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ROSENFIELD v. SELECTIVE SERV. SYS.

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


February 13, 1969

Michael L. ROSENFIELD, Plaintiff,
v.
SELECTIVE SERVICE SYSTEM, LOCAL BOARD NO. 19, PITTSBURGH, PENNSYLVANIA, Defendant

The opinion of the court was delivered by: WEBER

GERALD J. WEBER, District Judge.

 Plaintiff, a registrant under the Selective Service Act, ordered to report for induction February 20, 1969, files this action to restrain and enjoin the Selective Service System and Local Board 19 from ordering him to report for induction into the Armed Forces of the United States, and to adjudge that he is entitled to a 1-S Classification as a matter of right.

 Plaintiff seeks this extraordinary preinduction judicial relief despite the provisions of § 10(b)(3) [ 50 U.S.C.A. App. § 460(b)(3)] of the Selective Service Act of 1967 which precludes judicial review of classification or processing of a registrant by local boards except as a defense to a criminal prosecution for violation of the Act. His basis for this proceeding is the jurisdiction rested in the United States District Courts under 28 U.S.C. § 1331, (federal question jurisdiction), § 1361 (mandamus jurisdiction), and § 2201 (declaratory judgment relief). In particular he relies upon the decision of the United States Supreme Court in Oestereich v. Selective Service System Local Board, 393 U.S. 233, 89 S. Ct. 414, 21 L. Ed. 2d 402, [Dec. 16, 1968], which held that § 10(b)(3) did not bar one reclassified in defiance of a clear statutory grant of exemption from suing to enjoin induction. Plaintiff bases his claim to relief on an allegation of a clear statutory grant of a statutory deferment of 1-S under § 6(i)(2) of the Act.

 Upon the filing of a petition for preliminary injunction, a hearing was set and evidence taken. From the evidence presented and the stipulations made we find the following facts:

 1. Plaintiff is Michael L. Rosenfield, of Pittsburgh, Pa., born September 13, 1946, and is registered under the Selective Service Act of 1967 with Local Board 19, Pittsburgh, Pennsylvania.

 2. Plaintiff is now a second-year student in a professional graduate school, Dickinson School of Law, at Carlisle, Pa., satisfactorily pursuing a full-time course of instruction. 3. Plaintiff was registered with Local Board 19 on November 25, 1964, and received the following pertinent classification: April 13, 1965 - Classified 2-S until 6-1-65. Feb. 16, 1966 - Classified 2-S until 6-1-66. Feb. 7, 1966 - Classified 2-S until 10-1-67. Feb. 14, 1967 - Notice of acceptance as professional student. Sept. 25, 1967 - Notice of entry into professional school. Oct. 11, 1967 - Classified 2-S until Sept. 1, 1968. June 20, 1968 - Classified 1-A. July 16, 1968 - Requested personal appearance and opportunity to appeal. Aug. 14, 1968 - Appeared personally and submitted petition for re- classification of 2-S as a law student. Aug. 14, 1968 - Classified 1-A. Oct. 30, 1968 - Ordered to report for induction November 20, 1968. Nov. 1, 1968 - Request for postponement of induction until after completion of current semester, January 16, 1969. Nov. 8, 1968 - State Director, Selective Service System approves re- quest for postponement of induction until the Febru- ary 1969 induction call. Jan. 31, 1969- Ordered to report for induction February 20, 1969.

19690213

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