Levine v. SELECTIVE SERVICE LOC. BD. NO. 18, STAMFORD, CONN., 323

• Decision Date: 14 April 1972
• Docket Number: Docket 71-1885.,No. 323,323
• Citation: 458 F.2d 1281
• Parties: Bryan I. LEVINE, Plaintiff-Appellant, v. SELECTIVE SERVICE LOCAL BOARD NO. 18, STAMFORD, CONNECTICUT and Frederick Palomba, Individually and as Director of the Selective Service for Connecticut, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

458 F.2d 1281 (1972)

Bryan I. LEVINE, Plaintiff-Appellant, v. SELECTIVE SERVICE LOCAL BOARD NO. 18, STAMFORD, CONNECTICUT and Frederick Palomba, Individually and as Director of the Selective Service for Connecticut, Defendants-Appellees.

No. 323, Docket 71-1885.

United States Court of Appeals, Second Circuit.

Argued January 6, 1972.

Decided April 14, 1972.

Emanuel Margolis, Stamford, Conn., for plaintiff-appellant.

Peter A. Clark, Asst. U. S. Atty., New Haven, Conn. (Stewart H. Jones, U. S. Atty., D. Conn., New Haven, Conn.), for defendants-appellees.

Before FRIENDLY, Chief Judge, and MOORE and OAKES, Circuit Judges.

MOORE, Circuit Judge.

Bryan I. Levine appeals from an order of the District Court of Connecticut granting the government's motion to dismiss his complaint for declaratory and injunctive relief, a writ of mandamus, and damages against his draft board and the state director of selective service.¹ The court below dismissed Levine's complaint on the basis of section 10(b) (3) of the Military Selective Service Act (Act).² We reverse the judgment of dismissal and remand for an evidentiary hearing to determine (1) how Levine's local board voted on February 23, 1971 in response to Levine's request for a reopening and a reclassification, and (2) why the board delayed issuance of Levine's induction order until April 26, 1971.

I. The Procedural Posture of the Case

The difficulty in resolving the legal issues in this case stems from the posture of the case before us. By a complaint dated May 10, 1971 Levine alleged the following. Having had a student deferment, he was reclassified by his board into Class I-A on or about July 15, 1969. Levine did not request a personal appearance to contest this classification and did not appeal. He took his physical examination in August of 1969 and received his notice of medical acceptability (Form DD 62) in November.

In December of 1969 Levine wrote a letter to the board requesting a reopening and reclassification of his draft status to Class II-A. The basis of this request was Levine's belief that a job he was to begin in January of 1970 entitled him to an occupational deferment. From January of 1970 until at least the date of the complaint, Levine worked as a research assistant in the Microbiology Department at the University of Connecticut. His request for reclassification was supported by letters from two professors in the Department.

One year later, in December of 1970, the board notified Levine that his Class I-A status remained unchanged. By separate letter the board advised him that it did not believe that a personal appearance was necessary in order for it to make its decision on his request; however, in view of Levine's request for an appearance, it would call him for a hearing in the near future.

By letter dated February 10, 1971 the board scheduled a hearing for February 23d. During this hearing Levine alleges that he was informed by the Executive Secretary of the board that if he did not receive an order to report for induction by the end of March, he would no longer be subject to the draft as a member of the Extended Priority Selection Group,³ members of which are subject to call for induction after volunteers.⁴ Levine is a member of the Extended Priority Selection Group because his lottery number (127) was reached in 1970 but he did not receive an order to report for induction.⁵

On March 1, 1971 the board issued to Levine a Notice of Classification (SSS Form 110), continuing his status in Class I-A. On April 26, 1971 the board issued Form 252 to Levine ordering him to report for induction on May 13, 1971.

The government did not answer Levine's complaint. Instead, it moved to dismiss on the grounds that the district court lacked subject matter jurisdiction over the action, and that Levine had failed to exhaust his administrative remedies.

After hearing oral argument on the government's motion to dismiss and receiving memoranda from the parties, Judge Zampano granted the government's motion on July 26, 1971. Besides Levine's complaint and the government's motion to dismiss, all that Judge Zampano had before him to determine the factual basis for Levine's complaint were an affidavit by Levine swearing to the accuracy of the matters alleged in the complaint and two letters sent by the board to him submitted as exhibits.⁶ No local board officials testified as to what occurred on February 23d, nor were any affidavits of such officials introduced by the government in support of, or by Levine in opposition to, the motion to dismiss.

