Murray v. Vaughn

Decision Date06 June 1969
Docket NumberCiv. A. No. 4018.
Citation300 F. Supp. 688
PartiesStephen Bruce MURRAY v. Jack Hood VAUGHN, Director of the Peace Corps., et al.
CourtU.S. District Court — District of Rhode Island

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Marvin M. Karpatkin and Michael N. Pollet, Melvin L. Wulf, New York City, Milton Stanzler, Providence, R. I., for plaintiff.

William D. Ruckelshaus, Asst. Atty. Gen., Harland F. Leathers, and John E. Shockey, Dept. of Justice, Washington, D. C., Edward P. Gallogly, U. S. Atty. for District of Rhode Island, Providence, R. I., for defendants.

OPINION

Motion to Dismiss

PETTINE, District Judge.

This is a civil action commenced by the plaintiff, Stephen Bruce Murray, a citizen of the United States and a resident of Rhode Island, who seeks declaratory and other equitable relief against (1) the Director of the Peace Corps, (2) the Rhode Island State Director of the Selective Service System, (3) Rhode Island Selective Service Local Board No. 3, (4) the Attorney General of the United States, and (5) the United States Attorney for the District of Rhode Island.

Jurisdiction is alleged to exist on the basis of 28 U.S.C. § 1331 and/or 28 U.S.C. § 1361. The procedural requisites of this action are governed by Rule 65. The various defendants have moved to dismiss on several grounds, all of which will be treated.

The plaintiff's complaint is in two counts, each of which sets forth separate substantive claims for relief. For purposes of clarity, I will treat the two counts separately as to both facts and law.1

Count I

Plaintiff Murray, who is and has been properly registered under the Selective Service System with Rhode Island Local Board No. 3, enrolled in the Peace Corps in June of 1965. Immediately after his enrollment, Murray requested and received a II-A occupational deferment from Local Board No. 3 by reason of his Peace Corps enrollment. In October of 1965 Murray was sent by the Peace Corps to Chile where he served on the music faculty of the University of Concepcion. The normal expiration date of Murray's term in Chile would have been January of 1968, some two months after his twenty-sixth birthday.2 However, in June of 1967 Murray was expelled from the Peace Corps by order of the Corps' Director and, by allegation, without either prior notice or a hearing, for publishing a letter in El Sur, a local Chilean newspaper, in which letter he criticized both U. S. foreign policy concerning the American involvement in Vietnam and Peace Corps' policy concerning the freedom of Peace Corps volunteers to criticize U. S. foreign policy. Also in June of 1967 Murray was reclassified I-A by Local Board No. 3.

Murray further points out that on November 7, 1967, he reached his twentysixth birthday. On information and belief, Murray alleges that it was the generally successful policy and practice of the Peace Corps to seek to persuade local boards and other decision-making bodies within the Selective Service System to continue II-A occupational deferment classifications for all draft registrants enrolled and serving as Peace Corps volunteers. Likewise on information and belief, Murray alleges that it was the consistent policy and practice of Local Board No. 3 to continue II-A occupational deferment classifications for all draft registrants enrolled and serving as Peace Corps volunteers, including such volunteers who reached their twenty-sixth birthdays while enrolled and serving. Murray states that he was informed of this consistent policy and practice and was advised that it would apply in his case.3

On September 11, 1967 Local Board No. 3 issued to Murray an order to report for induction into the armed forces on October 4, 1967. On October 16, 1967, the date to which his induction was postponed, Murray appeared at the induction station but refused to submit to induction into the armed forces. On or about January 24, 1968, Murray was indicted in the United States District Court for the District of Rhode Island for refusing to submit to induction. His case has not yet come to trial.

On the basis of these facts, Murray concludes he was expelled from the Peace Corps in violation of his First Amendment rights, for having published his views, and in violation of his Fifth Amendment rights to a hearing and notice prior to explusion as a matter of due process of the law, and in violation of his Sixth Amendment rights to confrontation of witnesses, cross-examination, and competent counsel to assist him at his expulsion proceedings. He argues further that but for his unconstitutional and illegal expulsion from the Peace Corps, he would have retained his II-A classification until the conclusion of his term of service in the Peace Corps, which would not have occurred until after his twenty-sixth birthday, and he would, therefore, not have been subject to criminal prosecution for refusal to submit to induction.

