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April 18, 1972

Stephen H. GARDINER et al., Plaintiffs,
Curtis W. TARR, Director of the Selective Service System, Defendant

Flannery, District Judge.

The opinion of the court was delivered by: FLANNERY


 Plaintiffs in this action are classified as conscientious objectors (Class I-O) under the classification scheme of the Selective Service System. They complain of illegal policies and actions improperly promulgated by the Defendant herein, ordering them to perform two years of compulsory service at a time when all registrants classified I-A (available for military service) and I-A-O (available for military non-combatant duties) who occupy similar positions in the order of call for individual male citizens registered for the draft are not only not being ordered to report for induction but are, in fact, being placed in a particular selection group under the draft lottery making it virtually certain that they will never be ordered to report for induction. Plaintiffs contend that this disparate treatment is violative of the Military Selective Service Act of 1967 and the 1971 Military Selective Service Act (50 U.S.C. App. § 456(j)) [hereinafter referred to as either the "1967 Act" or the "1971 Act"] and the validly-promulgated regulations issued thereunder governing the processing and induction of conscientious objectors for civilian work service, and, in addition, is arbitrary and discriminatory in violation of the Due Process Clause of the Constitution and the Equal Protection Clause as it is incorporated thereunder. In the alternative, Plaintiffs assert that the rules and regulations which purport to validate this disparate treatment have been promulgated by Defendant in a manner which violates the letter and spirit of the pre-publication requirements of the 1971 Act, and the Section of the Administrative Procedure Act referred to as the Freedom of Information Act, 5 U.S.C. § 552 and Section 2 of the Executive Order 11623, 36 F.R. 19963 (Oct. 14, 1971).

 Plaintiffs filed their complaint on March 3, 1972, as a class action on behalf of two classes of similarly-situated persons classified as conscientious objectors. On March 7, after notice and hearing, this Court with the consent of the Defendant, issued a temporary restraining order enjoining Defendant from issuing or enforcing orders to report to civilian service as to any of the Plaintiffs named in the complaint until 5:00 p.m. on March 27, 1972. The parties agreed to a procedure whereby Defendant would file a motion for summary judgment and to dismiss the cause as well as an opposition to the Plaintiffs' contemplated motion for preliminary injunction by March 17, 1972, and the Plaintiffs would, in the interests of full and expeditious resolution of this important case, in one document, respond to the motion for summary judgment and file a memorandum in support of their motion for preliminary injunction prior to the March 27, 1972 date set for hearing. The Defendant did not, however, file his motion for summary judgment and dismissal and opposition to Plaintiffs' motion for preliminary injunction until March 21, and the Court, therefore, with the concurrence of the parties, extended the date for hearing until April 4, 1972, and over the objection of the Defendant, extended the Temporary Restraining Order until 5:00 p.m. on that date. In the period between the March 7 and March 27 hearing dates, the plaintiffs, being advised that several individual lawsuits had been filed in other jurisdictions on behalf of certain members of the classes described in the complaint, dismissed the action as to the two classes and converted it into a proceeding on behalf of the individual Plaintiffs.

 Thereafter, the Plaintiffs also filed a cross motion for summary judgment, and, just prior to the hearing on April 4, 1972, counsel for amici curiae, the American Civil Liberties Union the New York Civil Liberties Union Selective Service and Military Law Panel, the National Capitol Area Civil Liberties Union, the Los Angeles Selective Service Lawyers' Panel and several interested classes of California conscientious objectors, was permitted to file a brief and to participate in oral argument.

 To resolve this substantial challenge to the Director's actions the Court must plunge into the thorny thicket of what are often conflicting Selective Service laws which have progressively developed into "an intricate maze through which the uninitiated lawyer, let alone a young man subject to the law's provisions, cannot easily find his way." Nestor v. Hershey, 138 U.S. App. D.C. 73, 425 F.2d 504, 508 (1969).


 Before reaching the merits of Plaintiffs' action, the Court necessarily must determine whether it has jurisdiction over this claim or whether pre-induction judicial review of Plaintiffs' claims are barred by § 10(b)(3) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 460(b)(3). Section 10(b)(3) was enacted by Congress to prevent litigious delay in the process of raising and army and states flatly that a classification decision of the local board "shall be final, except where an appeal is authorized . . ." and that the classification decision on appeal also "shall be final . . ." It further states, "No judicial review shall be made of the classification or processing of any registrant . . . except as to a defense to a criminal prosecution . . . after the registrant has responded either affirmatively or negatively to an order to report for induction . . ."

