Bowen v. Hershey

• Decision Date: 26 March 1969
• Docket Number: No. 304.,304.
• Parties: Arthur L. BOWEN, Applicant, v. Lewis B. HERSHEY et al., Applicees.
• Court: U.S. Court of Appeals — First Circuit

410 F.2d 962 (1969)

Arthur L. BOWEN, Applicant, v. Lewis B. HERSHEY et al., Applicees.

No. 304.

United States Court of Appeals First Circuit.

March 26, 1969.

John G. S. Flym, Boston, Mass., for applicant upon application and memorandum in support thereof.

Paul F. Markham, U. S. Atty., and Stanislaw R. J. Suchecki, Asst. U. S. Atty., for applicees upon memorandum in opposition to application.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

This case, if it be thought that defendants are right in their belief as to what Congress intended, is another demonstration of the wisdom of the Biblical warning against putting new wine into old bottles, here the insertion of new concepts into an old statute. The specific question is whether a memorandum propounded under the Military Selective Service Act of 1967, 50 App. U.S.C. § 451 et seq., hereafter the 1967 Act, denying certain students a I-S deferment, the special deferment permitting completion of the academic year, is invalid as contrary to the provisions of the Act itself. A second question sought to be raised by the defendants, the absence of jurisdiction of the district court because of section 10(b) (3) of the Act, 50 App. U.S.C. § 460(b) (3) is inseparable from the first. If the memorandum is contrary to the Act ("without statutory basis and in conflict with petitioner's rights explicitly established by the statute and not dependent upon an act of judgment by the board," Clark v. Gabriel, 1968, 393 U.S. 256, 258, 89 S.Ct. 424, 426, 21 L.Ed.2d 418) section 10(b) (3) does not apply. Oestereich v. Selective Service System Local Board No. 11, 1968, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed. 2d 402. We see no distinction between the Director's unlawful removal of a statutorily granted exemption, Oestereich, supra, and equally unlawful refusal to grant a statutorily required deferment. See Kimball v. Selective Service Local Board No. 15, S.D.N.Y., 1968, 283 F.Supp. 606, 608. The single question to be decided, whether it be termed jurisdictional or substantive, is whether the statute mandated, or merely permitted, the deferment.

Plaintiff, a second year law student in good academic standing, when called for induction in February 1969, applied for a I-S deferment. On refusal, he sought mandamus in the district court, or a declaratory judgment of invalidity of the memorandum authorizing his immediate induction,¹ asserting it to be contrary to section 6(i) (2) of the Act, 50 App. U.S.C. § 456(i) (2). The defendants are the Director of Selective Service and the members of the appropriate local board. The district court rejected plaintiff's contentions, dismissed the complaint, and denied a stay pending appeal. Plaintiff applied to this court and we granted a brief stay. We consider at this point whether the stay should remain in effect until the defendants have an opportunity to file a more comprehensive brief and present oral argument, if they are so minded.

Section 6(i) (2), which appeared in its present form in the Universal Military Training and Service Act of 1951, hereinafter the 1951 Act, reads as follows.

"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; or any person who has heretofore been deferred as a student under section 6(h) of such Act; 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."

Universal Military Training and Service Act, ch. 144, § 6(i) (2), 65 Stat. 85, now 50 App. U.S.C. § 456(i) (2). Under the 1948 Act, Selective Service Act of 1948, ch. 625, § 6(i) (2), 62 Stat. 612, all students inducted during an academic year were entitled to a I-S postponement. The 1951 Act continued this availability, but excluded those who had already received a postponement under the 1948 Act, or a I-S deferment under the 1951 Act. It also excluded those who had received a II-S, or ordinary student deferment under the 1948, but not under the 1951 Act.²

Under the 1951 Act, section 6(h), a II-S student, undergraduate or graduate, was, except by presidential order, liable for induction at any time, (although, in point of fact, considerable liberality prevailed) subject to the single I-S deferment under section 6(i) (2) if available. In 1967 Congress amended the statutes again. It subdivided section 6(h), adding a new paragraph (h) (1), and making old (h) a new paragraph, (h) (2). The important difference so far as paragraph (h) (2) is concerned is that it was changed to "graduate" study, instead of all study. New paragraph (h) (1) made the undergraduate deferment compulsory until the baccalaureate degree (or until loss of good standing, or age 24, if either earlier occurred). It continued,

"No person who has received a student deferment under the provisions of this paragraph shall thereafter be granted a deferment under this subsection, nor shall any such person be granted a deferment under subsection (i) of this section if he has been awarded a baccalaureate degree, except * * *."³

Section 6(i) (2) was left unchanged in 1967.

In a nutshell, plaintiff's position is that he fits precisely within the first clause of section 6(i) (2), and that nothing removes him. We find it difficult to disagree. Obviously he was never "postponed under the provisions of section 6(i) (2) of the Selective Service Act of 1948." Plaintiff says that he was not "deferred as a student under section 6(h) of such Act" because "such Act" meant the 1948 Act. Clearly in 1951, when section 6(i) (2) in its present form was enacted, "such Act" meant the 1948 Act. It has not been changed since.⁴

Nor is plaintiff a "person who hereafter is deferred under the provision of this subsection." Plaintiff has never been deferred under section 6, subsection (i), either (1) or (2), either before or after 1967. Accordingly, by leaving section 6(i) (2) untouched in 1967, Congress did nothing to remove future inductees from its application.

Correspondingly, if we look back to new section 6(h) (1), supra, the cross provision there forbidding I-S deferment under subsection (i) is restricted to "such person," and "such person" is in terms defined as a "person who has received a student deferment under the provisions of this paragraph * * *." Plaintiff did not receive his undergraduate deferment under section 6(h) (1) of the 1967 Act; it did not exist. He did not receive his graduate deferment under that paragraph either; he received it under the subsequent paragraph, section 6(h) (2). We therefore find apparent consistency between sections 6(i) (2) and 6(h) (1). Nor is there anything in section 6(h) (2) which purports to deprive plaintiff of the section 6(i) (2) deferment.

In this circumstance defendants make several policy arguments, the most cogent of which is that graduate deferments were made at the will of the President with the 1967 Act, and the I-S deferment was removed therefrom. But graduate deferments were always at the will of the President — as were undergraduate deferments until 1967. The question is not whether the President could limit the fields of deferable graduate study but whether Congress wished to allow a student who had already begun his work to finish out the year. We find no certain answer in the only legislative history offered, the remarks of Senator Russell, the bill's manager in the Senate.⁵ The language of the statute, however, seems clear.

We have read with care not only the decision of the court below but the decisions both ways on this...