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Morgan v. Melchar

decided as amended june 30 1971.: May 5, 1971.

RUSSELL M. MORGAN, APPELLANT,
v.
BERT MELCHAR ET AL.



Ganey, Van Dusen and Gibbons, Circuit Judges. Gibbons, Circuit Judge (dissenting).

Author: Van Dusen

Opinion OF THE COURT

VAN DUSEN, Circuit Judge.

Plaintiff-appellant, a registrant under the Selective Service Act of 1967, 50 App. U.S.C. §§ 451-467 (Supp. IV 1969), filed a verified complaint in the district court seeking relief in the nature of mandamus against the defendant members of Selective Service System Local Board No. 2 for New Jersey and such other relief as may seem just.*fn1 An application for a temporary restraining order was made on notice to the United States Attorney. No responsive pleadings were filed and, after hearing argument, the district court entered on March 3, 1970, an order denying the temporary restraining order and dismissing the complaint "for lack of federal jurisdiction."*fn2

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). The district court dismissed because it considered Section 10(b) (3) of the Selective Service Act of 1967, 50 App. U.S.C. § 460(b) (3) (Supp. IV 1969), to be controlling.

Plaintiff's complaint alleged that in 1967, while he was married but living apart from his first wife and son, he was reclassified from Class III-A*fn3 to Class I-A.*fn4 He and his first wife wrote to the Local Board advising that she and their son were dependent upon him, and he was reclassified III-A. On February 4, 1969, plaintiff and his first wife were divorced and on May 4, 1969, he remarried (p. 23a). The complaint alleges that he continued to support his first wife and his infant son and is their sole means of support.*fn5

On June 11, 1969, the Local Board wrote to plaintiff requesting that he appear before it on June 18, 1969, to discuss his classification. Because he was in transit from New Jersey to Arizona he did not receive that letter until after June 23, 1969, when the Local Board mailed him a notice that he had been classified I-A (Exhibit A to Memorandum of Law In Opposition to Plaintiff's Order to Show Cause). On July 23, 1969, his letter appealing that classification to the New Jersey Appeal Board was received by the Local Board (Exhibit B to above Memorandum of Law).*fn6 On September 5, 1969, the Appeal Board concurred in the I-A classification of the Local Board and an induction order was mailed September 24, 1969, directing plaintiff to report for induction on October 8, 1969 (par. 8 of Complaint and Exhibit E to the above Memorandum of Law).

After the induction order issued, the plaintiff requested a personal appearance before the Local Board and submitted documentation, including affidavits of witnesses and medical history which the Local Board did not have before it at the time of its I-A classification. However, neither the complaint nor the letters and affidavits in the record state at any place that the plaintiff or his dependents developed any medical conditions after the notice of the induction order was mailed to plaintiff on September 24, 1969, or at any definite date prior thereto. The date for reporting for induction under the above order was postponed prior to October 8, 1969, and several times thereafter (pars. 21 & 22 of Complaint). By letter of January 5, 1970, the Local Board requested plaintiff "to appear for a meeting with [it] * * to discuss your case," but after this meeting of January 15, it wrote plaintiff on January 21, 1970:

"This will advise you the recent evidence submitted concerning your case has been reviewed by this local board but it does not justify the reopening of your case and reconsideration of your present classification.

"You will therefore be subject to further processing for induction. Notices will be mailed to you in due course."

Both plaintiff and his former wife requested an appeal from this letter of the Board. On January 27, 1970, the Executive Secretary of the Local Board wrote plaintiff as follows:

"This will acknowledge receipt of your letter requesting another appeal, this is not possible, you appealed when you received your 1-A classification and was forwarded to the Appeal Board returned still classified I-A as of June 18th, 1969.

"You had a non-statutory hearing which was requested, you have no further rights, you will be subject to call at our next Induction which is overdue pending the hearing."

On February 19, 1970, plaintiff received a postponed date for induction, and this lawsuit followed. He alleges that the failure of the Selective Service System to afford him an appeal was erroneous as a matter of law, and that it should be corrected by mandamus.

Taking the above allegations as true, Judge Gibbons, by orders of March 3 and 6, 1970, and thereafter a panel of this court on March 16, 1970, granted temporary relief pending appeal, to consider the district court's adverse determination of jurisdiction in light of Bucher v. Selective Service System, 421 F.2d 24 (3d Cir. 1970), and of Hunt v. Local Board No. 197, 438 F.2d 1128, No. 18,076 (3d Cir. 1971), then still sub judice.

The issue presented by this case is whether the district court was correct in holding that it lacked subject matter jurisdiction to entertain registrant's action for pre-induction judicial review. A plaintiff has the burden of proving that a federal court, a court of limited jurisdiction, has subject matter jurisdiction, and there is a presumption that a federal court lacks jurisdiction in a particular case until it has been demonstrated that subject matter jurisdiction exists.*fn7 F.R.Civ.P. 12(h) (3) provides:

"Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." [Emphasis supplied.]

In view of these principles, this court has dismissed cases for lack of subject matter jurisdiction on its own motion on the basis of documents which were neither before the district court nor before this court. See, e. g., Berkowitz v. ...


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