George A. Hunt, Jr., Selective Service No. 9-45-45-1035 v. Local Board No. 197

asser do not follow Small’s We for went tion that once the Government Jr., George HUNT, A. negating his own

ward with evidence 9-45-45-1035, Appellant, No. testimony purpose, reas marital as to establishing sumed the burden LOCAL BOARD NO. 197. unequiv subject “by clear, facts on that No. 18076. convincing Woodby, ocal and evidence.” Appeals, United States Court of 276, 286, S., v. I. N. Third Circuit. (1966). 483, 488, L.Ed.2d Argued Feb. 1970. rested with this overall burden true Reargued However, Oct. does 1970. Small Government. failed not contend that the Government Decided Feb. giv unequivocally the facts to establish ing 241(c) presumption of rise to explicit

(1). terms Under only

statute, facts the Gov those first to establish

ernment needed

instance; then shifted burden presumption

alien to refute the give

they Gov rise. The fact might proof met ernment’s 241(c)

required standard inadequate to it was does not mean pre

repel rebut efforts Small’s 241(c)

sumption of § point is that Small’s second de him Special Inquiry found Officer lodged charge

portable hearing closed after the was him proceeding to reopening the and without any If this evidence. receive further consent, Small’s without had been done Gibbons, Judge, Circuit concurred might seriously proceeding opinion. in result and filed per-"' regulation only flawed; indeed, charges lodging Hastie, of additional Judge, mits the Chief concurred hearing, 242.16. during opinion. result and filed August However, Stipulation of Freedman, Judge, Circuit filed agreed attorney expressly 15, Small’s opinion in which Adams, Seitz and Cir- procedure this and waived Judges, joined. cuit present No doubt further evidence. Aldisert, Judge, Circuit dissented prompted realization déeision Dusen, and filed an in which Van gained by nothing seek Judge, joined. Circuit hope ing reopening. could Small simple mar facts of his to contest gave riage rise and its annulment already presumption and he had might expressed reflect well whatever contracting upon his intentions event, marriage. not our second-guess petitioner’s counsel.

task to order of petition to review Immigration Appeals is de-

the Board of

nied.

