311 F.Supp. 1 (E.D.Mich. 1969), Civ. A. 33057, Gregory v. Hershey

Docket Nº:Civ. A. 33057
Citation:311 F.Supp. 1
Party Name:Gregory v. Hershey
Case Date:December 23, 1969
Court:United States District Courts, 6th Circuit

Page 1

311 F.Supp. 1 (E.D.Mich. 1969)

Stephen L. GREGORY et al., Plaintiffs,

v.

Lewis B. HERSHEY et al., Defendants.

Civ. A. No. 33057.

United States District Court, D. Michigan

Dec. 23, 1969

James, Lafferty, Marc Stickgold, Detroit, Mich., Charles Donahue, Jr., Ann Arbor, Mich., for plaintiffs.

Page 2

Joseph Zanglin, Harold Hood, Asst. U.S. Atty., Detroit, Mich., for defendants.

OPINION

TALBOT SMITH, District Judge.

This case comes before us on a complaint for declaratory judgment, and other relief, arising under the Selective Service Act of 1967, Pub.L. 90-40, June 30, 1967 (81 Stat. 100, 50 U.S.C.App. §§ 451-471), hereinafter termed 'the Act.' We are now ruling upon a Motion for Summary Judgment (Rule 56(a), Rules of Civil Procedure.)

The named plaintiffs bring the action in their own behalf and on behalf of a class (Rule 23, Federal Rules of Civil Procedure), namely, Selective Service registrants who are fathers and who have received a deferment since June 30, 1967 as post-baccalaureate students pursuing a full-time course of instruction at a college, university, or similar institution of learning, under Section 6(h)(2) of the Act (this deferment being a 'graduate II-S'). These plaintiffs have not, however, Received pre-baccalaureate deferments ('undergraduate II-S's') since June 30, 1967. They have all been denied fatherhood III-A deferments by the Selective Service System. 1 They assert that they are entitled to such deferment under the Act and Regulation as a matter of right, and that the denial of such deferment is an illegal action by the Selective Service System founded upon an erroneous interpretation of the law. They have exhausted their administrative remedies, and have received orders to report for induction.

The plaintiffs before us in person are generally in like positions with respect to the draft and to their education. They are graduate students. They are well along in preparation for their chosen professional careers. They are married (and, with one exception, prior to the effective date of the Act), are fathers, and have incurred the substantial financial obligations that are today's usual concomitant of advanced educational and professional training. In addition, there are significant health problems with respect to the families of some, but not all, of the plaintiffs, although not of such magnitude, in defendants' judgment, as to warrant the grant to the involved plaintiffs of hardship III-A deferments under Regulation 1622.30(b).

We turn at once to the Regulation in question, 1622.30(a). It provides in pertinent part as follows:

1622.30 '(a) In Class III-A shall be placed any registrant who has a child or children with whom he maintains a bona fide family relationship in their home and who is not a physician, dentist or veterinarian, or who is not in an allied specialist category which may be announced by the Director of Selective Service after being advised by the Secretary of Defense that a special requisition under authority of section 1631.4 of these regulations will be issued by the delivery of registrants in such category, except that a registrant who is classified in Class II-S after the date of enactment of the Military Selective Service Act of 1967 shall not be eligible for classification in Class III-A under the provisions of this paragraph.'

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