Piendak v. Local Board No. 5, Civ. A. No. 70-1064.

• Decision Date: 02 November 1970
• Docket Number: Civ. A. No. 70-1064.
• Citation: 318 F. Supp. 1393
• Parties: Dennis E. PIENDAK, Plaintiff, v. LOCAL BOARD NO. 5, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

318 F. Supp. 1393

Dennis E. PIENDAK, Plaintiff, v. LOCAL BOARD NO. 5, Defendant.

Civ. A. No. 70-1064.

United States District Court, W. D. Pennsylvania.

November 2, 1970.

Richard L. Rosenzweig, Rosenzweig & Rosenzweig, Pittsburgh, Pa., for plaintiff.

David M. Curry, Asst. U. S. Atty., Pittsburgh, Pa., for defendant.

OPINION

GOURLEY, District Judge:

In this action, a Selective Service registrant seeks pre-induction judicial review of the decision of his Local Board refusing to reopen his I-A classification after he had been issued an order to report for induction. Plaintiff desires the reopening in order to present to the Board a request for a II-A occupational deferment. It is contended that the failure of the Board to reopen plaintiff's classification after he allegedly presented a prima facie case of changed conditions entitling him to a reclassification constituted a deprivation of due process of law. The relief asked here is a declaration of the invalidity of the Board's order to plaintiff to report for induction, an injunction against plaintiff's induction and a directive that the Board reopen his classification.

The defendant filed a Motion to Dismiss the Complaint. A hearing has been conducted upon both the Motion to Dismiss and plaintiff's request for a preliminary injunction. Upon consideration of the pleadings, evidence adduced at the hearing, arguments of counsel and the applicable law, the Court concludes that the Motion to Dismiss should be denied and that the request for a preliminary injunction also should be denied.

The facts are largely undisputed. Plaintiff is registered with Local Board No. 5, New Britain, Connecticut. He is currently a resident of Pittsburgh, Pennsylvania. During the period from the fall of 1965 to the spring of 1969, in which plaintiff attended Bard College, he received II-S student deferments. In June of 1969, plaintiff advised his Local Board that he would be entering the graduate school of the University of Pittsburgh in the fall of that year to study urban management.

The Board re-classified plaintiff I-A on July 16, 1969. On August 19, 1969, plaintiff wrote a letter to the Board in which he stated that he would be in Pittsburgh "for the purpose of studying for a Master's Degree in Urban Management" and requested a personal appearance relative to his I-A classification. Plaintiff commenced full-time graduate study on September 4, 1969. On September 30, 1969, plaintiff also undertook a full-time job as Administrative Assistant to the Manager of the Borough of Monroeville, which job plaintiff maintained concurrently with his studies.

On October 10, 1969, Mrs. Celia Wierbicki, Executive Secretary of the Board, wrote plaintiff advising:

"Dear Sir:

Your presence is requested at the next meeting of Local Board No. 5, to be held on Wednesday, October 15th in Room 206, Post Office Building, 120 West Main St., New Britain, Conn.

We have scheduled your appointment for 8:30 p. m.

Yours very truly /s/ Celia Wierbicki (Mrs.) Celia Wierbicki Executive Secretary"

Attached to this letter was a typewritten note, also from Mrs. Wierbicki, stating:

Mr. Piendak:

Under present regulations, the President has seen fit to postpone the Induction of first year graduate students until the end of their academic year. If this is your purpose for the appearance, you can write this Board a note stating you will not appear because of distance and the new regulations set down by the President.

Mrs. Wierbicki."

Plaintiff responded to the aforequoted letter and note by a telephone call to Mrs. Wierbicki on October 13, 1969 wherein he stated that, inasmuch as first-year graduate students would have their inductions postponed by Presidential order, he would not appear for the hearing scheduled for October 15, 1969. He confirmed this intention in a letter to the Board of the same date:

"Gentlemen:

Thank you for your letter of October 10, 1969 notifying me to appear before you on Wednesday, October 15 at 8:30 P.M.

My original request for an appearance was to discuss my present status as a full-time graduate student. However, it has recently come to my attention that the President has changed present regulations, thereby allowing graduate students to finish their academic year. For this reason, and that of distance from New Britain, I will not appear on October 15.

