Morgan v. Melchar

• Decision Date: 05 May 1971
• Docket Number: No. 18697.,18697.
• Citation: 442 F.2d 1082
• Parties: Russell M. MORGAN, Appellant, v. Bert MELCHAR et al.
• Court: U.S. Court of Appeals — Third Circuit

442 F.2d 1082 (1971)

Russell M. MORGAN, Appellant, v. Bert MELCHAR et al.

No. 18697.

United States Court of Appeals, Third Circuit.

Argued April 24, 1970.

Decided May 5, 1971.

As Amended June 30, 1971.

Rehearing Denied and Rehearing Denied July 1, 1971.

Joseph Barry, Stavis, Richardson, Koenigsberg & Rossmoore, Newark, N. J., for appellant.

Morton Hollander, Chief Appellate Section, Civ. Div., Dept. of Justice, Washington, D. C., for appellees.

Before GANEY, VAN DUSEN and GIBBONS, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied July 1, 1971.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

Plaintiff-appellant, a registrant under the Selective Service Act of 1967, 50 App. U.S.C. §§ 451-467 (Supp. IV 1969), filed a verified complaint in the district court seeking relief in the nature of mandamus against the defendant members of Selective Service System Local Board No. 2 for New Jersey and such other relief as may seem just.¹ An application for a temporary restraining order was made on notice to the United States Attorney. No responsive pleadings were filed and, after hearing argument, the district court entered on March 3, 1970, an order denying the temporary restraining order and dismissing the complaint "for lack of federal jurisdiction."²

The complaint claims jurisdiction under 28 U.S.C. § 1331 (1964) (federal questions) and under 28 U.S.C. § 1361 (1964) (mandamus against a federal official). The district court dismissed because it considered Section 10(b) (3) of the Selective Service Act of 1967, 50 App. U.S.C. § 460(b) (3) (Supp. IV 1969), to be controlling.

Plaintiff's complaint alleged that in 1967, while he was married but living apart from his first wife and son, he was reclassified from Class III-A³ to Class I-A.⁴ He and his first wife wrote to the Local Board advising that she and their son were dependent upon him, and he was reclassified III-A. On February 4, 1969, plaintiff and his first wife were divorced and on May 4, 1969, he remarried (p. 23a). The complaint alleges that he continued to support his first wife and his infant son and is their sole means of support.⁵

On June 11, 1969, the Local Board wrote to plaintiff requesting that he appear before it on June 18, 1969, to discuss his classification. Because he was in transit from New Jersey to Arizona he did not receive that letter until after June 23, 1969, when the Local Board mailed him a notice that he had been classified I-A (Exhibit A to Memorandum of Law In Opposition to Plaintiff's Order to Show Cause). On July 23, 1969, his letter appealing that classification to the New Jersey Appeal Board was received by the Local Board (Exhibit B to above Memorandum of Law).⁶ On September 5, 1969, the Appeal Board concurred in the I-A classification of the Local Board and an induction order was mailed September 24, 1969, directing plaintiff to report for induction on October 8, 1969 (par. 8 of Complaint and Exhibit E to the above Memorandum of Law).

After the induction order issued, the plaintiff requested a personal appearance before the Local Board and submitted documentation, including affidavits of witnesses and medical history which the Local Board did not have before it at the time of its I-A classification. However, neither the complaint nor the letters and affidavits in the record state at any place that the plaintiff or his dependents developed any medical conditions after the notice of the induction order was mailed to plaintiff on September 24, 1969, or at any definite date prior thereto. The date for reporting for induction under the above order was postponed prior to October 8, 1969, and several times thereafter (pars. 21 & 22 of Complaint). By letter of January 5, 1970, the Local Board requested plaintiff "to appear for a meeting with it * * to discuss your case," but after this meeting of January 15, it wrote plaintiff on January 21, 1970:

"This will advise you the recent evidence submitted concerning your case has been reviewed by this local board but it does not justify the reopening of your case and reconsideration of your present classification.

"You will therefore be subject to further processing for induction. Notices will be mailed to you in due course."

