Tuxworth v. Froehlke

Decision Date04 October 1971
Docket NumberNo. 71-1305.,71-1305.
Citation449 F.2d 763
PartiesDouglas C. TUXWORTH, Plaintiff, Appellee, v. Robert F. FROEHLKE, Secretary of the Army et al., Defendants, Appellants.
CourtU.S. Court of Appeals — First Circuit

Robert B. Collings, Asst. U. S. Atty., with whom Herbert F. Travers, Jr., U. S. Atty., was on motion, for appellants.

Paul I. Feinberg, Boston, Mass., for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

This matter is before us on an appeal from an order of the district court granting a preliminary injunction pending a hearing on the merits. Appellants move for a summary judgment of reversal under Local Rule 6. Cf. Magnesium Casting Co. v. Hoban, 1 Cir., 1968, 401 F.2d 516, cert. denied 393 U.S. 1065, 89 S.Ct. 720, 21 L.Ed.2d 708. We reverse, without reaching possible questions of jurisdiction, cf. Benitez-Manrique v. Micheli, 1 Cir., 1971, 439 F.2d 1173, or of the necessity of petitioner's exhausting his administrative remedies, cf. Noyd v. McNamara, 10 Cir., 1967, 378 F.2d 538, cert. denied 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667.

Briefly, petitioner Tuxworth, in January 1970 received an order from his Selective Service Board, which had previously classified him as I-A, to report for induction on February 24, 1970. On February 13, following his request to cancel the order of induction to permit his enlistment in the Army, the State Director ordered his local board, upon a form apparently regularly employed for such purposes, to postpone the induction date so that petitioner might enlist in the Army on February 27. Pursuant to that request petitioner's local board, on February 17, executed a postponement of the induction order to March 24, 1970, "to permit you to enter upon active duty in the U. S. Army February 27, 1970 for three years," adding that "if for any reason you do not, you are obliged to immediately inform this local board." Petitioner duly enlisted, and following notification thereof, on March 18, 1970 his local board cancelled the order for induction and placed petitioner in classification I-C.

Thereafter, sometime in June, 1971 petitioner, displeased with a prospective new assignment, absented himself from the Army without leave and is still at large in spite of efforts to recover his person. In August he filed the present complaint, requesting that his enlistment be declared void, and that the named defendants, the Secretary of the Army, State Director of the Selective Service, and Commanding General of Fort Devens be enjoined from apprehending and "involuntarily returning him to military control and/or custody." Following a hearing, the district court granted a preliminary injunction to that effect, "in order to preserve the jurisdiction of the court until a hearing can be held on the merits. * * *"

No preliminary injunction should be granted in any case unless there appears to be a reasonable possibility of success on the merits. Granted that the necessary degree of likelihood of success depends upon various considerations, cf. Automatic Radio Mfg. Co. v. Ford Motor, 1 Cir., 1968, 390 F.2d 113, cert. denied 391 U.S. 914, 88 S.Ct. 1807, 20 L.Ed.2d 653, we must perceive at least some substantial possibility. Here we see none.

Petitioner's entire complaint is based upon 50 U.S.C.App. § 465(d), which reads, in pertinent part,

"* * * No person shall be accepted for enlistment after he has received orders to report for induction. * * *"

In the absence of any discoverable legislative history...

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19 cases
  • Officers for Justice v. Civil S. Com'n, C. & C. San Francisco
    • United States
    • U.S. District Court — Northern District of California
    • November 26, 1973
    ...preliminary relief. See Costandi v. AAMCO Automatic Transmissions, Inc., 456 F.2d 941 (9th Cir. 1972). Compare Tuxworth v. Froehlke, 449 F.2d 763, 764 (1st Cir. 1971) with Nolop v. Volpe, 333 F.Supp. 1364, 1369 (D.S.D.1971). Courts in comparable cases involving claims of discriminatory empl......
  • Auburn News Co., Inc. v. Providence Journal Co.
    • United States
    • U.S. District Court — District of Rhode Island
    • November 14, 1980
    ...of ultimate success on the merits. National Tank Truck Carriers, Inc. v. Burke, 608 F.2d 819, 823 (1st Cir. 1979); Tuxworth v. Froehlke, 449 F.2d 763, 764 (1st Cir. 1971). This Court has squarely addressed the issue: if the balance of hardships tips decidedly toward the plaintiff, it is ord......
  • Women's Community Health Ctr., Inc. v. Cohen
    • United States
    • U.S. District Court — District of Maine
    • September 13, 1979
    ...at 360; Automatic Radio Manufacturing Co. v. Ford Motor Co., supra at 115, and at least a substantial possibility, Tuxworth v. Froehlke, 449 F.2d 763, 764 (1st Cir. 1971), of prevailing on the III The Constitutional Standard In Roe v. Wade, supra, the Supreme Court held that the constitutio......
  • City of Boston v. Hills
    • United States
    • U.S. District Court — District of Massachusetts
    • September 30, 1976
    ...law that in order to prevail HUD has to show that there is a probability of success on the merits of the litigation. Tuxworth v. Froehlke, 449 F.2d 763 (1 Cir. 1971). It must also show that absent injunctive relief it will sustain immediate and irreparable harm. Automatic Radio Mfg. Co. v. ......
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1 books & journal articles
  • An Empirical Look at Preliminary Injunctions in Challenges Under Environmental Protection Laws
    • United States
    • Environmental Law Reporter No. 47-5, May 2017
    • May 1, 2017
    ...155 (2013) (irst empirical study of Winter’ s impact). 6. Courts have phrased this prong diferently. See , e.g. , Tuxworth v. Froehlke, 449 F.2d 763, 764 (1st Cir. 1971) (using “reasonable possibility of success”); Minnesota Bearing Co. v. White Motor Corp., 470 F.2d 1323, 1326 (8th Cir. 19......

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