Lerner v. Hershey, Civ. A. No. 13042.

• Decision Date: 14 January 1970
• Docket Number: Civ. A. No. 13042.
• Citation: 312 F. Supp. 99
• Parties: Robert Neil LERNER v. Lewis B. HERSHEY, Director of Selective Service; Mike Y. Hendrix, Georgia State Director of Selective Service; Local Board No. 61, Atlanta, Georgia; Arthur J. McIntyre, J. W. LeBlanc, A. M. Weatherly, William V. Pentecost and J. D. Matthews, as members of Local Board No. 61; Colonel John Brokaw, New York State Director of Selective Service; Local Board No. 5, Hempstead, New York; and A. Lenp, H. Heidtman, A. Beermon, C. Strahs and G. Noon, as members of Local Board No. 5, Hempstead, New York.
• Court: U.S. District Court — Northern District of Georgia

312 F. Supp. 99

Robert Neil LERNER v. Lewis B. HERSHEY, Director of Selective Service; Mike Y. Hendrix, Georgia State Director of Selective Service; Local Board No. 61, Atlanta, Georgia; Arthur J. McIntyre, J. W. LeBlanc, A. M. Weatherly, William V. Pentecost and J. D. Matthews, as members of Local Board No. 61; Colonel John Brokaw, New York State Director of Selective Service; Local Board No. 5, Hempstead, New York; and A. Lenp, H. Heidtman, A. Beermon, C. Strahs and G. Noon, as members of Local Board No. 5, Hempstead, New York.

Civ. A. No. 13042.

United States District Court, N. D. Georgia, Atlanta Division.

January 14, 1970.

Howard Moore, Jr., and Peter E. Rindskopf, Atlanta, Ga., for petitioner.

Charles L. Goodson, U. S. Atty., Beverly B. Bates, Asst. U. S. Atty., Atlanta, Ga., for respondents.

ORDER

ALBERT J. HENDERSON, Jr., District Judge.

Presently at issue is the question whether a selective service registrant is entitled to pre-induction judicial review as a result of the failure of his draft board to grant him a I-S deferment, under § 6(i) (2) of the Military Selective Service Act of 1967, 50 U.S.C. A. App. § 456(i) (2) (1968). If so, is registrant then entitled to the 30-day period following the I-S period, during which he may appeal his classification, without receiving notice of his induction? The court holds that the registrant had an absolute statutory entitlement to the I-S deferment, and that he is entitled to pre-induction judicial review, under the authority of Oestereich v. Selective Service Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968).¹ Further, he was entitled to a 30-day period following the I-S period, during which he might not be notified of his induction.

The facts are undisputed. In September, 1967, registrant enrolled in law school at the Emory University School of Law, in Atlanta, Georgia. At that time, he was registered with Local Board No. 5, in Hempstead, New York. He attended the law school at Emory during the 1968 and 1969 summer sessions, thereby advancing ahead of his class. He graduated on December 18, 1969.

Registrant applied for and received, in September, 1967, a II-S graduate deferment, to last until June, 1968. In August, 1968, he was classified I-A by Local Board No. 5, requested an II-S deferment, had a personal appearance, and was denied. He appealed to the Georgia State Appeal Board which granted him a II-S graduate deferment from December 9, 1968, through June, 1969. On April 25, 1969, on request for reconsideration of registrant's classification by the New York State Deputy Director, the Georgia State Appeal Board reclassified registrant I-A. In May, 1969, he received a notice to report for induction on June 5, 1969, in Hempstead, New York. On May 24, 1969, registrant wrote both National Director Lewis B. Hershey and Local Board No. 5, requesting a I-S deferment to complete his current academic year of graduate study, which had begun in March, 1969. On June 3, 1969, his request to Director Hershey was denied by the New York State Director of Selective Service.

On June 3, 1969, registrant requested and received a transfer from Local Board No. 5, in Hempstead, New York, to Local Board No. 61, in Atlanta, Georgia, where he was in law school. About August 15, 1969, he received a notice from Local Board No. 61 to report for induction on August 28, 1969, in Atlanta.

Prior to the enactment of the Military Selective Service Act of 1967, registrant received several "under-graduate" II-S deferments, under § 6(h) (1), 50 U.S.C. A. App. § 456(h) (1) (1968). However, he graduated from college before June 30, 1967, the effective date of the Military Selective Service Act of 1967 (the significance of which appears below). Accordingly, the only II-S deferments obtained by registrant after the passage of the Act of 1967 were "graduate" school deferments.

Registrant contests the denial of his I-S classification, asserting that he was entitled to a 30-day period following his graduation within which to contest any notice of reclassification which he might have received. Had he been classified I-S, and had he received the 30-day period before notice of induction, he would have been subject to induction under the national lottery system of selective service. Therefore, the questions are (1) whether he was entitled as of right to the I-S classification until December 18, 1969, the date of his graduation, and (2) whether he was entitled to the 30-day appeal period which followed the period of the I-S classification.

The first question, that of entitlement as of right, turns on the interpretation of the exceptions to § 6(i) (2) of the Military Selective Service Act of 1967, 50 U.S.C.A. App. § 456(i) (2) (1968), which provide, in pertinent part:

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 or 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.

These exceptions relate to registrants who (1) have had a II-S deferment between 1948-51, and (2) who have previously received a I-S classification. Bowen v. Hershey, 410 F.2d 962 (1st Cir. 1969); Marsano v. Laird, 412 F.2d 65 (2nd Cir. 1969); Foley v. Hershey, 409 F.2d 827 (7th Cir. 1969).

An additional exception is found in § 6(h) (1), 50 U.S.C.A. App. § 456(h) (1):

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 * * *.

The first two exceptions obviously are inapplicable here. The third exception is also inapplicable. As was stated by the 2nd Circuit in Marsano v. Laird, supra:

A final exception to those eligible to receive a I-S under paragraph 6(i) (2) is found in paragraph 6(h) (1). This paragraph provides for mandatory deferment of undergraduates and was designed for the induction of men in a "prime-age category". As one incident of the new system and in order to prevent pyramiding of deferments, undergraduates deferred under paragraph 6(h) (1) thereafter became ineligible for I-S deferments under paragraph 6(i) (2). This proviso in § 6(h) (1) applies on its face only to those who receive undergraduate deferments after June 30, 1967, the date of the new Act, because it bars those being deferred "under the provisions of this paragraph" emphasis supplied from receiving a I-S. If Congress had intended to exclude from I-S postponement any person deferred as a II-S after the effective date of the act, then it clearly would have specified that the bar applied to persons who had received a student deferment under this "subsection", rather than under this "paragraph". Additionally, Selective Service has explicitly recognized that paragraph 6(h) (1) has no application to any deferments received prior to June 30, 1967. Local Board Memoranda Nos. 84, 87. Appellant has never received such a deferment, since he graduated from college prior to the enactment of the 1967 Act and his deferment since then has been for graduate study pursuant to paragraph 6(h) (2). By its explicit terms this proviso is inapplicable to appellant. Bowen v. Hershey, supra; Foley v. Hershey, supra * * (footnote omitted).

Four circuits have spoken on this question. Three hold the exception inapplicable. Bowen v....