H29 judgment The will be reversed and remanded cause for consideration and merits, disposition on the GIBBONS, Judge (concurring Circuit result). in the appeals Plaintiff from the order Egnal Egnal, Egnal, John David and dismissing the district court his com- Pa., appellant. Philadelphia, for plaint pursuant 12(b) to Rule Fed- Zener, Justice, Dept, Robert V. Procedure, eral Rules Civil for want Washington, appellee. C.,D. jurisdiction subject over mat- complaint jurisdic- ter. The claims HASTIE, Judge, Before and Chief (fed- (1964) tion under 28 U.S.C. FREEDMAN, DUSEN, SEITZ, VAN questions) eral and under 28 U.S.C. § ALDISERT, GIBBONS, ADAMS (mandamus (1964) fed- Judges. Circuit official) prays eral appro- for relief priate under both com- sections. The OPINION OF THE COURT plaint alleges June, that in plaintiff was classified I-A the defendant Local PER CURIAM: Board; appealed that he this classifica- reasons, sepa- For different stated in ground tion on the that he was a consci- opinions, judges constituting rate five objector; entious that while that majority of the court have concluded that pending he notified the defendant judgment of the district court dis- changed Local Board of conditions which missing appellant’s complaint cannot entitled him to a III-A de- Judges Freedman, stand. Seitz ferment the Local Adams think that the uncontested facts reopen classification; are such that we should not reverse reopen. Local Board refused to complaint the dismissal of the but also complaint specify changed does not what judgment order that on remand be en- conditions were called to the attention appellant requiring tered for the alleges of the Local Board. It be accorded selective service reclassifi- failure of the Local Board to Judges cation as III-A. Hastie and Gib- plaintiff’s classification consider his bons think that should do we no more claim to deferment require than the district court con- rights. awas denial of his constitutional dispose controversy sider and of this No answer was filed. Instead the de- its merits. fendant Local Board filed a motion under lacking To achieve an otherwise ma- asserting: Rule jority particular disposition for a “(1) jurisdiction The court lacks Judges appeal,1 Freedman, Seitz and person of the defendant. join Judges Adams Hastie and Gibbons (2) The court lacks voting comprehensive for the less dis- matter. position; namely, reversal and remand appropriate action on the merits of (3) The im- venue the action is controversy. proper. that, light of the cir- (4) Service of was insuffi- pointed cumstances out in our several cient. opinions, parties agree will be able to upon judgment a consent complaint that will ob- fails to state a necessity adversary pro- viate the upon which relief can be ceedings granted. in the district court. States, 1945, Screws United 89 L.Ed. 1495. Cf. adequate rem- Act of Selective Service Plaintiff has 1969). edy (Supp. IV law.” U.S.C. § provided: appealed The order party filed affidavits Neither argu- At the conclusion motion. motion “ORDERED that defendant’s plain- court invited the district pursuant ment dismiss Fed.R.Civ.P. your record as to what complete 12(b) tiff “to is GRANTED.” merits,” going prove the you on although opinion, The district court exhibits, eight the file letters from the makes reference nature Board, Local were the defendant III-A deferment claims asserted objection. in without marked evidence plaintiff expressly Board, limit- the however, by waiver, either There was no subject ed to a determination of lack of hearing to a final party of the jurisdiction. It matter makes no deter- ruling event of a in the answer after remaining any mination on the 12(b) motion favorable the Rule on grounds It the advanced defendant. par- plaintiff. was At best there the (aside make no determination from that by plaintiff presentation of evidence tial respecting subject jurisdiction) matter support Rule 65 motion of his in allegations complaint that the fail injunction. district preliminary The to state a cause of action. district The that did on motion. not rule court court did not treat the as one motion plaintiff, that disclose exhibits 12(b) (6) under Rule which it converted (student defer- had a II-S who received expressly to Rule It 56 motion. limited classification, ment) I-A was classified granting its order a motion under appealed clas- that He June Rule Appeal on Board sification to the State Judge judges Freedman who ground a 1-0 entitled to that he was looking opinion, the ex- concur his (conscientious objector) classification. hearing marked hibits which were at the By noti- he letter on November preliminary injunction, conclude preg- Board of his wife’s fied solely that the Local acted on Board nancy. supplemented letter This was legal ground mistaken that clas- II-S physician three letters from July 1, sification after received firming expected pregnancy, date post-baccalaureate even on a one based 1969, and of confinement June of status, prevented student father- III-A prob- of the wife’s health certain other Gregory v. Her- hood classification. See Appeal de- lems. the State When F.Supp. shey, 1 (E.D.Mich.S.D.1969). plain- on his cided him 1-0 sparse not record it But April tiff rejection father- clear that classification, asserting impend- both his hood claim the sole was basis ing hardship to his wife fatherhood action, Board’s nor do for cer- we know if he were The Local to be drafted. plaintiff’s tain de- whether the student May 2, Board on him that advised post-baccalaureate. ferment was Although reopen. it does it would not original I would assume than rather appear dis- in the record before jurisdiction appellate the fa- decide court, parties trict had advised this therhood issue which was decided never plaintiff court now father. by the district court. plaintiff’s nor Neither fatherhood claim his claim are referred to ex- Judge Aldisert, Dusen Van complaint. pressly refers opinion, concurs in look at who his also generally “changed which, conditions, reject contents the exhibits to prima facie, entitle a 3-A Plaintiff They plaintiff’s find fatherhood claim. deferment.” do not exhibits evidence Defendants relied district court at a post-baccalaureate stage, appel- on lack of over the and that carry matter because of lant therefore failed to the burden § immunity They persons of his also Class III-A service. includes deferred summary judg- family affirm final relationship, reason of 32 C.F. 1522.30(a), ment made in the dis- R. which was never and for reasons of ex- hardship, trict court. But the more fundamental treme 1622.30(b). 32 C.F.R. § ignores regulations position creating defect their these classifica- allegations complaint. adopted pursuant Plain- tions were to 50 U.S.C. complains 456(h) tiff Local Board (Supp. IV reopen. Thus, says, fused to he Military virtue of the Universal procedural opportunity Training car- denied the Act of June ch. ry establishing l(o), burden of entitle- dependency 65 Stat. limited de- cannot, to a We ment deferment. ferments for married men who had no looking registrant’s parts of dependents at those other than a wife to cases file which are selective service hardship. extreme record, meet conclude that he has failed to The Local Boards are creatures of the given op- an a burden which he was never Selective Service Act. Their portunity to meet. is App. 460(b) defined in 50 U.S.C. § (Supp. 1969): IV Judges hardship the Aldisert On boards, separate panels “Such local or and Dusen confront issue Van consisting thereof each of three or complaint which was framed members, shall, more rules and 12(b) the Rule de- motion which was regulations prescribed by the Presi- is cided the district court. That issue dent, power respec- have within whether, assuming the alle- the truth of jurisdictions tive of such local boards gation failed the Local Board to determine, subject to hear and to the changed being open after of notified right appeal appeal to the boards prima, plain- ditions which entitled authorized, questions herein all deferment, tiff to § respect for, claims with to inclusion pre-induction judicial barred review. exemption from, training or deferment pleadings issue is on those the same * * *, and service under this title here, presented is the district court since jurisdic- all individuals within the expressly order is limited a decision tion such local boards. The deci- 12(b) (1) Since, motion. as- Rule sions of such local board shall be subject suming jurisdiction, matter final, except appeal where an is au- allegations might complaint well thorized and is taken in accordance controverted, way appropriate I see no regulations with such rules and as the avoid the decision issue. may prescribe.” (emphasis President judges and the Freedman who added) distinguish concur in his decision be- Regulations adopted question have been set tween undiluted law procedure taking forth appeal sented to the father- the Local Board boards, question which the same hood claim and the mixed presented statute creates each federal and fact law district. U.S.C. An deci- claim. erroneous Local Board 1969); (Supp. they pt. former, say, may give IV C.F.R. sion of the (1969). Recognizing opportunity the status of rise to registrant reg- change, reopen review. The refusal provide ulations that no apparently and consider the latter would permanent. 