Schrader v. SELECTIVE SERVICE SYS. LOC. BD. NO 76 OF WIS.

• Decision Date: 28 July 1972
• Docket Number: No. 71-1767.,71-1767.
• Citation: 470 F.2d 73
• Parties: Thomas T. SCHRADER, Plaintiff-Appellee, v. SELECTIVE SERVICE SYSTEM LOCAL BOARD NO. 76 OF WISCONSIN et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

470 F.2d 73 (1972)

Thomas T. SCHRADER, Plaintiff-Appellee, v. SELECTIVE SERVICE SYSTEM LOCAL BOARD NO. 76 OF WISCONSIN et al., Defendants-Appellants.

No. 71-1767.

United States Court of Appeals, Seventh Circuit.

Argued June 7, 1972.

Decided July 28, 1972.

Rehearing Denied August 23, 1972.

Certiorari Denied December 18, 1972.

L. Patrick Gray, III, Asst. Atty. Gen., Morton Hollander and Robert E. Kopp, Attys., Dept. of Justice, Washington, D.C., John O. Olson, U.S. Atty., Madison, Wis., for defendants-appellants.

Stuart G. Urban, Thomas T. Schrader, Lancaster, Wis., for plaintiff-appellee.

Before DUFFY, Senior Circuit Judge, DURFEE^*, Associate Judge and ESCHBACH,^** District Judge.

Certiorari Denied December 18, 1972. See 93 S.Ct. 689.

DUFFY, Senior Circuit Judge.

This is a suit by Thomas T. Schrader, a Wisconsin Selective Service registrant who sought, in District Court, a pre-induction judicial review of the refusal of his Local Board to grant him a III-A fatherhood deferment.

The Wisconsin District Court (Western District of Wisconsin) relying on a Michigan District Court's purported class-action judgment in Gregory v. Hershey, 311 F.Supp. 1 (E.D. Mich., 1969), issued a restraining order against the induction of the plaintiff in this case.

Following the reversal of the Michigan District Court's judgment by the Sixth Circuit Court of Appeals, the Government moved the Wisconsin District Court for a dissolution of the restraining order. However, the Wisconsin District Court, instead of dissolving the restraining order, entered an order enjoining the induction of the plaintiff unless the Local Board first reopened his classification, 328 F.Supp. 891. It is from this order that the United States Government takes this appeal.

The facts are not in dispute. During the period from 1963 to June 1967, when plaintiff was an undergraduate student, he was granted a II-S student deferment. In September 1967 during his first year in law school, Schrader requested and received a II-S graduate student deferment.¹ Upon the expiration of that deferment, he requested and received a III-A hardship deferment. This deferment was subsequently extended to June 1, 1970. In June 1969, the plaintiff became a father and in October 1969, so informed his Board. When his III-A deferment expired in June 1970, plaintiff requested a renewal thereof, and also requested a III-A deferment based upon his fatherhood status. These requests were denied following plaintiff's personal appearance before the Board. He was subsequently classified I-A.²

Plaintiff appealed from the denial of the III-A fatherhood deferment but the State Appeal Board affirmed that classification. On November 23, 1970, plaintiff was informed by the Local Board that an order for him to report for induction was being placed in the mails.

In the Gregory (District Court) case, the plaintiffs, as a class, had each been granted II-S graduate deferments under the Military Selective Service Act of 1967. They contended they were entitled to a III-A fatherhood deferment notwithstanding the language of 32 C. F.R. 1622.30(a) which denied fatherhood deferments to persons who had been "classified in Class II-S under the 1967 Act."

Furthermore, in Gregory, the plaintiffs claimed their suit was a class action. The Michigan District Court agreed with plaintiffs' claims, ruling plaintiffs must be classified as III-A instead of I-A as ordered by their representative Boards, and that the action was properly maintained as a class action.³ The Government promptly appealed, and the Sixth Circuit reversed. Gregory v. Tarr, 436 F.2d 513 (6 Cir., 1971). The United States Supreme Court denied certiorari. (403 U.S. 922, 91 S.Ct. 2229, 29 L.Ed.2d 701).

The difference between the status of plaintiff Schrader in the instant case and the plaintiffs in Gregory is that here, Schrader sought a III-A fatherhood deferment after the District Court had decided Gregory but prior to the reversal of that decision by the Court of Appeals.

