestereich the delinquency procedure by which the registrant was reclassified was without statutory basis and in conflict with petitioner\'s rights explicitly established by the statute and not dependent upon an act of judgment by the board. Oestereich, as a divinity student, was by statute unconditionally entitled to exemption. Here, by contrast, there is no doubt of the board\'s statutory authority to take action which appellee challenges, and that action inescapably involves a determination of fact and an exercise of judgment.

393 U.S. at 258, 89 S.Ct. at 426.

...