1625.1(a) opportunity 32 C.F.R. not. do not think the provide presented a mechanism for re- such a line is on this draw registrant’s opening classification, record. pt. (1969). C.F.R. The sections of already Plaintiff was classified when pt. provide: 1625 relevant to this case changed circumstances occurred on may reopen change “The local board and con- of classi- which he relied for his reg- sider anew the classification III-A. from Class I-A to Class fication regulations (a) upon request such ance with rules and istrant the written *** registrant, prescribe.” if such the President accompanied by request in- written appeal, of administrative presenting not consid- formation facts words, depend other was classi- ered when fied, and to extent the President what decides justify true, which, instance, respondents it. In allow registrant’s change classifica- contend, the has seen fit not to President *” * * tion; 1625.2 permitted allow He it. has Boards, refusing reopen, elimi- * * * appeal. nate files administrative “When request a written board develop hereinafter, As I will regis- anew and consider statute, construction gether when read to- the local trant’s classification prohibition pre-induc- with a the infor- is of board judicial review, very raises serious request accompanying such mation questions separation due in addition present facts fails to powers. however, fact, the courts regis- to those considered so construed the statute. or, if new even classified trant was procedure This reclassification presented, the local board facts are in a before courts number true, facts, if opinion that such firmly cases. It is now established that change justify in such registrant presents where a to a Local classification, registrant’s shall prima Board facts which forth set facie registrant’s reopen a basis for reclassification ” * * * 1625.4 32 C.F.R. reopen. reopen board must Failure to Board determines the Local If where a case for reclassifi- does not warrant submitted information reopening, consistently cation is claimed has regulations provide no procedural held to due denial of right right ap- appearance and no process. Mulloy States, 398 v. United peal. U.S. 26 L.Ed.2d 362 Turner, (1970); United 421 States v. Thus, regulations, establish- (3d 1970); F.2d Cir. 1251 Davis v. Unit- right because ment of a changed deferment States, 1969); (8th ed 410 F.2d Cir. following 89 ini- circumstances Grier, 415 F.2d 1098 United v. States depends in the first tial classification (4th 1969) ; States, Cir. Petrie v. United parte ex determination instance on by 1969); (9th 407 Fore v. F.2d 267 Cir. or not to re- a Local Board (10th States, F.2d United 395 554 appeal- open. is not This determination States, 1968); v. Cir. Robertson United despite appeal the fact to an board able (5th 1968), 404 rev’d en statute, F.2d 1141 Cir. are, under the that Local Boards grounds, banc 417 440 determine, on other F.2d only “to hear authorized subject Vaughn (1969); States, 404 v. right United appeal (8th F.2d 586 grounds Cir. vacated 50 appeal herein authorized.” boards IV, Morico other sub United (Supp. nom. v. U.S.C. 1969) States, 2230, 26 90 (1970); Miller United L.Ed.2d 776 States, v. have us hold respondents would The 1967); (9th F.2d 388 973 Cir. language “subject that the Freeman, v. 388 F.2d United 246 States appeal herein au- boards (7th 1967); Cir. Townsend v. Zimmer- meaning has no thorized” either 1956); man, (6th 237 F.2d Cir. 376 language: later limited States, (9th Stain United F.2d v. 339 1956); Ransom, Cir. United v. local boards States “The decision (7th 1955); except appeal F.2d Cir. United States shall final where 1954); (2d Vincelli, F.2d Cir. and is taken accord- is authorized Craig, Berman ess had made an erroneous determination ex United States rel. 1953); (3d United after of a factual issue all administrative F.2d 888 Burlich, appeal safeguards F.Supp. hearing were af- States (S.D.N.Y.1966). summarily forded. The case reversed district court decision that § in- all but these cases While one of applied. was unconstitutional as so even pre-induction post- rather than volved justi- Thus reliance on Clark v. Gabriel view, quite directly point inso- all are only nonavailability fied of admin- statutory jurisdiction as the far following to re- istrative review a refusal despite hold that Boards is involved. All ignored. open an ad- can be To liken language discretionary permissive or ministratively refusal nonreviewable a Local of 32 C.F.R. 1625.2 reopen to a determina- reclassification must, faced when with a tion which was followed full adminis- calling changed circumstances review, including inves- trative novo a de reclassification, reopen and afford tigation interview, we would have appellate That administrative review. ignore Mulloy decision which said: respond- part of the statute rely appellate re- if the local the re- “Even board denies ents to establish quested reopen- au- exists the President reclassification [after view ing], there is a difference be- thorizes makes no distinction between crucial simple post- tween such board action and a review. refusal the classification at Mulloy put all seem to all.” 398 Stewart, rest, for in it doubts to Justice observed, further, court, unanimous Court for a writes: precisely because “Though language of 32 CFR § postponed in the situa- Clark v. Gabriel permissive, follow 1625.2 is it does not tion, opportunity adminis- “the full may arbitrarily that a Board refuse indispensible to the fair trative review registrant’s reopen a classification.” Sys- operation Selective Service 415, at 90 at 1770. 398 U.S. S.Ct. Id., 416, 398 U.S. at tem.” at 90 S.Ct. beyond argument a Local it is Thus obliged reopen a classifica- language place, In the second presented tion with a when per opinion v. curiam in Clark Gabri- remain- claim for reclassification. The respondents place el on which ing question is whether thinking reliance, represents heavy a Local review available when Court, only three members of that opportunity. this Board fails to afford Warren, Marshall. Harlan Justices rely summary Respondents principally on Clark Black voted Justice Gabriel, 256, 424, Douglas 21 393 U.S. 89 concurred S.Ct. reversal. Justice opin- very ground, is the That ease L.Ed.2d 418 narrow and his brief place pre-induction judicial supports first re- slenderest reeds. In the ion per opinion a sit- curiam dealt with Board has abused view where entirely to the instant A uation unrelated discretion. refusal its reopening. It did not involve case. reconsider a registrant hearing change before in was afforded circumstances which would ob- re- Local Board on his conscientious in a on has result z-eclassifieati jector peatedly full He claim. afforded held to abuse be an Brennan, panoply of de novo administrative discretion. Justices Stewart objec- rights applicable judgment, to conscientious concurred in the White opinion, amendments the reasons tor claims before the 1967 but not There was in dissent in to the Selective Act. set forth Justice Stewart’s Service charge irregularity System procedural Oestereich Selective Service 414, Bd., 233, of discretion. Plaintiff’s 393 abuse Local U.S. 89 S.Ct. concurred, proc- (1968). They was that the L.Ed.2d 402 tention administrative 21 words, category registrant. in other the distinc- either not because Justice Black, writing and Clark v. Ga- between Oestereich for the Court said: suggested per opinion curiam briel “In both situations a draft valid, but because the latter case was required by who was the relevant law wrongly de- their Oestereich was view not to be inducted was in fact ordered per opinion on cided. Thus the curiam report military In service. both summary Clark Gabriel reversal cases the order for induction involved guidance to the affords no whatsoever departure by a ‘clear the Board from 10(b) (3).1 proper construction of § statutory mandate,’ Oestereich, su- trict court so that which would have barred jected case. The ease was ordered to even in In opportunity Oestereich literal report post-induction reading for induction prove that he had been petitioner remanded to a Supreme habeas § might 10(b) Court pursuant corpus dis- pra, risk criminal cases U.S. not have legality of the induction order.” ^[393] § 467-468, 10(b) been construed L.Ed.2d to submit at 238, prosecution [89 of the Act should S.Ct. to induction or S.Ct. and in both at 666. to test require [414], at Both in Oestereich and in Breen Justice regulations, delinquency to the suggested Harlan different somewhat pt. to an ex- he was entitled 10(b) exceptions formulation of the divinity § emption student. as an enrolled than that announced Circuit, in Breen v. Selec- Second suggest- In Court. Oestereich (2d Bd., 406 F.2d 636 Service Local tive challenge ed that a administrative rev’d, 396 U.S. procedure beyond compe- itself was 661, 24 assumed L.Ed.2d 653 tence Boards to Selective Service interpretation the Oestereich hear and determine and therefore outside (3) could somehow be circum- (3). Oestereich v. Selective scribed. It drew a distinction between Bd., Service seeking registrants reclassification L.Ed.2d 402. divinity statutory exemption (such as Breen he wrote: 456(g)) students, App. 50 U.S.C. seeking registrants opinion here, that of deferments “The Oest- Court’s students, (such [System Lo- U.S.C. ereich v. rejected (h) Bd., (1)). The Court cal] [89 distinction, holding (1968), appears the Oester- 21 L.Ed.2d 402] exception equally availability pre-induction eich available make the Mulloy light spe 1. The sheds on the limited case indicated of § enactment precedential excep disapproval congressional value of v. for Clark Gabriel cific present purposes. was, course, It v. Zimmerman tions such as Townsend post-induction listing pre-induction judicial in case. But rule prima establishing authorities in v. laid down Witmer United review facie reopening 392, States, 375, 377, claim test a classification S.Ct. 348 U.S. 75 only post- (1955) ; Estep it included not most of the v. United L.Ed. 428 99 114, 423, States, induction cases listed but also hereinabove 90 327 U.S. 66 S.Ct. (then Judge) opin Truesdell, (1946) ; Billings Justice Stewart’s own v. L.Ed. 567 Zimmerman, supra, 737, 542, ion in Townsend v. 321 U.S. 64 S.Ct. L.Ed. pre-induction Mulloy States, which is a case. and Falbo v. United States, supra, 549, 346, v. United at 415 398 U.S. 88 L.Ed. 305 U.S. 64 S.Ct. 6, pre (1944). dissenting n. 90 S.Ct. 26 L.Ed.2d 362. view did not His Mulloy, This reference to Townsend Zimmer and in for a unanimous court vail approv man must be contrasted with the refer Zimmerman he cited Townsend v. ingly. ence to the same case in Justice Stewart’s not claim that this While I do dissenting opinion binding precedent in Oestereich v. Selec reference was a footnote Bd., very case, tive Service it the instant least at any negates 247 n. indication Clark Ga L.Ed.2d There he Zimmerman. noted that briel overruled Townsend v.