Thank you for your consideration. Sincerely yours Dennis E. Piendak"

In neither the telephone conversation nor the letter did plaintiff mention that, in addition to being a full-time graduate student, he had also undertaken a full-time job as Administrative Assistant to the Manager of the Borough of Monroeville.

On November 21, 1969, the Board issued an order for plaintiff to report for induction on December 4, 1969. The order was accompanied by a typewritten note from Mrs. Wierbicki requesting that plaintiff submit to the Board a letter requesting the postponement of induction until the end of his academic year at graduate school. Plaintiff submitted such a request on November 28, 1969 and, on December 9, 1969, the Board notified defendant that his induction would be postponed until September of 1970.

On March 16, 1970, plaintiff wrote the Board an extended letter in which he advised that he had been appointed Administrative Assistant to the Manager of the Borough of Monroeville on September 30, 1969 and requested a personal appearance before the Board to support his request for a II-A occupational deferment. Enclosed were two letters from the Borough Manager and President of the Allegheny County Boroughs Association, both supportive of plaintiff's assertion that he was engaged in an occupation necessary to the maintenance of the national health, safety, and interest.

Upon receipt of the request for a reopening of plaintiff's classification, the Board asked the President of the Allegheny County Boroughs Association for further information as to the number of hours plaintiff worked and his salary. An answer was not immediately forthcoming, and, before receipt of the answer, the Board voted on June 17, 1970 not to reopen plaintiff's classification. The reply later was received by the Board, as was also a demand from plaintiff's counsel that he be afforded a personal appearance. The Board again voted on July 15, 1970 not to reopen plaintiff's classification. On August 28, 1970, plaintiff was directed to report for induction on September 30, 1970.

The initial matter for determination is defendant's Motion to Dismiss, which raises issues of insufficient service of process, lack of subject-matter jurisdiction, and failure to state a claim upon which relief can be granted. Although plaintiff has properly served the named defendant, an agency of the United States, under Rule 4(d) (5) of the Federal Rules of Civil Procedure, he has not met the additional requirements of Rule 4(d) (4) and (5), that copies of the Summons and Complaint also be served upon the United States Attorney and Attorney General of the United States. As it happened, however, a member of the office of the United States Attorney was present in the courtroom when plaintiff first requested a temporary restraining order, and the United States Attorney has vigorously represented the United States and the particular agency involved throughout the ensuing proceedings. It would appear that adequate notice of the suit has been afforded to the United States, and no prejudice has been asserted or is perceived to have resulted either to the United States or the agency involved. Accordingly, this ground for the Motion is rejected.

Defendant also asserts lack of subject matter jurisdiction, relying in particular upon Section 10(b) (3) of the Military Selective Service Act of 1967, 50 U.S.C. App. Section 460(b) (3). That provision states in pertinent 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 instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form. * * *"

In the recent case of Bucher v. Selective Service System, Local Boards Nos. 2, etc., 421 F.2d 24 (3d Cir.1970), the Third Circuit Court of Appeals had occasion to consider the scope of Section 10(b) (3) as a bar to pre-induction judicial review. Determining that Section 10(b) (3) did not prohibit pre-induction review to registrants whose local boards denied them statutorily mandated ministerial exemptions by applying invalid delinquency regulations against them, the Court of Appeals stated at p. 27:

"Section 10(b) (3) does not bar pre-induction judicial review where, as here, the validity of the Selective Service System's delinquency reclassification procedures is challenged on the grounds that they lack statutory authorization, and/or violate constitutional rights. The Section bars pre-induction judicial review only where there is a challenge to the System's resolution of factual questions in the classification or processing of a draft registrant. There is here no such challenge." (Emphasis supplied.)

In the instant case, plaintiff does not challenge the resolution of any factual questions by the Board. Rather, he contends that the failure of the Board to reopen his classification after he allegedly had established a prima facie case of changed conditions entitling him to a reclassification constituted a denial of procedural due process. Pre-induction review of such a contention is not barred by Section 10(b) (3), and subject-matter jurisdiction therefore exists.

Dismissal is also sought on the ground that plaintiff has failed to state a claim upon which relief can be granted. Plaintiff alleges that he presented the Board with a prima facie case of changed conditions...