Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.
Earl Edward Abernathy, hereinafter called the registrant, and Juanita Abernathy, his wife, brought this action against the members of Selective Service Local Board No. 33, Altus, Jackson v. County, Oklahoma, and sought a judgment directing the Local Board to reclassify the registrant as II-C, or, in the alternative, directing the Local Board to accord the registrant an appeal from its refusal to reopen and consider anew his classification.
On May 17, 1949, the registrant was classified by the Local Board as II-C, a registrant deferred because of agricultural occupation. On January 29, 1951, the Local Board changed the registrant's classification to I-A.On May 23, 1951, the registrant appealed from the latter classification to the Appeal Board of the State of Oklahoma. The State Board reclassified the registrant as II-C. From the action of the State Board an appeal was taken to the National Selective Service Appeal Board. The National Board ordered that the registrant's classification as I-A by the Local Board be restored. Thereafter, the Local Board restored the registrant's classification as I-A and on November 13, 1951, notified the registrant of such action.
The registrant filed his Selective Service questionnaire on November 8, 1948, and claimed deferment because of agricultural occupation.
On September 12, 1950, the registrant filed an additional statement with the Local Board, in which he set forth that he was engaged, with his father, in the operation of a wheat and stock-raising farm located in Jackson County, Oklahoma; that during 1950, there was produced on such farm, from 835 acres, 14,000 bushels of wheat; and that 100 to 200 head of cattle were pastured on such farm.
On February 6, 1951, the registrant filed a letter with the Local Board in which he stated that he had been engaged in farming since his graduation from high school in 1948; that prior to February, 1949, his father, Clarence Abernathy, purchased a 2300-acre ranch in Murray County, Oklahoma, on which he ran 250 head of breeding cows; that registrant married Juanita Drake in August, 1950; that Clarence Abernathy then moved to the Murray County ranch and left the entire operation of the farm in Jackson County to the registrant; that in October, 1950, the father of Juanita Abernathy died, leaving an estate of approximately 2000 acres of farm land, 6000 acres of pasture land, and about 200 breeding cows, and that registrant had been assisting his wife in connection with her share of such estate and also in helping with the operation of such farm land and pasture land.
On February 8, 1951, Clarence Abernathy filed a letter with the Local Board, in which he set forth substantially the same facts with respect to registrant's operation of the farm in Jackson County.
The letters of February 6 and February 8, 1951, last above referred to, were forwarded by the Local Board, as a part of the registrant's file, to the State Appeal Board on April 5, 1951. Such letters were also included in the file of the registrant which was forwarded by the Local Board to the State Board on August 11, 1951, for transmission by the State Board to the National Board.
On June 27, 1951, the Local Board forwarded a letter to the State Board in which it stated that it had made an investigation and had ascertained that the registrant did not have the full responsibility of operating the ranch in Jackson County and that such operation was definitely under the control of registrant's father, Clarence Abernathy; that there was an abundance of young farmers and ample farm labor in Jackson County; that there was no shortage of persons with registrant's qualifications and skill as a farmer, which would prevent registrant's replacement if he were inducted, and that the induction of the registrant would not have any substantial effect on farm production in Jackson County.
On November 19, 1951, the registrant filed a letter with the Local Board in which he requested that the Board reopen and consider anew his classification, on the basis of facts stated in such letter, which the registrant asserted were not considered when the registrant was classified and would justify a change in the registrant's classification. On November 23, 1951, Juanita Abernathy filed a letter with the Board in which she petitioned the Board to reopen and reclassify the registrant, and set forth in the letter facts which she asserted had not been theretofore considered by the Board and would justify a change in the registrant's classification. She also asked for an appeal to the State Board in the event the Local Board refused to grant the registrant a deferred classification.
The letters of November 19 and November 23, 1951, did not present any new facts not theretofore considered by the Local Board when it classified the registrant. The facts set forth in such letters were substantially set forth in the letters of February 6, and February 8, 1951.
The trial court held that the registrant and his wife, Juanita Abernathy, were entitled to appeal to the State Board from the Local Board's refusal to reopen and consider anew the registrant's classification. It further held that the classification of the registrant by the Local Board in I-A and the refusal of the Local Board to reopen and consider anew the registrant's classification were based on evidence and that the court was without jurisdiction to review such actions by the Local Board.
The trial court entered a judgment commanding the Local Board to recognize the registrant's right to appeal from the refusal of the Local Board to reopen and consider anew the registrant's classification, and staying the order of induction of registrant pending the final decision on such appeal. From such judgment, the Local Board has ...