Wolff v. Selective Service Local Board No. 16

Decision Date30 January 1967
Docket NumberNo. 213,Docket 30783.,213
Citation372 F.2d 817
PartiesPeter WOLFF and Richard Shortt, Plaintiffs-Appellants, v. SELECTIVE SERVICE LOCAL BOARD NO. 16, Selective Service Local Board No. 66, and Col. Paul Akst, individually and as Director of the New York City Headquarters Selective Service System, Defendants-Appellees.
CourtU.S. Court of Appeals — Second Circuit



Robert Layton, New York City (Ralph Fine and Alan H. Levine, New York City, on the brief), for plaintiffs-appellants.

Ezra H. Friedman, Asst. U. S. Atty., New York City (Arthur S. Olick, Asst. U. S. Atty., and Robert M. Morgenthau, U. S. Atty., for Southern Dist. of New York, New York City, on the brief), for defendants-appellees.

Before MEDINA, FRIENDLY and SMITH, Circuit Judges.

MEDINA, Circuit Judge:

Peter Wolff and Richard Shortt, registrants of Selective Service Boards No. 66 in Queens County and No. 16 in New York County were classified II-S because of their status as full-time students at the University of Michigan. On October 15, 1965 these students and others participated in a demonstration to protest American involvement in Vietnam, at the offices of a Selective Service local board in Ann Arbor, Michigan. At the request of the New York City Director of Selective Service the local boards reclassified the two students I-A. The request was based upon the assertion that by participating in the demonstration the students became "delinquents" by reason of their alleged violation of Section 12(a) of the Universal Military Training and Service Act. Claiming that the local boards acted wholly without jurisdiction and in violation of their First Amendment rights of free speech and assembly and of their Sixth Amendment rights as well, Wolff and Shortt brought this action against the local boards and the Director to bring about a return of their student deferments. On motion, based upon the allegations appearing on the face of the complaint, Judge McLean dismissed the action for lack of "a justiciable controversy" and Wolff and Shortt appeal.

We disagree. The two local boards did act without jurisdiction, the record shows that attempts to secure relief within the Selective Service System would be futile, and the threat to First Amendment rights is of such immediate and irreparable consequence not simply to these students but to others as to require prompt action by the courts to avoid an erosion of these precious constitutional rights. Under this combination of circumstances an injunction could properly issue. But the question, whether the matter in controversy exceeds the value of $10,000 exclusive of interest and costs, not decided below, remains open and must be passed upon in due course.


Section 12 of the Act1 is a lengthy penal statute covering offenses committed by registrants and by members of local boards. Jurisdiction over these offenses is given to the United States District Courts. With respect to some of these offenses, however, such as the failure of any person knowingly to "fail or neglect or refuse to perform any duty required of him under or in execution of this title," to the extent that the statute affects registrants, the jurisdiction of the District Court is, in effect, concurrent with the administrative jurisdiction of the local boards. Thus a parallel clause of the regulations provides that if a registrant fails to produce certain requested information or to appear for questioning, he may under 32 CFR Section 1642.4(a) be declared a delinquent and classified or reclassified I-A. Also under Section 12 various draftees have been convicted in United States District Courts for failure to appear for induction. See United States v. Mitchell, 369 F.2d 323 (2 Cir. 1966) and United States v. Hogans, 369 F.2d 359 (2 Cir. 1966).

The conduct of these New York students, registrants in Local Boards Nos. 16 and 66, in participating in the demonstration in Michigan on October 15, 1965 could, as Judge McLean assumed, be claimed to fall under another provision of Section 12 which makes it a federal criminal offense for any person to "knowingly hinder or interfere or attempt to do so in any way, by force or violence or otherwise, with the administration of this title"2 and no regulation authorizes a draft board to declare a registrant a delinquent or to reclassify him for such action. As jurisdiction over offenses of this character is exclusively granted to the District Courts, we hold that the Local Boards lacked authority to decide that Wolff and Shortt were "delinquents" by reason of their violation of the terms of this portion of Section 12. Accordingly, as these two students have never been indicted or tried or convicted of this offense in a District Court, the two Local Boards, appellees, exceeded their jurisdiction by reclassifying the two students I-A.