 Challenges to § 10(b)(3) have reached both the United States Court of Appeals for the District of Columbia and the Supreme Court. See Fein v. Selective Service System, 405 U.S. 365, 92 S. Ct. 1062, 31 L. Ed. 2d 298 (1972); Oestereich v. Selective Service Board, 393 U.S. 233, 89 S. Ct. 414, 21 L. Ed. 2d 402 (1968); Clark v. Gabriel, 393 U.S. 256, 89 S. Ct. 424, 21 L. Ed. 2d 418 (1968); Swift v. Director of Selective Service, 145 U.S. App. D.C. 224, 448 F.2d 1147 (D.C. Cir. 1971); Shea v. Mitchell, 137 U.S. App. D.C. 227, 421 F.2d 1162 (1970); Nestor v. Hershey, 138 U.S. App. D.C. 73, 425 F.2d 504 (1969). Although some of these cases found § 10(b)(3) did bar pre-induction judicial review in particular fact situations, the Court reads these decisions together as being consistent and finds their net effect to be the carving out of a narrow exception to § 10(b)(3). That exception is that where the statutes or regulations giving rise to a plaintiff's claim allow the Selective Service System discretion, § 10(b)(3) bars pre-induction judicial review. On the other hand, where those statutes or regulations mandate a deferment, an exemption or certain processing treatment such that the Selective Service System is given no choice or discretion, pre-induction review will lie when it is asserted that such statutes or regulations have been violated by the Selective Service System. The United States Court of Appeals for this Circuit recently stated, "[since] resolution of this question involves only a legal issue, and does not call for a review of a factual determination or the exercise of discretion by the local board, we think it plainly can be reached on pre-induction review." Swift v. Director, supra, 448 F.2d at 1150.

 Recognition of this exception causes the issue of jurisdiction to be "inextricably intertwined with the merits of the controversy," that is with the proper construction of the statutes or regulations in question. Nestor v. Hershey, supra, 425 F.2d at 511. In Nestor, the plaintiffs' claim stemmed from the regulations granting I-S student deferments. The Court found that these regulations mandated that a registrant in plaintiffs' position be granted a I-S deferment and, therefore, found jurisdiction. Similarly, in Shea, supra, the Court found that the regulations pertaining to "fatherhood deferments" mandated that someone in plaintiff's position be granted a III-A deferment and therefore § 10(b)(3) was found not to be a bar to pre-induction judicial review.

 The Court finds that § 6(j) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 456(j) mandates that a conscientious objector (I-O) may not be ordered to perform alternative service until his I-A and I-A-O counterpart has been inducted. Therefore, the Court concludes that § 10(b)(3) does not bar its determination of whether vis-a-vis the named Plaintiffs, the Selective Service System has complied with this mandate, and since Plaintiffs have arguably sustained their burden of the requisite jurisdictional amount, see Berk v. Laird, 429 F.2d 302, 306 (2nd Cir. 1970); Friedman v. International Ass'n of Machinists, 95 U.S. App. D.C. 128, 220 F.2d 808 (1955); Walsh v. Local Board No. 10, 305 F. Supp. 1274, 1275-1276 (S.D.N.Y. 1969), the Court finds that it has jurisdiction.


 Under each Selective Service Act enacted by Congress and the regulations promulgated thereunder, an individual upon registering for the draft at age 18 was placed within a certain classification and subject to reclassifications by the local draft board with which he was registered according to his changing status until such point as he became eligible for induction or alternative service in lieu of induction or was rendered by age or disability permanently ineligible for service. The particular classifications have varied slightly under the different Acts, but the ones under discussion here, namely, Classes I-A, I-A-O, and I-O, may be considered not to have been changed in any significant respect. The present case concerns a number of registrants in the latter category (Class I-O), registrants who:

"[have] been found, by reason of religious, ethical, or moral belief, to be conscientiously opposed to participation in war in any form and to be conscientiously opposed to participation in both combatant and noncombatant training and service in the Armed Forces." 32 C.F.R. § 1622.14 (1971).

