Marsano v. Laird

• Decision Date: 16 June 1969
• Docket Number: No. 643,Docket 33519.,643
• Citation: 412 F.2d 65
• Parties: Michael E. MARSANO, Petitioner-Appellant, v. Hon. Melvin LAIRD, Secretary of Defense; Hon. Stanley R. Resor, Secretary of the Army; Maj. Leon Grant, Commanding Officer Armed Forces Examining and Entrance Station, Fort Hamilton, Brooklyn, New York; Lt. Gen. Lewis B. Hershey, National Director of Selective Service; and Local Board No. 3, Great Neck, New York, Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

412 F.2d 65 (1969)

Michael E. MARSANO, Petitioner-Appellant, v. Hon. Melvin LAIRD, Secretary of Defense; Hon. Stanley R. Resor, Secretary of the Army; Maj. Leon Grant, Commanding Officer Armed Forces Examining and Entrance Station, Fort Hamilton, Brooklyn, New York; Lt. Gen. Lewis B. Hershey, National Director of Selective Service; and Local Board No. 3, Great Neck, New York, Respondents-Appellees.

No. 643, Docket 33519.

United States Court of Appeals Second Circuit.

Argued May 9, 1969.

Decided June 16, 1969.

Marvin M. Karpatkin, New York City, (Michael N. Pollet, and Alan H. Levine, New York City, on the brief), for petitioner-appellant.

Howard L. Stevens, Asst. U. S. Atty., Brooklyn, N. Y. (Vincent T. McCarthy, U. S. Atty., for Eastern District of New York, Brooklyn, N. Y.), for respondents-appellees.

Before MOORE, FRIENDLY and HAYS, Circuit Judges.

MOORE, Circuit Judge.

The question presented on this appeal is whether a second-year graduate student is entitled by law to be deferred until the end of the academic year after he has received an order to report for induction during that year. Michael Marsano is, and has been since September 1967, a full-time graduate student at Columbia University, New York City, New York. During the 1967-68 academic year he was deferred as a graduate student under Section 6(h) (2) of the Selective Service Act of 1967, but he has never received an undergraduate deferment pursuant to Section 6(h) (1) of such Act. The importance of this distinction will become apparent below.

For the purposes of this appeal, the facts have been stipulated by the parties. Appellant attended Georgetown University, Washington, D. C., from July 1964 until June 1967. During this period he was deferred as a student under subsection 6(h) of the Universal Military Training and Service Act of 1951 (hereinafter, the Act of 1951). He thereafter entered graduate school in September 1967 and was deferred for graduate study in the classification of II-S for one year pursuant to 32 C.F.R. 1622.26(b). Since his field of study was not one which permitted him to be deferred for the duration of his degree program, 32 C.F.R. 1622.26(a), namely, "as necessary to the maintenance of the national health, safety or interest," in June 1968, appellant's graduate deferment expired, pursuant to Selective Service Regulations, 32 C.F.R. 1622.26(b), and he was reclassified I-A, as available for induction. He continued his graduate studies in the fall of 1968 and during his first semester, he received an order to report for induction on November 8, 1968. After he received this order, he made a written request to his local draft board (respondent) for deferment in class I-S, namely, deferment until the end of the 1968-69 academic year. This request was denied, but the reporting date of the order was thereafter postponed until February 6, 1969.

Appellant was subsequently inducted into the United States Army by order of the respondent on February 6, 1969. On the same day, an order to show cause why a writ of habeas corpus should not issue on the ground that appellant was entitled to a I-S classification as a matter of right was signed by Judge Bartels. Argument was heard on February 14, 1969 and on March 20, 1969 a final decision and order were entered denying the requested relief. This appeal followed. A stay was granted by Judge Weinstein, barring respondents from removing appellant from the jurisdiction of the Second Circuit until determination of this expedited appeal.

