induction shall not substitute the transferred registrant for one of its selected men, but shall deliver the transferred registrant in addition to any deliveries it otherwise would make to fill its own call.
'(k) The transferred registrant, if inducted, shall not be credited to the local board to which he was transferred for delivery, but shall be credited to his own local board.'
From the quoted sections, it is thus apparent that the functions of the Local Board to which a registrant is transferred are limited to an initial determination that the registrant has good reason to be absent from his own local board area, and that distance therefrom would create hardship were he required to travel such distance for induction. 32 C.F.R. § 1632.9(c)(1) and (c) (2). Thereafter, its duties are entirely clerical and ministerial. It is significant that the board to which registrant transferred may not even count such transferee in its quota. 32 C.F.R. § 1632.9(h) and (k).
At risk of repetitiousness, it must be noted that the only part which the Bryn Mawr Local Board has played in the entire recital of circumstances has been to grant registrant's application for transfer, which necessarily involved a finding that such transfer would avoid hardship to the registrant. The transfer, initiated at petitioner's request, resulted in a postponement of his induction date from February 6 to February 27, and changed the place to which he was to report to the place of his present residence, relieving him of the prospect of a trip almost halfway across the continent. The Bryn Mawr Board members and the Pennsylvania State Director had nothing whatsoever to do with the Registrant, his classification, his attempts to secure reopening, or the Order to Report for Induction. He is not a part of the Bryn Mawr quota; they merely allowed him to secure the transfer for his own and personal convenience.
Although there is no valid objection to venue in the cases of defendants Rhule, George, Collins, and Gross, who reside in Pennsylvania, it seems clear from the foregoing that no effective relief can be granted against them. Blackmar v. Guerre, 342 U.S. 512, 72 S. Ct. 410, 96 L. Ed. 534 (1951).
There is no prescribed formula for determining whether a person is an indispensable party. Niles-Bement-Pond Co. v. Iron Moulders' Union, 254 U.S. 77, 41 S. Ct. 39, 65 L. Ed. 145 (1920). Practical considerations may not be overlooked. Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S. Ct. 591, 99 L. Ed. 868 (1955); Shields v. Barrow, 58 U.S. 129, 15 L. Ed. 158 (1855). But here, by elimination -- if for no other reason -- it follows that some or all of the out of state defendants are indispensable parties. Blackmar v. Guerre, 342 U.S. 512, 72 S. Ct. 410, 96 L. Ed. 534 (1951). In that light, the venue statute cited by defendants seems squarely applicable, i.e., the requirement that '* * * (suit) * * * may be brought only in the judicial district where all defendants reside * * *.' 28 U.S.C.A. § 1391(b).
The purpose of venue provisions is to afford a defendant some protection from being forced to defend an action in a district remote from his residence. 1 Moore, Fed.Pr. P0.140(1.1); Jacobson v. Indianapolis Power & Light Co., 163 F.Supp. 218, 223 (N.D.Ind.1958); Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168, 60 S. Ct. 153, 84 L. Ed. 167 (1939).
In the present application, the protection of the venue statute seems particularly applicable to the Iowa defendants. Otherwise, a registrant might move to any part of the country, secure transfer under the hardship provision of the Regulations when ordered to report for induction, and then force the members of the draft board with which he was registered to come to the new location, which he had himself chosen, to defend his suit for injunction.
The foregoing view of the case forecloses discussion of jurisdiction of the subject matter and, in particular, whether the provisions of the Administrative Procedure Act warrant the relief sought by petitioner. 5 U.S.C.A. § 1001. No Selective Service case has been seen in which that act was held applicable, and the contrary was held in Schwartz v. Strauss, 114 F.Supp. 438 (S.D.N.Y.1953). The latter case, petitioner has pointed out, relied upon Heikkila v. Barber, 345 U.S. 229, 73 S. Ct. 603, 97 L. Ed. 972 (1953); and that under the 1952 Immigration and Nationality Act, 8 U.S.C.A. § 1101 et seq., since passed, the Administrative Procedure Act was held applicable in Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S. Ct. 591, 99 L. Ed. 868 (1955), cit. supra. It might be conceded that there may be judicial review in certain circumstances in Selective Service Cases, and that habeas corpus after conviction for failure to report for induction is not the only relief available to a registrant who deems himself to have been wrongfully denied as to his claim for exemption. Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567 (1945). But this is not a case where the Court must (in the words of the Estep opinions) 'march up the hill when it is apparent from the beginning that (it) will have to march down again.' ibid., 327 U.S. 114, 125 and 133, 66 S. Ct. 114, 429, 90 L. Ed. 567. Here it is more appropriate to say, following the same metaphor, that in the present venue, a court is simply not warranted in marching at all.
