Before VAN DUSEN, GIBBONS and JAMES ROSEN, Circuit Judges.
JAMES ROSEN, Circuit Judge.
This 10(b) (3)*fn1 case requires us to determine whether the registrant, Robert J. Strople, is entitled to pre-induction judicial review of allegedly erroneous actions taken by his local selective service board or whether he must wait until habeas or criminal proceedings before he may challenge these actions.
These are the facts, as alleged by appellant, Strople: He received a B.S. degree from the Worcester Polytechnic Institute on January 31, 1969. Shortly after his graduation, his local board, which was situated in Maine, withdrew his student deferment (II-S) and reclassified him fit for active duty (I-A). The Gulf and Western Company, with which Strople had obtained employment in Ohio, requested an occupational deferment (II-A) for him. Ohio's Scientific Advisory Committee supported the deferment, but the registrant's local board in Maine denied him the requested II-A status. However, the local board did forward Strople's file to the Ohio State Appeal Board, which overruled the local board and classified Strople II-A until June 1, 1970.
Prior to the expiration of the deferment, the registrant and his employer requested a continuation of the II-A status. The local board once again classified him I-A. Strople, who was working for Gulf and Western in Pennsylvania at the time, appealed to the Pennsylvania State Appeal Board, which restored his II-A status until August, 1971.
On October 19, 1970, Strople's local board suggested that the Maine State Director appeal the classification to the Presidential Appeal Board. This recommendation, which was not made available to the registrant or the company, was followed by the Director. The statement of appeal filed by the Director was not disclosed to Strople. However, on November 3, 1970, he was informed that an appeal was to be taken.*fn2
On December 1, 1970, while the appeal was pending, Gulf and Western sent Strople's draft board a letter requesting that he be given an occupational deferment. According to Gulf and Western, Strople was a "key engineer" in developing a new cartridge case manufacturing system for which Gulf and Western had recently been awarded a Defense Department contract.*fn3 This letter was received by the board on December 5, 1970, but the board decided not to reopen Strople's file. On December 29, 1970, the Maine Director's appeal reached the Presidential Appeal Board, which classified the registrant I-A. Strople was subsequently ordered to report for induction on April 13, 1971. This suit to enjoin his induction was commenced on March 29, and dismissed on May 24, 1971, 330 F. Supp. 187. By an order of the District Court dated June 1, induction was stayed pending our determination on the merits.
On this appeal, Strople argues that the district court's dismissal was improper and this case should be remanded to it for consideration of his claims that (1) "the local board's failure to inform the registrant of the reasons advanced by the local board and the State Director in connection with the appeal to the President * * * deprived the registrant of a fair and meaningful review," (2) the local board's "failure to reopen and consider this letter [was] in violation of Selective Service regulations and the registrant's constitutional rights," and that (3) the Presidential Appeal Board utilized improper procedures in that "insufficient time was given to the registrant's case and * * * the decision was influenced by a resume * * * adverse to the registrant's interests."*fn4
In response to Strople's complaint, the government filed a F.R.Civ.P., Rule 12(b) (1) motion to dismiss for lack of jurisdiction and a 12(b) (6) motion to dismiss for failure to state a cause of action upon which relief can be granted. Holding that 10(b) (3) deprived it of jurisdiction, the court dismissed the first and third claims of the complaint. The second ground for relief was denied on the basis of 12(b) (6).*fn5
Initially, we direct our attention to appellant's second and most substantial claim, i.e., that the district court should not have dismissed his contention that his draft board was required to reopen his classification upon its receipt of the Gulf and Western letter. In order to prevail on this claim, the appellant must carry a two-fold burden: first, he must establish that 10(b) (3) does not pose a jurisdictional bar to pre-induction judicial review of his board's allegedly erroneous refusal to reopen his classification; second, he must show that the board's refusal to reopen was, indeed, erroneous.
The present Section 10(b) (3), was enacted as part of the Selective Service Act of 1967. This statute permits preinduction judicial review of "the classification or processing of any registrant by local boards * * * only when there is no basis in fact for the classification assigned to such registrant." This language, however, is not self-explanatory, so it is necessary to turn to the five Supreme Court decisions interpreting the statute.
The breadth of 10(b) (3) was first articulated by the Supreme Court in Oestereich v. Selective Service System, 393 U.S. 233, 89 S. Ct. 414, 21 L. Ed. 2d 402 (1968). Oestereich, a divinity student preparing for the ministry, had been classified IV-D in accordance with the dictate of § 6(g) of the Selective Service Act, 50 U.S.C. App. § 456(g). In order to protest the war in Vietnam, Oestereich turned in his registration certificate. His board declared him delinquent for failure to have his registration certificate in his possession and to provide the board with notice of his local status. Applying the selective service regulation on delinquency then in effect the board reclassified him I-A. An administrative appeal was unsuccessful and Oestereich was ordered to report for induction. Oestereich then sued to enjoin his induction, but the district court held that 10(b) (3) required a dismissal of the complaint and the Court of Appeals agreed.
The Supreme Court found that, despite its literal language, 10(b) (3) did not preclude pre-induction judicial review. The majority relied upon the clash between 10(b) (3) and a statutorily mandated ministerial exemption. In determining whether a claimed exemption is deserved, "there is no exercise of discretion by a Board in evaluating evidence". p. 238, 89 S. Ct. p. 416. Counterpoised against this clear statutory mandate were delinquency regulations which had not been authorized by Congress but were being used to deprive Oestereich of his exemption. It was clear to the court that that exemption must prevail: "when Congress has granted an exemption and a registrant meets its terms and conditions, a Board cannot nonetheless withhold it from him for activities or conduct not material to the grant or withdrawal of the exemption." p. 237, 89 S. Ct. p. 416.
The Court reasoned that the blatant lawlessness of the board's actions opened the door to pre-induction judicial review. "To hold that a person deprived of his statutory exemption in such a blatantly lawless manner must either be inducted and raise his protest through habeas corpus or defy induction and defend his refusal in a criminal prosecution is to construe the Act with unnecessary harshness." p. 238, 89 S. Ct. p. 416.
The other Supreme Court case finding pre-induction judicial review to be available was Breen v. Selective Service Local Board, 396 U.S. 460, 90 S. Ct. 661, 24 L. Ed. 2d 653 (1970). Breen held a II-S deferment until he surrendered his draft card in order to protest the war in Vietnam. His local board thereupon declared him delinquent for failure to have his draft card in his possession, and reclassified him I-A. The district court and the court of appeals denied injunctive relief, but the Supreme Court reversed.
The Court stressed that the regulations which operated to deprive him of his deferment contravened the purpose of the student deferment. Thus, there was a conflict between the statutes' explicit requirement for student deferments and the regulations' deprivation of that deferment for failure to possess a registration certificate. Breen was consequently, an Oestereich case:
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 [393 U.S.] at 238 [89 S. Ct. 414, at 416], and in both cases § 10(b) (3) of the Act should not have been construed to require the registrants to submit to ...