H35 challenge pt. than turn on the lawfulness review or, put (1969) permitted an cases. those action draft board’s certainty way, with which other Moreover, Estep States, su v. United reviewing determine that court can States, supra, pra, and Falbo v. United prevail on the by respondents, relied not control judicial re merits there were if ling. They previous decided that a the oth On of his classification. view statute, 10(a) (2) of the Selective put hand, forward under the test er Training and Service Act of Oestereich, my separate not, despite 893, did lan Stat. its broad 239-245, 417, 420- S.Ct. [89 guage to the effect that decisions of Lo availability pre-induction 421], except cal Boards were final for admin turns, amounts on what review review, judicial prohibit istrative review merits, but an advance decision Estep Falbo, by point. some so at and challenge on the nature of rather construing statute, as Wit as well being made. supra, Billings States, mer v. United sought Truesdell, supra, Oestereich, the decision avoided “In question pre-induction that the could of claims review constitutionally by employed delinquency procedure the same statute agency any permit a local administrative ‘not authorized the board was parte statute,’ an ex make determination which was ‘inconsistent with ‘facially any statutory exemption,’ is unreviewable administrative and was agency unconstitutional,’ U.S., appellate proceeding [89 at decides, prohibit any so 396 U.S. at 417].” legal factual correctness or even the fundamental fairness of that decision except suggested by under the test Whether post- in a criminal enforcement or suggested or under that Justice Harlan corpus proceeding. induction habeas majority opinions in Oestereich deciding has avoided Court Breen, pre-induc- seem that same issue its construction of § judicial of re- review available (3) in Oestereich and Breen.2 cannot fusals to accept interpreta be avoided if we perceive filed. I can claim has been 10(b) (3) urged by respond tion of challenge to distinction between the valid ents in this case. proce- delinquency reclassification appellate Administrative dures considered Breen Oeste- challenge reopen- be a sufficient due substitute reich and the ing But dis- procedures review. here. As the made original us, given cretionary plaintiff no- elimination comes before change agency adminis- in condi- administrative tice of a review, postpone- coupled entitling tions him to reclassification. trative complains criminal ment of review until a He the reclassification Board, post-induction corpus procedures trial or a habeas the Local followed hearing parte proceeding presents com- a much more ex denied him a statutory lacking plex process appeal, is true that in due issue. It an are both power give, has the with- of constitu- authorization and violative challenge rights. jurisdiction hold and restrict the to 32 C.F. tional That parte Me- (1969) courts. Ex is different in kind lower federal R. 1625.4 no § issue, explicitly Boyd Clark, itself to this addressed 393 U.S. case, (1969), in this raised has not been 21 L.Ed.2d 511 Su- which Judge assuming do, perhaps carefully as preme I as avoided decid- also Court does, jurisdictional a ing 1361 is § that 28 U.S.C. amount Hastie jurisdictional requirement in this and basis sufficient U.S.C. § judicial cases. bar review in selective service similar know, never, I It has so far as cases. Cardle, administrative whenever L.Ed. 264 Wall. prima 245,11 presented. Cary Curtis, L. claim is a How. facie proposition (1845). Both this Ed. (2) The a Board to refusal of Local beside the and those cases are somewhat presented reopen such Congress may point, however, for while prima a is an abuse claim facie power over less have more or unlimited subject judicial discretion federal of the lower States, Mulloy v. review. United authority its courts, the extent of supra, therein cited. and cases judicial any power postpone eliminate (3) is a Such an abuse of discretion process of an unreview the due to test legal judicial clear error and re- been administrative decision able legal error is avail- view 10(b) (3) literally, Taken determined. § only post-induction in ha- able not III, Article applicable to all courts. is corpus criminal cases beas but says judicial power of the § pre-induction mandamus also in Cases, all “shall extend to United States injunction cases. Oestereich v. arising Equity, under this in Law Constitution, supra; Bd., Laws United Bd., su- Breen Selective Service ** States, and Treaties made pra. postpon- By interpreting as disturbing aspect A construc ing judicial the ad- where governing fully tion of in cases set forth remedies have ministrative potential is its legally Aldisert's in afforded judicial impact post-induction on review. non-arbitrary manner, a suggests interrelationship It an between has avoid- Court Oestereich and Breen Mulloy determining Clark v. makes Gabriel and necessity the full ed the “discretionary” reopen meaning a III, decision to the face of Article hardship, may such as deferment claims cases what a claim.3 be due When (not claim Oestereich, Mulloy where evaluation Breen and as read to- facts) gether “inescapably a de point path involves a avoids a out termination of fact and an exercise judgment.” path issue, should constitutional case, If this is true a Mulloy followed. The read claim, junction Breen, a true of conscien is with Oestereich and indi- fortiori reviewing By objector such deprivation tious claim. of administra- cates that the reopen as Board refusals to discre tive review local board which couch- tionary, and the exercise of such discre claim in es its decision beyond scope guise of administra reopen refusal is statute, arbitrary one review mandated tive action reviewing judicial might so, court in a crim invite If review. this is not 10§ corpus uphold such (b) inal or habeas well be unconstitutional. ground. supra, reopen Gabriel, the same refusals Clark v. holds no more quite reconcile postponement difficult to than that discretion Board unreviewable Local view constitutional where administra- Mulloy holding that a Local has in the with the tive review meantime been must unless afforded. “conclusively the file. refuted” It seems to me that the correct inter- 1766, 26 L.Ed. pretation of 50 U.S.C. Mulloy standard 2d 362. view this: looking further power legal sufficiency of the new Local Board to than change alleged. exactly fed decide whether a This is what cir- facts registrant always cumstances entitled a motion do on a eral courts subject 12(b) (6). is nei- to a new Such a decision classification Rule (Har Sys- 3. See Oestereich v. 21 L.Ed.2d Service Bd., concurring). J., lan, tem Local 243 n. express Nothing opinion appropriate discretionary. I it feel nor ther factual inter- that the 0estereich-Breen in the the view language sug- pretation is not limited Breen opinions in Oestereich mandamus would scope situations review gest a different alleged available. legal sufficiency facts of the cases. post-induction pre-versus applies in dis- order of the I reverse the would pro- for further trict court and remand virtually urges government The ceeding plaintiff to determine every pre-induction service selective Local Board had the defendant notified sug- interpretation the statute that the which, changed conditions plaintiff exten- gested invite will facie, III-A de- him to a entitle would opera- judicial with interference sive determine If should ferment. the court System. Al- tion of the Selective require had, then I that he would plight ways reminded of the we are Board to re- order the the district court court, must party, who not before open plaintiff’s and hold classification ob- place who serve hearing deferment. on his claim for with interference relief. But this tains system operation arises not be- Judge. FREEDMAN, Circuit judicial because of but cause of rather than judgment the nature of a selective of dis- I reverse the would Congress system. has chosen universal jurisdiction. It de- missal for want of system. Having made service ground selective nies relief to may individual that choice he has not carried burden registrants of selection which to methods proving to a III-A fatherhood his comport process stand- fail to due with though the classification even decisive congressional so, If does ards. his claim are now facts which establish power run to raise armies afoul necessarily acknowledged must be judicial power of the United States present in his service file. selective due enforce constitutional standards of application for a he his made When process appropriate cases. law reg- III-A fatherhood classification my adequate view means adminis- he to believe that istrant had no cause pro quid process due trative review a Board’s attention should draw the quo postponement decisive,1 fact, that his now known post-induction until criminal or other post- on a II-S classification was based proceeding.4 status. student baccalaureate Board, however, appears, acted it now as position respect Hastie’s legal ground solely mistaken essentially disposition case is of this received after II-S mine, except he no different post- July 1, 1967, on a even one based 10(b) (3) possibly read bar- status, prevented student baccalaureate ring injunction inapplicable suits for but That classification. a III-A fatherhood position to mandamus actions. If that its action is clear- the basis of majority concur in commanded rejec- Its letter of cut from the record. does, and, to an- leave you had states: “Since the due other occasion a discussion of July deferment after received jurisdictional issues. Since 1, 1967, you to a III-A entitled however, agree majority Board, on a for fatherhood.” we are unable to 240-241, concurring opinion 4. In Ms Oestereich Bd., L.Ed.2d 402. v. Selective Service supra, op- noted that Justice Harlan Gregory Hershey, E.Supp. 1 See portunity hearing for a and administra- (E.D.Mich.1969). appeals prior induction was one tive Appendix major impelled 2. Letter Local Board No. considerations postpone review. 23a. 414) description the as it is later declared bound law is intended as a proper applicable in the error to have been clear-cut of law. It does not re- registrant. regis- quire classification of a an intentional of the law. defiance Indeed, phrase opin- the Board’s error trant is not bound the in is used the Indeed, legal “basically interpretation. equivalent in view ion the law- (393 relationship 237, 414) to him of the Board’s which less.” at 89 S.Ct. help- requires the utmost fairness high- Here the Board took a view of a deciding in as matter his claim a fulness ly legal debatable issue which believe sought law,3 out it should itself have wrong was the one. Its action was law- required the vital factor which contrary less in the that it sense fatherhood classification. the correct rule of law. is of ma- It no dispute. significance is not in terial the This factor that Oestereich registrant agreed sought parties statutory the exemption, at bar registrant’s was based whereas here he seeks a deferment. Breen, post-baccalaureate supra, 467, stu- on his as a at status 396 U.S. 90 S.Ct. necessity 661, signifi- for the There is no 24 L.Ed.2d dent. 653. Nor is it applicable file to determine cant examine its law established by by regulation fact, it is made conclusive selective service rather now Breen, supra, stipulation. seems to than It therefore statute. See 467, 661, unjust of relief L.Ed.2d me to affirm the denial 396 U.S. 653; S.Ct. 1162, agreement Mitchell, parties shows Shea 421 F.2d 1970). (D.C.Cir. as a matter of law the III-A fatherhood classi- was entitled to a agreement parties Since fication. clearly registrant’s right establishes the question classification, I then the to a III-A There remains fatherhood Military judgment of dismissal reverse whether § 1967,4prevents district court remand case to the Selective Service Act of judicial pre-induction with direction to order the Board to af- review ford him classification. I therefore Board’s mistake of law. important pre- do not reach the conflict present There is involved Judge opinions sented Aldisert discretionary judgment or element of Gibbons. simply evidence; there evaluation Judges, law, ADAMS, question is an undiluted SEITZ Circuit join opinion. pre-induction re- in this established basis Breen Service See view. Judge. HASTIE, Chief 16, 460, 467- Board No. 396 U.S. Local (1970); 661, 468, 24 L.Ed.2d 653 1361 of title United States Section grants Code, explicitly Oestereich v. Selective district courts 89 “original 393 U.S. Board No. action (1968).5 compel 21 L.Ed.2d S.Ct. the nature of mandamus to * * * agen- [any characterization Oestereich officer federal justifies duty plain- of a board cy] conduct perform owed ju- as “bla- Invoking intervention induction the district court’s tiff.” tantly (393 section, U.S. at S.Ct. lawless” the com- risdiction under that Turner, appears 421 F.2d 1251 United States v. 402] 21 L.Ed.2d (3 1970). availability make the turn the lawfulness of U.S.O.App. 4. 50 or, put draft action an- board’s Harlan, concurring Breen, 5. Mr. certainty Justice way, with which other holdings summarized Breen and reviewing court can determine that Oestereich, saying: prevail here, “The were such Court’s merits there ” * * * [System Breen, Oestereich v. Selective Service of his classification. Bd., supra, Local] at 666. [89 393 U.S. 233 request trant made a for reclassification a claim that includes plaint in this case “accompanied by peremptory written information a plaintiff entitled to presenting requiring federal of- facts considered when mandamus writ which, classified, ficers, of the Selective the members true, justify change in Board, plain if a perform minis- would to Service registrant’s classification,” reopen duty him to and C.F.R. to owed terial 1625.2, mandatory. reopening was classification. When § anew his consider proposition controversy Full documentation this as an invo- is considered 1361, appears Judge jurisdiction under section Gibbons’ cation repeated complications that and need not ever, How- here. of the I think some avoided, repeating are bears that the the court have divided hough easily Court has asserted that more resolved. “[t] least language permis- of 32 CFR 1625.2 with, begin I find no conflict be To sive, it does not follow that a Board grant quoted above tween the regis- arbitrarily reopen refuse to restrictive power in and the section 1361 Mulloy trant’s classification.” United v. requirement of section States, 1970, 410, 415, 90 S.Ct. U.S. Military that no Act of 1967 Service 1766, 1770, just It is 26 L.Ed.2d 362. “judicial made of the review shall be arbitrary refusal act in a com- to regis any processing of classification * * plainant’s present * com- interest that the except a defense trant ” * * * plaint and section is de- asserts prosecution a criminal signed to correct. (Supp. IV U.S.C. is not 1969). Conceptually, mandamus Thus it seems clear to me that if the require “judicial a selective To review.” had district court considered plain minis perform a service board granting complaint, the of the motion to duty reopen consider anew terial dismiss would have been error. But be- registrant’s should what a acting court, motion, fore on sua “judicial engage review” be, not to sponte, suggested plaintiff that the dis- Rather, any it is classification. going you prove close “what special and circumscribed of a exercise plaintiff acquiesced the merits.” The upon the power has conferred a num- introduced into the record protect individual courts to arbitrary from the files of ber of letters public perform a refusal say prepared I am not board. Thus, I duty individual. owed considering the court erred these let- unnecessary inter to consider find it they incorporated if ters as had been Oestereich, Breen and relations However, complaint. the letters do members other Clark cases to which not show that the had failed their attention. directed the court have supply informa- the board with new Service Oestereich Selective “which, true, justify tion Board, U.S. Local 414, classification,” change registrant’s 402; Breen 21 L.Ed.2d They do show that 1625.2. Board, registrant requested reclassi- 653; 661, 24 L.Ed.2d Clark 90 S.Ct. pregnant his wife was fication because Gabriel, great “would work his induction 21 L.Ed.2d my and child.” deal of wife addition, supplied with the board was to consider It remains registrant’s adequately written statements plaintiff asserts in this case certifying physician her perform and her arbitrary in the wife refusal physi- duty pregnancy specifying serious as sec- plaintiff’s interest such she was complaint disorders that contemplates. cal and emotional tion 1361 experiencing. how it could I do see alleges under such that the board reasonably facts registrant’s contended that these duty regis- “justified” reclassifica- not have If his status anew. consider (dissent- ALDISERT, hardship, Circuit of extreme upon the basis ing). required to more than and no pro- reopening, its attendant make persuaded I am not mandatory rights, under 32 cedural suggested approaches multifaceted the Thus, material sub- the 1625.2. C.F.R. § plurality opinions justify re- various plaintiff amplified and in by the mitted moved, I versal of the district court. am allegations of way the contradicted existing prolifer- therefore, the to add to complaint. lengthy expres- rather ation of views a my position. sion of own showing the Apart made from the my dispositive view, question in registrant the hard- on his claim extreme appeal taken the this is whether the local board’s ship, has Freedman representa- appel- registrant’s refusal consider position that the proved board, properly lant’s III-A deferment in- if the tions to justified fact and an ex- true, reclassifica- volved determinations of be My whether, instead, of fatherhood.1 ercise of discretion or the tion on basis non-diseretionary difficulty arises out based on stand- this contention with regulation. registrant had or mandated statute fact that ards of the former, II-S, If this civil action 32 C.F.R. 1622.30 classified § precludes of the board’s decision explicitly a deferment of induction review jurisdictional registrant basis of fatherhood should be barred 10(b) There limitation of II-S. Section after he has been classified Military interpreta- question Act of Service substantial tion, (Supp. men upon IV which reasonable U.S.C. § provides pre-in- covers there shall be no differ, restriction undergraduate, graduate, “of classification or duction review as well as Hershey, processing registrant.”1 any Gregory If classifications. See latter, permitted E.D.Mich.1969, F.Supp. at this 1. Manda- should be recognized judicially excep- be con- time 1361 should mus under Section strictly arbitrary I tions to the Oestereich v. Selec- action statute. fined say prepared Board that the board’s tive Local No. am not Service covering regulation reading 21 L.Ed.2d as 393 U.S. arbitrary, (1968); every Breen v. II-S classification was though review, upon as distin- No. interpreta- guished mandamus, And 24 L.Ed.2d 653 from meretricious, regulation might appearing I well the risk of

