303 F.Supp. 227 (D.Md. 1969), Civ. 21054, Grosfeld v. Morris

Docket NºCiv. 21054
Citation303 F.Supp. 227
Party NameGrosfeld v. Morris
Case DateAugust 15, 1969
CourtUnited States District Courts, 4th Circuit, District of Maryland

Page 227

303 F.Supp. 227 (D.Md. 1969)

Gerson GROSFELD

v.

Dr. Harold P. MORRIS, Dr. Walter C. Dorn, Mr. Woodrow L. Taylor, Mr. EvartsWagg, and Mrs. Evelyn E. McIntyre, Members of Selective Service Local Board 53,Maryland; Col. James L. Hays, III, State Director of Selective Service forMaryland; andLt. Col. Peter P. Borowski, Commander of Armed Forces Examining and EntranceStation, Ft. Holabird, Maryland.

Civ. No. 21054.

United States District Court, D. Maryland.

Aug. 15, 1969.

Gaillard T. Hunt, Washington, D.C., and Elsbeth Levy Bothe, Baltimore, Md., for plaintiff.

Page 228

Stephen H. Sachs, U.S. Atty., and Clarence E. Goetz, Asst. U.S. Atty., Dist. of Maryland, for defendants.

FRANK A. KAUFMAN, District Judge.

The plaintiff, Gerson Grosfeld, is currently classified I-A (eligible for military service) by his Selective Service Local Board and has been ordered to report during this month for induction into the Armed Forces. In this action, in which the members of that Local Board, the State Director of Selective Service and the Commander of the Armed Forces Examining and Enterance Station at Fort Holabird, Maryland, are named as defendants, Grosfeld contends that the Board has acted illegally in classifying him I-A and seeks as temporary restraining order, a writ of habeas corpus and/or relief in the nature of mandamus to prevent his induction.

The following relevant facts are agreed upon by the parties:

(1) Grosfeld was an undergraduate student at the University of Maryland between September, 1964 and June, 1968. During each of those years, he was given an undergraduate II-S deferment by his Local Board. The last such deferment was requested on October 22, 1967 and was granted on November 6, 1967. Following his graduation from the University of Maryland and receipt of a baccalaureate degree from that institution in June of 1968, Grosfeld was no longer eligible for an undergraduate II-S deferment. Accordingly, his Local Board classified him I-A in late August, 1968.

(2) About the same time, Grosfeld began attending the University of Arizona as a full-time graduate student and part-time teaching assistant. He wrote his Local Board and requested a graduate student (II-S) or an occupational (II-A) deferment. The Board treated this letter as an appeal from his I-A classification and forwarded the letter, along with Grosfeld's file, to the State Appeal Board for Maryland. On December 10, 1968, the Appeal Board sustained the I-A classification by a vote of 5-0.

(3) Pursuant to the I-A classification, Grosfeld's Local Board sent him on March 26, 1969 an order to report for induction April 15, 1969. Grosfeld immediately responded by asking the Local Board to defer him until the end of the school year so that he could finish the academic year at Arizona. Grosfeld also requested a graduate student I-S classification (which he now contends the Board was required to grant to him) until the completion of the school year. Without reopening Grosfeld's case, the Local Board notified him that it would not change his I-A classification but that his induction would be delayed until the first draft in June of men registered with that Board.

(4) Late in April of 1969, Grosfeld sought a III-A hardship deferment. In support thereof Grosfeld wrote a letter which reached his Local Board on April 28, 1969, in which he stated that he had just learned for the first time that a serious disease from which his mother had been suffering would be gravely affected by his induction and that his mother's doctors believed that his induction would cause her dangerous deterioration. Grosfeld offered to supply evidence supporting his claim for a III-A classification.

(5) Grosfeld did not again hear from his Local Board until July 24, 1969, when he received a letter ordering him to report for induction August 12, 1969. In that same letter, the Local Board notified him that it refused to reopen his case in order to consider the claim which he had made in April for a III-A deferment.

On August 5, 1969, Grosfeld instituted this case, challenging the legality of his induction order and the underlying I-A classification on two principal grounds. First, he contends that he was entitled by statute to a I-S classification during the academic year of 1968-1969 and that his request for such classification was wrongfully refused by his Local Board.

Page 229

Second, he claims that he presented a prima facie case for a III-A classification and that the Board's refusal to reopen his case constituted a denial of procedural due process. It is Grosfeld's position that both of these actions were illegal and that, for reasons which are more fully recounted infra, each of those two illegal actions vitiate his current I-A classification.

Jurisdiction is said to lie in this case under the mandamus statute, 28 U.S.C. 1361, and the habeas corpus statutes, 28 U.S.C. 2241 et seq. However, section 10(b)(3) of the Selective Service Act of 1967 provides:

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 section 12 of this title, 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. (50 U.S.C. App. 460(b)(3).)

At issue is whether this statute bars, at this time, this Court's jurisdiction to pass on the merits of Grosfeld's arguments. If so, then Grosfeld may obtain judicial review only by means of habeas corpus after induction or defending a criminal prosecution should he choose to refuse induction. Oestereich v. Selective...

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1 practice notes
  • OAG 70-96.
    • United States
    • Attorney General Opinions Oregon
    • 12 Noviembre 1970
    ...what is required of a legislature if its redistricting and reapportioning work is to be constitutionally acceptable." 303 F. Supp. at 227. A different view was taken by the New York Court of Appeals in Abate v. Mundt, _____ N.Y.2d _____, 253 N.E.2d 189 (1969), in wh......