to challenge any reclassification. It is my judgment that this allegation, if proven, would estop the Board from asserting that plaintiff failed to comply with the several requirements for post-induction-order reopening set forth in the proviso. Rather, in such circumstances, plaintiff could only be held to the requirement for a pre-induction-order reopening, i.e. that he present facts which prima facie set forth a basis for reclassification. Held only to this requirement, plaintiff has alleged facts sufficient to support a claim. Accordingly, the Motion to Dismiss will be denied.
However, turning to the evidence presented in support of the request for injunctive relief, the Court finds no basis in fact for the allegation that a representative of the Board misled plaintiff into believing that he would be receiving a II-S deferment during his year of graduate study. Plaintiff has received II-S deferments during each of his four years at college. Upon graduation from college in the spring of 1969, he advised the Board that he would attend graduate school in the fall. The Board then reclassified plaintiff I-A. Plaintiff sought a personal appearance, specifically referring to his contemplated graduate study. On October 10, 1969, Mrs. Wierbicki, Executive Secretary of the Board, corresponded with plaintiff, advising him that a date for his personal appearance had been scheduled but that, if the personal appearance was sought relative to plaintiff's contemplated status as a graduate student, it would be unnecessary for him to appear since "the President has seen fit to postpone the induction of first year graduate students until the end of their academic year."
Plaintiff would have the Court find in this correspondence a representation that plaintiff would receive a II-S deferment during his first year of graduate study. However, the correspondence refers neither to a II-S classification nor to a deferment but rather to a postponement of induction.
There is no ambiguity in the language used. Plaintiff's own misunderstanding, if such there was, cannot be attributed to anything Mrs. Wierbicki stated to plaintiff. Moreover, if plaintiff was in doubt as to the status he would acquire as a graduate student he would have done well to heed the recommendation contained in SSS Form 217, which accompanied his notice of a I-A classification. SSS Form 217 specifically advises the registrant of his right to seek advice from a Government Appeal Agent on Selective Service matters.
Plaintiff also contends that, had he not been induced to forego his personal appearance before the Board on October 15, he would have informed the Board at this appearance of his recently acquired position as Assistant to the Manager of the Borough of Monroeville. This cannot be accepted. Plaintiff was advised by Mrs. Wierbicki to forego his appearance if his purpose was to present the Board with the information that he was a graduate student. In his letter and telephone call to the Board, both of October 13, 1969, plaintiff confirmed that such was his purpose and cancelled the scheduled appearance. In neither the letter nor the telephone call did plaintiff indicate that he had acquired a full time job as assistant to the Manager of the Borough of Monroeville. It was plaintiff's duty to inform the Board promptly of such changes of circumstances as might justify his reclassification. 32 C.F.R. § 1625.1(b) provides in pertinent part:
"Each classified registrant * * * shall, within 10 days after it occurs, report to the local board in writing any fact that might result in the registrant being placed in a different classification, such as * * * any change in his occupation * * *"
Plaintiff did not comply with this Section.
There being no substantial excuse for plaintiff's failure to request a reopening of his classification prior to the issuance of the order for him to report for induction, plaintiff must be held to the requirements of the proviso to the reopening regulation, 32 C.F.R. § 1625.2. These requirements plaintiff has failed to meet. Plaintiff has not established that the change of conditions occurred after the issuance of the order to report for induction or so close thereto as to preclude his rendering notice to the Board before the issuance of the Order. Clark v. Commanding Officer, supra, 427 F.2d at 10; United States v. Kroll, supra, 400 F.2d at 925. Moreover, the acceptance of plaintiff's employment and perhaps also his continuance in this employment may not be said to be circumstances over which plaintiff had no control. Clark v. Commanding Officer, supra, 427 F.2d at 10.
Under the proviso to the reopening regulation, the Board must determine first that there has occurred subsequent to the issuance of an induction order a change of circumstances over which the registrant had no control. Only after making such a finding may the Board then consider whether the registrant has presented facts which prima facie establish his right to a reclassification and his right to a reopening. Since the Court finds that the facts do not establish that there occurred subsequent to the issuance of the order to report for induction changed circumstances over which plaintiff had no control, it is unnecessary to reach the question of whether plaintiff presented a prima facie case for a II-A reclassification.
The facts fail to support plaintiff's allegation that the Board denied him procedural rights required either by 50 App. U.S.C. § 460(b)(3) or the Due Process Clause of the Fifth Amendment to the Constitution. The request for a preliminary injunction is therefore denied on the ground that plaintiff has failed to show any likelihood of success in establishing his claim upon final hearing.
An appropriate order is entered.