II. The Applicability of 10(b) (3) to Levine's Complaint

The basis of Levine's argument that section 10(b) (3) does not bar his complaint is that the April 26th induction order was issued in violation of the Selective Service System's own regulations. Section 1631.7(d) (5) of these regulations provides that members of the Extended Priority Selection Group who have not been issued orders to report for induction and scheduled to report prior to April 1st shall be assigned to a lower priority selection group.⁷ Because the board clearly issued his order for induction beyond April 1st, Levine thus claims its issuance is blatantly lawless.⁸

There is a proviso to section 1631.7(d) (5), which provides:

. . . members of the Extended Priority Selection Group who would have been ordered to report for induction to fill the last call in the first quarter of the calendar year but who could not be issued orders shall remain in the Extended Priority Selection Group and shall be ordered to report for induction as soon as practicable. Circumstances which would prevent such an order shall include but not be limited to those arising from a personal appearance, appeal, preinduction physical examination, reconsideration, judicial proceeding, or inability of the local board to act.

The government argues that while Levine's induction order was issued beyond April 1st, it was nevertheless issued "as soon as practicable". The basis for this contention is that one of the "circumstances" specified in section 1631.7(d) (5) prevented the board from issuing an induction order prior to April 1st—namely, Levine's right of appeal of the board's decision refusing his request for reclassification.⁹

Thus whether the issuance of Levine's induction order was blatantly lawless turns on whether the order was issued "as soon as practicable". Whether the order was issued "as soon as practicable" depends on whether Levine did have or did not have a right of appeal from the board's decision as made known to Levine by the March 1st Form 110 that it was continuing Levine in Class I-A. Whether Levine had a right of appeal from this decision in turn depends on whether the board decided not to reopen (no right of appeal) or to reopen and not to reclassify (right of appeal).

The difficulty in resolving this last inquiry comes from the fact that a board can reopen a registrant's classification and then place him right back into the same classification.¹⁰ With one relevant exception, such a "reclassification" has all of the appearances and consequences of a refusal to reopen in the first place. The exception is of course that a registrant whose classification has been opened has the right to a personal appearance and/or appeal.¹¹ A registrant whose classification has not been reopened has no such rights.¹²

Both parties rely on circumstantial evidence to prove what in fact the board decided. Levine argues that the December 1970 letters show that the board refused to reopen his classification and that the February 23d hearing was clearly a courtesy hearing from which he could not have had a right of appeal. The government responds by pointing to the March 1st Form 110, which by the relevant regulations is required to be issued upon a reopening¹³ and on its face informs the registrant of his rights to a personal appearance and/or an appeal.¹⁴

On the basis of this circumstantial evidence we find ourselves uncertain as to what in fact the board decided as a result of the February 23d meeting. We therefore conclude that a hearing should be held to determine how the board voted in response to Levine's request for a reopening and a reclassification.

Regardless of how the board voted it is next necessary to determine whether the April 26th issuance of the induction order was "as soon as practicable" within the meaning of section 1631.7(d) (5). If the board voted to reopen (thus entitling Levine to appeal rights), then it would appear that the issuance was "as soon as practicable".¹⁵ Even if the board voted not to reopen, there may be an explanation for the delay in the issuance of the induction order that would bring the issuance within the proviso of section 1631.7(d) (5). The few cases dealing with the proviso indicate that if a local board has in good faith and with reason failed to comply with the issue and schedule mandate of section 1631.7(d) (5), then its failure will not support the issuance of an injunction.¹⁶ In Lawton v. Tarr,¹⁷ the induction order was issued to the registrant on April 5th for induction on April 21st. After reading section 1631.7(d) (5) as establishing flexible, not rigid guidelines on the power of local boards to issue induction orders beyond April 1st,¹⁸ the Fourth Circuit concluded on the facts that the local board's delay in issuing the induction order, due in part to a security check of the registrant, was not violative of the regulation.

III. Necessity for Remand

Pre-induction review is generally appropriate only where there is "blatantly lawless" conduct on the part of the local board and "there is no exercise of discretion by a Board in evaluating evidence and in determining whether a claimed classification is deserved." Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 238, 89 S.Ct. 414, 416, 21 L.Ed.2d 402 (1968); see Breen v. Selective Service Local Bd. No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1...