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KAMESHKA v. SELECTIVE SERV. SYS.

August 21, 1970

Arthur KAMESHKA, Plaintiff,
v.
SELECTIVE SERVICE SYSTEM, LOCAL BOARD NO. 12, Pittsburgh, Pennsylvania, Defendant


Weis, District Judge.


The opinion of the court was delivered by: WEIS

10(b)(3) or not (10)(b)(3), that is the question raised by the government's Motion to Dismiss plaintiff's Complaint asking for an injunction to prevent his induction into the armed services.

 The governing statute is Section 10(b)(3) of the Military Selective Service Act of 1967, 50 U.S.C.A. ยง 460(b)(3). It reads as follows:

 
"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 instituted under Section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction, * * *"

 The facts in this case are relatively simple, having been stipulated by the parties and that being the situation this may be considered to constitute the final hearing and order.

 The plaintiff is a registrant of Local Board No. 12, Pittsburgh, Pennsylvania. He was originally classified as II-S but later received the classification of II-A because of his occupation as a pharmacist.

 He was classified I-A by the Local Board on June 6, 1968 but received the II-A classification as result of action by the Appeal Board on August 21, 1968. On March 27, 1969 the Local Board again classified plaintiff as I-A which action was also reversed by the Appeal Board on June 25, 1969.

 On January 22, 1970, for the third time, the plaintiff was classified I-A by the Local Board but on this occasion, on April 15, 1970, the Appeal Board concurred. Following this, an appeal was taken by the Pennsylvania State Director of Selective Service to The President and on July 8, 1970 the National Selective Service Board affirmed the classification I-A. The plaintiff was ordered to report for induction on August 12, 1970 but by informal action of the Selective Service Board, the effective date has been postponed pending the decision in this case.

 We have a situation, therefore, where the Local Board on three occasions has classified the plaintiff as eligible for military service but was overruled twice by the Appeal Board. However on the last occasion both the Appeal Board and the National Selective Service Appeal Board have concurred with the action of the Local Board. There is therefore no claim of denial of appellate rights within the administrative framework of the Selective Service System nor is there any evidence of a punitive action or unlawful use of delinquency procedures being involved in this case.

 It is agreed that there has been no change in the plaintiff's personal circumstances since he first received the II-A designation in August, 1968. He argues, therefore, that the altered classification is capricious, that since his circumstances warranted a deferment originally, it should continue.

 On the other hand, the government contends that in effect there is no "vested right" in a classification, that deferments are granted for a limited period of time, and that each new deferment must be granted on a de novo basis.

 The pertinent regulations of the Selective Service System, specifically 1622.21, 1622.23, provide that deferments in Class II-A shall be for a period of one year or less; that at the expiration of the deferment period the classification is to be reopened and the registrant to be classified anew. A registrant may be granted a deferment in an occupation identified with the maintenance of national health when all of the following three conditions exist:

 
1. The registrant is engaged in such activity;
 
2. He cannot be replaced because of a shortage of persons with his ...

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