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July 1, 1974

ANDREW ROWLAND, a minor by his guardian Lewis Rowland, et al.
CURTIS TARR, National Director of Selective Service, et al.

Max Rosenn, Circuit Judge Joseph S. Lord, III, Ch. J., District Court James H. Gorbey, District Judge. By JAMES H. GORBEY, District. Rosenn, Circuit Judge, dissenting.

The opinion of the court was delivered by: GORBEY

By JAMES H. GORBEY, District Judge

Plaintiffs in this action are attacking the constitutionality of the Military Selective Service Act (50 U.S.C. App. § 460, et seq.). Plaintiffs filed a five count complaint which was dismissed on April 27, 1972. On June 5, 1973, the Court of Appeals reversed that decision as to count III only, and affirmed it as to all other counts. Defendants then filed a motion to dismiss count III. The district court, having determined, pursuant to the mandate of the Court of Appeals, that the plaintiffs had standing to bring this action, and that the issue raised did not present an insubstantial federal question, requested the Chief Judge of the Circuit Court of Appeals to convene this three-judge court which must first decide defendants' motion to dismiss.

 Count III of the complaint in essence alleges that the Military Selective Service Act is unconstitutional in that it authorizes and contemplates the conscription of only males, and therefore is a violation of the due process of law and the equal protection of laws as comprehended within the Fifth Amendment.

 In support of their motion to dismiss, the defendants first argue that the action is now moot. On July 30, 1973, the power of the Selective Service System to induct registrants pursuant to the Act lapsed. Therefore the defendants argue that since the plaintiffs cannot be inducted, the action is moot and should be dismissed. For this court to have jurisdiction there must be an actual case or controversy. NORTH CAROLINA v. RICE, 404 U.S. 244, 92 S. Ct. 402, 30 L. Ed. 2d 413 (1971); MARYLAND CASUALTY CO. v. PACIFIC COAL & OIL CO., 312 U.S. 270, 61 S. Ct. 510, 85 L. Ed. 826 (1941); SEE ALSO DIFUNIS v. ODEGAARD, 416 U.S. 312, 40 L. Ed. 2d 164, 94 S. Ct. 1704, 42 U.S.L.W. 4578 (1974). We cannot issue an advisory opinion. ASHWANDER v. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 325, 56 S. Ct. 466, 473, 80 L. Ed. 688 (1936).

 Plaintiffs *fn1" maintain that under the Act the named plaintiffs are still subject to certain affirmative duties, and that they can and will be prosecuted if they fail to meet those obligations. *fn2" In addition, under the very Act which allowed the authority to induct to expire, the defendants still have the power to induct certain registrants who had obtained a deferment. *fn3" Deferred registrants can still be inducted after July 1, 1973, when such deferment ceases to exist. Defendants argue that because plaintiffs are no longer subject to induction, the action is moot. They ignore the fact that under the Act any of the named plaintiffs may still undergo prosecution and severe criminal penalties for failure to perform certain affirmative duties. The threat of prosecution is real. *fn4" This is not the situation where a statute has laid dormant and unenforced. *fn5" There is a real and current threat to them and is by no means moot. In addition, there are potential class members who may still be inducted under current authority. *fn6" Thus there is an actual case or controversy over which this court may exercise jurisdiction.

 Plaintiffs argue that if this court does not have jurisdiction over the present claim, the registrants who object to performing such duties must defy the requirements of the Act and await criminal prosecution before they can challenge what they believe to be an unconstitutional statute. *fn7" In essence this argument goes to the propriety of issuing a declaratory judgment at this time. In such a situation, the courts have said that the granting of declaratory judgment is discretionary and should not be entered into if it will not settle an actual controversy between the parties. TENNESSEE COAL, IRON AND R. CO. v. MUSCODA LOCAL NO. 123, etc., et al., 137 F.2d 176 (5th Cir. 1943), aff'd, 64 S. Ct. 698, 321 U.S. 590, 88 L. Ed. 949, 152 A.L.R. 1014, rehearing denied, 64 S. Ct. 1257, 322 U.S. 771, 88 L. Ed. 1596.