Accordingly, Murray seeks a declaration that his expulsion from the Peace Corps was unconstitutional, a mandatory injunction ordering the Peace Corps Director to cleanse his record and reinstate him in the Peace Corps, a mandatory order to Local Board No. 3 to reclassify him II-A as of June, 1967, and through January, 1968, and an order prohibiting the Attorney General and the United States Attorney from continuing to prosecute him criminally.

The government moves for dismissal on these various grounds: (1) as to all the defendants the court lacks jurisdiction under either 28 U.S.C. § 1331 or 28 U.S.C. § 1361; (2) even if jurisdiction is accepted generally, as to the Peace Corps (a) the court lacks power to order an officer of the executive branch to perform discretionary acts concerning the plaintiff (b) the Peace Corps did not infringe the constitutional rights of the plaintiff, as a matter of constitutional law; (3) even if jurisdiction is accepted generally, as to the Selective Service, 50 U.S.C. App. § 460 (b) (3) is a bar to the granting of injunctive relief at this stage; (4) even if jurisdiction is accepted generally, as to the criminal prosecution, equity forbids prohibitory relief.

28 U.S.C. § 1331

The thrust of the defendants' position as to § 1331 is that "* * * plaintiff could not possibly show a $10,000 amount in controversy" under § 1331, "because of the very limited allowances he would receive as a Peace Corps volunteer."4

Unquestionably, the problem of jurisdictional amount in federal court suits involving political or economic constitutional rights is one of current concern, especially in Selective Service cases. See e. g., Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), Wolff v. Selective Service Local Board No. 16, 372 F.2d 817, 826 and n. 7 (2nd Cir. 1967), Boyd v. Clark, 287 F.Supp. 561 (S.D.N.Y.1968), judgment affirmed, but jurisdictional amount question expressly left open, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 511 (Jan. 13, 1969), Armendariz v. Hershey, 295 F.Supp. 1351 (W.D.Texas Feb. 5, 1969).

However, there are several reasons why the defendants' arguments cannot be accepted. First, it is clear that, when an allegation of an amount in controversy in excess of $10,000 is made and controverted by the defense, the plaintiff has the opportunity to show that his claim is valid and the complaint cannot be dismissed unless it appears to a legal certainty that his claim is invalid. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283 at 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938). Here, the government would have this court value the plaintiff's loss by his loss of Peace Corps "benefits" between the date of his severance from the Peace Corps and the date he would have terminated in the normal course. Plaintiff's loss is, under plaintiff's theory, not nearly so miniscule. He claims that he stands to lose not just his job with the Peace Corps but his freedom to earn money for that period of time during which, subsequent to his Peace Corps service, he would have been free to teach music at the then going rate. His argument is that, but for the action of the Peace Corps, he would in January of 1968 have been free to teach rather than have been compelled either to enter the armed services or to refuse induction and go to jail. Cf. Gobitis v. Minersville School Dist., 24 F.Supp. 271 (E.D.Pa.1938). While plaintiff has not submitted precise amounts in support of his claim, it is clear that he is free to so do. Moreover, Fed.R.Civ.P. 12(d) permits this court to postpone such a specific showing until trial. Because the amount alleged to be in controversy by the plaintiff is so plainly dependent on his substantive claims, cf. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), the court hereby orders such a postponement. Accordingly, because it does not appear to a legal certainty that the amount is here lacking, the defendants' motion is in this respect denied. See especially Zigmond v. Selective Service Local Board No. 16, 284 F.Supp. 732 at 733 (D.Mass.1968). See also Kimball v. Selective Service Local Board No. 15, 283 F.Supp. 606 at 607 (S.D.N.Y.1968). Cf. Gobitis, supra.5

There is yet another, far more serious reason why the defendants' motion to dismiss for lack of jurisdictional amount should be denied. With respect to Count 1, the plaintiff is asserting a most serious constitutional claim. Both the Fifth Amendment and Article III, § 2 of the Constitution might well be abused if no avenue is opened for review by the courts of that claim. Specifically, if there is an arguably valid constitutional claim here, and if, as the government contends, neither 28 U.S.C. § 1361 mandamus nor 28 U.S.C. § 1331 general equity jurisdiction is available, how can the plaintiff seek to vindicate his rights? Certainly, the concurrent jurisdiction of the state courts is highly questionable in this context. See Comment: Draft Reclassification for Political Demonstrations — Jurisdictional Amounts in Suits Against Federal...

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