Porter v. Richardson

• Decision Date: 23 August 1973
• Docket Number: No. 71-2976.,71-2976.
• Citation: 483 F.2d 1338
• Parties: Oscar Dale PORTER, Plaintiff-Appellant, v. Elliot L. RICHARDSON, Attorney General of the United States, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

483 F.2d 1338 (1973)

Oscar Dale PORTER, Plaintiff-Appellant, v. Elliot L. RICHARDSON, Attorney General of the United States, et al., Defendants-Appellees.

No. 71-2976.

United States Court of Appeals, Ninth Circuit.

August 23, 1973.

Larry J. Richmond (argued), Phoenix, Ariz., for plaintiff-appellant.

William D. Appler, Silver Spring, Md. (argued), L. Patrick Gray, III, Asst. Atty. Gen., Dept. of Justice, Washington, D.C., William C. Smitherman, U. S. Atty., Phoenix, Ariz., Morton Hollander, Dept. of Justice, Washington, D.C., for defendants-appellees.

Before MERRILL, ELY and WRIGHT, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

The issue here is whether the district court was correct in holding that preinduction judicial review of a local Selective Service board's refusal to issue appellant a fatherhood deferment was prohibited by § 10(b) (3) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 460(b) (3).¹ If the district court was correct, and § 10(b) (3) deprived it of jurisdiction at this time, then Porter must wait and challenge the board's action either by habeas corpus or by defense to criminal proceedings against him.

Porter was classified I-A by his local board on June 9, 1967. After becoming a full time student in the fall of 1967, Porter requested on January 26, 1968, that he be classified II-S, and on March 8, 1968 he received such classification from his local board. Then, on May 3, 1968, Porter notified his local board that his wife was pregnant² and requested a III-A fatherhood deferment. The local board denied Porter the fatherhood deferment on the ground that he was ineligible for such a classification having been classified II-S subsequent to June 30, 1967.³

Appellant's student deferment continued until April 1969, when he was reclassified I-A. He was ordered inducted on July 6, 1970, but he refused to report.

Prior to any criminal proceedings being brought against him, appellant brought this action for declaratory and injunctive relief. The government responded, and the district court so held, that the district court was without subject matter jurisdiction to entertain the action since preinduction judicial review of appellant's claim was barred by § 10(b)(3).

We are again confronted with the most difficult task of attempting to determine the extent to which an enactment of Congress, § 10(b) (3), deprives Article III courts of jurisdiction otherwise conferred upon them by 28 U.S.C. § 1331. Any consideration of the parameters of the withheld jurisdiction must acknowledge the congressional concern, expressed in § 10(b) (3), over preventing "litigious delay in the process of raising an army." Shea v. Mitchell, 137 U.S. App.D.C. 227, 421 F.2d 1162, 1165 (1970).

The Supreme Court has consistently recognized, however, that § 10(b) (3) does not strip Article III courts of jurisdiction of all preinduction suits. Oestereich v. Selective Service System, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968); Breen v. Selective Service Local Board, 396 U.S. 460, 90 S.Ct. 661, 24 L. Ed.2d 653 (1970). In its most recent interpretation of § 10(b) (3), the Court declared:

Thus previous cases interpreting § 10(b) (3) together establish the principles (a) that § 10(b) (3) does not foreclose pre-induction judicial review in that rather rare instance where administrative action, based on reasons unrelated to the merits of the claim to exemption or deferment, deprives the registrant of the classification to which, otherwise and concededly, he is entitled by statute, and (b) that § 10(b) (3) does foreclose pre-induction judicial review in the more common situation where the board, authoritatively, has used its discretion and judgment in determining facts and in arriving at a classification for the registrant. Fein v. Selective Service System, 405 U.S. 365, 374-375, 92 S.Ct. 1062, 1069, 31 L.Ed.2d 298 (1972).

We read Fein and its predecessors, as interpreting § 10(b) (3) as barring preinduction judicial review in all but those rare cases where the action of the Selective Service System deprives the registrant of a classification to which he is entitled by statute.⁴ In only two cases has the Court found § 10(b) (3) not to bar preinduction review. In Oestereich v. Selective Service System, supra, the registrant had been classified IV-D in accordance with § 6(g) of the Selective Service Act when he turned in his registration certificate as a protest against the Vietnam war. Applying the regulations then in effect, the local board declared Oestereich delinquent and reclassified him I-A.

