426 F.2d 137 (5th Cir. 1970), 27940, Magaro v. Cassidy

Docket Nº27940.
Citation426 F.2d 137
Party NameGerald E. MAGARO, Plaintiff-Appellant, v. Major General Richard T. CASSIDY, Commanding General, USAADCEN & Fort Bliss, Fort Bliss, Texas and Stanley R. Resor, Secretary of the Army, Department of the Army, Washington, D.C., Defendants-Appellees.
Case DateApril 23, 1970
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 137

426 F.2d 137 (5th Cir. 1970)

Gerald E. MAGARO, Plaintiff-Appellant,

v.

Major General Richard T. CASSIDY, Commanding General, USAADCEN & Fort Bliss, Fort Bliss, Texas and Stanley R. Resor, Secretary of the Army, Department of the Army, Washington, D.C., Defendants-Appellees.

No. 27940.

United States Court of Appeals, Fifth Circuit.

April 23, 1970

Gerald E. Magaro, pro se, Maury Maverick, Jr., San Antonio, Tex., James M. Simons, Austin, Tex., for plaintiff-appellant.

Ted Butler, U.S. Atty., Warren N. Weir, Asst. U.S. Atty., San Antonio, Tex., for defendants-appellees.

Page 138

Before RIVES, GOLDBERG and GODBOLD, Circuit Judges.

GODBOLD, Circuit Judge:

Magaro appeals from denial of his petition for a writ of habeas corpus. He contends that he should be released from military service because in several respects his local Selective Service board denied him due process of law in handling his case. We conclude that he was entitled to grant of the writ.

A chronology of his Selective Service file is necessary to understanding the case. Magaro registered with his local board in Halifax, Pennsylvania on March 10, 1961. In 1964 he was granted a II-S (student) deferment, which he retained until he graduated from law school in June, 1967 at which time his board classified him I-A.

In February, 1967 Magaro had written to his board requesting an indication of his probable draft status should he accept a judicial clerkship. In July, 1967 he requested what he termed an 'appeal' from his I-A classification on the ground that he had enrolled in graduate law studies. In October of that year the local board received a letter from a naval recruiting station in Cleveland indicating that Magaro had applied for a commission.

In January, 1968 Magaro wrote the local board to investigate the possibility of a II-A (occupational) deferment for legal aid work which he had begun in Cleveland, noting also that he was taking night courses and that he '(had) been investigating various officer's programs in the Armed Forces.' The local board forwarded Magaro's file to the appeal board for the district, which reviewed the local board's precedures and took no further action. In April, 1968 the local board informed him that his classification would not be reopened and that he would be retained in I-A.

On June 13, 1968 Magaro requested a change to II-A occupational deferment status on the basis of his beginning work with the VISTA program. 1 The body of this letter request is set out in the margin. 2 His appointment to VISTA was confirmed by a letter to the board from a branch chief of VISTA, Office of Economic Opportunity, on a letterhead headed 'Executive Office of the President of the United States, Washington, D.C.' The body of the letter appears in the margin. 3

Page 139

In a letter received by the Board on July 11, Magaro wrote that he had commenced his VISTA training in Denver in late June as planned. Nevertheless, on July 23, without having acted on the II-A request, the Board sent Magaro an order to report for induction on August 8. On July 27, immediately after receipt of the induction order, Magaro wrote the Board calling attention to the fact it had not acted on his request. The Board replied, explaining that it had not received verification from VISTA that he was in training and stating it would consider his request after receipt of verification. On August 14 an officer of VISTA wrote the Board verifying that Magaro had completed his training and had been assigned, and explaining what his duties would be. The Board received this letter on August 19. The body thereof is quoted in the margin. 4

On August 21 the Board took up Magaro's request. It recited the facts revealed to it by his file. The latest item referred to was the notice from Magaro that he had commenced training for VISTA on June 27. The Board did not consider its subsequent notice to him that it required official verification of his training status, or the official verification written August 14 and received by it on August 19 which authenticated that he had completed training and had been assigned and fully described his duties.