 The principal criteria guiding policy in favor of rendering declaratory judgments are: (1) when judgments will serve useful purposes in clarifying and settling legal relations in issue, and (2) when it will terminate and afford relief from uncertainty, insecurity, and controversy giving rise to proceeding. MAGRAW-EDISON CO. v. PREFORMED LINE PRODUCTS CO., 362 F.2d 339, cert. denied, 385 U.S. 919, 87 S. Ct. 229, 17 L. Ed. 2d 143 (1967).

 In the case at bar there is an actual dispute between the parties. The plaintiffs maintain that they should not be required to perform the duties mandated by the Act, for they claim the Act is unconstitutional. We hold that being required to perform such affirmative duties under the threat of criminal prosecution constitutes an actual controversy for which the exercise of our discretion is proper. SEE CITY OF ALTUS, OKLAHOMA, et al. v. CARR, 255 F. Supp. 828 (W.D. Tex. 1966), aff'd, 385 U.S. 35, 87 S. Ct. 240, 17 L. Ed. 2d 34; JEANNETTE RANKIN BRIGADE, et al. v. CHIEF OF CAPITOL POLICE, 342 F. Supp. 575 (D.C. 1972), aff'd, 409 U.S. 972, 93 S. Ct. 311, 34 L. Ed. 2d 236.

 The operation of the Declaratory Judgment Act *fn8" is procedural only and although enlarging the range of available remedies, it does not extend the jurisdiction of the federal courts SKELLY OIL CO. v. PHILLIPS PETROLEUM CO., 339 U.S. 667, 70 S. Ct. 876, 94 L. Ed. 1194 (1950); RAGONI v. UNITED STATES, 424 F.2d 261 (3d Cir. 1970). Thus jurisdiction in this case must be founded on 28 U.S.C. § 1331. *fn9" This requires that the amount in controversy exceed $10,000.

 In support of their motion, defendants cite BOYD v. CLARK, 287 F. Supp. 561 (S.D.N.Y. 1968) where the court held as an alternative basis for dismissing the complaint that the plaintiffs did not meet the $10,000 jurisdictional requirements of § 1331. In that case the injury claimed was the increased likelihood of induction because registrants who receive student deferments ordinarily could postpone their induction for several years and may escape service entirely. Thus making it more likely that the plaintiffs who did not receive student deferments would be inducted. In that case, the Court states that: "Plaintiffs' counsel concedes that they cannot prove that any of the plaintiffs will suffer a monetary loss of more than $10,000 by reason of the alleged injury." In the case at bar we have an entirely different situation. There is no such concession by plaintiffs' counsel; in fact, they allege very strenuously that the potential criminal penalties for failure to meet the affirmative duties under the Act would alone satisfy the jurisdictional requirement of § 1331. The other cases which defendants cite us to are those which stand for the proposition that a claim which cannot be measured in dollars and cents fails to meet the amount in controversy requirement of § 1331. In the case at bar the potential criminal liability clearly exceeds the jurisdictional requirement of § 1331. Also, in the case of those registrants who are still subject to induction, we must accept the plaintiffs' good faith allegation that two years of their life spent in the military service is worth more than $10,000. TOOAHNIPPAH v. HICKEL, 397 U.S. 598, 90 S. Ct. 1316 n.8, 25 L. Ed. 2d 600 (1970).

 The defendants also argue that the complaint should be dismissed because the court lacks subject matter jurisdiction. They argue that the Act precludes pre-induction judicial review of the plaintiffs' status. Section 10(b) (3) of the Act (50 U.S.C. App. § 460(b) (3)) provides in pertinent part 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 § 12 of this title [§ 462 of this Appendix], after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant."

 Defendant argues that this provision prevents this court from exercising jurisdiction over the plaintiffs' complaint.

 The intent of this section was to prevent pre-induction judicial review of the classification and processing of registrants. However, as Justice Douglas stated in OESTEREICH v. SELECTIVE SERVICE SYSTEM LOCAL BOARD NO. 11, CHEYENNE, WY., et al., 393 U.S. 233, 238, 89 S. Ct. 414, 417, 21 L. Ed. 2d 402 (1968):


"In such instances, as in the present one, there is no exercise of discretion by a Board in evaluating evidence and in determining whether a claimed exemption is deserved. The case we decide today involves a clear departure by the Board from its statutory mandate. 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. . . . Our construction leaves § 10(b) (3) unimpaired in the normal operations of the Act."