The statutory scheme of the Selective Service Act of 1967 (the Act of 1967), 50 U.S.C. App. § 451 et seq., enacted on June 30, 1967 is as follows. Paragraph 6(h) (1) of the Act makes student deferments for undergraduates pursuing a full-time course of study compulsory until the baccalaureate degree is received (or until loss of good standing, or age 24, if either occurred earlier). Such students are classifed II-S. This paragraph established an entirely new system of undergraduate student deferments. It provided for the first time an absolute right to an undergraduate deferment and coupled this right with certain consequences. The major consequence was that those who received undergraduate deferments were required to spend one year in a "prime age category" — a pool of potential inductees — upon graduation from college, loss of good standing or the attainment of age 24, whichever should occur first. This prime-age group was to be designated by the President, but has never been implemented.

As to graduate students, by paragraph 6(h) (2) Congress authorized — but did not require — deferment in fields of study "found to be necessary to the maintenance of the national health, safety, or interest." The ultimate determination as to precisely which fields of study are essential was left to the President. He has since exercised this authority, restricting the deferrable categories only to "medicine, dentistry, veterinary medicine, osteopathy or optometry." Persons studying in the designated areas are classified II-S. While Congress contemplated that the universal deferment of graduate students would be eliminated, it was not required to change much of the prior act. In fact, Congress merely expanded and subdivided subsection 6(h) of the 1951 Act. Subsection 6(h) of the 1951 Act applied to study generally and authorized induction of students, graduate and undergraduate, at any time, although in fact considerable liberality prevailed. Thus, changes relating to undergraduates are found in paragraph 6(h) (1) of the 1967 Act. As to graduate students the enactment of old § 6(h) as paragraph 6(h) (2) of the new Act simply changed "study" to "graduate" study.

At the time of the adoption of the new Act, June 30, 1967, students already accepted for graduate school, or then participating in a graduate program, would have been subject to induction before completion of their degree requirements. To ameliorate the harshness of such a result, Congress authorized a transition period where those who had relied on the old system in planning their studies could alter their plans in regard to the new scheme. Consistent with this purpose, regulations were issued pursuant to paragraph 6(h) (2) continuing the old system of deferment for graduate students generally for one additional year. 32 C.F.R. § 1622.26(b); see footnote 2, infra. Appellant was deferred for his first year of graduate study pursuant to that regulation.

Not to interrupt study needlessly, Congress maintained the prior provision, paragraph 6(i) (2) of the 1951 Act, postponing induction until the end of the academic year for graduate and undergraduate students ordered to report for induction during the school year. Paragraph 6(i) (2) was not repealed or changed by the 1967 Act. Students deferred pursuant to it are classified I-S.

The question presented here is whether appellant is entitled to be deferred under paragraph 6(i) (2) of the 1951 Act. Since this provision was not altered by the Selective Service Act of 1967, a relevant inquiry is: How would appellant have been treated under the prior acts?

Paragraph 6(i) (2) first appeared in a slightly altered form in the Selective Service Act of 1948, ch. 625, 62 Stat. 612 (hereinafter, the 1948 Act) and pursuant to it all students inducted during the school year were entitled, as of right, to a statutory I-S postponement. Similarly, paragraph 6(i) (2) of the 1951 Act, ch. 144, 65 Stat. 84-85, continued this privilege, but excluded registrants who had already received a II-S or I-S deferment under the 1948 Act, or a I-S under the 1951 Act. Thus, under both prior acts, appellant would have had an unequivocal right to a I-S deferment. No changes were made by Congress in this specific provision, but respondents contend that appellant has no right to such a deferment.

A reading of paragraph 6(i) (2) makes it apparent that by its express terms Marsano has an explicit statutory right to be deferred until the end of the academic year. Paragraph 6(i) (2) directs that "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 * * * 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 * * *," and thereafter follow a few exceptions not applicable here. These exceptions relate to registrants who have had a II-S deferment between 1948-51 or who have previously received a I-S classification. Bowen v. Hershey, 410 F.2d 962 (1st Cir.1969); Foley v. Hershey, 409 F.2d 827 (7th Cir.1969); Kaplysh v. Allen, 303 F.Supp. 1007 (N.D. Ohio, 1969).

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)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. Appell...