Schwartz v. Strauss, 294
| Decision Date | 16 July 1953 |
| Docket Number | No. 294,Docket No. 22780.,294 |
| Citation | 206 F.2d 767 |
| Parties | Bernard SCHWARTZ, Plaintiff-Appellant, v. Milton STRAUSS, "John Doe," "Richard Roe," et al., names fictitious, being unknown to plaintiff, individually and jointly as members of Local Board No. 24, Bronx, Selective Service System and Local Board No. 24, Bronx, Selective Service System and "John Smither," "Frank Jones," "Henry Brown" and "James Koe," names fictitious, being unknown to plaintiff, Individually and jointly as members of the Board of Appeals, Selective Service System, and the Board of Appeals of the Selective Service System, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Nemeroff, Jelline, Danzig & Paley, New York City, for plaintiff-appellant; Bernard Schwartz and Joseph W. Rosenberg, New York City, of counsel.
J. Edward Lumbard, Jr., U. S. Atty., New York City, Samuel R. Pierce, Jr., Asst. U. S. Atty., New York City, of counsel, for defendants-appellees.
Before CHASE, Chief Judge, and CLARK and FRANK, Circuit Judges.
Judgment affirmed on opinion below. D. C. 114 F.Supp. 438.
The facts here are undisputed. But the position taken by defendant's counsel is that, even if the undisputed facts show unmistakably that the Board violated the statute, i. e., plainly exceeded its powers, nevertheless no court would have jurisdiction to enjoin plaintiff's induction. Thus if admittedly plaintiff were (1) a member of Congress, or (2) a naval officer on active duty, yet (so the argument runs) he could not in court attack the patently invalid action of the Board except either (a) by reporting for induction and then seeking habeas corpus or (b) by refusing to comply and setting up the invalidity when he was prosecuted criminally. I gravely doubt the soundness of that contention, i. e., in a case where, on undisputed facts, the Board's lack of jurisdiction is manifest.
However, as happens now and then in divers contexts, a consideration of the merits is necessary to a decision on the issue of the district court's jurisdiction. I have examined the merits here, and think the Board acted correctly in classifying plaintiff. He does not come within 50 U. S.C.A.Appendix, § 456(c)(1), because he is not a member of an "organized unit of * * * the Naval Reserve" who "satisfactorily participates in scheduled drills and training periods". He does not come within the provision of § 456(d)(1), because,...
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...v. Zimmerman, 237 F.2d 376 (6th Cir. 1956), Tomlinson v. Hershey, 95 F.Supp. 72, 73 (E.D.Pa.1949), Schwartz v. Strauss, 206 F.2d 767 (2nd Cir. 1953) (Concurring opinion, Clark, J.). Cf. Ex Parte Fabiani, 105 F.Supp. 139 (E.D.Pa.1952) (Pre-prosecution habeas corpus). In a highly publicized c......
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