Kaplysh v. Allen, Civ. A. No. C 69-239.

• Decision Date: 22 April 1969
• Docket Number: Civ. A. No. C 69-239.
• Parties: Theodore P. KAPLYSH, Petitioner, v. Col. Arthur ALLEN, etc., Respondent.
• Court: U.S. District Court — Northern District of Ohio

303 F. Supp. 1007

Theodore P. KAPLYSH, Petitioner, v. Col. Arthur ALLEN, etc., Respondent.

Civ. A. No. C 69-239.

United States District Court N. D. Ohio, E. D.

April 22, 1969.

Ralph Rudd, Cleveland, Ohio, for petitioner.

Carl Miller, Asst. U. S. Dist. Atty., for respondent.

MEMORANDUM

WILLIAM K. THOMAS, District Judge.

Ordered to be inducted on March 28, 1969, plaintiff petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq. It is claimed that petitioner's induction into the Armed Services is unlawful by reason of the failure and refusal of the selective service system to defer him pursuant to paragraph 6(i) (2) of the Military Selective Service Act of 1967, 50 U.S.C.App. § 456(i) (2). Paragraph 6(i) (2) defers a person "satisfactorily pursuing a full time course of instruction at a college, university * * * until the end of such academic year." Presidential regulation CFR § 1622.15, entitles such a deferment as Class I-S Student Deferred by Statute.

Respondent Colonel Arthur Allen, commanding officer of the United States Armed Forces, etc., in Cleveland and intervening respondent Stanley Resor, Secretary of the Army, admit the facts alleged in the complaint. Petitioner is registered with Selective Service Local Board 28 in Cleveland, Ohio. His board classified him II-S in 1964, 1965, and 1966 to permit the completion of his undergraduate studies. Class II-S is the designation given to student deferments by presidential regulations CFR § 1622.20, et seq.

Petitioner entered the law school of Notre Dame University in the fall of 1967. On December 18, 1967, he was classified II-S and deferred to complete his first year of law school. This deferment was made pursuant to 32 CFR § 1622.26(b), a new presidential regulation issued pursuant to paragraph 6(h) (2) of the Military Selective Service Act of 1967, effective June 30, 1967, 50 U.S. C.App. § 456(h) (2).

Petitioner was classified I-A on June 21, 1968. His appeal from this classification was denied and he was again classified I-A on September 25, 1968. He resumed his second year of law school in September 1968.

On October 30, 1968, he was ordered to report for induction on November 21, 1968. On November 7, 1968, that order was postponed until further notice.

In January 1969, petitioner began the second semester of the second year of his law school studies. On January 17, 1969, he was issued an order to report for induction on February 6, 1969, but his induction was postponed on February 5, 1969. On February 7, 1969, he was ordered to report for induction on February 11, 1969.

Together with another plaintiff, on February 1, 1969, petitioner sought a declaratory judgment and an order in the nature of mandamus seeking a recission of the then order of induction and a declaration that he was entitled to a I-S deferment. On February 7, 1969, Chief Judge Girard E. Kalbfleisch of this court, denied petitioner's motion for a temporary restraining order and granted the government's motion to dismiss petitioner's complaint. However, a stay of seven days granted the petitioner to conduct his appeal, stayed his induction order for February 11, 1969.

On February 19, 1969, the Court of Appeals denied the stay; on February 20, 1969, petitioner was ordered to be inducted on February 24, 1969. A motion in the United States Supreme Court for stay of induction pending determination of his appeal in the Court of Appeals was overruled on March 10, 1969. On March 25, 1969, petition was ordered to be inducted on March 28, 1969. At a hearing on the petition for a writ of habeas corpus, commenced March 28, and concluded on March 29, 1969, this court ordered that a show cause order should be issued. Subsequent to this court's order that the case be heard upon the merits, petitioner was granted a 30-day leave by the United States Army. Thereupon, he resumed his second year law studies. He is scheduled to take his final examinations in May. On April 19, 1969, the case was heard on its merits.