There is nothing to prevent the prosecution of registrants or others for conduct by them in violation of either federal or state criminal laws, subject to such defenses as may be alleged and established. What we hold in this case is that it is not the function of local boards in the Selective Service System to punish these registrants by reclassifying them I-A because they protested as they did over the Government's involvement in Vietnam.


Despite the foregoing, the Government takes the position that the District Court properly concluded that it lacked the power to proceed in this matter and that the dismissal of the complaint may be affirmed on several grounds.

Irrespective of the existence of the power to do so, the courts, and particularly this Court, have been extremely reluctant to bring any phase of the operation of the Selective Service System under judicial scrutiny. The very nature of the Service demands that it operate with maximum efficiency, unimpeded by external interference. Only the most weighty consideration could induce us to depart from this long standing policy. But of all constitutional rights, the freedoms of speech and of assembly are the most perishable, yet the most vital to the preservation of American democracy. Historically, these preferred and paramount rights have continually come under attack from the best intentioned sources. And once the erosion of these rights is permitted to begin, it is exceedingly difficult to halt and the intervening damage may be irreparable. Here it is the free expression of views on issues of critical current national importance that is jeopardized. On such topics perhaps more than any other, it is imperative that the public debate be full and that each segment of our society be permitted freely to express its views. Thus the allegations of the complaint in this case that the draft boards have unlawfully suppressed criticism must take precedence over the policy of non-intervention in the affairs of the Selective Service.

We turn, then, to the arguments of the Government that the District Court lacks the power to pass upon the issues.

A. Subject Matter Jurisdiction

Appellants have invoked the general federal question jurisdiction of the District Court under 28 U.S.C. § 1331. As the controversy involves the alleged violation of rights arising out of the Federal Constitution and federal statutes, appellants' view must be correct unless some federal statute other than Section 1331 makes an exception in matters affecting the administration of the Selective Service Act. We are told that 50 U.S.C. App. § 460(b) (3) which provides that "the decisions of such local board shall be final" is such a statute. But it is difficult to understand how the Government can so argue at this date in the light of the express rejection of such a construction of Section 460(b) (3) in Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946). In that case the Supreme Court noted that the "authority of the local boards" is "circumscribed both by the Act and by the regulations" and is "limited to action `within their respective jurisdictions.'" Thus the Court concluded that "it is only orders `within their respective jurisdictions' that are made final." 327 U.S. at 120, 66 S.Ct. at 426. Regarding Section 4603 the Court explained:

The provision making the decisions of the local boards "final" means to us that Congress chose not to give administrative action under this Act the customary scope of judicial review which obtains under other statutes. It means that the courts are not to weigh the evidence to determine whether the classification made by the local boards was justified. The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant. 327 U.S. at 122-123, 66 S.Ct. at 427.

The Government concedes, of course, that the courts have jurisdiction to review classification orders in criminal prosecutions or in an appropriate habeas corpus proceeding but it asserts that the courts lack the "power" to inquire into classifications at an earlier point. All of which seems to us to admit jurisdiction over subject matter and affect merely a quite different point, namely the presence of a justiciable controversy, a subject to which we shall now direct our attention.

B. Justiciability

The Government further argues that this case is not ripe for adjudication because appellants have failed to exhaust their administrative remedies and because they cannot demonstrate irreparable injury. The courts ordinarily will not adjudicate a matter which may become moot through subsequent action by the executive. Nor will the courts hear a cause when the action complained of has not caused or is not certain to cause injury to the complaining party. In other words, a federal court cannot render an advisory opinion.

Thus in the usual run of Selective...

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