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SORENSON v. SELECTIVE SERV. SYS.

April 6, 1962

Ralph Trent SORENSON
v.
SELECTIVE SERVICE SYSTEM et al., and W. Glen George and Randolph C. Collins, members of Selective Service System Local Board No. 107, and Col. Henry Gross, Pennsylvania State Director of Selective Service, Additional Defendants



The opinion of the court was delivered by: LORD, JR.

Petitioner, Ralph Trent Sorenson, a Registrant in the Selective Service System, seeks an injunction to restrain defendants from enforcing a certain Order to Report for Induction into the Armed Forces of the United States. The registrant, Sorenson, claims that the order is invalid on the ground that his local board refused to consider his Conscientious Objector claim and failed to grant him the right to appeal to which he is entitled by law.

These proceedings were initiated on February 20, 1962, by the filing of petitioner's complaint which named five parties as defendants: Selective Service System, Hershey, Bowles, Hayes and Rhule. On that same date a temporary restraining order was issued by this Court, conditioned upon the filing of $ 1,000 bond, which hearing was set for March 2, 1962. Summons and complaint were issued by the Clerk of this Court on February 20, 1962, and service was accepted on behalf of the United States Attorney for the Eastern District of Pennsylvania on February 21, 1962.

 Thereafter, in response to a motion of the petitioner, this Court issued a further order adding defendants George and Collins as additional defendants, and amending the restraining order by making it applicable to these additional defendants.

 The United States Attorney, on behalf of respondents (herein called defendants for the sake of conformity with the petition, which is labeled Complaint) challenges venue, jurisdiction over the defendants, and jurisdiction of the subject matter. Close scrutiny of the record as to pleadings and amendments, joinder of parties, and service of summons and complaint is therefore required.

 No responsive pleading having been served, petitioner on February 26, 1962, filed an amendment which changed paragraph one of his complaint in two respects only.

 First, it named and identified the three additional defendants, George, Collins, and Gross -- who were parties not mentioned in the original complaint.

 Second, the final sentence, 'Jurisdiction is based upon 28 U.S.C.A. § 1346(2)' was deleted, and sub-paragraph 1(a), quoted later herein, was substituted.

 The final docket entry in the present record is an affidavit of service made by petitioner's counsel, and filed on February 23, 1962. In it he certifies that service was effected pursuant to Rule 4(d)(4) and (5), Fed.R.Civ.P., 28 U.S.C.A., in the following manner:

 'Copies of the Summons and Complaint were sent by registered mail on February 21, 1962 to the Attorney General of the United States at Washington, D.C., and delivered on February 22, 1962.'

 The remainder of the affidavit says in substance that as to each of the following defendants: Rhule, Bowles, Hayes, and Hershey -- copies of the Summons, Complaint and Restraining Order, which had been issued by the Court on February 20, 1962, were mailed to the respective defendants by certified mail on February 21, 1962, and delivered on February 23, 1962.

 In support of the complaint, petitioner submitted a comprehensive brief. The United States Attorney offered its points and authorities in an answering brief which submitted that the motion for preliminary injunction should be denied, the restraining order dissolved, and the complaint dismissed.

 At the conclusion of oral argument on March 2, 1962, it was agreed in open court that -- although the temporary restraining order had then expired -- the defendants would not disturb the status quo as to petitioner until this Court had ruled. Having secured leave of Court, the petitioner then filed a supplemental brief. The filing by defendants of their supplemental answering brief on March 9 placed this matter in position for decision by this Court.

 Paragraph 1 of the complaint as amended reads:

 '1. (a) This action arises under the Universal Military Training and Service Act, 50 U.S.C.App. 451 et seq. and under the Constitution of the United States. The matter in controversy exceeds the value of Ten Thousand Dollars ($ 10,000.) exclusive of interest and costs.'

 Although he now lives in Bryn Mawr, Pennsylvania, plaintiff's legal residence had been in Burlington, Iowa, until July, 1961. Since February 26, 1954, he has been registered with Selective Service System Local Board No. 13-29, Burlington, Iowa -- hereafter to be called Board 13-29. For some considerable length of time, at least -- if not from the time of his registration -- he has been classified I-A.

 On January 8, 1962, petitioner telegraphed and wrote to Board 13-29 to the effect that he was a Conscientious Objector. Those communications, received by the Board on January 8 and January 11, respectively, requested that he be sent the Special Form for Conscientious Objector, SSS Form No. 150. On January 10, 1962, Iowa Board 13-29 mailed to petitioner the requested Form 150, which he received on January 12.

 On the 11th of January the clerk of that Board wrote petitioner as follows:

 'The information contained in your telegram dated 8 January 1962 to the effect that you are a Conscientious Objector was considered by the local board at its meeting on 10 January 1962.

 'In accordance with Section 1625.4 of the Selective Service Regulations the local board declined to reopen and consider anew your case. ...


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