Koch v. Zuieback

Decision Date24 May 1961
Docket NumberCiv. No. 1304-60.
Citation194 F. Supp. 651
PartiesDonald Ernest KOCH, Plaintiff, v. Rudolph ZUIEBACK et al., Defendants.
CourtU.S. District Court — Southern District of California


J. B. Tietz, Los Angeles, Cal., for plaintiff.

Laughlin E. Waters, U. S. Atty., by Frederick M. Brosio, Jr., Asst. U. S. Atty., Los Angeles, Cal., for defendant, Rudolph Zuieback.

THURMOND CLARKE, District Judge.

This matter is before the court on motion of defendant Zuieback to dismiss the action on the ground that plaintiff's complaint fails to state a claim upon which relief may be granted. Expressing no opinion on the merits of plaintiff's claim, the court is loath to appear to condone the lengthy history of continued harassment alleged in this case by denying plaintiff his day in court. Nevertheless, it must be concluded, albeit reluctantly, that the overwhelming weight of authority dictates that defendant's motion to dismiss must be granted.

Plaintiff brought this civil action for damages and a declaratory judgment against Rudolph Zuieback, chairman of Local Board 103, Selective Service System, Los Angeles, California, and other individuals connected with the Selective Service System. Only Zuieback has been served and this motion to dismiss is made solely on his behalf. The complaint alleges that the defendants, although acting under color of federal authority, acted in excess of said authority, and wilfully, maliciously and with intent to injure plaintiff, conspired to deprive him of due process of law during the major portion of his processing by the Selective Service System. The prayer is for a judgment declaring that the local board acted illegally when it classified plaintiff in Class IV-F and thereafter in Classes I-A, I-O and III-A, and further declaring that plaintiff is entitled to a classification of V-A; and for damages.

Plaintiff's difficulties with the Selective Service System date back to October, 1948, when he registered as required by law. On July 11, 1950, he was classified as I-A by Local Board 103. Apparently, plaintiff was not then aware of the proper procedures for appeal. Plaintiff attempted to obtain a reclassification as a conscientious objector, but his requests were not timely and were refused. Plaintiff subsequently refused to be inducted into the Armed Services, and as a result was convicted for said act of refusal and sentenced to a four-year term of imprisonment to be served in the United States Penitentiary, McNeil Island, Washington.

On February 16, 1951, the Warden of said institution notified the Local Board that plaintiff had been received at said prison, in order to inform the Board of his whereabouts; the Board acknowledged this notification. Thereafter, on March 26, 1951, "consonant with defendants' plan to pursue and hound plaintiff", the Local Board mailed plaintiff a Notice of Classification, indicating that he had been reclassified in Class IV-F, directing the same to his obsolete address, "despite * * * the fact that defendants knew plaintiff was in prison and knew his prison address." Plaintiff did not receive actual notice of this classification until March 28, 1955.

Plaintiff was released on parole on February 10, 1953. The Local Board inquired of the prison authorities as to his whereabouts on February 15, 1955, and was referred to the Chief U. S. Probation Officer in Los Angeles. The Board communicated with the Probation Office, but failed to obtain plaintiff's current address. One day after his official release from parole supervision, the Board mailed a I-A classification to the aforementioned obsolete address; this classification was returned to the Board by the Post Office.

The Board did not attempt to locate plaintiff until after the 10 day appeal period had expired. At that time, the Board obtained plaintiff's current address from the Parole Officer and sent plaintiff a change of address form to be returned by March 31, 1955.

During this period, plaintiff had not communicated with the Board, since he had reached the age of 26 in 1952 and, not being aware of the IV-F classification issued in 1951, which reclassification had the effect of extending plaintiff's eligibility to age 35, believed he was no longer eligible under the Selective Service System.

Upon receiving the change of address form, plaintiff personally appeared at the office of the Local Board on March 28, 1955, in order to ascertain why the Board still claimed jurisdiction over him. At that time, he was handed a duplicate copy of the I-A classification issued on March 9, 1955, and upon discussing that classification with the clerk, learned for the first time of the IV-F classification which had been issued while he was in prison.

On April 1, 1955, plaintiff made written protest of the IV-F and I-A classifications, maintaining that he should be given the overage classification (V-A) or, failing that, the conscientious objector classification (I-O). He further requested a hearing before the Local Board.

