Reargued October 13, 1970.
Hastie, Chief Judge, and Freedman, Seitz, Van Dusen, Aldisert, Adams and Gibbons, Circuit Judges. Gibbons, Circuit Judge (concurring in the result). Aldisert, Circuit Judge (dissenting).
For different reasons, stated in separate opinions, five judges constituting a majority of the court have concluded that the judgment of the district court dismissing the appellant's complaint cannot stand. Judges Freedman, Seitz and Adams think that the uncontested facts are such that we should not only reverse the dismissal of the complaint but also order that on remand judgment be entered for the appellant requiring that he be accorded selective service reclassification as III-A. Judges Hastie and Gibbons think that we should do no more than require that the district court consider and dispose of this controversy on its merits.
To achieve an otherwise lacking majority for a particular disposition of the appeal,*fn1 Judges Freedman, Seitz and Adams join Judges Hastie and Gibbons in voting for the less comprehensive disposition; namely, reversal and remand for appropriate action on the merits of the controversy.
It may be that, in the light of the circumstances pointed out in our several opinions, the parties will be able to agree upon a consent judgment that will obviate the necessity for adversary proceedings in the district court.
The judgment will be reversed and the cause remanded for consideration and disposition on the merits.
The judgment will be reversed and the cause remanded for consideration and disposition on the merits.
GIBBONS, Circuit Judge (concurring in the result).
Plaintiff appeals from the order of the district court dismissing his complaint pursuant to Rule 12(b) (1), Federal Rules of Civil Procedure, for want of jurisdiction over the subject matter. The complaint claims jurisdiction under 28 U.S.C. § 1331 (1964) (federal questions) and under 28 U.S.C. § 1361 (1964) (mandamus against a federal official) and prays for relief appropriate under both sections. The complaint alleges that in June, 1968 plaintiff was classified I-A by the defendant Local Board; that he appealed this classification on the ground that he was a conscientious objector; that while that appeal was pending he notified the defendant Local Board of changed conditions which prima facie entitled him to a III-A deferment and requested that the Local Board reopen his classification; that the Local Board refused to reopen. The complaint does not specify what changed conditions were called to the attention of the Local Board. It alleges that the failure of the Local Board to reopen plaintiff's classification and consider his prima facie claim to a III-A deferment was a denial of his constitutional rights.
No answer was filed. Instead the defendant Local Board filed a motion under Rule 12(b) asserting:
"(1) The court lacks jurisdiction of the person of the defendant.
(2) The court lacks jurisdiction of the subject matter.
(3) The venue of the action is improper.
(4) Service of process was insufficient.
(5) The complaint fails to state a claim upon which relief can be granted.
(6) Plaintiff has an adequate remedy at law."
Neither party filed any affidavits on the motion. At the conclusion of the argument the district court invited the plaintiff "to complete your record as to what you are going to prove on the merits," and eight exhibits, letters from the file of the defendant Local Board, were marked in evidence without objection. There was no waiver, however, by either party of the right to a final hearing after answer in the event of a ruling on the Rule 12(b) motion favorable to the plaintiff. At best there was a partial presentation by plaintiff of evidence in support of his Rule 65 motion for a preliminary injunction. The district court did not rule on that motion.
The exhibits disclose that plaintiff, who had received a II-S (student deferment) classification, was classified I-A in June of 1968. He appealed that classification to the State Appeal Board on the ground that he was entitled to a I-O (conscientious objector) classification. By letter on November 7, 1968 he notified the Local Board of his wife's pregnancy. This letter was supplemented by three letters from a physician confirming the pregnancy, the expected date of confinement in June of 1969, and certain other of the wife's health problems. When the State Appeal Board decided against him on his I-O claim plaintiff on April 7, 1969 requested a III-A classification, asserting both his impending fatherhood and hardship to his wife if he were to be drafted. The Local Board on May 2, 1969 advised him that it would not reopen. Although it does not appear in the record before the district court, the parties had advised this court that plaintiff is now a father. Neither plaintiff's fatherhood claim nor his hardship claim are referred to expressly in the complaint. It refers only generally to "changed conditions, which, prima facie, entitle Plaintiff to a 3-A deferment."
Defendants relied in the district court on lack of jurisdiction over the subject matter because of § 10(b) (3) of the Selective Service Act of 1967, 50 App. U.S.C. § 460(b) (3) (Supp. IV 1969). The order appealed from provided:
"ORDERED that defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b) (1) is GRANTED."
The district court opinion, although it makes reference to the nature of the III-A deferment claims asserted by plaintiff to the Board, is expressly limited to a determination of lack of subject matter jurisdiction. It makes no determination on any of the remaining grounds advanced by the defendant. It make no determination (aside from that respecting subject matter jurisdiction) that the allegations of the complaint fail to state a cause of action. The district court did not treat the motion as one under Rule 12(b) (6) which it converted to Rule 56 motion. It expressly limited its order to granting a motion under Rule 12(b) (1).
