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February 19, 1980

Robert L. GOLDBERG et al.
Curtis TARR et al.

The opinion of the court was delivered by: CAHN


In this proceeding filed on June 16, 1971, plaintiffs *fn1" seek a determination that the Military Selective Service Act, 50 U.S.C. App. § 451 et seq. (hereinafter the Act), is unconstitutional. The defendants are the National Director of Selective Service, the Acting State Director of Selective Service for Pennsylvania, and Local Board No. 138 in Philadelphia, Pennsylvania. The complaint contains class action allegations, *fn2" requests the convocation of a three-judge court, and prays for declaratory and injunctive relief. Initially, plaintiffs challenged the Act in five separate counts alleging: the taking of property without due process (Count I); involuntary servitude (Count II); impermissible discrimination between males and females (Count III); invasion of the rights to free expression and peaceful assembly for the petition of grievances (Count IV); and the illegality and unconstitutionality of the Vietnam War (Count V).

 On April 27, 1972, the Honorable James H. Gorbey denied the application for a three-judge court and on motion of the defendants dismissed the complaint because plaintiffs' claims either had been authoritatively rejected by appellate courts or presented nonjusticiable political questions. *fn3" The plaintiffs appealed from the order dismissing their complaint. On May 11, 1973, in a per curiam opinion, the Court of Appeals for the Third Circuit held that the Supreme Court had previously determined the issues raised by Counts I, II, and IV adversely to the plaintiffs and that Count V was moot because of the cessation of hostilities in Vietnam. *fn4" The court then held:

What remains is Count III, a claim that the Act offends the equal protection clause because it discriminates unconstitutionally between males and females. This contention has not been adjudicated by the Supreme Court, although there is a thoughtful opinion by Chief Judge Marsh of the Western District of Pennsylvania concluding that such "classifications as age and sex are not arbitrary or unreasonable, and the classifications are justified by the compelling government interest....' United States v. Dorris, 319 F. Supp. 1306, 1308 (W.D.Pa.1970). Guided by the stringent language of Ex parte Poresky, (290 U.S. 30, 54 S. Ct. 3, 78 L. Ed. 152), supra, which suggests that the "unsoundness' of the claim must result "from previous decisions of this (Supreme) court,' we are constrained to hold that this count presents an issue which is not yet foreclosed. From the district court's opinion we are unable to determine on what basis it rejected this particular count. Therefore, we will vacate the judgment of the district court and remand these proceedings solely for the purpose of considering Count III. If the district court is satisfied that plaintiffs have standing and that the constitutional attack is not insubstantial as defined in Goosby v. Osser, (409 U.S. 512, 93 S. Ct. 854, 35 L. Ed. 2d 36) supra, it should request the convocation of a statutory court.

 Rowland v. Tarr, 480 F.2d 545, 547 (3d Cir. 1973).

 On remand, in accordance with the mandate of the court of appeals, Judge Gorbey found that the plaintiffs had standing to proceed on Count III and that the sex discrimination issue did not present an insubstantial constitutional question. Judge Gorbey then requested the convocation of a three-judge court. *fn5" On July 1, 1974, the three-judge court, with Judge Rosenn dissenting, denied defendants' motion to dismiss. 6 The court found that this case presented an actual controversy which was not then moot and that it had federal question subject matter jurisdiction founded on 28 U.S.C. § 1331. The court also rejected the defendants' contention that § 10(b)(3) of the Act (50 U.S.C. App. § 460(b)(3)) *fn7" precluded judicial review of the sex discrimination issue. *fn8"

 Following Judge Gorbey's death the within case was transferred on November 11, 1977, to the calendar of Judge Edward N. Cahn. Thereafter no entry appeared on the docket until June 6, 1979, when the Clerk of the District Court issued a notice pursuant to Local Rule of Civil Procedure 23(a). *fn9" A flurry of activity immediately ensued with the result that several issues are now before the three-judge court for resolution. Essentially, plaintiffs seek additional discovery and a firm trial date while defendants have moved for a protective order and for judgment on the pleadings. We will treat the motion for judgment on the pleadings as a motion for summary judgment. *fn10"

 There are four bases for defendants' summary judgment motion. Defendants contend the matter is moot, the plaintiffs lack standing, the plaintiffs seek an advisory opinion and the issue of a male-only draft is a nonjusticiable political question. However, we need not consider the political question issue because the court of appeals reversed the district court's dismissal of Count III even though the defendants had raised that specific contention. Not only does that ruling remain the law of this case but,

This (three-judge) court's jurisdiction is that of a District Court and it is bound to follow unreversed and unmodified decision by the Circuit Court of Appeals of the circuit.

 Sunshine Anthracite Coal Co. v. Adkins, 31 F. Supp. 125, 127 (E.D.Ark.), aff'd 310 U.S. 381, 60 S. Ct. 907, 84 L. Ed. 1263 (1940). See 1B Moore's Federal Practice P 0.402.

 In the three-judge court opinion of July 1, 1974, Judge Gorbey rejected defendants' claim that the controversy was moot and that plaintiffs sought an advisory opinion. Even though the Congress did not extend induction beyond July 1, 1973, except to those who had previously received deferments (see 50 U.S.C. App. § 467(c)), the three-judge court found that potential class members remained subject to induction and that the threat of criminal prosecution was real.

 Defendants now claim that subsequent to July 1, 1974, President Ford and President Carter by Proclamations and Executive Order have eliminated any present possibility that plaintiffs or potential class members will be subject to registration or induction pursuant to the provisions of the Act. *fn11" These Presidential directives terminated registration procedures and pardoned nonviolent draft resisters. Defendants ask us to hold that, in light of these directives, the issue of the constitutionality of the Act providing for a male only selective service program is not justiciable at this time.

 Before proceeding further we should set forth the precise constitutional argument made by the plaintiffs. According to the plaintiffs their rights to equal protection of the law, as that concept is included in the due process clause of the Fifth Amendment, are violated in that males only are subject to registration for the draft, and therefore there is an increased probability of the male plaintiffs actually being inducted because the pool of draft eligibles is decreased by the exclusion of females. *fn12" Plaintiffs maintain that a President may change a Proclamation or Executive Order at any time and therefore they continue to be jeopardized by the Act which at this very moment authorizes the registration of males, but not females, and the induction of males deferred prior to July 1, 1973. *fn13"

 It is advisable for the district court to make a factual inquiry to determine if the plaintiffs or potential class members will suffer any immediate concrete harm or undergo any present apprehension of imminent concrete harm from the alleged unconstitutional Act. In Duke Power Co. v. Carolina Environmental Study ...

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