The opinion of the court was delivered by: Napoli, District Judge.
MEMORANDUM OPINION AND ORDER
This is a purported class action seeking pre-induction review
of the validity of induction orders postponed past the expiration
date of induction authority under the Military Selective Service
Act of 1967, 50 App. U.S.C. § 451 et seq. [the Act].
The case now comes before the Court on plaintiffs' motion
pursuant to Rule 23(c) of the Federal Rules of Civil Procedure,
requesting this Court: (1) to define the class of plaintiffs; (2)
to enter an order directing them to show cause why this action
should not be maintained as a class action, why they should not
be permitted to intervene, and why they should not be included in
the defined class; and (3) to enter an order approving the
proposed notice and method of service.
The named plaintiffs, Selective Service registrants, have
brought this action against certain Selective Service officials
on behalf of themselves and all other Selective Service
registrants similarly situated, alleging that their orders to
report for induction were invalidated by Section 17(c) of the
Act, 50 App. U.S.C. § 467(c), when their reporting dates were
postponed beyond July 1, 1971.
The plaintiffs seek a judgment declaring these induction orders
to be void and an order in the nature of mandamus directing the
defendants to cancel them. Jurisdiction is alleged to be founded
on 28 U.S.C. § 1331, 1361, 2201, and 2202. The plaintiffs,
citing Oestereich v. Selective Service System, Local Board 11,
393 U.S. 233, 89 S.Ct. 414, 21 L.Ed. 2d 402 (1968) and Breen v.
Selective Service, Local Board No. 16, 396 U.S. 460, 90 S.Ct.
661, 24 L.Ed.2d 653 (1970), also contend that Section 10(b)(3)
of the Act, 50 App. U.S.C. § 460(b)(3), does not bar the
preinduction review they seek.
The defendants oppose this motion and contend not only that
this action is barred by Section 10(b)(3), but also that a class
action is not proper considering the few who could gain any
significant benefit as against the expense, the disruption of the
Selective Service System and the many who could suffer delays of
Section 10(b)(3) of the Act provides in pertinent part that:
No judicial review shall be made of the
classification or processing of any registrant by
local boards, appeal boards, or the President, except
as a defense to a criminal prosecution instituted
under section 12 of this title, after the registrant
has responded either affirmatively or negatively to
an order to report for induction * * *.
50 App. U.S.C. § 460(b)(3).
While this prohibition appears absolute on its face, the Supreme
Court has carved judicial exceptions in Oestereich and Breen
to allow preinduction judicial review under limited
In Oestereich, supra, the petitioner was a theology student
entitled under § 6(g) of the Act (50 App. U.S.C. § 456(g)), to a
statutory exemption from training and service, and who was
therefore classified IV-D. After he returned his registration
certificate to the Government in order to protest the Viet Nam
war, his local board reclassified him I-A and subsequently
ordered him for induction under Selective Service System
regulations authorizing the Board to declare him "delinquent" for
failure to have his registration certificate in his personal
possession. Petitioner sought pre-induction review contesting the
validity of the delinquency procedure, but the district court
dismissed his suit and the Court of Appeals for the Tenth Circuit
affirmed per curiam. The Supreme Court reversed, finding that
there was no authorization for the revocation of statutory
exemptions by means of delinquency classifications. The Court
stated that Section 10(b)(3) did not bar jurisdiction since:
We deal with conduct of a local Board that is
The case we decide today involves a clear departure
by the Board from its statutory mandate.
Our construction leaves § 10(b)(3) unimpaired in the
normal operations of the Act. Oestereich, supra,
393 U.S. 237-238, 89 S.Ct. 416.
Breen, supra, also involved a petitioner who was reclassified,
from II-S to I-A, as a result of his returning his registration
certificate to the Government and his being found a "delinquent."
After finding that the statutory deferment involved was
mandatory, the Court stated that:
We are consequently unable to distinguish this case
from Oestereich. In both situations a draft
registrant who was required by the relevant law not
to be inducted was in fact ordered to report for
military service. In both cases the order for
induction involved a "clear departure by the Board
from its statutory mandate," ...