412 F2d 71 Carey v. Local Board No Hartford Connecticut

412 F.2d 71

James CAREY, Appellee,

No. 612, Docket 33418.

United States Court of Appeals Second Circuit.

Argued May 9, 1969.
Decided June 16, 1969.

Jon O. Newman, U.S. Atty. for District of Connecticut, Hartford, Conn., for appellant.

John Griffiths, New Haven, Conn. (Karl Fleischmann, Hartford, Conn., on the brief), for appellee.

Before MOORE, FRIENDLY and HAYS, Circuit Judges.


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James Carey, the plaintiff-appellee herein, was graduated from college in June, 1965. Following two years of graduate study at Oxford University in England, he entered Yale Law School in September, 1967. Throughout his undergraduate years, his period of study at Oxford and his first year at law school, Carey was classified II-S by his draft board, Selective Service Local Board No. 2 of Hartford, Connecticut. On June 11, 1968, Carey was re-classified I-A and upon appeal this classification was affirmed by the appeal board two months later. On October 14, 1968, while he was satisfactorily pursuing a fulltime course of instruction in his second year at Yale Law School, Carey was ordered to report for induction into the armed forces. Upon receipt of his immediate written request for deferral until the end of the academic year, Carey's draft board, on October 23, 1968 postponed his induction, but only until February, 1969. On January 15, 1969, Carey wrote a second letter requesting deferment until the end of the academic year but the draft board denied this request.


On January 30, 1969, Carey sought and obtained a temporary restraining order from the United States District Court for the District of Connecticut, enjoining the draft board from inducting him into the armed services. On February 13, Carey filed his complaint together with a motion for a preliminary injunction. A day later the appellant (local board) filed a motion to dismiss for lack of jurisdiction and both motions were orally argued before the district court. Shortly thereafter the district court, Blumenfeld, J., filed a memorandum of decision ordering the appellant to classify Carey I-S. On February 19, 1969, judgment was entered in accordance with Judge Blumenfeld's opinion and on March 13, 1969, appellant filed a notice of appeal.


For the reasons set forth in Marsano v. Laird, et al., 412 F.2d 65 (decided June 16, 1969), decided today by this court, we hold that Carey has a clear statutory right to a I-S classification and therefore affirm the order of the district court. In so holding, we also affirm the district court's conclusion that Carey is not barred from relief by 10(b)(3) of the Military Selective Service Act of 1967 because he has shown that he has a clear statutory right to his deferment involving no discretion on the part of the local board, and that the board's action in denying the deferment contravened the express statutory command. Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968).