Olar v. Tarr, 71 C 1666.
| Decision Date | 12 January 1972 |
| Docket Number | No. 71 C 1666.,71 C 1666. |
| Citation | 336 F. Supp. 1044 |
| Parties | Ruby OLAR et al., Plaintiffs, v. Curtis W. TARR, Director of Selective Service, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
William J. Stevens, George C. Pontikes, Chicago, Ill., for plaintiffs.
William J. Bauer, U. S. Atty., T. T. Scudder, Asst. U. S. Atty., for defendants.
This is a purported class action seeking pre-induction review of the validity of induction orders postponed past the expiration date of induction authority under the Military Selective Service Act of 1967, 50 App. U.S.C. § 451 et seq. the Act.
The case now comes before the Court on plaintiffs' motion pursuant to Rule 23(c) of the Federal Rules of Civil Procedure, requesting this Court: (1) to define the class of plaintiffs; (2) to enter an order directing them to show cause why this action should not be maintained as a class action, why they should not be permitted to intervene, and why they should not be included in the defined class; and (3) to enter an order approving the proposed notice and method of service.
The named plaintiffs, Selective Service registrants, have brought this action against certain Selective Service officials on behalf of themselves and all other Selective Service registrants similarly situated, alleging that their orders to report for induction were invalidated by Section 17(c) of the Act, 50 App. U.S.C. § 467(c), when their reporting dates were postponed beyond July 1, 1971. The plaintiffs seek a judgment declaring these induction orders to be void and an order in the nature of mandamus directing the defendants to cancel them. Jurisdiction is alleged to be founded on 28 U.S.C. §§ 1331, 1361, 2201, and 2202. The plaintiffs, citing Oestereich v. Selective Service System, Local Board 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed. 2d 402 (1968) and Breen v. Selective Service, Local Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970), also contend that Section 10(b) (3) of the Act, 50 App. U.S.C. § 460(b) (3), does not bar the preinduction review they seek.
The defendants oppose this motion and contend not only that this action is barred by Section 10(b) (3), but also that a class action is not proper considering the few who could gain any significant benefit as against the expense, the disruption of the Selective Service System and the many who could suffer delays of induction.
Section 10(b) (3) of the Act provides in pertinent part that:
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 instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction * * *. 50 App. U.S.C. § 460(b) (3).
While this prohibition appears absolute on its face, the Supreme Court has carved judicial exceptions in Oestereich and Breen to allow preinduction judicial review under limited circumstances.
In Oestereich, supra, the petitioner was a theology student entitled under § 6(g) of the Act (50 App. U.S.C. § 456(g)), to a statutory exemption from training and service, and who was therefore classified IV-D. After he returned his registration certificate to the Government in order to protest the Viet Nam war, his local board reclassified him I-A and subsequently ordered him for induction under Selective Service System regulations authorizing the Board to declare him "delinquent" for failure to have his registration certificate in his personal possession. Petitioner sought pre-induction review contesting the validity of the delinquency procedure, but the district court dismissed his suit and the Court of Appeals for the Tenth Circuit affirmed per curiam. The Supreme Court reversed, finding that there was no authorization for the revocation of statutory exemptions by means of delinquency classifications. The Court stated that Section 10(b) (3) did not bar jurisdiction since:
Breen, supra, also involved a petitioner who was reclassified, from II-S to I-A, as a result of his returning his registration certificate to the Government and his being found a "delinquent." After finding that the statutory deferment involved was mandatory, the Court stated that:
We are consequently unable to distinguish this case from Oestereich. In both situations a draft registrant who was required by the relevant law not to be inducted was in fact ordered to report for military service. In both cases the order for induction involved a "clear departure by the Board from its statutory mandate," Oestereich, supra at 238, 89 S.Ct. 416 * * *. Breen, supra, 396 U.S. 467, 90 S.Ct. 666.
