Waguespack v. Tarr, Civ. A. No. 70-1715

• Decision Date: 21 September 1970
• Docket Number: Civ. A. No. 70-1715,70-1716.
• Citation: 317 F. Supp. 448
• Parties: Perry Michael WAGUESPACK, Plaintiff, v. Curtis W. TARR, National Director of Selective Service; Lieutenant General David Wade, State Director of Selective Service; Selective Service Local Board No. 136, Lutcher, Louisiana; Selective Service Local Board No. 99, Baton Rouge, Louisiana, Defendants. Claude Theodore GRAVOIS, Jr., Plaintiff, v. Curtis W. TARR, National Director of Selective Service; Lieutenant General David Wade, State Director of Selective Service; Selective Service Local Board No. 57, Lutcher, Louisiana; Selective Service Local Board No. 99, Baton Rouge, Louisiana, Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

317 F. Supp. 448

Perry Michael WAGUESPACK, Plaintiff, v. Curtis W. TARR, National Director of Selective Service; Lieutenant General David Wade, State Director of Selective Service; Selective Service Local Board No. 136, Lutcher, Louisiana; Selective Service Local Board No. 99, Baton Rouge, Louisiana, Defendants.

Claude Theodore GRAVOIS, Jr., Plaintiff, v. Curtis W. TARR, National Director of Selective Service; Lieutenant General David Wade, State Director of Selective Service; Selective Service Local Board No. 57, Lutcher, Louisiana; Selective Service Local Board No. 99, Baton Rouge, Louisiana, Defendants.

Civ. A. Nos. 70-1715, 70-1716.

United States District Court, E. D. Louisiana, New Orleans Division.

September 21, 1970.

M. Stephen Roberts, Baton Rouge, La., for plaintiffs.

James Carriere, Asst. U. S. Atty., New Orleans, La., for defendants.

CASSIBRY, District Judge:

Perry Michael Waguespack and Claude Theodore Gravois, Jr., seek preliminary and permanent injunctions restraining the defendants from enforcing orders to report for military induction and writs of mandamus compelling their local board to reclassify them in Class I-S.¹ Plaintiffs contend they have been unlawfully denied the I-S classification and have continued under orders to report for induction contrary to the mandatory language of Section 6(i) (2) of the Selective Service Act of 1967.² Plaintiffs allege that they met all of the qualifications set forth in Section 6(i) (2) entitling them to I-S classification and were not barred by any of the exceptions thereto.³

I.

Plaintiffs received undergraduate II-S deferments under the Selective Service Act of 1951 during four years of college. They received their baccalaureate degrees prior to July 1, 1967, and commenced post-baccalaureate work to obtain masters degrees in September 1967. During the fall of 1967 they received II-S graduate deferments under paragraph 6(h) (2) of the 1967 Act.^3A In June 1968 Waguespack was reclassified I-A. In November 1968 Gravois was reclassified I-A. From September 1968 until the present time plaintiffs have been enrolled as full-time graduate students and certified by their school as satisfactorily pursuing full-time courses of instruction toward masters degrees.^3B Plaintiffs' academic year commenced in September 1968 and, under applicable law, extended for a twelve-month period until September 1969.⁴ During that academic year plaintiffs were ordered to report for induction on August 19, 1969. Although they were denied I-S classifications, their inductions were postponed and they continue under orders to report for induction.

II.

Defendants question the court's jurisdiction to entertain a preinduction review of plaintiffs' selective service classifications in view of Section 10(b) (3) of the 1967 Selective Service Act, 50 U. S.C. App. § 460(b) (3), which provides:

"No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant had responded either affirmatively or negatively to an order to report for induction * * *."

While Section 10(b) (3) read literally appears to deny all preinduction judicial review, the Supreme Court has held that it cannot preclude review of draft board actions which are outside the statutory scheme or involve a capricious violation of a statutory mandate. Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L. Ed.2d 402 (1968). Although Oestereich dealt with a statutory exemption, Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970) extended Oestereich to statutory deferments. In addition, preinduction review has been granted or approved in a series of decisions relating to the I-S deferment under Section 6(i) (2) of the Act, the precise issue in this case. In the overwhelming majority of actions brought to compel reclassification under this Section the courts have held that the language of Section 6(i) (2) is mandatory and that preinduction review is available to contest the denial of a I-S deferment contrary to such mandate. Bowen v. Hershey, 410 F.2d 962 (1st Cir. 1969); Crane v. Hershey, 410 F.2d 966 (1st Cir. 1969); Marsano v. Laird, 412 F.2d 65 (2d Cir. 1969); Carey v. Local Board No. 2, 412 F.2d 71 (2d Cir. 1969); Foley v. Hershey, 409 F.2d 827 (7th Cir. 1969); Nestor v. Hershey, 425 F.2d 504 (D.C. Cir. 1969); Armendariz v. Hershey, 295 F.Supp. 1351 (W.D. Tex. 1969), aff'd 413 F.2d 1006 (5th Cir. 1969).⁵

Plaintiffs claim they were denied mandatory deferments under the Selective Service Act of 1967. This matter is subject to judicial review irrespective of Section 10(b) (3) of the Act.

