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SPIEWAK v. SELECTIVE SERV. BD. NO. 127

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


May 17, 1971

Samuel SPIEWAK and Henry Spiewak and Mania Spiewak
v.
SELECTIVE SERVICE BOARD NO. 127 and Commander Thomas Volatile

Joseph S. Lord, III, District Judge.

The opinion of the court was delivered by: LORD, III

JOSEPH S. LORD, III, District Judge.

Plaintiff Samuel Spiewak is a registrant with the Selective Service System (SSS). Plaintiffs Henry and Mania Spiewak are his parents. On June 19, 1970, Samuel was ordered by defendant Local Board No. 127 to report for induction into the Armed Forces July 9. On July 8, the Local Board postponed his induction until the August 19 call pursuant to 32 C.F.R. 1632.2 *fn1" because of his father's illness. On July 30, Samuel's parents wrote a lengthy letter to the Local Board requesting a III-A classification *fn2" for their son. Several documents were attached in support of their claim that his induction would cause them extreme hardship. On August 6, the registrant met with members of the Local Board to discuss his classification. The next day the Board informed him that it had determined his case did not warrant reopening of his classification. Samuel was later ordered to report for induction on September 14, 1970. Plaintiffs filed this action September 3, seeking a preliminary injunction against Samuel's induction into the Armed Forces and a declaratory judgment that his induction would violate SSS regulations and the Military Selective Service Act of 1967, 50 App. U.S.C. §§ 451-473.

 Defendants have argued that we lack subject-matter jurisdiction to hear this case because section 10(b)(3) of the Military Selective Service Act of 1967, 50 App. U.S.C. § 460(b)(3) commands that:

 

"* * * 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 * * *. *fn3"

 Plaintiffs contend that their case falls within the exceptions to the literal terms of section 10(b)(3) recognized by a line of cases following Oestereich v. Selective Service Board, 393 U.S. 233, 89 S. Ct. 414, 21 L. Ed. 2d 402 (1968). We disagree.

 The recent decision of the Third Circuit in Morgan v. Melchar, 442 F.2d 1082 (C.A. 3, filed May 5, 1971), controls our determination that we do not have jurisdiction over this case. The facts in that case were remarkably similar to those in the instant case: an order for induction which was later postponed; a claim for a III-A classification after the induction order was sent; presentation of evidence to and a personal appearance before the Local Board; and a decision by the Local Board not to reopen the registrant's classification. The only possibly important factual distinction we see between the situations of Morgan and Spiewak is that the record before the Local Board presented a basis for finding that a change in Spiewak's status over which he had no control occurred after his receipt of the induction order. *fn4" As we read Morgan, that distinction is irrelevant to the issue before us. The decision in Morgan was based on the court's determination that the right to a III-A deferment depends on local board action which "inescapably involves a determination of fact and an exercise of judgment," Clark v. Gabriel, 393 U.S. 256, 258, 89 S. Ct. 424, 21 L. Ed. 2d 418 (1968), and its determination that reopening after an induction order has been mailed is not a clear legal right but rather involves specific fact-finding by the Local Board. Morgan v. Melchar, supra, 442 F.2d at 1087, 1088. *fn5"

 Since we find no relevant distinction between this case and Morgan, we must dismiss the Spiewak's complaint for lack of jurisdiction over the subject matter.


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