 See also BREEN v. LOCAL BOARD, 396 U.S. 460 (1970).

 In the OESTEREICH case the plaintiff was a divinity student who was entitled, pursuant to § 6(g) of the Act to an exemption from training in service under the Act. Plaintiff returned his registration certificate to the government as a protest, "for the sole purpose of expressing dissent from the participation by the United States in the war in Viet Nam." Shortly thereafter, his board declared him delinquent for failure to have the registration certificate in his possession and for failure to provide the board with notice of his local status. The board thereupon changed his classification to I-A. Plaintiff took an administrative appeal and lost and was ordered to report for induction. The suit was brought to restrain that induction. The Supreme Court in the opinion by Justice Douglas held that § 10(b) (3) of the Act cannot bar judicial review of such "basically lawless" conduct.

 In the case at bar plaintiffs are not objecting to any action by the local board, "basically lawless" or otherwise, they are attacking the requirements of the statute itself, claiming that it is unconstitutional. If there can be exception to the specific language of the Act, surely an action such as this which attacks the constitutionality of the Act itself cannot be barred as a pre-induction judicial review of classification or processing. In the case of BOYD v. CLARK, supra, upon which defendants rely heavily, a three-judge court dismissed the action which was brought by four selective service registrants challenging the constitutionality of the student deferments provided in § 6(h) (1) of the Military Selective Service Act of 1967 (16 U.S.C. App. § 456(h) (1)). Plaintiffs in BOYD argued that student deferments: (1) discriminated against persons who are economically unable to attend college, and (2) are arbitrary and bear no reasonable relationship to the purposes of the Act. Plaintiffs in that case, who were all classified I-A, alleged that they were unable to secure student deferments solely because they lacked the financial means to attend college. The injury claimed was an increased likelihood of induction because registrants who were deferred as students could postpone their induction for several years and in many cases escape service entirely by acquiring other deferments. None of the plaintiffs in the BOYD case was under orders for induction. The court held that since plaintiffs may never be required to report for induction, their claim is premature and was not then ripe for adjudication. In making that decision, the court stated in quoting from WOLFF v. SELECTIVE SERVICE LOCAL BOARD NO. 16, 372 F.2d 817 at 823 (2d Cir. 1967):


"In the usual run of Selective Service cases, the registrant must wait until he receives an induction order, and has either obeyed it or is prosecuted for refusing to obey it, before the courts may review his classification. This is so because, in nearly all cases, it is service in the armed forces itself, and not the mere classification, that constitutes the alleged injury. Thus, should it develop that for independent reasons such as physical disability the registrant is not actually wanted by the armed forces, he will never have sustained a legally redressable injury. Perhaps it is true that a mere adverse classification will cause a disarray of plans and emotional upset but this is an acceptable price to pay for the efficient functioning of the Selective Service . . ."

 In the case at bar we have a different situation than that existent in the BOYD case. Here plaintiffs are attacking the constitutionality of the Military Selective Service Act itself, and not just the constitutionality of their classification pursuant to that Act. Pre-induction attacks on classification are what was sought to be prevented by § 10(b) (3). Here the injury alleged is the requirement of affirmative duties under the threat of prosecution for failure to perform those duties.

 In discussing the scope of § 10(b) (3) in FEIN V. SELECTIVE SERVICE SYS. LOC. BD. NO. 7, YONKERS, N.Y., 405 U.S. 365, 92 S. Ct. 1062, 31 L. Ed. 2d 298 (1972), the Supreme Court, in distinguishing the OESTERICH and BREEN cases, stated:


"§ 10(b) (3) does foreclose pre-induction judicial review in the more common situation where the board, authoritatively, has used its discretion and judgment in determining facts and in arriving at a classification for the registrant."

 In the case at bar there is no discretion, no judgment, and no facts being challenged. There is "objective certainty" of the status of the plaintiffs. See FEIN v. SELECTIVE SERVICE SYS. LOC. BD. NO. 7, YONKERS, N.Y., supra. Accordingly, we hold that § 10 (b) (3) of the Act does not bar this action. Thus, defendants' motion to dismiss is denied.


 AND NOW, this 1st day of July [*], 1974, for the reasons set forth in the foregoing opinion, it is ORDERED that defendants' motion to dismiss is hereby DENIED.


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