Sorenson v. Selective Service System

• Court: U.S. District Court — Eastern District of Pennsylvania
• Writing for the Court: Fred C. Aldridge, Jr., Philadelphia, Pa., for plaintiff
• Citation: Sorenson v. Selective Service System, 203 F.Supp. 786 (E.D. Pa. 1962)
• Decision Date: 06 April 1962
• Docket Number: Civ. A. No. 31032.
• Parties: Ralph Trent SORENSON v. SELECTIVE SERVICE SYSTEM et al., and W. Glen George and Randolph C. Collins, members of Selective Service System Local Board No. 107, and Col. Henry Gross, Pennsylvania State Director of Selective Service, Additional Defendants.

203 F. Supp. 786

Ralph Trent SORENSON v. SELECTIVE SERVICE SYSTEM et al. and W. Glen George and Randolph C. Collins, members of Selective Service System Local Board No. 107, and Col. Henry Gross, Pennsylvania State Director of Selective Service, Additional Defendants.

Civ. A. No. 31032.

United States District Court E. D. Pennsylvania.

April 6, 1962.

Fred C. Aldridge, Jr., Philadelphia, Pa., for plaintiff.

Drew J. T. O'Keefe, U. S. Atty., Mabel G. Turner, Philadelphia, Pa., Asst. U. S. Atty., for defendants.

JOHN W. LORD, Jr., District Judge.

Petitioner, Ralph Trent Sorenson, a Registrant in the Selective Service System, seeks an injunction to restrain defendants from enforcing a certain Order to Report for Induction into the Armed Forces of the United States. The registrant, Sorenson, claims that the order is invalid on the ground that his local board refused to consider his Conscientious Objector claim and failed to grant him the right to appeal to which he is entitled by law.

These proceedings were initiated on February 20, 1962, by the filing of petitioner's complaint which named five parties as defendants: Selective Service System, Hershey, Bowles, Hayes and Rhule. On that same date a temporary restraining order was issued by this Court, conditioned upon the filing of $1,000 bond, which hearing was set for March 2, 1962. Summons and complaint were issued by the Clerk of this Court on February 20, 1962, and service was accepted on behalf of the United States Attorney for the Eastern District of Pennsylvania on February 21, 1962.

Thereafter, in response to a motion of the petitioner, this Court issued a further order adding defendants George and Collins as additional defendants, and amending the restraining order by making it applicable to these additional defendants.

The United States Attorney, on behalf of respondents (herein called defendants for the sake of conformity with the petition, which is labeled Complaint) challenges venue, jurisdiction over the defendants, and jurisdiction of the subject matter. Close scrutiny of the record as to pleadings and amendments, joinder of parties, and service of summons and complaint is therefore required.

No responsive pleading having been served, petitioner on February 26, 1962, filed an amendment which changed paragraph one of his complaint in two respects only.

First, it named and identified the three additional defendants, George, Collins, and Gross — who were parties not mentioned in the original complaint.

Second, the final sentence, "Jurisdiction is based upon 28 U.S.C. § 1346(2)" was deleted, and sub-paragraph 1(a), quoted later herein, was substituted.

The final docket entry in the present record is an affidavit of service made by petitioner's counsel, and filed on February 23, 1962. In it he certifies that service was effected pursuant to Rule 4(d) (4) and (5), Fed.R.Civ.P., 28 U.S.C.A., in the following manner:

"Copies of the Summons and Complaint were sent by registered mail on February 21, 1962 to the Attorney General of the United States at Washington, D. C., and delivered on February 22, 1962."

The remainder of the affidavit says in substance that as to each of the following defendants: Rhule, Bowles, Hayes, and Hershey — copies of the Summons, Complaint and Restraining Order, which had been issued by the Court on February 20, 1962, were mailed to the respective defendants by certified mail on February 21, 1962, and delivered on February 23, 1962.

In support of the complaint, petitioner submitted a comprehensive brief. The United States Attorney offered its points and authorities in an answering brief which submitted that the motion for preliminary injunction should be denied, the restraining order dissolved, and the complaint dismissed.

At the conclusion of oral argument on March 2, 1962, it was agreed in open court that — although the temporary restraining order had then expired — the defendants would not disturb the status quo as to petitioner until this Court had ruled. Having secured leave of Court, the petitioner then filed a supplemental brief. The filing by defendants of their supplemental answering brief on March 9 placed this matter in position for decision by this Court.

