Reynolds v. Dukakis, Civ. A. No. 75-5109-J.

• Decision Date: 09 November 1977
• Docket Number: Civ. A. No. 75-5109-J.
• Citation: 441 F. Supp. 646
• Parties: David V. REYNOLDS, Plaintiff, v. Michael DUKAKIS et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

441 F. Supp. 646

David V. REYNOLDS, Plaintiff, v. Michael DUKAKIS et al., Defendants.

Civ. A. No. 75-5109-J.

United States District Court, D. Massachusetts.

November 9, 1977.

COPYRIGHT MATERIAL OMITTED

Harry L. Miles, Amherst, Mass., for plaintiff.

Thomas R. Kiley, Asst. Atty. Gen., Boston, Mass., for defendants.

OPINION

CAFFREY, Chief Judge.

This is a civil action brought for the purpose of obtaining a judicial declaration that certain sections of the laws of the Commonwealth of Massachusetts, particularly Massachusetts General Laws, Chapter 4, Section 7(43), violate rights secured to plaintiff under the First, Fifth and Fourteenth Amendments to the United States Constitution. Jurisdiction of this Court is invoked under 28 U.S.C. §§ 1331, 1343, 42 U.S.C. § 1983 and 10 U.S.C. §§ 1162 and 1163. Plaintiff also seeks a declaration that this action should proceed as a class action on behalf of a class of persons, male or female, whose last discharge or release from service during the Vietnam war was under honorable conditions, who served in the Army, Navy, Coast Guard or Air Force of the United States for not less than ninety days active service, at least one day of which was for wartime service, as defined in Mass.Gen.Laws c. 4, § 7(43), and who was designated as a conscientious objector upon his or her discharge or release from the armed forces.

The respondents are the Governor of the Commonwealth, the Adjutant General of the Commonwealth, the Military Archivist of the Commonwealth and the Chancellor of the Board of Higher Education.

Plaintiff seeks a Court order to the effect: (1) that Mass.Gen.Laws c. 4, § 7(43), is facially violative of the First, Fifth and Fourteenth Amendments; (2) that he and the members of the class he purports to represent be classified as veterans under the laws of the Commonwealth; (3) that respondents be enjoined from failing to certify plaintiff or any member of his class as veterans upon request; and (4) that plaintiff recover attorneys fees and costs.

On the basis of plaintiff's application therefor, a statutory three-judge Court was convened pursuant to 28 U.S.C. § 2281, et seq. The matter came before the three-judge Court on the basis of defendants' motion to dismiss and defendants' motion for a ruling that a class action is unwarranted herein. The matter has been briefed and orally argued by the parties.

There appears to be no factual dispute between the parties herein and the following facts are taken by this Court as being true for the purpose of this ruling.

David Reynolds is a United States citizen who resides in the town of Montague, Massachusetts. He entered on active duty at the Coast Guard Officer Candidate School in Yorktown, Virginia, on February 9, 1969. He received a commission as a Coast Guard ensign in June of that year at which time he agreed to serve on active duty for five years.

Mr. Reynolds served approximately three years and nine months as an operational helicopter pilot, and on September 9, 1972 he applied to the Commandant of the Coast Guard, through channels, for a discharge as a conscientious objector. He performed all assigned duties, both before and after filing the application, but was assigned only noncombatant duties after so doing.

On June 1, 1973, after serving almost four and a half years in an active duty status, he was granted an honorable discharge as a conscientious objector. He then returned to his residence in Massachusetts, where he sought to further his undergraduate education at the University of Massachusetts at Amherst, where he was accepted as a candidate for a degree of Master of Science in marine biology. He applied to the Military Division, Adjutant General's Office, War Records Section, for a certification that he was a Vietnam veteran, in order to obtain a tuition waiver from the University of Massachusetts under the provisions of Chapter 601 of the Acts of 1966 as amended by Chapter 480 of the Acts of 1968 and Chapter 654 of the Acts of 1973. In September of 1973 he also applied for, and received, educational benefits provided by the federal government to Vietnam veterans under the Veterans Readjustment Benefits Act of 1966, 38 U.S.C. §§ 1651-1687.