In granting the order to show cause this court concluded that the previous adjudication by Chief Judge Kalbfleisch in petitioner's declaratory judgment action does not collaterally estop petitioner's prosecution of the present action. It was observed that petitioner's induction mooted petitioner's right of appeal from the previous adjudication. Subsequent to the hearing of March 28-29, 1969, petitioner, with the agreement of respondents, has dismissed his appeal in the declaratory proceedings.

The respondents oppose the petition for a writ of habeas corpus. As their reason respondents quote the following regulation:

Any registrant enrolled for his first year of post-baccalaureate study in a graduate school or a professional school on October 1, 1967, or accepted for admission involving enrolled status on October 1, 1967, may be placed in Class II-S if he has entered the first class commencing after the date he completed the requirements for admission and shall be deferred for one academic year only, or until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier. (Emphasis added.) Selective Service Regulations 32 CFR § 1622.26(b).

In its original form paragraph 6(i) (2) was enacted as part of the Selective Service Act of 1948, 62 Stat. 604. Effective June 19, 1951, Public Law 51, 65 Stat. 75, 82d Cong., 1st Sess. (1951), made several amendments to the Selective Service Act of 1948. Among other changes, its name became the "Universal Military Training and Service Act. Effective June 30, 1967, the selective service laws were amended by Public Law 90-40, 90th Cong., 1st Sess. Renamed the Military Selective Service Act of 1967, certain subsections, notably subsection 6(h), were amended. However, subsection 6(i) was not repealed or changed. Continuing to exist, as amended by paragraph (p) of Public Law 51, subsection 6(i) (2) still reads:

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. Nothing in this paragraph shall be deemed to preclude the President from providing, by regulations prescribed under subsection (h) of this section, for the deferment from training and service in the Armed Forces or training in the National Security Training Corps of any category or categories of students for such periods of time as he may deem appropriate.

Petitioner states that he is presently entitled "to be deferred * * * until the end of this academic year" under the mandatory deferment granted by the first part of paragraph 6(i) (2). He urges that none of the elements (exceptions) found in the succeeding proviso of the paragraph apply to him.

As to the first element of the proviso it is evident that at no time has his induction been "postponed under the provisions of section 6(i) (2) of the Selective Service Act of 1948."

As seen, the second element of the proviso embraces "any person who has heretofore been deferred as a student under section 6(h) of such Act" Selective Service Act of 1948. The petitioner claims that this exception is not applicable to him since his 6(h) student deferments came after June 19, 1951, the effective date of the 1951 act. He says:

The word "heretofore" used in the middle element in conjunction with "heretofore" and "hereafter" in the flanking elements must surely be interpreted as identifying the same dividing point for the successive time periods, that is the date of the enactment of the 1951 act, which inserted this language, June 19, 1951.

The government agrees that "the petitioner is not subject to the first element of the proviso of Section 6(i) (2) in that his induction was never postponed under the provisions of Section 6(i) (2) of Selective Service Act of 1948." However, the government asserts that petitioner is

subject to the second element of that proviso, in that he was deferred as a student under Section 6(h) of the Selective Service Act of 1948, as amended.

The wording of subsection 6(h) in the 1948 act was amended in the 1951 act. As amended in 1951 by Public Law 51 (Universal Military Training and Service Act), subsection 6(h) of the Selective Service Act of 1948 acquired a different content than subsection 6(h) of the Selective Service Act of 1948 prior to amendment. A reference to subsection 6(h) of the Selective Service Act of 1948 therefore cannot be construed as equivalent to a reference to the Selective Service Act of 1948, as amended.

The government relies on Marsano v. Laird, U.S.C. E.D.N.Y., 298 F.Supp. 280, March 20, 1969, in which a second year graduate student was denied a paragraph 6(i) (2) deferment. The government urges that if the phrase "Selective Service Act of 1948" is restricted to its literal meaning and not "the 1948 Act as amended by the 1951 Act"

then it bars with rare exception, individuals beyond the age of thirty-five who in fact, because of age, are not subject to induction and would thus need no deferment until the end of the academic year. To interpret § 6(i) (2) in

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