MEMORANDUM OPINION AND ORDER
TROUTMAN, District Judge.
Plaintiff in this Selective Service case seeks to enjoin the defendants from inducting him into the armed forces or from ordering him to report for induction. Defendants have moved to dismiss the complaint on two grounds, namely, that the Court lacks jurisdiction to review local board's actions at this preinduction stage of the proceedings by reason of 50 U.S.C. App. § 460(b)(3) and that plaintiff's complaint fails to state a claim upon which relief can be granted. These matters are presently before the Court for disposition.
Plaintiff is presently under an order from defendant Local Board No. 60, Media, Pennsylvania, to report for induction on April 13, 1971. We temporarily restrained the scheduled induction in order to receive defendants' response and hear argument on defendants' motion to dismiss. The facts as they appear in the complaint, which we must accept as true on this motion, are as follows:
Plaintiff received II-S student deferments while he was a student at Worcester Polytechnic Institute and after receiving his degree was classified I-A by his Local Board on February 17, 1969. After graduation, plaintiff became an employee of the Gulf & Western Company which requested that plaintiff be given an occupational deferment. The Scientific Advisory Committee for the State of Ohio where the job was located recommended that the deferment be granted. However, plaintiff's Local Board refused the deferment and forwarded plaintiff's file to the Ohio State Appeal Board. That Board on August 19, 1969, rejected the Local Board's determination and classified plaintiff II-A until June 1, 1970, by a 3-1 vote.
Before the expiration of the one-year period of the occupational deferment on June 1, 1970, letters were mailed by the plaintiff and his employer requesting continuation of the II-A status, setting forth the requirements outlined in 32 C.F.R. § 1622.23(a).
On June 15, 1970, the Local Board reopened plaintiff's classification and unanimously re-classified him I-A. On June 19, 1970, this classification decision was appealed to the Pennsylvania State Appeal Board since plaintiff had been transferred by his employer from Ohio to Pennsylvania. On August 31, 1970, the Pennsylvania State Appeal Board classified plaintiff II-A until August, 1971, by a unanimous vote of 3-0.
On October 19, 1970, plaintiff's Local Board in Maine voted unanimously to recommend to the Maine State Director that plaintiff's classification be appealed to the Presidential Appeal Board. This recommendation was not made available to plaintiff or to the Company.
On November 3, 1970, the Maine State Director appealed to the Presidential Appeal Board and on November 4, 1970, attached a six-paragraph "Statement of Appeal" to plaintiff's file. The statement of appeal was not made available to plaintiff or the Company. The State Appeal Board did, however, notify plaintiff by letter dated November 3, 1970, that his case was being appealed. The reasons for the appeal were not disclosed.
On November 16, 1970, plaintiff, by letter, asked his Local Board to explain the appeal. By return mail the Local Board quoted Section 1627.1(a)
of the Selective Service regulations, but did not disclose its reasons for the appeal.
On December 5, 1970, the Local Board received a letter from plaintiff's employer dated December 1, 1970. It is alleged in conclusory fashion only that this letter presented new information not previously considered by the Local Board which constituted a prima facie case for an occupational deferment. In this respect it is alleged that the letter was not considered by the Local Board. On December 29, 1970, the Presidential Appeal Board classified plaintiff I-A by a vote of 3-0. The complaint further alleges that the Presidential Appeal Board, in considering the appeal, made use of a resume which was not part of plaintiff's Selective Service file which presented the file in a light adverse to plaintiff. This was not furnished to plaintiff or to his employer. Plaintiff was subsequently ordered to report for induction on April 13, 1971.
Assuming all the facts alleged in the complaint as being true, two issues are raised on this motion to dismiss, namely, (1) whether this Court has jurisdiction to enjoin plaintiff's scheduled induction at this pre-induction stage of the proceedings, and (2) whether a claim upon which relief can be granted is stated in the complaint.
