Orloff v. Willoughby, 13248.

• Decision Date: 17 April 1952
• Docket Number: No. 13248.,13248.
• Citation: 195 F.2d 209
• Parties: ORLOFF v. WILLOUGHBY, Colonel, U. S. Army.
• Court: U.S. Court of Appeals — Ninth Circuit

195 F.2d 209 (1952)

ORLOFF v. WILLOUGHBY, Colonel, U. S. Army.

No. 13248.

United States Court of Appeals Ninth Circuit.

March 13, 1952.

Rehearing Denied April 17, 1952.

John Caughlan, Siegfried Hesse, Seattle, Wash., for appellant.

J. Charles Dennis, U. S. Atty., John E. Belcher, Asst. U. S. Atty. Seattle, Wash. (Robert O. Hillis, Major Jagc, U. S. Army, Seattle, Wash., of counsel), for appellee.

Before ORR and POPE, Circuit Judges, and GOODMAN, District Judge.

ORR, Circuit Judge.

Appellant petitioned for a writ of habeas corpus. The petition was denied. He appeals. Appellant is a medical doctor, specializing in psychiatry. On July 26, 1951 he was inducted into the armed forces as a private by authority of the so-called "Doctors Draft Law," Public Law 779, 81st Cong., 2d Sess., 1950 U.S.Code Congressional Service, p. 885. The statute grants the President of the United States authority to "* * * require special registration of and, on the basis of requisitions submitted by the Department of Defense and approved by him, to make special calls for male persons qualified in needed — (A) medical and allied specialist categories who have not yet reached the age of fifty at the time of registration * * *. Persons called hereunder shall be liable for induction for not to exceed twenty-one now 24 months of service in the Armed Forces." 50 U.S.C.A.Appendix, § 454(i). Public Law 779, 81st Cong., 2d Sess. § 1. Thus, while under the terms of the general draft law, Selective Service Act of 1948, persons over the age of 26 are not eligible for induction, 50 U.S.C.A.Appendix, § 454(a), as amended by Public Law 779, doctors, dentists and allied specialists, in contrast with the general population, may be inducted up to the age of 50. Appellant was over the age of 26 at the time of his induction. Prior to the date of his induction, upon advice of the Selective Service System, and to avoid being inducted under the Act,¹ appellant applied for and was granted a commission as a captain in the Medical Corps, United States Air Force. However, his commission was revoked on July 24, 1951, two days before the date of his scheduled induction, because of his failure to execute certain Air Force forms dealing with his commission application. Appellant is presently a private in the Army of the United States, assigned to and a member of Enlisted Replacement Center, Fort Lawton, Washington, for shipment to the Far Eastern Command. Since his induction the Army has given appellant a potential military occupational specialty (PMOS) of medical laboratory technician. Appellant has repeatedly requested the Army to assign him work as a medical doctor regardless of grade or rank, but has been informed that Army regulations permit only commissioned officers to practice as doctors. On December 10, 1951 appellant reapplied for a commission and his application is now pending. Upon being informed that it would take from six months to a year before his application was finally passed upon, and the Army being unable, because of his non-commissioned status, to use him as a doctor in the interim, appellant brought his petition.² His initial attempt to secure release from the Army was in the District Court for the District of Columbia. The petition was there dismissed for lack of jurisdiction. Orloff v. Lovett, D.C.D.C.1951, 101 F.Supp. 750. Upon arrival at Fort Lawton the present proceeding was instituted and the District Court ruled on the merits adversely to appellant.

The fundamental question before us is one of statutory construction. Appellant urges that a doctor inducted under the Act must be used as a doctor in the armed services, that such requirement is mandatory under the Act, and that since his induction was for the one purpose only, if the Army cannot or will not give him such work, he must be discharged. His interpretation is based on the premise that the purpose of the Act was to enable the armed services to secure needed medical, dental and allied specialists without unnecessarily depleting the short supply of such civilian persons, and that consequently to draft a doctor and use him in another capacity is directly opposed to congressional intent because (1) the civilian supply is depleted, and, (2) the military demand remains unsatisfied. To give to the statute any other construction, argues appellant, would render it unconstitutional. That the primary purpose of drafting doctors, not otherwise subject to induction, was to supply the armed forces with needed specialists in this category, is apparent. Certainly, that was the ground on which the bill was justified to Congress by the military. And it also seems apparent that Congress contemplated that inductees under the Act would normally be utilized in their professional capacities. A reading of the debates in Congress is replete with references to such a congressional understanding and desire. See, 96 Cong. Rec. 13857, 13859. On the other hand, we have for decision the question of whether Congress enacted its understanding and desire into positive law and made such particular use of professional inductees mandatory upon the military.

The case was argued and briefed before us by appellee on the broad theory that, under the statute, doctors could be drafted and used for any purpose the Army saw fit; that the matter of duty assignment for such inductees was simply a matter of military discretion. In response, appellant urges that such a construction renders the Act subject to constitutional attack as unreasonable and discriminatory class legislation. We find it unnecessary to decide the constitutional question. The appellant is not being utilized in a capacity wholly outside the medical field. While it is true that under Army regulations he cannot practice medicine as such, he is nevertheless being employed in a type of work for which his medical training renders him peculiarly adaptable. There are many specialized duty assignments within the Armed Forces which require the performance of tasks well within the competence of doctors due to their extensive medical training. Such assignments may well be criticized as wasteful because not utilizing the inductee's capacities to the full level of his ability, but they are nevertheless within the area of his special competence. We think that a construction that the military may make such duty assignments is as far as we need go in this case. Such a construction, because of the clear relationship between the special class of inductees and the work they may be required to perform, removes the constitutional question from the case.

The words of the statute, in terms, do not require appellant's construction that a particular type of work alone can be assigned to inductees. Nor do they, in terms, require that a commission be granted inductees. On the contrary, it may well be urged that the words used will not bear the meaning which appellant seeks to impress upon them. The Act is written in the form of an amendment to the Selective Service Act of 1948, and seems merely, by acting within the framework of the general law, to describe additional classes of men eligible for induction under the latter statute. There is nothing to indicate that men inducted under this new section of the draft law are to be treated, after entrance into the armed forces, differently from men inducted under other provisions. It is significant that when Congress intended a class of registrants to be used in a particular manner, as in the case of conscientious objectors, it designated the type of work to which such persons should be assigned in the Armed Forces. See 50 U.S.C.A.Appendix, § 456(j). We do not think that the words of the statute preclude the Army's present utilization of appellant...