Kimball v. SELECTIVE SERVICE LOCAL BD. NO. 15, NEW YORK, NY

• Decision Date: 23 April 1968
• Docket Number: 67 Civ. 4733.
• Parties: John P. KIMBALL et al., Plaintiffs, v. SELECTIVE SERVICE LOCAL BOARD NO. 15, NEW YORK, NEW YORK, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

283 F. Supp. 606

John P. KIMBALL et al., Plaintiffs, v. SELECTIVE SERVICE LOCAL BOARD NO. 15, NEW YORK, NEW YORK, et al., Defendants.

67 Civ. 4733.

United States District Court S. D. New York.

April 23, 1968.

Alan H. Levine, Amer. Civil Liberties Union, New York City, of counsel, for plaintiff John Mullen.

Robert M. Morgenthau, U. S. Atty., Laurence W. Schilling, Asst. U. S. Atty., of counsel, for defendants.

OPINION

TENNEY, District Judge.

This motion seeks a preliminary injunction restraining defendant Selective Service Board from inducting plaintiff John A. Mullen into the United States Army.

The facts are essentially as follows:

Mullen is a full-time student at Northeastern University in Boston, Massachusetts. Until about March 18, 1968, he had a Selective Service classification II-S as a student. On November 16, 1967, Mullen had turned in his Registration Certificate which classified him as II-S to his Local Board as a means of expressing his opposition to the United States policy in Vietnam.

Shortly thereafter, his Local Board mailed him a notice of delinquency and a new classification card declaring him I-A. After an appeal he received a notice to report for induction on April 23, 1968.

This action is brought on behalf of Mullen and others to declare these and similar actions of local Selective Service boards to be unconstitutional. The instant motion before this Court seeks preliminary relief against the induction of Mullen pending full determination of the issues of fact and law in this case.

The amended complaint alleges that the matter in controversy exceeds the value of $10,000 exclusive of interest and costs, and the Government does not contest this contention.

Section 10(b) (3) of the Selective Service Act, as amended, 50 App.U.S. Code § 460(b) (3) provides in pertinent part:

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 * * * 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.

The statute has been uniformly interpreted to require dismissal for lack of jurisdiction of pre-induction actions similar to the one at bar. Oestereich v. Selective Service System, Local Board No. 11, 390 F.2d 100, Feb. 21, 1968, pending on petition for certiorari, No. 1246; Breen v. Selective Service Board, 284 F. Supp. 749 (D.Conn. April 2, 1968); Moskowitz v. Kindt, 273 F.Supp. 646 (E.D. Pa.1967).

However, it is important to note the candid language of Solicitor General Griswold in his brief filed in Oestereich,¹ supra, wherein it is stated:

"In this case, petitioner's exemption from military service and training is one which has been granted to him by Act of Congress. Section 456(g) specifically provides that —

students preparing for the ministry under the direction of recognized churches or religious organizations, who are satisfactorily pursuing full-time courses of instruction in recognized theological or divinity schools * * * shall be exempt from training and service (but not from registration) under this title.

Petitioner is a full-time student in good standing at the Andover Newton Theological School, which is a `recognized theological or divinity school.' Thus, he is exempt by the terms of the statute from `training and service' under the Selective Service Act. What Selective Service System Local Board No. 11 has done here is to terminate, by administrative action, the exemption which has been granted by statute. If that action was contrary to the express terms of the Act of Congress granting the exemption, this is obviously relevant in considering the application of the procedural provision on which the government has relied in this case.

This issue does not necessarily involve the constitutional validity of the provision of Public Law 90-40 relied on by the courts below. That statute forbids `judicial review * * * of the classification or processing of any registrant by local boards,' except in defense to a criminal prosecution. It is possible to construe this language as applicable to the generality of situations where the local board has applied its judgment, but to exclude purported action of a board which is in fact contrary to an exemption which has been expressly granted by statute. Such a construction is not only possible here, but it is desirable in order to avoid conflict with the congressional determination to grant exemption to ministers and ministerial students. In this situation it may be observed that there is room for an appropriate distinction between an order which is contrary to the terms of a statute and an order which is

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