Paragraph 1 of the complaint as amended reads:

"1. Plaintiff, Ralph Trent Sorenson, is an individual residing at 800 Lafayette Road, Bryn Mawr, Pennsylvania; defendant, Selective Service System, is an agency of the United States with its National Headquarters at 451 Indiana Avenue, N. W., Washington, D. C.; defendant, Bowles is State Director of Selective Service for the State of Iowa with his office at Building 68, Fort Des Moines, Des Moines 16, Iowa; defendant Hayes is Chairman of Selective Service System Local Board No. 13-29 located in Room 241, United States Post Office Building, Burlington, Iowa; defendant Rhule is Chairman of Selective Service System, Local Board No. 107 located in War Memorial Building, Bryn Mawr, Pennsylvania; defendants W. Glen George and Randolph C. Collins are members of Selective Service System Local Board No. 107; and defendant Col. Henry Gross is Pennsylvania State Director of Selective Service."

"1. (a) This action arises under the Universal Military Training and Service Act, 50 U.S.C.App. § 451 et seq. and under the Constitution of the United States. The matter in controversy exceeds the value of Ten Thousand Dollars ($10,000.) exclusive of interest and costs."

Although he now lives in Bryn Mawr, Pennsylvania, plaintiff's legal residence had been in Burlington, Iowa, until July, 1961. Since February 26, 1954, he has been registered with Selective Service System Local Board No. 13-29, Burlington, Iowa — hereafter to be called Board 13-29. For some considerable length of time, at least — if not from the time of his registration — he has been classified I-A.

On January 8, 1962, petitioner telegraphed and wrote to Board 13-29 to the effect that he was a Conscientious Objector. Those communications, received by the Board on January 8 and January 11, respectively, requested that he be sent the Special Form for Conscientious Objector, SSS Form No. 150. On January 10, 1962, Iowa Board 13-29 mailed to petitioner the requested Form 150, which he received on January 12.

On the 11th of January the clerk of that Board wrote petitioner as follows:

"The information contained in your telegram dated 8 January 1962 to the effect that you are a Conscientious Objector was considered by the local board at its meeting on 10 January 1962.

"In accordance with Section 1625.4 of the Selective Service Regulations the local board declined to reopen and consider anew your case. They felt a change was not justified.

"There is information from you in your file that you have attempted to enlist in the Armed Forces which would be contrary to the beliefs of a Conscientious Objector. Therefore, reopening was not considered warranted."

Petitioner complains of the action of Iowa Board 13-29 in thus denying his claim out of hand, on the same day that it mailed the form to him, since

"Form 150 is a special form for Conscientious Objectors, designed to secure information upon which the Local Board can make its determination of whether the Registrant is entitled to a I-O classification. * * * Thus they intentionally failed and refused to consider the evidence and information which Form 150 was designed to bring to their attention. Furthermore, on January 15, 1962, prior to the expiration of plaintiff's right to appeal and still not in receipt of completed Form 150, they mailed plaintiff an Order to report for induction."

On January 16, 1962, petitioner completed and mailed his Form 150. Meanwhile, on January 15, Iowa Board 13-29 had mailed to petitioner an order to report at Burlington, Iowa, on February 6, 1962, for induction. Petitioner notified Board 13-29 and defendant Col. Glen R. Bowles, Iowa State Director of Selective Service, that he demanded a hearing, cancellation of the Order, and an appeal from the decision of the local board. Col. Bowles on January 22 replied:

"Your Selective Service file * * * has been reviewed.

"Your local board, at its regular meeting on 10 January 1962, reviewed your file and in accordance with the provisions of section 1622.4, SSR, declined to reopen and consider anew your classification.

"Throughout the years you have attempted to enlist * * * which actions are not compatible with your SSS Form 150 filed with your local board after the mailing of your Order to Report for induction.

"I find no justification for instructing your local board to reopen and consider anew your classification, and you will report for induction as ordered."

On January 30, Board 13-29 wrote petitioner to the same effect. On February 5 it acknowledged petitioner's letter of February 3, advised that it had again decided against reopening, and added: "You do not have any further appeal rights."

A further letter of February 6 from Col. Bowles advised petitioner that National Headquarters had reviewed the Sorenson file and in substance had ruled that the decision as to reopening, on the basis of the additional information and Form 150, rested in the discretion of the local board. Col. Bowles pointed out that the local board had reached that decision, and concluded:

"* * * I find no justification for further action. You will report for induction as ordered."

Thereafter, the petitioner upon his request was transferred by his local board in Burlington, Iowa to Local Board No. 107, Bryn Mawr, Pennsylvania, for delivery to an induction station. He then received Selective Service System Order For Transferred Man To Report For Induction directing him to report to Local Board #107, Bryn Mawr, at 6:30 A.M. on February 27, 1962.

Jurisdiction over the Defendants

The complaint as amended names eight defendants. The four defendants whose names are the last appearing in the caption are all residents of Pennsylvania and subject to service of process...