tion light approaches compelled, feel versed as erroneous. Guffanti Cf. brethren, my point S.D.N.Y.1969, F.Supp. Hershey, taken several of 553. decision, ap- up the obvious: our as an Accordingly, vote reverse the pellate tribunal, must be based on judgment require a denial compiled in the district court. record complaint motion board’s to dismiss solely Alleging jurisdiction, complaint, question face on its federal because sought 1331, appellant supplemented, adequately to en- asserts and as U.S.C. § join issuing arbitrary reopen to an or- his local board from refusal registrant’s requested, in the extreme der induction and sider the alternative, reopening of his classifica- claim. 1. 1. No required, cerning have been detailed than 32 If physician’s amplification sought wife’s C.F.R. processing after shall pregnancy representations could and should reopening. 1622.30 made of were (c) (3) regis- con less criminal trant atively this title responded President, prosecution ^[*] order * * * either except boards, appeal boards, ^[*] instituted under § affirmatively report after as a defense to ^[*] induction. ^[*] neg- or through loy, supra, a federal reopens, mandamus and once the Board regulations official, required by board re- U.S.C. to “con- dismiss, based sponded motion to sider new information it has again reg- the district part classify received contention to] [and over the sub- istrant lacked the same manner court he had appealed ject Appellant matter. never been classified.” 32 C.F.R. § dismissal the com- district court’s 1625.11. This new classification would * * “pursuant plaint to Fed.R.Civ.Pro. afford the “the ** * (l)”2 appearance original in the case of an classification.” gravamen complaint 1625.13. the denial due he was denied reopening resulting a and the fore- request reopen- for of his consideration closure of administrative review which argues ing. he established a He that remedy appellant seeks to this action deferment, case for injunction for an or writ of mandamus. allegations on “nonfrivolous based previously appellate have con- that not been Our facts task as an court should true, Board, that, and his sidered be to decide the whether court below was regulation or be sufficient under correct —-based on the facts it —in before granting requested holding jurisdiction the to warrant that statute was without Mulloy v. United reclassification.” to entertain action. We 1766, 410, States, guided should, course, correctly (1970). ju- sumption He L.Ed.2d 362 that a federal lacks court has set that “where tends risdiction until it has been demonstrated exists,3 facts establish new and rec- out that classification, ognition power a new that give, withhold, juris- must to determine to and restrict classification,” My Mul- to he is entitled that diction of lower federal courts.4 Appellee’s prove going 2. dismiss was based motion to on the merits. to (2), (3), (1), Honor, Fed.R.Civ.Pro. I on Your what MR. EGNAL: (6). was, part, (5), and Since are the seven letters. here (6) (failure grounded seven, Eight, on subsection were intro- letters then upon plaintiff’s duced, objection, a claim which relief can state ex- without granted), purporting have been treated as it could hibits. statements Certain subject summary judgment background one for were be additional factual provisions given by plaintiff’s 56. Fed.R.Civ.Pro. This is counsel who care- then fully properly explained: because the considered not so court * * * pleadings eight separate ex- but also factual MR. EGNAL: sup- appellant just gave you introduced hibits I is not that recitation port Wright proved. of his contention that entitlement what I know Mr. don’t [government III-A deferment had been established as mean counsel] wants —I improper proof was not matter law. file he has. would be court have considered exhibits President, Directors and Com- 3. Turner v. conjunction with its consideration of pany America, 4 Bank of North Dal1. leeway 12(b) (1) Wide the Rule motion. ; WRIGHT, 8, (1799) LAW 1 L.Ed. 718 accorded the in this circuit courts COURTS, (2nd Ed. FEDERAL OF considering all of record relevant matters 1970) 7,§ at 15. See, jurisdiction. g., e. matter McCardle, Chewing Philadelphia L. 4. Ex Parte Wall. Berkowitz Gum Cary Curtis, (3 1962). In Corp., Ed. 264 F.2d May 236, 245, transcript How. 11 L.Ed. 576 From the colloquy ap- hearing, following Court declared: judicial power of pears [T]he the United : States, although origin in it has its I I THE COURT: think understand Constitution, (except your position dismiss, in enumer- motion exclusively instances, applicable ated will matter under ad- I take the court) dependent for its distribu- to this visement. organization, modes you and for the suggest meantime, I entirely upon exercise, action your its you complete what as to record concerns, nancy expected inquiry there- date of confine-