The Board decided that 'he should not be granted a deferment, and should be inducted into the service,' stating 'Members are in doubt as to the sincerity of Mr. Magaro's accepting the position with VISTA.' Its conclusions are quoted in the margin. 5 On September 1,

Page 140

1968 Magaro requested a personal appearance to explain his case. The local board did not act on that request.

By order of the National Director, Magaro's case was appealed to the National Selective Service Appeal Board. On November 18 the National Board, by a 3-0 vote, continued Magaro in I-A.

Magaro subsequently submitted to induction at San Antonio, Texas. He filed the instant petition in federal district court, and it was denied after a hearing. This appeal followed.

The trial court held that the local board was under no obligation to reopen and reconsider Magaro's classification when presented with his request for a VISTA deferment, and that at any rate any error by the local board was corrected by the appeal to the National...

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10 practice notes
  • 332 F.Supp. 1280 (S.D.Ga. 1971), Civ. A. 1652, United States ex rel. Johnson v. Resor
    • United States
    • Federal Cases United States District Courts 11th Circuit
    • October 6, 1971
    ...factual consideration of the claim and to an appeal if his application was denied by the Local Board. See Magaro v. Cassidy, 5 Cir., 426 F.2d 137. Prejudice may result from the premature issuance of an induction order because of the severe limitations upon reopening a classification and pre......
  • 490 F.2d 442 (5th Cir. 1974), 73-2258, United States v. Taylor
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • February 27, 1974
    .... . . present such further information as he believes will assist the board in determining his proper classification.' Magaro v. Cassidy, 426 F.2d 137, 142 (5th Cir. 1970). See also United States v. Bagley, 436 F.2d 55 (5th Cir. 1970). The appearance thus permits the registrant to submit ad......
  • 454 F.2d 138 (9th Cir. 1972), 71-1974, United States v. Marcovich
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • January 7, 1972
    ...case has been established. Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970); Magaro v. Cassidy (5 Cir. 1970) 426 F.2d 137; and Petrie v. United States (9 Cir. 1969) 407 F.2d 267. In our case, the local board reopened appellant's classification and reclassified him......
  • 327 F.Supp. 945 (D.S.D. 1971), CR69-5, United States v. Joyce
    • United States
    • Federal Cases United States District Courts 8th Circuit District of South Dakota
    • June 21, 1971
    ...(Joyce) had asked for a deferment to get your Master's degree', the denial was based on 'irrelevant considerations.' Magaro v. Cassidy, 426 F.2d 137 (5th Cir. 1970). In addition, it is questionable whether the request for a II-A request was ever considered by the local board. Such a failure......
  • Request a trial to view additional results
10 cases
  • 332 F.Supp. 1280 (S.D.Ga. 1971), Civ. A. 1652, United States ex rel. Johnson v. Resor
    • United States
    • Federal Cases United States District Courts 11th Circuit
    • October 6, 1971
    ...factual consideration of the claim and to an appeal if his application was denied by the Local Board. See Magaro v. Cassidy, 5 Cir., 426 F.2d 137. Prejudice may result from the premature issuance of an induction order because of the severe limitations upon reopening a classification and pre......
  • 490 F.2d 442 (5th Cir. 1974), 73-2258, United States v. Taylor
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • February 27, 1974
    .... . . present such further information as he believes will assist the board in determining his proper classification.' Magaro v. Cassidy, 426 F.2d 137, 142 (5th Cir. 1970). See also United States v. Bagley, 436 F.2d 55 (5th Cir. 1970). The appearance thus permits the registrant to submit ad......
  • 454 F.2d 138 (9th Cir. 1972), 71-1974, United States v. Marcovich
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • January 7, 1972
    ...case has been established. Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970); Magaro v. Cassidy (5 Cir. 1970) 426 F.2d 137; and Petrie v. United States (9 Cir. 1969) 407 F.2d 267. In our case, the local board reopened appellant's classification and reclassified him......
  • 327 F.Supp. 945 (D.S.D. 1971), CR69-5, United States v. Joyce
    • United States
    • Federal Cases United States District Courts 8th Circuit District of South Dakota
    • June 21, 1971
    ...(Joyce) had asked for a deferment to get your Master's degree', the denial was based on 'irrelevant considerations.' Magaro v. Cassidy, 426 F.2d 137 (5th Cir. 1970). In addition, it is questionable whether the request for a II-A request was ever considered by the local board. Such a failure......
  • Request a trial to view additional results