Judge Freedman and the judges who concur in his opinion, looking at the exhibits which were marked at the hearing on the preliminary injunction, conclude that the Local Board acted solely on the mistaken legal ground that any II-S classification received after July 1, 1967, even one based on a post-baccalaureate student status, prevented a III-A fatherhood classification. See Gregory v. Hershey, 311 F. Supp. 1 (E.D.Mich.S.D.1969). But on this sparse record it is not clear that the rejection of the fatherhood claim was the sole basis of the Board's action, nor do we know for certain whether the plaintiff's student deferment was pre- or post-baccalaureate. I would not assume original rather than appellate jurisdiction to decide the fatherhood issue which was never decided by the district court.
Judge Aldisert, and Judge Van Dusen who concurs in his opinion, also look at the contents of the exhibits to reject the plaintiff's fatherhood claim. They find that the exhibits do not evidence that appellant's II-S classification was at a post-baccalaureate stage, and that appellant therefore failed to carry the burden of his immunity from service. They also would affirm a final summary judgment which was never made in the district court. But the more fundamental defect in their position is that it ignores the allegations of the complaint. Plaintiff complains that the Local Board refused to reopen. Thus, he says, he was denied the procedural opportunity to carry the burden of establishing his entitlement to a deferment. We cannot, by looking at those parts of the registrant's selective service file which are in the record, conclude that he has failed to meet a burden which he was never given an opportunity to meet.
On the hardship claim Judges Aldisert and Van Dusen confront the issue which was framed by the complaint and the Rule 12(b) motion and which was decided by the district court. That issue is whether, assuming the truth of the allegation that the Local Board failed to reopen after being notified of changed conditions which prima facie entitled plaintiff to a III-A deferment, § 10(b) (3) barred pre-induction judicial review. It is on those pleadings that the same issue is presented here, since the district court order is expressly limited to a decision of the Rule 12(b) (1) motion. Since, assuming subject matter jurisdiction, the allegations of the complaint might well be controverted, I see no appropriate way to avoid the decision of that issue. Judge Freedman and the judges who concur in his decision distinguish between the undiluted question of law presented to the Local Board by the fatherhood claim and the mixed question of law and fact presented by the hardship claim. An erroneous Local Board decision of the former, they say, may give rise to an opportunity for pre-induction judicial review. The refusal to reopen and consider the latter apparently would not. I do not think the opportunity to draw such a line is presented on this record.
Plaintiff was already classified when the changed circumstances occurred on which he relied for his change of classification from Class I-A to Class III-A. Class III-A includes persons deferred for reason of family relationship, 32 C.F.R. § 1522.30(a), and for reasons of extreme hardship, 32 C.F.R. § 1622.30(b). The regulations creating these classifications were adopted pursuant to 50 U.S.C.App. § 456(h) (2) (Supp. IV 1969), which by virtue of the Universal Military Training Act of June 19, 1951, ch. 144, § 1(o), 65 Stat. 84, limited dependency deferments for married men who had no dependents other than a wife to cases of extreme hardship.
The Local Boards are creatures of the Selective Service Act. Their jurisdiction is defined in 50 U.S.C. App. § 460(b) (3) (Supp. IV 1969):
"Such local boards, or separate panels thereof each consisting of three or more members, shall, under rules and regulations prescribed by the President, have the power within the respective jurisdictions of such local boards to hear and determine, subject to the right of appeal to the appeal boards herein authorized, all questions or claims with respect to inclusion for, or exemption or deferment from, training and service under this title * * *, of all individuals within the jurisdiction of such local boards. The decisions of such local board shall be final, except where an appeal is authorized and is taken in accordance with such rules and regulations as the President may prescribe." (emphasis added)
Regulations have been adopted which set forth the procedure for taking an appeal to the appeal boards, which the same statute creates in each federal judicial district. 50 U.S.C. App. § 460(b) (3) (Supp. IV 1969); 32 C.F.R. pt. 1626 (1969). Recognizing that the status of a registrant is subject to change, the regulations provide that no classification is permanent. 32 C.F.R. § 1625.1(a) (1969), and provide a mechanism for reopening the registrant's classification, 32 C.F.R. pt. 1625 (1969). The sections of pt. 1625 relevant to this case provide:
"The local board may reopen and consider anew the classification of a registrant (a) upon the written request of the registrant, * * * if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant's classification; * * *" 32 C.F.R. § 1625.2 (1969).
"When a registrant * * * files with the local board a written request to reopen and consider anew the registrant's classification and the local board is of the opinion that the information accompanying such request fails to present any facts in addition to those considered when the registrant was classified or, even if new facts are presented, the local board is of the opinion that such facts, if true, would not justify a change in such registrant's classification, it shall not reopen the registrant's classification * * *." 32 C.F.R. § 1625.4 (1969).
If the Local Board determines that the information submitted does not warrant reopening, the regulations provide no right of appearance and no right of appeal.
Thus, under the regulations, establishment of a right to deferment because of changed circumstances following an initial classification depends in the first instance on the ex parte determination by a Local Board whether or not to reopen. This determination is not appealable to an appeal board despite the fact that Local Boards are, under the statute, authorized only "to hear and determine, subject to ...