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OLAR v. TARR

January 12, 1972

RUBY OLAR ET AL., PLAINTIFFS,
v.
CURTIS W. TARR, DIRECTOR OF SELECTIVE SERVICE, ET AL., DEFENDANTS.



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 induction.

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 circumstances.

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
  basically lawless.
  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," ...

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