principal line of ment The first doc- fore, applicability of June 1969. of Section advising again day tor the next recent wrote effect of and the construing Hunt was “under emotional the statute. Mrs. Court decisions her a result of concern over distress as appel- discloses that record below possible induction.” her husband’s classi- and received II-S lant Following July appeal of his (student deferment) the denial on after fication I-O, request the issuance June, 1968, and after classi- he was 1967.5 In classification, appellant unsuccessfully appealed I-A of a new fied I-A and April “I ground on 1969: he the board wrote the state board my (conscientious appeal classification I-A ob- wish 1-0 entitled to was you request April appeal dated jector) status. While board, category classify me in III-A on the appeals pending state before ground however, that: appellant of Novem- letter 17, 1968, local board notified his ber a father “1 I am soon to be pregnant, wife If I inducted it “2 were would work “to [his] wished great my deal wife 1968,” July 11, reason for the I-A on child.” the classifica- “entitled to (BA).” that he was acknowledged board the re- The local tion of III-A ceipt “supporting for documents” 22, physician notified On November appellant’s and III-A claim from wife her appel- had that he examined the board May 2, 1969, physicians, but on advised “presumptive and made lant’s wife diagnosis that, havin'g him the infor- “considered pregnancy.” Hunt Mrs. your file submitted while mation your requesting 24 wrote on December Appeal at the Board and file was husband, for her III-A reclassification indicating returned,” “did not since it has been pregnant, that she was reopen- feel the information warranted ing your problems.” she had a “number of rectal you had Since case. spastic “a condition of the bowel tract.” deferment after and received July 1, 1967, you cramps and extreme “severe abdominal not entitled to a are resulting my husband’s tension from for fatherhood.” dealing Sys- with the Selective Service reject position, Initially, I must tem,” and that “the tension nervous Military shared,6 that the I once potentiality which has resulted from the 1967 mandates Act of being pro- drafted led me to of his seek right ap- administrative an absolute help.” physician second fessional A told peal refusal to re- from a local board’s treating that he had board Mrs. request open reclassi- and consider August 1968, 1, Hunt “since with irri- quantum fication, irrespective along syndromes, colon with ano- table presented to the board. evidence 50 pathology,” rectal dergone hemorrhoidectomy and that she had un- 460(b) (3) provides: U.S.C. § Septem- * * * boards, sepa- or 18, physician local Such ber a third 1968. Still consisting panels each rate thereof communicated with the board on Decem- members, shall, under 30, 1968, diagnosing preg- three or more positive ber supra, WRIGHT, Congress, possesses pow- collected in cases who the sole See treating (inferior 10, at 25 n. 28. er of the tribunals Supreme Court), to the the exer- indicate whether 5. The record does not judicial power, cise of in- and of post- student deferment or 1622.25, vesting jurisdiction with them either O.F.R. See 32 baccalaureate. concurrent, exclusive, limited, or 1622.26. withholding from them Cir., Commanding Officer, degrees 3 427 6. Clark the exact and character which v. X, (Aldisert, may proper 7, 11-12 con- seem F.2d curring) public good. .