Both plaintiff and his former wife requested an appeal from this letter of the Board. On January 27, 1970, the Executive Secretary of the Local Board wrote plaintiff as follows:

"This will acknowledge receipt of your letter requesting another appeal, this is not possible, you appealed when you received your 1-A classification and was forwarded to the Appeal Board returned still classified I-A as of June 18th, 1969.

"You had a non-statutory hearing which was requested, you have no further rights, you will be subject to call at our next Induction which is overdue pending the hearing."

On February 19, 1970, plaintiff received a postponed date for induction, and this lawsuit followed. He alleges that the failure of the Selective Service System to afford him an appeal was erroneous as a matter of law, and that it should be corrected by mandamus.

Taking the above allegations as true, Judge Gibbons, by orders of March 3 and 6, 1970, and thereafter a panel of this court on March 16, 1970, granted temporary relief pending appeal, to consider the district court's adverse determination of jurisdiction in light of Bucher v. Selective Service System, 421 F.2d 24 (3d Cir. 1970), and of Hunt v. Local Board No. 197, 438 F.2d 1128, No. 18,076 (3d Cir. 1971), then still sub judice.

The issue presented by this case is whether the district court was correct in holding that it lacked subject matter jurisdiction to entertain registrant's action for pre-induction judicial review. A plaintiff has the burden of proving that a federal court, a court of limited jurisdiction, has subject matter jurisdiction, and there is a presumption that a federal court lacks jurisdiction in a particular case until it has been demonstrated that subject matter jurisdiction exists.⁷ F.R. Civ.P. 12(h) (3) provides:

"Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Emphasis supplied.

In view of these principles, this court has dismissed cases for lack of subject matter jurisdiction on its own motion on the basis of documents which were neither before the district court nor before this court. See, e. g., Berkowitz v. Philadeldelphia Chewing Gum Corp., 303 F.2d 585 (3d Cir. 1962).⁸

The power resides in the Congress to define the jurisdiction of federal courts.⁹ Congress has restricted the jurisdiction of federal courts over suits brought by registrants, prior to their induction, to challenge actions of the Selective Service System in section 10(b) (3) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 460(b) (3) (Supp. III, 1967), which provides in relevant 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 * * * after the registrant has responded either affirmatively or negatively to an order to report for induction * * *"¹⁰

I.

In Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 238, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), the Court rejected a literal interpretation of section 10(b) (3) on the ground, suggested by the Solicitor General, that "such literalness does violence to the clear mandate"¹¹ of the section of the Act granting ministerial students exemption from training and service under the Act. Oestereich involved an attack on an administrative procedure challenged as being invalid on its face, in a context where "it was plain on the record and on the face of the Act that an exemption had been granted."¹² The registrant had had his statutorily mandated exemption taken away through delinquency proceedings because of conduct unrelated to the merits of continuing the exemption, and the Solicitor General had confessed that the use by the Selective Service System of delinquency proceedings for that purpose was error. Since a construction of the Act requiring the registrant to submit to induction before obtaining judicial review would have been unnecessarily harsh under the circumstances, the Court concluded that pre-induction review was not precluded in cases of that type.

The Court in Oestereich by way of statutory construction engrafted an exception on the literal terms of section 10(b) (3) in order to reconcile the clash between explicit statutory mandates. Observing that entitlement to the claimed exemption was "in no way contested"¹³ by the government, the Court noted that "we would have a somewhat different problem were the contest over, say, the quantum of evidence necessary to sustain a Board's classification."¹⁴ This case does not involve a clearly mandated deferment¹⁵ that has been taken away by improper means. Registrant claims that the local board should have given him a III-A deferment because of the extreme hardship¹⁶ that would result to his divorced wife and child, as well as to his present wife, were he inducted. The right to this deferment, like the right to the conscientious objector exemption involved in Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968), is not an unconditional right, but rather is dependent on local board action which "inescapably involves a determination of fact and an exercise of judgment."¹⁷ Here, there is no doubt that the local board had the authority to change registrant's classification,¹⁸ and registrant does not challenge the legality of the procedure by which the change was effectuated. This situation is thus very similar to that in Clark v. Gabriel, where pre-induction review was held unavailable, the Court noting that:

Here the Board has exercised its statutory discretion to pass on a particular request for classification, "evaluating

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