Under the plaintiffs' interpretation of Oestereich and Breen, if the complaint presents solely a question of law the court has jurisdiction regardless of the outcome on the merits of the claim. This Court does not agree. As Judge Will of this District stated in Avery v. Tarr, (N.D.Ill. 11/22/71, No. 71 C 2707, slip 3-4):
When the issue presented by a registrant seeking to void his induction order prior to induction is purely legal, it is impossible to determine if the Court has jurisdiction until it resolves the legal issue. The jurisdictional issue, thus, must be postponed until the court determines whether there exists the statutory mandate which is asserted and whether it has been breached. Gregory v. Tarr, 436 F.2d 513, 515-16 (6th Cir. 1971); Stella v. Selective Service, 427 F.2d 887, 889 (2nd Cir. 1970). If the statutory mandate is clear and it has been breached, the Court has jurisdiction; if the mandate does not exist or it has not been breached, the Court lacks jurisdiction over the claim.
Therefore, this Court must determine whether Section 17(c) requires that the Selective Service System cancel induction orders issued and outstanding on July 1, 1971, as the plaintiffs contend.
Section 17(c) provides that:
Notwithstanding any other provision of this title, no person shall be inducted for training and service in the Armed Forces after July 1, 1971, except persons now or hereafter deferred under section 6 of this title after the basis for such deferment ceases to exist.
This section purports to deal with two types of registrants, those who have been deferred and those who have not been deferred.
The Court will deal first with the application of Section 17(c) as to registrants who have not been deferred. As to those registrants, the section appears to be an absolute statutory mandate preventing their induction, and in fact, that was the intention of the House of Representatives when it added the basic language of Section 17(c) to the Act in 1951. H.R.Rep. No. 271, 82nd Cong. 1st Sess. 37 (1951), U.S.Code Cong. & Admin.Serv. 1951, p. 1472. The defendants, however, contend that Section 17(c) neither prevents the induction of these registrants nor requires that their induction orders be cancelled. They contend in the alternative: (1) that the plaintiffs' original induction orders create a continuing obligation on the registrants to report for induction even though the authority to induct terminated July 1, 1971; and (2) that the issuance of an induction order is only one step in the induction process which ends in actual induction, and since Section 17(c) prohibits only the actual induction, it does not require cancellation of the postponed orders.
In support of their first contention the defendants cite a number of cases1 as well as Section 4(a) of the Act, 50 App. U.S.C. § 454(a) which provides in pertinent part that:
Notwithstanding any other provision of law, any registrant who has failed or refused to report for induction shall continue to remain liable for induction and when available shall be immediately inducted * * *.
Although the cited cases deal with the continuing duty to report, neither they nor Section 4(a) deal with the right of the Selective Service System to induct registrants who have not been deferred after its power to induct them has terminated. In unambiguous language Section 17(c) provides that induction authority as to these registrants terminated on July 1, 1971 and this was the intent of its drafters. Therefore, the defendants' first contention is clearly untenable.
The second contention, although more compelling, is also rejected by this Court. In the case of Falbo v. United States, 320 U.S. 549, 552-553, 64 S.Ct. 346, 347, 88 L.Ed. 305 (1944), cited by the defendants, the Supreme Court stated that:
While this Court agrees that the normal steps of processing a registrant such as registration, classification and physical examinations, are not barred by Section 17(c), it is loathe to agree that a registrant can be ordered to report for induction when there exists no authority to actually induct him. These two steps of the induction process are so closely intertwined and interrelated that the authority to execute both steps must exist before either can be carried out. Therefore, since the authority to induct terminated on July 1, 1971, the clear...
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United States v. Case, 23655-4.
...deferred person prior to July 1, 1971 continued in effect subsequent to that date unless otherwise cancelled. See: Olar v. Tarr, 336 F.Supp. 1044 (N.D.Ill.1972). It is clear that the defendant in the instant case falls under the exception in Section 467(c). Defendant's Selective Service fil......
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United States v. Dolinger, 73 Cr. 390.
...12, 1967 and from March 9, 1967 to May 8, 1967. 7 See United States v. Case, 344 F.Supp. 169, 175 (W.D.Mo.1972); Olar v. Tarr, 336 F.Supp. 1044, 1049 (N.D.Ill.1972); Gruneich v. Tarr, 336 F.Supp. 1147 (N.D.Cal.1971); United States v. Jones, 336 F.Supp. 878 (N. 8 The defendant points out tha......