The Court held that § 10(b) (3) was no bar to preinduction review, relying upon the fact that Oestereich concededly was entitled to a statutorily mandated ministerial exemption if the delinquency regulations which were being used to deprive him of his exemption were invalid. As the Court stated: "when Congress has granted an exemption and a registrant meets its terms and conditions, a Board cannot nonetheless withhold it from him for activities or conduct not material to the grant or withdrawal of the exemption." Oestereich, supra, 393 U.S. at 237, 89 S.Ct. at 416.

Similarily, in Breen v. Selective Service Local Board, supra, the Court found § 10(b) (3) no bar to judicial review where the local board applied the delinquency regulation to deny the registrant a student deferment to which he otherwise was concededly entitled. In Breen, just as in Oestereich, "the order for induction involved a `clear departure by the Board from its statutory mandate,'". (Emphasis supplied.) Breen, supra, 396 U.S. at 467, 90 S.Ct. at 666.

Thus in Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968), the Court held that § 10(b) (3) barred preinduction judicial review. Oestereich was distinguished as involving a statutory entitlement to exemption, whereas in Gabriel there was "no doubt of the Board's statutory authority to take action which appellee challenges. . . ." Id. at 258, 89 S.Ct. at 426. See also Boyd v. Clark, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 511 (1969).

We conclude that a board's classification action is not subject to preinduction review as long as the board is acting within the scope of its statutory authority. Our inquiry then, should be to "pierce the pleadings and preview the merits" in order to determine whether Porter's claim is grounded in the statute, or whether he is solely objecting to the board's interpretation of regulations which are not statutorily infirm. See Crowley v. Pierce, 461 F.2d 614, 618 (5th Cir. 1972) (Brown, concurring).

Porter's contention is that, at the moment his wife conceived their child, he was entitled to a III-A deferment under 32 C.F.R. § 1622.30(a):

"In Class III-A shall be placed any registrant who has a child defined as in esse from the date of conception . . ."

Porter claims that his right to the III-A classification was indefeasible and survives his having been granted a II-S deferment, the following portion of § 1622.30(a) to the contrary:

". . . except that a registrant who is classified in Class II-S after June 30, 1967 shall not be eligible."

Porter does not claim that under the statute he was entitled to a III-A deferment at the date of his wife's conception, nor could he, for the III-A deferment has been established by regulation, under the following statutory authority:

". . . the President is also authorized, under such rules and regulations as he may prescribe, to provide for the deferment . . . of any or all categories of persons who have children, or wives and children, with whom they maintain a bona fide family relationship in their homes." 50 U.S.C.App. § 456(h) (2).

Pursuant to this broad statutory directive, the President established the III-A classification, with the proviso that it is not available to anyone who has received a II-S deferment after June 30, 1967. Porter contends that the terms "shall be entitled" of the applicable regulation indicates that if his wife became pregnant prior to March 8, 1968, the date he received his II-S classification, then he was entitled to a III-A deferment, the intervening II-S classification notwithstanding.

Porter's local board interpreted the regulation differently. As they read it, once Porter was issued a II-S classification, he was no longer eligible for a III-A, no matter when his wife became pregnant.

Without passing on the merits of Porter's interpretation, it must be conceded that the board's interpretation is a reasonable reading of the regulation. Porter, however, would have us choose his interpretation, on the grounds that it would more closely approximate the Congressional purpose found in 50 U.S.C. App. § 456(h) (1):

"No person who has received a student deferment . . . shall thereafter be granted a III-A deferment. . . ."

It is accepted that the purpose of this statutory language was to preclude the "pyramiding" of deferments into complete exemption from military service. See Gregory v. Tarr, 436 F.2d 513 (6th Cir. 1971). Porter argues that since his wife was already pregnant at the time he received the II-S classification, and since he was, under the regulations, entitled to a III-A deferment at that time, no pyramiding of deferments was involved in his case, and we would be nearer to the Congressional purpose of § 456(h) (1) were we to interpret the regulation as he desires.

We are faced, however, with the fact that Congress gave the President a broad statutory directive to establish regulations dealing with deferments for men with children. Pursuant to that discretionary authority, Reg. 1622.30(a) was adopted. Since we cannot say that the board's interpretation deprives Porter of an exemption or deferment to which he is "entitled by statute," and since the board's interpretation is reasonable, we must conclude that § 10(b) (3) applies. To hold otherwise would totally nullify the clearly expressed Congressional purpose to limit judicial interference with Selective Service...