Section 10(b)(3) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 460(b)(3) (1964 ed. Supp. III) prohibits pre-induction review of Selective Service classifications and provides in pertinent part 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 instituted under Section 12 of this Title, after the registrant has responded either affirmatively or negatively to an order to report for induction * * *."
Certain exceptions to Section 10(b)(3)'s seemingly absolute prohibition of judicial review have been fashioned by the Supreme Court and by this Circuit.
In Oestereich v. Selective Service Board, No. 11, 393 U.S. 233, 89 S. Ct. 414, 21 L. Ed. 2d 402 (1968), the petitioner, an enrolled theological student classified IV-D, was declared delinquent and reclassified I-A by his Local Board after he turned in his registration certificate in symbolic protest to the Vietnam War. After his administrative appeals were denied, petitioner was ordered to report for induction. The pre-induction review he sought was denied for lack of jurisdiction on the basis of Section 10(b)(3). The Supreme Court reversed and remanded, holding that Section 10(b)(3) could not be literally construed to preclude pre-induction judicial review of a classification based on delinquency regulations which were not authorized by Congress to be used to deprive a registrant of a statutorily granted exemption. The Court was clearly concerned with "conduct of a Local Board that is basically lawless". 393 U.S. at 237, 89 S. Ct. at 416. The Oestereich situation, the Court noted, did not deal with a Local Board's exercise of discretion in evaluating evidence, but rather involved a "clear departure by the Board from its statutory mandate". Id. at 238, 89 S. Ct. at 416.
Later, in Breen v. Selective Service Board, 396 U.S. 460, 90 S. Ct. 661, 24 L. Ed. 2d 653 (1970), the Court was faced with a similar delinquency classification. There, the petitioner was given a II-S student deferment pursuant to 50 U.S.C. App. § 451 et seq., (1964 Ed. Supp. IV), but was later reclassified I-A pursuant to the delinquency regulations for failing to have his draft card in his possession. The Court found the situation in Breen indistinguishable from that in Oestereich.
"In both situations a draft registrant who was required by the relevant law not to be inducted was in fact ordered to report for military service. In both cases the order for induction involved a 'clear departure by the Board from its statutory mandate,' Oestereich, supra, at 238, 89 S. Ct. at 416, and in both cases § 10(b)(3) of the Act should not have been construed to require the registrants to submit to induction or risk criminal prosecution to test the legality of the induction order". Breen, supra, at 467-68, 90 S. Ct. at 666.
Recently, the Third Circuit handed down its decision in Hunt v. Local Board No. 197, 438 F.2d 1128, wherein five judges, constituting a majority of the Court, agreed that Section 10(b)(3) as construed in Oestereich and Breen did not preclude pre-induction review where a Local Board, after being put on notice of a prima facie case for a III-A deferment, failed to reopen a registrant's classification. Judge Gibbons' opinion indicates that in light of Mulloy v. United States, 398 U.S. 410, 90 S. Ct. 1766, 26 L. Ed. 2d 362 (1970), a Local Board's failure to re-open a classification when presented with a prima facie case is the type of "clear departure" from the Board's "statutory mandate" contemplated by Oestereich and Breen. Judge Gibbons' language is instructive:
"[It] would seem that pre-induction judicial review is available of refusals to reopen when a prima facie claim has been filed. I can perceive no valid distinction between the challenge to the delinquency reclassification procedures considered in Breen and Oestereich and the challenge to the reopening procedures made here. As the case comes before us, plaintiff has given notice of a prima facie change in conditions entitling him to reclassification. He complains that the reclassification procedures followed by the Local Board, which ex parte denied him a hearing and an appeal, are both lacking in statutory authorization and violative of constitutional rights. The challenge to 32 C.F.R. § 1625.4 (1969) is no different in kind than the challenge to 32 C.F.R. pt. 1642 (1969) permitted in those cases". Hunt, supra, 438 F.2d at 1135.