 The right of persons who have been found to have such a conscientious objection to be exempted from any service in the Armed Forces of the United States has been recognized in every conscription Act since 1940. However, at the same time, Congress has provided that conscientious objectors shall be required "in lieu of induction" and "subject to such regulations as the President may prescribe" *fn1" to perform approved civilian alternative service for a two-year period. Act of 1967, § 6(j), 50 U.S.C. App. § 456(j) (1970). This requirement on its face is subject to one prerequisite: the individual concerned may be ordered to report for alternative service only if the order is issued "in lieu of induction", i.e., only if he would have received an order to report for induction had he been classified I-A (available for military service) or I-A-O (available for military service only in a noncombatant capacity).

 The Court will hereinafter designate as Group 1 those Plaintiffs who were transferred from the 1970 "First Priority Selection Group" into the 1971 "Extended Priority Selection Group". *fn2" It appears that those Plaintiffs have been issued SSS Form 152 [Special Report for Class I-O Registrants] prior to April 1, 1971.

 The Court will designate as Group 2 those Plaintiffs who were members of the 1971 First Priority Selection Group whose Random Selection Numbers (R.S.N.'s) are 125 or lower and who were issued SSS Form 152 prior to November 9, 1971.

 A series of regulations issued under the pre-1971 alternative service provisions of the Act, in effect on December 9, 1971, the last date on which any registrant could be called for induction in 1971, and thus governing the disposition of those Plaintiffs in Group 1, recognized that I-O registrants must be called in identical sequence to those registrants classified I-A and I-A-O. Specifically, they provided that:

"such order [to report for alternative service], shall not be issued prior to the time that the registrant would have been ordered to report for induction if he had not been classified in Class I-O. . . ."

 32 C.F.R. § 1660.20(a)-(d) (1971). See United States v. Dudley, 451 F.2d 1300 (6th Cir. 1971), equating "prior to . ." with the statutory phrase "in lieu of induction."

 Moreover, the alternative service regulations issued under the 1971 Act and thus relating to the disposition of those Plaintiffs in Group 2 contain similar language:

"A non-volunteer will not be ordered to perform alternate service in lieu of induction before registrants with his [Random Selection Number] who are Classified in Class I-A or I-A-O are ordered for induction." 32 C.F.R. § 1660.4(a) (1972).

 In order to understand the way in which the Plaintiffs claim Defendant is attempting to violate these principles and regulations by calling certain I-O registrants who would not have been called had they been in Classes I-A and I-A-O, it would seem useful to review the procedures which governed the manner in which registrants were to be called and inducted into the Armed Forces prior to January 1, 1972, the date by which the Plaintiffs contend they all had become members of a certain group in the order of call and thus should now not be ordered for work.


 On November 10, 1971, Defendant issued a "Local Board Memorandum" dividing the Extended Priority Selection Group [EPSG] into two subgroups. Local Board Memorandum 99 [hereinafter referred to as LBM 99]. The published version of LBM 99 provided that registrants who first entered the EPSG in 1971 were to be assigned to Subgroup A of the EPSG, and registrants who first entered the Extended Priority Selection Group in 1972 were to be assigned to Subgroup B. A new subgroup was to be established in this manner each succeeding year and all members of Subgroup A were to be called ahead of members of Subgroup B. LBM 99, para. III B, 36 F.R. 21548 (Nov. 10, 1971).

 LBM 99 treated I-A, I-A-O and I-O registrants in a parallel manner. Thus, I-A, I-A-O and I-O registrants were considered to be in one of the two subgroups of the Extended Priority Selection Group if and when their number had been "reached" by their local board during a calendar year and they had not been issued an order to report for induction or for civilian service. Furthermore, no registrant in any of these classifications could be ordered out of the EPSG for induction or civilian work unless there were calls for registrants during the first quarter of the calendar year, and their number was reached as to all these calls. See 32 C.F.R. § 1631.7 (1971); LBM 99, supra. Absent such calls, the registrants were required to be placed in a lower priority selection group, one from which there have never been any men drafted to date.

 As of January 1, 1971, the date on which all Group 1 Plaintiffs entered the 1971 Extended Priority Group, the processing and ordering to work of conscientious objectors in Class I-O was governed by Part 1660 of the Selective Service Regulations and the relevant Local Board Memorandum. In each subsection, Part 1660 provided that an order to report to civilian work "shall not be issued prior to the time that the registrant would have been ordered to report for induction." 32 C.F.R. § 1660.20(a-d) (1971). Similarly, on January 1, 1972, the date on which Group 2 Plaintiffs became members of the 1972 EPSG, the regulation in effect provided that a I-O would not be ordered to perform ...

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