409 F.2d 827 (7th Cir. 1969), 17438, Foley v. Hershey

Docket Nº:17438.
Citation:409 F.2d 827
Party Name:James E. FOLEY, Paintiff-Appellant, v. Lewis B. HERSHEY, Director of Selective Service, et al., Defendants-Appellees.
Case Date:April 08, 1969
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 827

409 F.2d 827 (7th Cir. 1969)

James E. FOLEY, Paintiff-Appellant,

v.

Lewis B. HERSHEY, Director of Selective Service, et al., Defendants-Appellees.

No. 17438.

United States Court of Appeals, Seventh Circuit.

April 8, 1969

Rehearing Denied May 9, 1969.

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Robert L. Henn, Daniel R. Paladino, Bruce .j. Winick, Bloomington, Ind., for plaintiff-appellant.

Morton Hollander, Ralph R. Fine, U.S. Dept. of Justice, Civil Division, Washington, D.C., K. Edwin Applegate, U.S. Atty., Indianapolis, Ind., William D. Ruckelshaus, Asst. Atty. Gen., Dept. of Justice, Washington, D.C., for defendants-appellees.

Before SWYGERT, FAIRCHILD and CUMMINGS, Circuit Judges.

PER CURIAM.

Plaintiff is a second-year graduate student in English at Indiana University, Bloomington, Indiana. He is seeking a declaratory judgment and other relief entitling him to a I-S Selective Service System classification. Plaintiff completed his college studies before enactment of the Selective Service Act of 1967, and thus he has had no deferment as an undergraduate since its enactment. During his first year of graduate study, he held a II-S deferment which expired in June 1968. He was then classified I-A and later ordered to report for induction on February 24, 1969. In this pre-induction suit, he claims that his Local Board improperly refused to grant him an end-of-school-year I-S deferment under Section 6(i)(2) of the Military Selective Service Act of 1967 (50 U.S.C. App. § 456(i)(2)). 1 The district court concluded that the Local Board made no 'clear departure from the statutory mandate' and that plaintiff was therefore barred from pre-induction judicial review by Section

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10(b)(3) of the Act (50 U.S.C. App. § 460(b)(3)). 2 We reverse.

In Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402, it was held that Section 10(b)(3) should not be given a literal reading and does not apply where there has been 'a clear departure by the (Local) Board from its statutory mandate.' The parties here have agreed on the controlling facts, and only a question of statutory construction is before us. Under Oestereich, we conclude that there is no bar to pre-induction judicial review here.

For the reasons ably expressed in Carey v. Local Board No. 2, 297 F.Supp. 252 (D.Conn.1969), we agree that plaintiff is entitled to a I-S classification. 3 Therefore, defendant Local Board No. 172 is ordered to reclassify him I-S as of April 8, 1969, and until the end of his academic year. 4 This Court's February 22, 1969, injunction against the induction of plaintiff is continued in effect until the Board complies with our reclassification order.

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