Naskiewicz v. Lawver, 566

• Decision Date: 18 February 1972
• Docket Number: Docket 71-2194.,No. 566,566
• Citation: 456 F.2d 1166
• Parties: John L. NASKIEWICZ, Jr., Plaintiff-Appellant, v. Howard LAWVER, Chairman, and Selective Service Local Board No. 61, Cayuga County, New York, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

456 F.2d 1166 (1972)

John L. NASKIEWICZ, Jr., Plaintiff-Appellant, v. Howard LAWVER, Chairman, and Selective Service Local Board No. 61, Cayuga County, New York, Defendants-Appellees.

No. 566, Docket 71-2194.

United States Court of Appeals, Second Circuit.

Argued February 3, 1972.

Decided February 18, 1972.

Louis P. Contiguglia, Auburn, N.Y. (George J. Shamon, Auburn, N.Y., on the brief), for plaintiff-appellant.

Eugene Welch, Asst. U.S. Atty., N.D.N.Y. (James M. Sullivan, Jr., U.S. Atty., N.D.N.Y., on the brief), for defendants-appellees.

Before ANDERSON and OAKES, Circuit Judges, and CLARIE, District Judge.^*

ROBERT P. ANDERSON, Circuit Judge:

John Naskiewicz, a registrant of Local Board No. 61, Cayuga County, New York, was ordered to appear at the Syracuse Armed Forces Entrance Examining Station (AFEES) on January 25, 1971, for a preinduction physical examination. He appeared and presented documentation from two private ophthalmologists in support of his claim that he was suffering from an eye condition which rendered him unacceptable for military service. After the induction physical, which included a visual acuity test but no medical examination of his eyes, his status for military service was listed as "undetermined." Naskiewicz was thereafter ordered to appear at the Syracuse AFEES for a recall examination on March 15, 1971, and this time, although his eyes were still not examined by a physician, he was found medically acceptable for military service.

After repeated requests to both the local and state boards for an ophthalmological examination, Naskiewicz was ordered by his local board to appear for another physical examination at the AFEES in Cleveland, Ohio, the area in which he was and is currently employed. On August 7, 1971, Dr. Siegel, an ophthalmologist designated by the Cleveland AFEES, examined Naskiewicz and made a diagnosis which confirmed the findings of the registrant's private doctors. Based upon this information, Dr. Mitchell of the Cleveland AFEES found that Naskiewicz was not medically qualified for induction.

The registrant's medical file was returned to the Syracuse AFEES where a Dr. Campbell reconsidered it and decided that Dr. Siegel and Dr. Mitchell might have been wrong. After discussing the file with the Syracuse AFEES ophthalmological consultant, Dr. Oberlander, who had made no actual examination, Dr. Campbell recommended to the United States Army Recruiting Command (USAREC) that Naskiewicz be found medically qualified. Dr. Campbell's recommendation was approved by USAREC,¹ and the registrant was ordered by the local board to report for induction on November 6, 1971. Naskiewicz petitioned the district court for injunctive relief. The court dismissed the action on November 8, 1971 for lack of jurisdiction but it stayed induction pending this appeal.

Because the Selective Service violated one of its own regulations, we hold that there was proper jurisdiction in the district court and the case is remanded with instructions.

Consideration must first be given to the jurisdictional issue. Although Congress has prohibited preinduction judicial review of Selective Service orders,² the Supreme Court in Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 237, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), fashioned a limited exception to the statute in cases where the local board has acted in a "basically lawless" manner. It held that preinduction relief was available where a local board had classified as 1-A a registrant who had a clear statutory right to a ministerial exemption, because the board had made an arbitrary departure from the statutory mandate and was not engaged in any discretionary action, Oestereich, supra, at 238, 89 S.Ct. 414, see also, Clark v. Gabriel, 393 U.S. 256, 258, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968); Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 467, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970). In Carey v. Local Board No. 2, 412 F.2d 71, 72 (2 Cir.1969), this court interpreted Oestereich to mean that a registrant has the right to preinduction relief when "he has shown that he has a clear statutory right to his deferment involving no discretion on the part of the local board...."

The Selective Service System, however, must adhere not only to the statutes, but also to its own regulations, even when it is making a discretionary decision, United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267, 74 S.Ct. 499, 98 L.Ed. 681 (1954); see also Service v. Dulles, 354 U.S. 363, 372, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957), and this court has often taken postinduction jurisdiction to order the armed forces to obey their regulations developed for the protection of servicemen, United States ex rel. Donham v. Resor, 436 F.2d 751 (2 Cir.1971); Feliciano v. Laird, 426 F.2d 424 (2 Cir.1970); Smith v. Resor, 406 F.2d 141 (2 Cir.1969); Hammond v. Lenfest, 398 F.2d 705 (2 Cir.1968); see also, Cortright v. Resor, 447 F.2d 245, 251 (2 Cir.1971).

Therefore, the Oestereich exception to the general denial of preinduction judicial review should apply to those cases where a registrant has been denied the benefits of Selective Service regulations enacted for his benefit.³

Naskiewicz argues on this appeal that the determination that he is physically qualified for induction is invalid both because the Selective Service procedures were not followed and because there was no basis in fact for such a conclusion.⁴ He contends that his examination by Dr. Siegel and the Cleveland AFEES was a physical examination as described by Selective Service regulations, 32 C.F.R. §§ 1628.10-1628.25, and that the determination of disqualification by the Cleveland AFEES was final. The local board replies that the Cleveland examination was simply a consultation under the provisions of Local Board Memorandum # 121 (issued June 25, 1971), and that the USAREC decision of qualification is the final one.

Although there is room for disagreement concerning the type of examination conducted in Cleveland,⁵ the most reasonable view is that it was a part of the medical reevaluation and review provided for registrants by Memorandum # 121 after they have already had a physical examination and a determination of medical...