Robison v. Johnson, Civ. A. No. 72-434-G.

• Decision Date: 04 January 1973
• Docket Number: Civ. A. No. 72-434-G.
• Citation: 352 F. Supp. 848
• Parties: William Robert ROBISON, on behalf of himself and all others similarly situated, Plaintiff, v. Donald E. JOHNSON, Administrator of Veterans' Affairs; and Veterans Administration of the United States, Defendants.
• Court: U.S. District Court — District of Massachusetts

352 F. Supp. 848

William Robert ROBISON, on behalf of himself and all others similarly situated, Plaintiff, v. Donald E. JOHNSON, Administrator of Veterans' Affairs; and Veterans Administration of the United States, Defendants.

Civ. A. No. 72-434-G.

United States District Court, D. Massachusetts.

January 4, 1973.

COPYRIGHT MATERIAL OMITTED

Matthew Feinberg, Civil Liberties Union, Boston, Mass., David Rosenberg, Charles R. Nesson, Harvard Law School, Cambridge, Mass., for plaintiff.

William Brown, Asst. U. S. Atty., for defendants.

OPINION

GARRITY, District Judge.

Plaintiff Robison seeks a declaratory judgment, on behalf of himself and all others similarly situated, that the system of veterans' educational benefits provided in 38 U.S.C. §§ 101(21), 1652(a)(1) and 1661(a), as amended, violates the First and Fifth Amendments to the Constitution of the United States. Plaintiff also seeks a declaratory judgment that he and the members of his class are eligible to receive such educational benefits. Defendants are the Administrator of Veterans' Affairs and the Veterans Administration. The court has before it plaintiff's motion for summary judgment and defendants' motion to dismiss.¹ Upon consideration of these motions, and the memoranda of the parties, and after a consolidated hearing, plaintiff's motion for summary judgment is granted as to both the declaration of unconstitutionality and the declaration of eligibility. The defendants' motion to dismiss is correspondingly denied.

The court also rules that certification of a class, pursuant to Fed.R.Civ.P. 23, is warranted, the class to include all those selective service registrants who have completed 180 days of "alternate service" pursuant to 50 U.S.C. App. § 456(j), and who have either (1) satisfactorily completed two years of such service or (2) been released therefrom for medical or other reason after 180 days of such service.

Plaintiff is a selective service registrant who in 1966 applied to his local board in Fairfax, Virginia, for classification as a conscientious objector to any type of military service. After a personal appearance, plaintiff was accorded conscientious objector (1-O) status and, pursuant to 50 U.S.C. App. § 456(j), he was ordered to report to Peter Bent Brigham Hospital in Boston, Massachusetts, to perform his alternate service.² This service lasted for the required two years, after which time plaintiff applied to the Veterans Administration for educational assistance benefits to enable him to pursue legal studies. In December of 1971 the Veterans Administration informed plaintiff that he was ineligible for benefits, because the alternate service which he performed is not "active duty" within the meaning of 38 U.S.C. § 1652(a)(1), as amended.

A conscientious objector opposed to all military service is subject to stringent alternate service requirements. He is called for service in the same manner, and in the same order-of-call, as potential draftees, 32 C.F.R. § 1660.2, and is ordered to perform, for a period equal to that of draftees, "such civilian work contributing to the maintenance of the national health, safety, or interest as the local board pursuant to Presidential regulations may deem appropriate . . . ." 50 U.S.C. App. § 456(j). Any person knowingly violating such an order may be prosecuted in the same manner as a person who refuses to submit to induction in the armed forces. Id. Moreover, the selective service regulations purport to make criminal any violations by persons performing alternate service of their employers' reasonable orders. 32 C.F.R. § 1660.8.

Under present regulations, five elements are considered in determining the acceptability of a proposed job as alternate service: (1) the work must be in the national health, safety or interest; (2) it must not be a job that is in the competitive job market; (3) compensation must approximate that of military personnel; (4) a registrant's special skills may be used; (5) a registrant must work outside his community.³ 32 C.F.R. § 1660.6(a)(1)-(5). Only the first of these is explicitly mandated by statute. See 50 U.S.C. App. § 456(j). The permissibility of the rest of them has been the subject of lively debate; some have argued that the regulations' similar predecessors, and various local board memoranda that were promulgated by the Selective Service System, were not valid because they imposed criteria beyond that of the "national health, safety and interest." See Silard, Invalid Disruption Rules for CO Alternative Service, 3 Colum. Survey of Human Rights Law 136 (1971). In one case the court ruled that a local board, in processing a proposed alternate service job, could not disapprove a job simply because it did not sufficiently disrupt a registrant's life. Hackney v. Tarr, 4 Cir., 1972, 460 F.2d 575. Under the regulations, elements (3), (4) and (5) of 32 C.F.R. § 1660.6 may be waived by the state director of selective service if to do so would be in the national interest.