1143 regulations regulations has been prescribed sustained. rules within, Charity ex rel. La Com President, power the United States (2 manding Officer, 381, F.2d 383 jurisdictions 142 respective of such Beaver, determine, 1944); 309 United States Cir. to hear and boards 1962), denied, (4 appeal right appeal F.2d Cir. cert. to the authorized, questions L.Ed.2d all herein boards for, Boyd States, (1963); United respect inclusion with or claims 1959); from, (9 Klubnikin exemption deferment F.2d * * (9 States, training F.2d 90-91 *. The v. United and service denied, board shall Cir. cert. such local decisions of appeal except au- L.Ed. 846 where final taken in accordance and is thorized determining the for the local basis regulations as the such rules with reopen board’s refusal consider prescribe. may (Emphasis President request for the III-A classi- supplied.) critical fication —a determination that reading compels jurisdictional pre-induc- to the issue of statute fair A separate must be to an adminis- attention conclusion review — given appeal C.F.R. a decision a local the two subsections trative (a) dependent deals with is not but 1622.30.8 Subsection board absolute regulations fatherhood; consequences upon the existence of subsection ferring right. (b), hardship. The statute mere- rights ly authorizes the creation turn first appeals provides 1622.30(b). appellant For based regulation permitted shall be seeking review, prevail such rules “taken accordance with above, must, I have indicated regulations President as the (3), overcome a statute of Section provisions prescribe.” In the absence jurisdictional limitation al- which has * * * appeal, decisions for an “the ready attack. withstood constitutional shall final.” local board be Supreme has found “no con- Court Congress’ Clearly regulations objection themselves stitutional thus * * * interpretation requiring open sweeping assertion not * * * light urged appellant, particularly in claims be deferred until aft- * * * Mulloy, supra, er or established induction until defense which necessity proving prosecution facie case of the criminal reopening. objections prerequisite press Further- follow he his as a should reg- refusing point more, the due attacks on his classification to pro- ulations, Estep based their failure to United submit to induction. v. States, 423, appeal from a refusal of 327 114 90 vide U.S. S.Ct. [66 proved (1946); reopen,7 un- local board L.Ed. v. United Falbo 567] successful, States, constitutionality 346, and the 88 320 549 [64 U.S. S.Ct. presented veterinarian, physician, not case with 7. We are in this dentist or question specialist category to an who is not in an allied ** reopening except registrant *, clothed in the de who is from a facto reopen. guise of a refusal See Miller in Class II-S after date of classified (9 Military States, F.2d 973 Cir. 388 Selective Serv- v. United enactment eligible 1967). ice Act shall not be of 1967 in III-A Class Reg- provisions paragraph. III-A: Class 1622.30 Children; (b) placed With III-A shall istrant a Child or In Class be registrant Registrant Ex- Reason whose induction into the armed Deferred (a) Eardship Dependents.— forces in treme would result extreme any regis- wife, par- placed wife, child, divorced be his Class shall ent, grandparent, brother, children who who a child or with sister trant has * * * family dependent upon support, him for a bona fide whom maintains relationship home and who is their 1144 Gabriel, which, (1944).” presented facts Clark v.