The Wisconsin District Court ruled that Gregory, which judgment was binding on the parties to that suit, was a class action, and that plaintiff herein was a member of the Gregory class. Therefore, the District Court reasoned, the National Director of Selective Service was required to classify plaintiff in Class III-A although the plaintiffs in Gregory never had been thus reclassified.⁴

Evidently the Wisconsin District Court, in this action, was under the impression that the determination by the Michigan District Court in Gregory was res judicata with respect to the validity of the class action. The Gregory District Court ruled that ". . . Notification of members of the class is impractical because of the number of members and the absence of any reasonable way of identifying them. . . ." Thus, the Gregory court seemingly was under the impression that no notice to class members was required because of the permissive language of Rule 23(d)(2), F.R.Civ.P. However, we are of the opinion that the absolute failure to give any indicia of notice to absent members renders the purported class action in Gregory futile. The Michigan District Court in Gregory erred in not requiring notice to be given in some manner to absent class members, and the Wisconsin District Court erred applying the principle of res judicata to the Gregory ruling.

Certain authorities are of the opinion that notice is not required, as a matter of due process, when the class action is maintained under Rule 23(b)(1) or 23(b)(2), F.R.Civ.P. as was the Gregory action. However, the one Circuit Court of Appeals which has ruled on the requirement of notice when proceeding under the above-mentioned sections of Rule 23 held ". . . notice is required as a matter of due process in all representative actions, and 23(c)(2) merely requires a particularized form of notice in 23(b)(3) actions." Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 564 (2 Cir., 1968).

We are of the opinion that the Eisen, supra, decision is the correct interpretation of the notice requirement for Rule 23(b) (1) and (b)(2). The more recent District Court opinions agree that pre-judgment notice is required in all representative actions. Pasquier v. Tarr, 318 F.Supp. 1350, 1353 (E.D.La., 1970), aff'd. 444 F.2d 116 (5 Cir., 1971); Zachary v. Chase Manhattan Bank, N.A., 52 F.R.D. 532 (S.D.N.Y. 1971).

In our view, the District Court proceedings in Gregory was not a valid class action and was not binding upon anyone except the named plaintiffs to that action. See Pasquier v. Tarr, supra. The Wisconsin District Court improperly applied the Gregory case to the case at bar under the principle of res judicata. We feel plaintiff is without standing to assert, with respect to his claim for a III-A deferment, that the National Director acted in a lawless manner in failing to reclassify him and others similarly situated.

We now consider, absent the effect of the Gregory class action before the Michigan District Court, whether the plaintiff herein has overcome the bar of Sec. 10(b) (3) which, except for well-distinguished exceptions, precludes pre-induction judicial review.

The Supreme Court recently stated in Fein v. Selective Service System Local Board No. 7, Yonkers, N.Y., 405 U.S. 365, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972) with respect to the meaning and reach of Sec. 10(b) (3) and the recent Court decisions considering pre-induction judicial review, at page 374, 92 S.Ct. at page 1069:

"Thus Oestereich, Gabriel, Breen and Boyd v. Clark, D.C., 287 F.Supp. 561 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. In the latter case the registrant\'s judicial review is confined — and constitutionally so — to situations where he asserts his defense in a criminal prosecution or where, after induction, he seeks a writ of habeas corpus."

The action taken herein by the Local Board in refusing a III-A classification to plaintiff Schrader had a statutory basis in Selective Service Regulation 1622.-30(a). Evident from this regulation is the fact that registrants who have received a II-S graduate deferment are foreclosed from a III-A classification. Therefore, it cannot be maintained on appeal by the plaintiff that his local board clearly departed from its statutory mandate. Oestereich, supra; Breen v. Selective Service Local Board No. 16, Bridgeport, Conn., 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970). Rather, the reclassification of plaintiff Schrader to I-A was well within the statutory authority of the Selective Service System, and involved an exercise of their discretion which cannot be interfered with by court action before induction. Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968); Fein v. Selective Service Local Board No. 76, Yonkers, N. Y., supra; Edwards v. Selective Service Local Board No. 111, 432 F.2d 287 (5 Cir., 1970); McCarthy v. Director of Selective Service System, 460 F.2d 1089 (7 Cir., 1972)

The Wisconsin District Court failed to establish any deprivation of a classification to which plaintiff Schrader would be statutorily entitled. We hold, therefore, the plaintiff's instant suit for preinduction judicial relief was and is barred by Sec. 10(b) (3).

As our Court recently stated in a per curiam opinion, McCarthy v. Director of Selective Service System, supra, with respect to Sec. 10(b) (3):

"In conclusion, it deserves emphasis that the purity of the legal question submitted to a court

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