On September 26, 1973, despite qualifying for federal benefits, Mr. Reynolds received a letter from Robert E. Feeney, Military Archivist of the Commonwealth, advising him that the Adjutant General's Office could not certify him as a veteran because of the provisions of Mass.Gen.Laws c. 4, § 7(43) (1976), which provides in pertinent part "Any person who was designated as a conscientious objector upon his last discharge or release from the armed forces of the United States" shall not be deemed a "veteran" under Massachusetts law. Mr. Feeney's letter also advised plaintiff that he did not meet the eligibility requirements for the tuition exemption requirements under the Massachusetts statute, although the final decision as to the exemption was to be made by the State Department of Education.

The University of Massachusetts billed plaintiff $350 for tuition for the semester beginning in the Fall of 1973, and on April 12, 1974 the University of Massachusetts threatened to dismiss plaintiff because of his failure to pay tuition. On November 1, 1975 he withdrew from the University of Massachusetts and took a job as a saw mill operator. Subsequent to filing of the complaint herein, plaintiff was severely injured during August of 1976 when the force of the winds of Hurricane Belle toppled a tree which in turn caused him to suffer a crushed vertebra, fractured skull and other injuries. The complaint has not been amended to allege that his failure to apply for medical benefits as a veteran was based on the prior ruling that he could not qualify as such under the provisions of Mass.Gen. Laws c. 4, § 7(43).

The gravamen of plaintiff's complaint is that the application to him of the provisions of Mass.Gen.Laws c. 4, § 7(43), denies him a number of those benefits which are available only to persons certified as veterans under that statute. As a consequence he argues that, because of his religious beliefs as a conscientious objector, he is being deprived of a property interest in violation of his First Amendment rights and also in violation of his Fifth Amendment right to due process. He further alleges that he is being deprived of equal protection rights because of an unconstitutional classification. It should be noted that the allegations of the complaint raise an issue only as to the denial of educational rights as a veteran. There is no allegation that plaintiff has applied for and has been denied any other rights available to veterans.

Defendants' motion to dismiss is premised on the grounds that this three-judge Court lacks subject matter jurisdiction and that the complaint fails to state a claim upon which relief may be granted.

We rule that, since plaintiff is seeking injunctive relief against the enforcement of a state statute which he alleges to be unconstitutional, this case was properly referred to a statutory three-judge District Court, and we further rule that this Court does have subject matter jurisdiction on the basis of 28 U.S.C. § 1331 — federal question jurisdiction — and also on the basis of 28 U.S.C. § 1343 — this case being a civil rights action alleged to arise under 42 U.S.C. § 1983.

We note first that, in view of the allegations of the complaint, plaintiff does not have to establish that the instant case involves a sum in excess of $10,000, and we also note that plaintiff's alleged failure to petition under the Vietnam Veterans Tuition Exemption Program is not the type of failure to exhaust administrative remedies which would oust this Court of jurisdiction. See Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Ricciotti v. Warwick School Comm., 319 F.Supp. 1006 (D.R.I.1970).

We next rule that the named defendants are properly before the Court because of their several official positions. The Adjutant General and the Military Archivist are officials charged with the administrative responsibility for executing the Veterans Benefits Program, including certifying or refusing to certify persons claiming to be veterans. The Governor is properly named because he is the chief military officer of the Commonwealth, and, as such, is responsible for the certifications or denials made by the Adjutant General and the Military Archivist. The Chancellor of the Board of Higher Education is a proper party because his action is predicated, in part at least, on certifications provided to him under the legislative scheme, and he has administrative responsibility for acting pursuant to the allegedly unconstitutional statute. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968).

With regard to plaintiff's motion that this case be declared a class action, we note that it was opposed by defendants who represent that defendants know of only nine persons in plaintiff's position who could be considered potential class members. Plaintiff has not challenged the accuracy of defendants' figure although he has had an ample opportunity to do so, if defendants' figure is statistically incorrect or otherwise deficient or inaccurate. Accordingly, we rule that plaintiff has failed to establish the existence in fact of a class "so numerous that joinder of all members is impractical," and, thus, that plaintiff has failed to comply with the requirements of Rule 23(a)(1) of the Federal Rules of Civil Procedure. It was plaintiff's burden to establish compliance with Rule 23. Senter v. General Motors Corp., 532 F.2d 511, 520 (6th Cir. 1976); Jones v. Diamond, 519 F.2d 1090, 1099 (5th Cir. 1975); Demarco v. Edens, 390 F.2d 836, 845 (2d Cir. 1968); 3B Moore's Federal Practice ¶ 23.02-2. In view of our...