III.

The Government has argued that the issues presented in the cases sub judice are moot. As understood, the Government's argument is that since the 1968-69 academic year has ended the issues before the court are now moot.

If the plaintiffs have an unequivocal right to I-S deferments, their local draft board could not deny them that right and instead merely postpone induction. The prime purpose of the I-S deferment is to prevent disruption of studies in the midst of an academic year. However, the fact that plaintiffs have had their inductions postponed beyond the 1968-69 academic year does not mean that they should not be granted I-S deferments. "There are many collateral rights which attach to the granting of a deferment which are lost if induction is only postponed." Nestor v. Hershey, supra, 425 F.2d at 524.⁶

The basis of plaintiffs' suits is that they were denied mandatory I-S deferments when they were ordered to report for induction in August 1969, that their present I-A classifications are therefore unlawful, and that any orders to report for induction based upon those classifications are illegal and without effect. I cannot accept the Government's contention that the issues are moot.⁷

IV.

The right to be deferred until the end of the current academic year is dictated by the clear and unambiguous language of Paragraph 6(i) (2) of the 1967 Act, which provides, inter alia, that:

"Any person who while satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution is ordered to report for induction under this title, shall, upon the facts being presented to the local board, be deferred (A) until the end of such academic year, or (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier: * * *." (Emphasis added.)

Therefore, "upon the objective fact of full-time attendance at a university being presented to it, the local board `shall' defer the registrant until the end of the academic year or until he ceases satisfactorily to pursue his course of study, whichever is earlier. The board places such a registrant in Class I-S * * *." Nestor v. Hershey, supra, 425 F.2d at 513.

Five Circuit Courts have considered the question of the proper construction to be given Paragraph 6(i) (2) in cases involving registrants in plaintiffs' position. Four Circuits have held that Section 6(i) (2) mandates a I-S deferment for such registrants. Bowen v. Hershey, supra; Crane v. Hershey, supra; Marsano v. Laird, supra; Carey v. Local Board No. 2, supra; Foley v. Hershey, supra; Nestor v. Hershey, supra.⁸ The Tenth Circuit, in Rich v. Hershey, 408 F.2d 944 (10th Cir. 1969), has taken a contrary view. This Court expressly adopts the reasoning of the majority courts, especially those reasons so ably articulated in Nestor.

The plaintiffs met each of the requirements for the I-S classification established by the first clause of Paragraph 6(i) (2). They had been satisfactorily pursuing full-time courses of instruction at Louisiana State University and Agricultural and Mechanical College at Baton Rouge, Louisiana, and they had been ordered to report for induction. These facts were presented to their local draft board. None of the four exceptions or qualifications to the right to a I-S deferment are applicable to plaintiffs.⁹ I hold that plaintiffs were unlawfully denied the deferments to which they were entitled.

Therefore, IT IS ORDERED that:

1. Selective Service Local Board No. 57, Lutcher, Louisiana, shall forthwith upon receipt of a copy of this order reclassify plaintiffs Perry Michael Waguespack and Claude Theodore Gravois, Jr., in Class I-S as of August 8, 1969, the date upon which plaintiffs were entitled to such deferment;

2. Curtis W. Tarr, as National Director of Selective Service; Lieutenant General David Wade, as State Director of Selective Service; Selective Service Local Board No. 57, Lutcher, Louisiana; and Selective Service Local Board No. 99, Baton Rouge, Louisiana, are hereby enjoined from inducting plaintiffs Perry Michael Waguespack and Claude Theodore Gravois, Jr. into the Armed Forces of the United States until this reclassification order is complied with.

It is so ordered.

1 Class I-S applies to graduate and undergraduate college students who receive orders to report for induction while attending school full time. The deferment is effective until the end of the student's current academic year.

2 The first clause of Section 6(i) (2) of the Selective Service Act of 1967, 50 U.S.C.App. § 456(i) (2), provides that:

"Any person who while satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution is ordered to report for induction under this title, shall, upon the facts being presented to the local board, be deferred (A) until the end of such academic year, or (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier: * * *."

3 There are four exceptions to the right to deferment granted by the first clause of 6(i) (2). Three of these are found in the provisos of 6(i) (2):

"* * * Provided, That any...