Grosfeld v. Morris, Civ. No. 21054.
| Citation | 303 F. Supp. 227 |
| Decision Date | 15 August 1969 |
| Docket Number | Civ. No. 21054. |
| Parties | Gerson GROSFELD v. Dr. Harold P. MORRIS, Dr. Walter C. Dorn, Mr. Woodrow L. Taylor, Mr. Evarts Wagg, and Mrs. Evelyn E. McIntyre, Members of Selective Service Local Board 53, Maryland; Col. James L. Hays, III, State Director of Selective Service for Maryland; and Lt. Col. Peter P. Borowski, Commander of Armed Forces Examining and Entrance Station, Ft. Holabird, Maryland. |
| Court | U.S. District Court — District of Maryland |
Gaillard T. Hunt, Washington, D. C., and Elsbeth Levy Bothe, Baltimore, Md., for plaintiff.
Stephen H. Sachs, U. S. Atty., and Clarence E. Goetz, Asst. U. S. Atty., Dist. of Maryland, for defendants.
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 Entrance Station at Fort Holabird, Maryland, are named as defendants, Grosfeld contends that the Board has acted illegally in classifying him I-A and seeks a 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. 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 Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968); Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968); Kraus v. Selective Service System Local 25, 408 F.2d 622 (4th Cir. March 13, 1969).
Grosfeld's claim that he was entitled to a I-S deferment rests on the provisions of section 6(i) (2) of the Selective Service Act of 1967, which provides:
Any person who while satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution is ordered to report for induction under this title, shall, upon the facts being presented to the local board, be deferred (A) until the end of such academic year, or (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier: Provided, That any person who has heretofore had his induction postponed under the provisions of section 6(i) (2) of the Selective Service Act of 1948 former subsection (i) (2) of this section; or any person who has heretofore been deferred as a student under section 6(h) of such Act former subsection (h) of this section; or any person who hereafter is deferred under the provision of this subsection, shall not be further deferred by reason of pursuit of a course of instruction at a college, university, or similar institution of learning except as may be provided by regulations prescribed by the President pursuant to the provisions of subsection (h) of this section. 50 U.S.C. App. § 456(i) (2).
Grosfeld urges that since he was "satisfactorily pursuing a full-time course of instruction" at the University of Arizona, he qualified for a deferment under this section. He also points out that none of the three exceptions listed in the "Provided" clause applies to him. The first two exceptions apply to persons who received student deferments under the Selective Service Act of 1948, which was in force only between 1948 and 1951. Knutson v. Selective Service System, 304 F.Supp. 730 (D.Minn. April 1, 1969); Schafer v. Mitchell, 304 F.Supp. 1227 (N.D.Calif. Mar. 31, 1969). The third exception refers to persons who have previously received a deferment under section 6(i) (2) after the effective date of the statute, July 1, 1967. See Crane v. Hershey, 410 F.2d 966 (1st Cir. May 22, 1969); Rich v. Hershey, 408 F.2d 944 (10th Cir. Apr. 1, 1969).
However, these three exceptions are not exclusive. A fourth exception in the Selective Service Act of 1967 is found in section 6(h) (1), which authorizes and directs the President to prescribe regulations to grant a deferment to a full-time student until he qualifies for a baccalaureate degree, reaches the age of twenty-four, or fails satisfactorily to pursue a full-time course of study. That section also provides that:
No person who has received a student deferment under the provisions of this paragraph shall therafter be granted a deferment * * * under subsection (i) of this section if he has been awarded a baccalaureate degree, except for extreme hardship to dependents (under regulations governing hardship deferments), or for graduate study, occupation, or employment necessary to the maintenance of the national health, safety, or interest. * * * 50 U.S.C. App. § 456(h) (1).
Section 6(h) (1) therefore bars any person who has received an undergraduate II-S student deferment and a baccalaureate degree after the effective date of the statute, July 1, 1967, from receiving a graduate I-S deferment (other than for studies in certain specified fields)1 pursuant to section 6(i) (2). See Crane v. Hershey, supra; Rich v. Hershey, supra; Kaplysh v. Allen, 303 F.Supp. 1007 (N.D.Ohio Apr. 22, 1969); Griffiths and Hechman, Eligibility for I-S of Registrants Holding Graduate II-S Since July 1, 1967, 1 SSLR 4041 (1968). In this case, Grosfeld requested on October 22, 1967 and received on November 6, 1967 a II-S deferment, and graduated from the University of Maryland in June of 1968. He thus falls within the express terms of section 6(h) (1)2...
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