To hold the venue statute applicable in this case is not a matter of reverting to a technicality or outmoded legal sophistry. Cf. Stewart v. Hooks, 372 Pa. 542, 545, 94 A.2d 756 (1953). To the contrary, as the following discussion shows, the matter in simple fairness is not one to be decided by a tribunal which does not properly have before it the officials of the Selective Service System -- residents of the State of Iowa or the District of Columbia -- whose acts alone are those of which petitioner complains.
Section 1625.4 of the Selective Service Regulations provides that a local board may refuse to reopen a registrant's classification when it finds that such facts would not result in change of classification. 32 C.F.R. § 1625. On the other hand, there is a statutory provision which provides a special kind of appeal in the conscientious objector cases. 50 U.S.C.A. Appendix § 456(j); see Witmer v. United States, 348 U.S. 375, 376-377, 75 S. Ct. 392, 99 L. Ed. 428 (1954). When a registrant comes within the provisions of that statute, his privilege cannot be defeated by a procedural regulation such as Selective Service Regulation § 1625.4. United States v. Underwood, 151 F.Supp. 874, 876 (E.D.Pa.1955).
When there is no apparent substance to the late-coming claim of conscientious objection, however, a Local Board's action in refusing to reopen is not arbitrary or capricious. United States v. Wilson, 132 F.Supp. 485, 492. (W.D.La.1955); United States v. Schoebel, 201 F.2d 31, 32 (7th Cir., 1953). There is nothing in the cases to show that the mere request for a Form 150, on the eve of induction, automatically invokes the special statutory review. Keene v. United States, 266 F.2d 378, cases collected p. 383 (10th Cir., 1959).
It is true that there are some decisions which have recognized a right to relief against arbitrary refusal to grant reopening in special circumstances. Townsend v. Zimmerman, 237 F.2d 376 (6th Cir., 1956); Tomlinson v. Hershey, 95 F.Supp. 72 (E.D.Pa.1949). In the latter case, the local board had neither acted upon the registrant's petition for deferment nor notified him of its action before ordering him to report for induction. Tomlinson v. Hershey, 95 F.Supp. 72 (E.D.Pa.1949). In two other such cases cited by petitioner, there were strong showings of merit on the facts established by the petitioners. Townsend v. Zimmerman, 237 F.2d 376 (6th Cir., 1956); Ex parte Fabiani, 105 F.Supp. 139 (E.D.Pa.1952). The Court of Appeals for the District of Columbia Circuit, however, made this comment on the latter case in Lynch v. Hershey, 93 U.S.App.D.C. 177, 208 F.2d 523, 524 (D.C.Cir., 1954), cert. den. 347 U.S. 917, 74 S. Ct. 515, 98 L. Ed. 1072 (1954).
'It is said that Ex parte Fabiani, D.C.E.D.Pa.1952, 105 F.Supp. 139, is authority to the contrary in that a registrant, by petitioning for habeas corpus, may escape the choice between entering military service as ordered (with the possibility of habeas corpus later) and defending in a criminal proceeding for refusal to submit to induction. Insofar as the Fabiani case may be so interpreted, it does not, in our view, correctly state the law. * * *'
In the present posture of this petition, it is not possible for this Court to adjudicate. The defendants whose actions are sought to be challenged are, in literal fact, indispensable to any consideration of the question of whether petitioner was entitled to an appeal beyond that which is shown in this record. Therefore, this Court does not pass upon the question of whether in any event an injunction would lie; see Robert Hawthorne, Inc. v. United States Dept. of Interior, 160 F.Supp. 417, 419 (E.D.Pa.1958): upon whether the suit is premature since the petitioner may never in fact be accepted for induction; Mason v. United States, 218 F.2d 375 (9th Cir., 1954); Lynch v. Hershey, 93 U.S.App.D.C. 177, 208 F.2d 523, 524 (1954), cert. den. 347 U.S. 917, 74 S. Ct. 515, 98 L. Ed. 1072 (1954); United States v. Balogh, 329 U.S. 692, 67 S. Ct. 625, 91 L. Ed. 605 (1947); Falbo v. United States, 320 U.S. 549, 554, 64 S. Ct. 346, 88 L. Ed. 305 (1944): nor upon the several other grounds asserted by the parties, which seem inapplicable in the light of the views heretofore stated.
For the foregoing reasons, it is the ruling of this Court that the Complaint of Ralph Trent Sorenson is dismissed and it is SO ORDERED.
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