Kalodner, Van Dusen and Stahl, Circuit Judges. Van Dusen, Circuit Judge (concurring in part and dissenting in part).
When the appellants, in symbolic protest against the involvement of the United States in the Vietnam War, turned in their draft Registration Notices and/or Notices of Classification to their local draft boards,*fn1 the latter stripped them of their existing exempt or deferred status and reclassified them I-A delinquent, highest order of priority for induction, pursuant to the provisions of the Selective Service Regulations*fn2 and Local Board Memorandum No. 85, issued by General Lewis B. Hershey, Director of the Selective Service System.*fn3
The draft status of the respective appellants prior to their I-A delinquency reclassification was as follows:
IV-D (ministerial exemption) -- Bucher, Behm and Caldwell.
II-S (student deferment) -- Podbereski.
II-A (essential occupational deferment) -- Marcus and Ostroff.
III-A (dependency and hardship deferment) -- Matlack, Thorburn and DeRicco.
IV-F (permanently unqualified for any military service) -- Klinefelter.
I-Y (temporarily unqualified) -- Pailet, Robertson, Wyman, Jr. and Bobo.
Subsequent to their I-A delinquency reclassifications, the appellants filed a Complaint*fn4 in the court below*fn5 against their respective draft boards seeking (1) a declaratory judgment adjudicating the Selective Service delinquency regulations and the Hershey Directive to be "void on their face and/or as applied violative of the Constitution of the United States", and (2) a preliminary and permanent injunction restraining the defendants from giving effect to the I-A delinquency reclassifications.*fn6
The court below denied defendants' motion to dismiss the Complaint and further denied appellants' motion for a preliminary injunction "with prejudice", on its holding that (1) "Plaintiffs will not suffer irreparable injury if no preliminary injunction is granted"; (2) "Operation of the Selective Service System in New Jersey will be seriously hindered by the granting of a preliminary injunction in this action"; and (3) "Plaintiffs have an adequate remedy at law."
On the score of the foregoing, the parties have, on this appeal, stipulated that we "treat the appeal in all respects as if it is an appeal from a final judgment, rather than an appeal from the denial of a preliminary injunction."
The distilled essence of plaintiffs' position is that their I-A delinquency reclassifications constituted impermissible "punitive" action contravening First Amendment rights and due process guarantees.
Defendants dispute plaintiffs' contentions. They further challenge the jurisdiction of a federal court to entertain the instant action on the assigned ground that pre-induction judicial review of I-A delinquency reclassifications is prohibited by Section 10(b) (3) of the Military Selective Service Act of 1967 ("Act").*fn7 That section provides in relevant part:
"* * * No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution * * * after the registrant has responded either affirmatively or negatively to an order to report for induction * * *."
We give no sanction to defendants' interposition of Section 10(b) (3) for this reason:
Section 10(b) (3) does not bar pre-induction judicial review where, as here, the validity of the Selective Service System's delinquency reclassification procedures is challenged on the grounds that they lack statutory authorization, and/or violate constitutional rights. The Section bars pre-induction judicial review only where there is a challenge to the System's resolution of factual questions in the classification or processing of a draft registrant. There is here no such challenge.
Our construction of the sweep of Section 10(b) (3) is in harmony with that of Mr. Justice Harlan in his concurring opinion in Oestereich v. Selective Service System Local Board No. 11, Cheyenne, Wyo., 393 U.S. 233, 239-245, 89 S. Ct. 414, 21 L. Ed. 2d 402 (1968).*fn8 There the majority confined its consideration of the Section to the narrow point whether it barred preinduction judicial review of delinquency reclassification of registrants previously accorded IV-D (ministerial exemption) classifications. The Court ruled that the Act*fn9 granted a "plain and unequivocal exemption" to ministers and ministerial students, and Section 10(b) (3) could not be construed to impair the statutory mandate as to such exemption.