Having set out these requirements for alternate service, the court thinks it appropriate to state, even at this early stage in the opinion, one of its key findings, which will be developed more fully later. The court finds that the statutory and regulatory scheme governing the performance of alternate service⁴ results in a disruption in the lives of alternate service performers which, when considering the purposes of the veterans' educational benefits legislation—a subject to which we will return—is ordinarily as great as that to which active duty veterans have been subjected. In United States v. Boardman, 1 Cir., 1969, 419 F. 2d 110, 112, the court noted that Congress designed the alternate service program "to alleviate the unfairness which results if conscientious objectors continue to enjoy the fruits of civilian life while their fellow citizens are conscripted. . . ." It is thus not surprising that alternate service performers find themselves in the same situation as military veterans with respect to the curtailment of their pursuit of civilian goals. The curtailment is the product of deliberate congressional action.

The Veterans' Readjustment Benefits Act of 1966, which is codified in chapter 34 of Title 38, United States Code, 38 U.S.C. §§ 1651-1697, as amended, was designed to provide for cold war veterans what earlier legislation had provided for World War II and Korean conflict veterans. Under the 1966 Act, "eligible veterans" receive educational assistance payments to help them pursue educational or vocational training at approved institutions.⁵ Generally, eligible veterans are all those persons, whether they enlisted or were drafted, who have served on "active duty" for more than 180 days and were other than dishonorably discharged. 38 U.S.C. § 1652(a)(1). "Active duty" is defined in 38 U.S.C. § 101(21) as full-time duty in the Armed Forces, the Public Health Service, the Coast and Geodetic Survey, service at an armed forces academy, and time spent traveling to and from such service. This definition is applicable to all veterans' benefits legislation under Title 38. The scope of what constitutes "active duty" for purposes of educational assistance is somewhat narrower than it is for other forms of assistance. As is clearly evident from these definitions, plaintiff and members of his class, who have performed alternate service under 50 U.S.C. App. § 456(j) and applicable regulations, do not qualify for veterans' benefits. It is solely their exclusion from educational benefits, however, that they attack here as unconstitutional. Thus, 38 U.S.C. § 101(21) defining "active duty" is attacked in this case only as it pertains to chapter 34 of Title 38, and our holding has no bearing on § 101(21) as it pertains to other chapters of the same Title dealing with other types of veterans' benefits, e. g., insurance, hospital care, vocational rehabilitation, and home, farm and business loans.

Plaintiff contends that the legislation extending educational assistance benefits to veterans of military service, and certain other classes of persons, but not to persons like himself who have performed alternate service, invidiously discriminates against him and his class, thereby denying him due process of law under the Fifth Amendment to the Constitution of the United States. Relying on legislative history, plaintiff asserts that the overriding objective of the educational benefits legislation was to compensate persons performing military duty for the disruption in their lives and the deprivation of educational opportunities that their military duty entails. Contending that alternate service similarly disrupts the lives of conscientious objectors who have been drafted into alternative service and deprives them of educational opportunities, plaintiff urges that, whether the legislation be judged under the compelling interest analysis, Shapiro v. Thompson, 1969, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600, or the rational relationship analysis, Dandridge v. Williams, 1970, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491, the legislation is unconstitutional. Plaintiff further claims that the legislation violates the First Amendment by inhibiting him and his class in the free exercise of their religion.

Defendants have contended that the complaint should be dismissed because the educational benefits statute is constitutional; and also that the court lacks jurisdiction over the subject matter, relying mainly on 38 U.S.C. § 211(a), as amended, which provides, "the decisions of the Administrator of any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans . . . shall be final and conclusive and no . . . court of the United States shall have power or jurisdiction to review any such decision . . . ." However, plaintiffs do not seek review of any such decision nor any affirmative relief, see Hernandez v. Veterans Administration, N.D.Cal., 1972, 339 F....