On June 7, 1955, plaintiff had a hearing before the Local Board. At this time, he was denied the right to assistance by an attorney and denied the use of two witnesses, one of whom was a shorthand reporter. He further alleged that he was "denied the right to discuss his file and his evidence". As required by the Local Board, plaintiff made a summary of this hearing and filed it with the Board, and the Board also filed a summary transcript. Plaintiff also submitted other written evidence.

Plaintiff was classified in Class I-O on July 12, 1955. He was granted an extension of time to appeal from the denial of his request for V-A classification, and he formally appealed therefrom.

In October, 1957, the Local Board reopened his classification on its own initiative and on December 10, 1957, reclassified him as I-O. He again requested a hearing, at which he presented some evidence, but the classification was again unchanged. He again made timely appeal and on March 3, 1958, the Appeal Board retained plaintiff in Class I-O.

Meanwhile, on November 12, 1957, plaintiff informed the Local Board that he had acquired a wife and dependent stepchild but specifically disclaimed interest in obtaining a III-A classification (registrant with dependent), again maintaining his right to a V-A classification. On March 11, 1958, the Local Board reclassified plaintiff in Class III-A.

In September, 1959, plaintiff informed the Local Board that his wife had filed suit for divorce and on September 15, 1959, he was reclassified as I-O. He again protested the classification and requested a hearing. At the hearing, the Board again denied plaintiff the opportunity to discuss his V-A classification and routinely classified him as I-O. Plaintiff again appealed and again his appeal was rejected.

At the time of the filing of this action, plaintiff was still retained in Class I-O, which made him liable for two years of civilian service. However, plaintiff was at no time ordered to report for service.

The gist of plaintiff's action is that defendants wilfully and arbitrarily refused to consider the evidence presented by plaintiff regarding his age, the IV-F classification and his right to a V-A classification, despite the fact that there was no evidence to controvert his contentions; that in so acting defendants acted wilfully and maliciously; that their acts constituted an abuse of discretion and misuse of power, and hence defendants exceeded their authority and jurisdiction; and that by said acts defendants deprived plaintiff of his right to a fair hearing as required by the due process clause of the Fifth Amendment. Plaintiff further alleges that defendants knew that plaintiff had entered a partnership and knew that their actions kept plaintiff in a state of uncertainty with respect to his business affairs. Further, plaintiff alleges that defendants endeavored to prevent plaintiff from fully presenting his case in order to "entrap him and again cause his imprisonment" and to endanger his liberty and ability to earn a living.

I. Plaintiff's Complaint for Declaratory Judgment

It affirmatively appears from an affidavit of Edward A. Gibbs, Chairman of Local Board 103, submitted in support of defendant's motion to dismiss, that plaintiff reached the age of 35 on January 13, 1961, and that on January 17, 1961, he was given the V-A classification which he seeks in this action. This affidavit is uncontroverted and, by treating this portion of the motion to dismiss as a motion for summary judgment, may be considered by the court. Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A.; and see Oppenheimer v. Stillwell, D.C.S.D.Cal.1955, 132 F.Supp. 761, 763. It is therefore abundantly clear that, whatever right to judicial review of a Selective Service classification plaintiff might ordinarily possess, the issue as to plaintiff's appropriate classification is now moot. Accordingly, summary judgment for defendants will be rendered on this phase of the case, as to the moving defendant and all defendants not heretofore served.

II. Plaintiff's Action for Damages

Defendant Zuieback's motion to dismiss this portion of the case at bar is predicated on the theory that the complaint fails to state a claim upon which relief might be granted, in that: (A) this is not a case arising under the Constitution and/or laws of the United States and no federal question is therefore presented; and (B) defendant, a federal officer, is immune from a suit for damages based on acts performed within the scope of his official authority and under color of his office. The court will consider the issues raised by defendant's motion in the following order: first, whether this court has any jurisdiction to consider this matter; second, assuming the initial existence of jurisdiction, whether a federal question is presented; and, finally, assuming the existence of a federal question, whether the moving defendant is immune from...

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  • Butler v. United States
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    ...only conspiracies under color of state law, citing Hoffman v. Halden, 268 F.2d 280 (9th Cir. 1959), from which flowed Koch v. Zuieback, 194 F.Supp. 651 (S.D.Cal. 1961), aff'd, 316 F.2d 1 (9th Cir. 1963). Defendants cited also Norton v. McShane, 332 F.2d 855 (5th Cir. 1964). But Hoffman reli......
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