In his concurring opinion in Oestereich, Mr. Justice Harlan said 393 U.S. at pages 239-240, 89 S. Ct. at page 417-418:
"I concur in the holding that pre-induction review is available in this case, but I reach this conclusion by means of a somewhat different analysis from that contained in the opinion of my Brother DOUGLAS.
"At the outset, I think it is important to state what this case does and does not involve. Petitioner does not contend that the Selective Service System has improperly resolved factual questions, or wrongfully exercised its discretion, or even that it has acted without any 'basis in fact,' as that phrase is commonly used in this area of law. See Estep v. United States, 327 U.S. 114, 122-123, 66 S. Ct. 423, 90 L. Ed. 567 (1946); ante, 393 U.S. at 238 n. 7, 89 S. Ct. at 417. He asserts, rather, that the procedure pursuant to which he was reclassified and ordered to report for induction -- a procedure plainly mandated by the System's self-promulgated published regulations, 32 CFR, pt. 1642 -- is unlawful. Specifically, he asserts that the delinquency reclassification scheme is not authorized by any statute, that it is inconsistent with his statutory exemption as a ministerial student, 50 U.S.C.App. § 456(g), and that, whether or not approved by Congress, the regulations are facially unconstitutional." (footnote omitted).
" The pivotal language of § 10(b) (3), for present purposes, is the statute's proscription of pre-induction judicial review 'of the classification or processing of any registrant * * *.' I take the phrase 'classification or processing' to encompass the numerous discretionary, factual, and mixed law-fact determinations which a Selective Service Board must make prior to issuing an order to report for induction. I do not understand that phrase to prohibit review of a claim, such as that made here by petitioner, that the very statutes or regulations which the Board administers are facially invalid." (emphasis supplied).
and at pages 243-244, 89 S. Ct. at page 419-420:
" To withhold pre-induction review in this case would, thus deprive petitioner of his liberty without the prior opportunity to present any competent forum -- agency or court -- his substantial claim that he was ordered inducted pursuant to an unlawful procedure. Such an interpretation of § 10(b) (3) would raise serious constitutional problems, and is not indicated by the statute's history, language, or purpose. On the foregoing basis I agree that § 10(b) (3) does not forbid pre-induction review in this instance." (footnotes omitted). (emphasis supplied).
What has been said makes unnecessary further discussion of our holding that Section 10(b) (3) is not a jurisdictional bar to our consideration and disposition of the instant appeal.*fn10 We are, of course, aware that Courts of Appeals in other Circuits have ruled to the contrary in the cases listed in the margin,*fn11 and that as there noted the Supreme Court has granted certiorari in one case but has not acted with respect to pending applications for certiorari in the others.
The foregoing disposition of the threshhold question of jurisdiction brings us to resolution of the plaintiffs' challenge to the validity of the instant I-A delinquency reclassifications.
In preface of our resolution we must immediately declare that independent of it the three IV-D (ministerial exemption) plaintiffs -- Bucher, Behm and Caldwell -- and the II-S (student deferment) plaintiff Podbereski, are entitled to entry of judgment in their favor for these respective reasons:
It was expressly ruled in Oestereich that a IV-D registrant is endowed with a "statutory exemption" under Section 6(g) of the Military Selective Service Act of 1967,*fn12 and that it was "blatantly lawless" action when his local draft board reclassified him I-A delinquent because he had turned in his draft card "for the sole purpose of expressing dissent from the participation of the United States in the war in Vietnam."*fn13
In United States v. Worstell, 419 F.2d 762 (decided November 7, 1969), this Court held that a II-S registrant enjoys a statutory deferment on a parity with a statutory exemption, under the provisions of Section 6(h) (1) of the Military Selective Service Act of 1967,*fn14 and accordingly he cannot be reclassified I-A delinquent for turning in his draft card to his local draft board "in token of his opposition to the Vietnam War."*fn15
Coming now to resolution of the issue of validity of the defendant draft boards' actions in stripping the remaining plaintiffs of their respective existing deferred status and reclassifying them I-A delinquent, highest order of ...