Naskiewicz v. Lawver

8 Citing cases

  1. Crawford v. Cushman

    531 F.2d 1114 (2d Cir. 1976)   Cited 74 times
    Holding invalid the Marine Corps' mandatory discharge rule for pregnant women

    A line of cases in our court holds that actions by the armed services that are violative of their own regulations are within the reach of the courts. Naskiewicz v. Lawver, 456 F.2d 1166 (2d Cir. 1972); United States ex rel. Donham v. Resor, 436 F.2d 751 (2d Cir. 1971); Smith v. Resor, 406 F.2d 141, 145 (2d Cir. 1969). Cf. Cortright v. Resor, 447 F.2d 245 (2d Cir. 1971), cert. denied, 405 U.S. 965, 92 S.Ct. 1172, 31 L.Ed.2d 240 (1972); Note, Judicial Review and Military Discipline — Cortright v. Resor: The Case of the Boys in the Band, 72 Colum.L.Rev. 1048 (1972).

  2. Baldwin v. Cram

    522 F.2d 910 (2d Cir. 1975)   Cited 1 times
    In Baldwin, a National Guardsman claimed that he was psychologically unfit and sought to be discharged pursuant to Army regulations providing for the discharge of persons "unfit" or "unsuitable" for military service.

    We need not, and therefore do not, answer that question on this appeal. In this posture of the case we need not answer the complex of questions presented to us in the briefs — whether a soldier has standing to claim a violation of AR 635-212 or whether that regulation is solely for the benefit of the Army, see Allgood v. Keenan, 470 F.2d 1071, 1073-74 (9th Cir. 1972); Silverthorne v. Laird, 460 F.2d 1175, 1186 (5th Cir. 1972); whether the district court has any jurisdiction to enforce the regulation if it is solely for the benefit of the Army (Judge Coffrin held with Allgood and Silverthorne that he did not, but see Patterson v. Stancliffe, 330 F.Supp. 110 (D.Vt. 1971)); whether there is jurisdiction to order the armed services to obey the regulation if it were developed for the protection of servicemen, see Naskiewicz v. Lawver, 456 F.2d 1166 (2d Cir. 1972); United States ex rel. Donham v. Resor, 436 F.2d 751 (2d Cir. 1971); United States ex rel. Joy v. Resor, 342 F.Supp. 70 (D.Vt. 1972); or whether a claim for relief under AR 635-212 may ever be stated. These questions may be simply different ways of stating the central substantive issue here which, given appellant's conduct, we find we cannot reach at this time.

  3. Horey v. Tarr

    470 F.2d 775 (2d Cir. 1972)   Cited 2 times
    In Horey v. Tarr, 470 F.2d 775 (2d Cir. 1972) the plaintiff, a resident of a suburb of Buffalo who was classified I-O, was assigned by his local board to perform alternative civilian work in Rochester, 60 miles from Buffalo.

    As Selective Service violated its own regulations, the courts do have jurisdiction despite the provision of § 10(b)(3). Martire v. Selective Service Local Board, 467 F.2d 893 (2 Cir. 1972); Levine v. Selective Service Local Board, 458 F.2d 1281 (2 Cir. 1972); Naskiewicz v. Lawver, 456 F.2d 1166 (2 Cir. 1972). In view of our disposition, we need not consider whether § 10(b) (3), which speaks of "local boards, appeal boards, or the President," is applicable to orders of the State Director of Selective Service assigning conscientious objectors to civilian work.

  4. Martire v. Selective Service Local Bd. No. 15

    467 F.2d 893 (2d Cir. 1972)   Cited 2 times

    Upon an earlier hearing of this case, we directed that the record be supplemented. 442 F.2d 895. This has been done, and the district court has made the additional findings we requested. This court has recognized that the failure by a local board to comply with Selective Service regulations may be subject to pre-induction judicial review despite the no-review provisions of section 10(b)(3) of the Selective Service Act. Naskiewicz v. Lawver, 2 Cir., 456 F.2d 1166, 1168 (1972). Plaintiff therefore relies on the finding below that Dr. Nuland, the doctor who conducted the section 1628 interview, was a consultant to the Army and not a medical advisor to the board.

  5. United States v. Hahn

    381 F. Supp. 1311 (E.D. Mich. 1974)   Cited 1 times

    The government admits that defendant's claim was never reviewed by USAREC but contends that this was in compliance with Memorandum 121. A failure by the Selective Service to comply with its own regulations, including local board memoranda, will be grounds for a finding of denial of due process. where prejudice can be shown. Naskiewicz v. Lawver, 456 F.2d 1166 (CA2 1972). The provisions of Local Board Memorandum 121 are somewhat obscure.

  6. Ballard v. Commanding General, Fort Leonard Wood, Missouri

    355 F. Supp. 143 (W.D. Mo. 1973)

    The nature of the relief to which petitioner is entitled because of these violations remains to be determined. Cf. Naskiewicz v. Lawver (Local Board No. 61) (C.A.2), 456 F.2d 1166. It is important in this connection to note that the Selective Service System is legally bound to comply with its own regulations.

  7. United States v. Lavin

    346 F. Supp. 76 (S.D.N.Y. 1972)   Cited 2 times

    This is not the case here. State Director Advice No. 769 (April 9, 1969), 2 S.S. L.R. 22; see also United States v. Baray, 445 F.2d 949 (9th Cir. 1971), United States v. Smith, 1 SSLR 3370 (D.Ore. February 6, 1969), aff'd, 423 F.2d 559 (9th Cir. 1970); cf. Naskiewicz v. Lawver, 456 F.2d 1166 (2d Cir. 1972). Consideration by the Board of the reports

  8. United States ex Rel. Joy v. Resor

    342 F. Supp. 70 (D. Vt. 1972)   Cited 9 times

    I. Availability of Mandamus It is clear that there is postinduction jurisdiction to order the armed forces to obey their own regulations developed for the protection of servicemen. E.g., Naskiewicz v. Lawver, 456 F.2d 1166 (2d Cir. 1972); United States ex rel. Donham v. Resor, 436 F.2d 751 (2d Cir. 1971). And it is equally clear that mandamus will lie to enforce this requirement.