UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
May 18, 1971
JOHN HENRY WRIGHT, PLAINTIFF-APPELLANT,
DEE INGOLD, AS ACTING DIRECTOR OF THE SELECTIVE SERVICE SYSTEM, ET AL., DEFENDANTS-APPELLEES
Fairchild and Stevens, Circuit Judges, and Grant, District Judge.*fn*
STEVENS, Circuit Judge.
On April 14, 1970, appellant filed this action seeking to enjoin appellees from inducting him into the Armed Forces. On the authority of § 10(b) (3) of the Military Selective Service Act of 1967,*fn1 which prohibits pre-induction review of the classification or processing of registrants, the district court dismissed the complaint. We, therefore, accept the factual allegations as true for the purpose of this decision.
Appellant is a conscientious objector whose beliefs did not crystallize until after he received his order to report for induction. A few days after receiving his induction notice appellant wrote to his local board, advising that his beliefs did not allow him to go into the Army. The local board sent him SSS form 150 for conscientious objectors, which he promptly completed and returned. The board then postponed his induction until further notice and invited him to appear for questioning.
At the time of his appearance he requested that an attorney from the Mandel Clinic of the Legal Aid Bureau be permitted to represent him. The lawyer was excluded from the hearing by the local board.*fn2
On the day following his appearance, appellant was notified by mail that the board would not reopen his classification. Thereafter his requests for a statement of reasons for denial, and for review of the local board's action, were unsuccessful. Ultimately he was ordered to report for induction on April 22, 1970. This litigation was then commenced.
Appellant makes three basic contentions: (1) that he had a right to have counsel present during an appearance before his local board; (2) that his all white draft board, comprised of nonresidents of an area which has a substantial Negro population, was selected in violation of the applicable regulations and was without power to induct Negroes; and (3) that he presented a prima facie claim for conscientious objector status which required a reopening of his 1-A classification. We have concluded that the Supreme Court's recent decision in Ehlert v. United States, 402 U.S. 99, 91 S. Ct. 1319, 28 L. Ed. 2d 625, requires rejection of the first and third contentions, and that consideration of the second is foreclosed by § 10(b) (3).
The second proviso to 32 C.F.R. § 1624.1(b) states that "no registrant may be represented before the local board by anyone acting as attorney or legal counsel." Appellant challenges the validity of this proviso. Since there is no explicit statutory support for a regulation absolutely barring lawyers from Selective Service hearings,*fn3 and since the challenge raises a clear issue of law unclouded by any factual questions, we assume that pre-induction review of this issue is not barred by § 10(b) (3).*fn4 Moreover, since no court has yet squarely upheld the validity of this portion of the regulations,*fn5 and its origin and justification are somewhat obscure,*fn6 we may assume that enforcement may deprive some registrants of their liberty without due process of law.*fn7 Nevertheless, we are persuaded that even if the regulation is invalid, the judgment dismissing appellant's complaint must be affirmed.
The proceeding at which appellant requested permission to have counsel present was held after his induction order had already issued. He was seeking to persuade the local board that the late crystallization of his beliefs was a change in his status which justified a reopening of his classification.*fn8 In essence, appellant contends that the exclusion of his attorney deprived him of a fair hearing on his claimed right to a reopening.
It has been decided, however, that the claim which appellant first asserted after receiving his induction notice gives him no right to any hearing at all before his local board. Ehlert v. United States, 402 U.S. 99, 91 S. Ct. 1319, 28 L. Ed. 2d 625. It was his duty to submit to induction and thereafter seek relief from an appropriate military tribunal. Thus, no substantive right to reopening was impaired by the procedural unfairness of the board's hearing even if we accept all of appellant's allegations.
It is possible, of course, that since the members of the local board did question appellant about his beliefs, they might have become convinced of his sincerity if his lawyer had been permitted to make sure that his position had been accurately communicated to the board.*fn9 Indeed, for purposes of decision, we may assume that the board would have cancelled appellant's induction order if counsel had been present. Thus, even though he had no right to a reopening, he may have been prejudiced by the unfair denial of an opportunity to have his induction order cancelled.
This possibility might have been sufficient to warrant review if the Supreme Court had decided nothing more than the issue identified in the first sentence of its opinion in Ehlert.*fn10 For if it had merely held that there is no requirement that a "local board must reopen" in response to a claim such as appellant's, presumably a board could exercise discretion to consider the merits of some such claims as it did in this case. But the Court's statement of its holding at the end of the opinion is broader than its initial statement of the issue.*fn11 The Court holds that the regulation bars the presentation of appellant's claim to his local board. Quite clearly, therefore, the district court could not grant the injunctive relief which appellant seeks.*fn12
Appellant's second contention is a two-pronged attack on the composition of his local board. He alleges that the entire board was appointed in violation of Selective Service Regulation § 1604.52(c)*fn13 because none of the members was a resident of the area in which the board has jurisdiction; he also alleges that all five members are white and that the area has a substantial black population, of which he is a member.
As alleged, the attack on the composition of the board asks us to rule as a matter of law either (1) that all of the board's induction orders are void because of the claimed violation of the regulation, or (2) that at least those orders affecting black registrants are void because the board members are all white.
The residence requirement in the regulation has been construed as mandatory, United States v. Cabbage, 430 F.2d 1037, 1041 (6th Cir. 1970), but this court has held it to be merely directory, Czepil v. Hershey, 425 F.2d 251, 252 (7th Cir. 1970) cert. denied Czepil v. Tarr, 400 U.S. 849, 91 S. Ct. 44, 27 L. Ed. 2d 87. Under either view, we are satisfied that the violation of the regulation would not be a sufficient basis for attacking the de facto authority of the board. See Ex parte Ward, 173 U.S. 452, 456, 19 S. Ct. 459, 43 L. Ed. 765; United States ex rel. Doss v. Lindsley, 148 F.2d 22 (7th Cir. 1945).*fn14
Nor do we believe that induction orders affecting the members of one race are void as a matter of law because the board was composed of members of a different race. Presumably to avoid what would otherwise be a plain barrier to pre-induction review, appellant's complaint carefully avoids any charge of discrimination in the processing of his own classification, or any charge of purposeful exclusion of blacks in the selection of the membership of the local board.*fn15 If we were to assume that such charges are impliedly raised by the complaint, it would follow that the factual issues to be litigated would inevitably transgress the limits of pre -induction review which are identified in Clark v. Gabriel, 393 U.S. 256, 89 S. Ct. 424, 21 L. Ed. 2d 418; Oestereich v. Selective Service, etc., Board, 393 U.S. 233, 89 S. Ct. 414, 21 L. Ed. 2d 402, and Breen v. Selective Service Local Board, 396 U.S. 460, 90 S. Ct. 661, 24 L. Ed. 2d 653.
We, therefore, conclude that the composition of the board may not be attacked on the narrow legal grounds which are alleged in the complaint, and that if the broader problem of possible discrimination which may underlie the disturbing and improbable composition of this board were to be reviewed now, the issues would necessarily encompass the kind of factual litigation that § 10(b) (3) was intended to foreclose.
Appellant's final contention is that he presented a prima facie claim of late-crystallized conscientious objector status to his board which required a reopening of his 1-A classification. This contention is squarely foreclosed by Ehlert v. United States, 402 U.S. 99, 91 S. Ct. 1319, 28 L. Ed. 2d 625.
The judgment of the district court dismissing the complaint is, therefore, affirmed.