L.Ed. 305] 424, 426, 256, in 259, 21 other 89 S.Ct. and uncontradicted true 393 U.S. file, be formation contained L.Ed.2d 418 regulations sufficient under the to war sure, re- To this section has not be granting rant classifica Excep- interpretation. literal ceived a Burlich, F. tion.” United States 257 Congressional restriction tions to the 906, (S.D.N.Y.1966). Supp. 911 v. Selective were found Oestereich clearly System 11, Supreme Court has said Local Board No. 393 But Service 414, may pre-induction re- 233, L.Ed.2d 402 21 that there U.S. necessary “the Breen v. Selective Service view where it is necessary quantum of evidence to sus- Local Board 396 U.S. No. classification,” (1970). But tain a Board’s Oestereich S.Ct. L.Ed.2d Board, though and v. is true that Service Oestereich Selective pre-induction supra, permitted re- at at 238 Breen have n. S.Ct. conjunction 417, or, before, view, they read in ac- must noted where the Gabriel, supra, “inescapably the sec- board involves Clark pre-induction of fact and an Court’s determination exercise ond of Gabriel, supra, trilogy judgment,” decided on the Clark v. Gabriel, day Oestereich. at at same 393 U.S. 426. Con- distinguished approach, in which the ease sistent with this Court Court distinguished statute uncondition- Breen “discre- “was between ally tionary “explicit exemption,” as Oeste- entitled to standards” reich, “inescapably quirements in- for student deferments.” from one which of fact and an a determination volves decision in This Bucher court’s judgment,” exercise of System, Local Boards if a and declared etc., (3 Nos. F.2d category, the latter there case fits within did not enumerate different standards. Thus, pre-induction review. be no 10(b) (3) We held that Section does jurisdiction to com- entertain bar review where depend the dis- plaint on whether should regulations and the classification of his claim to a trict resolution court’s procedures pursuant are chal- thereto and entitlement to re- lenged grounds they lack “on the opening “determination fact entails a statutory authorization, violate and/or judgment,” as and an exercise of rights.” constitutional were care- We ruling requires Gabriel, a or whether it ful add bars to that “[t]he Section right alleged of a over on an violation only a induction there where is prerogative, has no as the board which challenge System’s to of' the resolution Breen. Oestereich questions factual in the classification processing registrant.” at of a draft Id. Proeedurally, prima is case the facie 27. designed to determine wheth- a standard the I cannot conclude that circum- presented quantum of evidence er the of Hunt’s amount- finding. stances condition Mrs. support a One sufficient charged to hardship a of ed as matter law. duty to to decide whether cir- of these assessment evaluation ac- made out must such a case supported by refer- intertwining letters complish exquisite an of cumstances— ring problems, her rectal bowel to a act not as He must functions. fact-finder, cramps, and nervous- abdominal tension of but also an evaluator impending her ness because of husband’s utilized in discretion those facts. The responsibility evaluating induction—were the refined so board, to the board and it was for prima case determination facie exclusively facts constituted decide whether such criminal trials is civil and justifying prima case of In selective service function. facie “inescapably reopening. decision This prima “if cases, present case is facie 12(b) and Rule well-pleaded involve a determination of fact [d] ma- —“the judgment,” properly allegations complaint exercise left terial [were] Gabriel, admitted,” to the local Clark v. su- taken board. “conclusions law pra, at at 426. unwarranted deductions fact Judge accept position To Gibbons not admitted.” [were] 2A MOORE’S pre-induction and sanction of this FEDERAL PRACTICE 12.08 at 2266- “precisely permit decision would be to It 69. is clear that the existence vel non ‘litigious interruptions kind of a ease was the ultimate procedures provide necessary military appellant sought to establish, issue that manpower’ (113 Cong.Rec., (report requiring application relevant given Russell Senator on Conference Com- being so, law facts. This it action)) sought fairly mittee cannot be said that prevent (3).” allegation it enacted mere of a Gabriel, supra, Clark v. at was taken appellee. as admitted Turning claim, now to the fatherhood Moreover, I detect inclination arguable 1622.30(a) that 32 C.F.R. § Court to restrict the hold- establishes for standards the fatherhood ing of Clark v. Gabriel and extend explicit deferment which are and non- exceptions of and Breen. Oestereich discretionary, applied which can be Indeed, citing Mulloy, Court, Clark in the absence of extensive factual find- Gabriel, re-emphasized policy ings. In Worstell, United States v. “narrowly scope limited re- (3 F.2d 762 we held that strong view.” view of this and con- right classification II-S establishes a tinuing policy, accept am unable eligible registrants deferment suggestion Hastie’s Chief that may not refused be or withdrawn (3) can be Section avoided mere- right discretion of the local board. This ly by the I am use mandamus. analogized to a IV-D congressional objective vinced exemption, ministerial the denial of “litigious interruptions” to minimize which was procedures, service selective whether supra. Oestereich, view in The Su- interruption cast terms of preme subsequently Court made it clear injunction request for an or for a writ Breen, supra, deferment of mandamus. differently be treated from suggested appellee’s exemption purposes IV-D failure to file amounted to an answer pre-induction review. In Bucher v. Se- complaint’s averments, admission of System, lective Service Local Board Nos. obviating thus the need factual find- etc., supra, 421 F.2d at we deemed removing ings by the district court and unnecessary, however, decide Clark v. Gabriel issue the case. alleged: Paragraph Complaint of6 statutory “achieve the dimension of [s] statutory akin deferments defer- pending, plain- was While (student) ment status the II-S classi- changed tiff notified defendant Worstell,” fication dealt with since facie, which, prima entitled conditions invalidity delinquency reclas- plaintiff ato deferment. 3-A pre- the entitlement to sifications created argu- despite limitations I find merit in this technical induction review no too, First, (3). Here, required I find no answer was ment. Section dismiss, unnecessary appellee’s to served to decide whether motion since raising day period deferment —like of a fatherhood fusal within the 60 And, granted. pre- open 12(b) defenses, a denial of II-S —is was Rule although appellee’s in the purposes review. Even induction reg- asserting non-discretionary deferment, one as motion to dismiss — review, must, ground under in order to obtain state a claim istrant the failure formally grant plicit jurisdiction his status to this the court that show complies regula- by the defined court courts, review decisions of the district that with allegation that A bare U.S.C. or statute. §§ scope concept the basic that our of re- him that which denied the Board to overcome view is limited matters of record. is insufficient he is entitled case, Fed.R.App.Pro. In this 10. jurisdictional barrier. charge acted that board Therefore, even I were to assume de- rejecting the fatherhood illegally in validity Gregory distinction, I face, insufficient. its ferment was. appellant would hold that failed in the prov- provides “a 1622,30(a) that trial court ing sustain the burden of Section post-baccalaureate in Class II-S II-S status classified iswho immunity and, consequently, Mili from mili- of enactment the date after (June tary tary of 1967 service. Act Selective Service eligible a classi 30,1967) shall not sum, appellant I would hold that did this [fa in Class III-A fication ju- establish the not matter of intro paragraph.” Evidence therhood] risdiction of the district court because by appellant himself demonstrated duced jurisdictional failed surmount the establishing “re ineligibility, that he his 10(b) (3). pre- hurdle of Section He deferment received a II-S quested and hardship request sented a a III-A Moreover, July I find 1967.” after “inescapably case which a de- involve[d] correctness consider the occasion to termination judgment” fact and an exercise (E.D. Hershey, F.Supp. Gregory board, and not suggests Mich.S.D.1969), that the legal framing capable purely issue received is barred involving alleged question “departure gradu undergraduate as an statutory man- the Board its student, there was no evi because ate supra, Oestereich, date.” the district before in the record dence appellant What obtained appellant’s II-S was that court presented district court was stage. post-baccalaureate aat special inextricably question tied to Seitz, Freedman, Judges context, and Adams of which the resolution factual however, not, discretionary their review confine board do the local was with Instead, they their rest nor statute record. mandated neither and regulation. Appellant deprived was on information conclusions argu- time at oral in a first “bla- for the deferment sented his decisive tantly And in assert- this court. manner.” “[T]he ment before lawless deferment, ing [fatherhood] establish his to a fatherhood facts which * * * acknowledged. be- to the court are now to demonstrate he failed designated dispute. It was not in his status was factor low that by This regis- agreed by parties regulation. at bar was based trant’s II-S reasons, foregoing I all For stu- post-baccalaureate status as judgment of the dis- affirm agree Gibbons dent.” trict court. original cannot “assume we de- jurisdiction to appellate than rather DUSEN, Judge, joins issue which the fatherhood VAN Circuit cide Im- district court.” decided dissent. never

Case Details

Case Name: George A. Hunt, Jr., Selective Service No. 9-45-45-1035 v. Local Board No. 197

Court Name: Court of Appeals for the Third Circuit

Date Published: Feb 5, 1971

Citation: 438 F.2d 1128

Docket Number: 18076

Court Abbreviation: 3rd Cir.