Shook v. Allen

• Decision Date: 07 October 1969
• Docket Number: No. C 69-618.,C 69-618.
• Citation: 307 F. Supp. 357
• Parties: Joel Robert SHOOK, Petitioner, v. Colonel Arthur ALLEN and Stanley R. Resor, Secretary of Army, Respondents.
• Court: U.S. District Court — Northern District of Ohio

307 F. Supp. 357

Joel Robert SHOOK, Petitioner, v. Colonel Arthur ALLEN and Stanley R. Resor, Secretary of Army, Respondents.

No. C 69-618.

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

October 7, 1969.

Ralph Rudd, Rudd, Miller, Sheerer & Lybarger, Cleveland, Ohio, for petitioner.

Timothy J. Potts, Asst. U. S. Atty., Cleveland, Ohio, for respondents.

MEMORANDUM OPINION INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW JUDGMENT AND FINAL ORDER

LAMBROS, District Judge.

On August 11, 1969, the petitioner, Joel Robert Shook, filed a writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2241 et seq. On the same day, this Court issued an order to show cause to the respondents, Colonel Arthur Allen and Stanley R. Resor. A hearing on this order was held on September 4, 1969. After considering the petitioner's selective service file, this Court makes the following findings of fact and law:

The petitioner first registered with his Local Board No. 236, (hereinafter the "Board" or the "Local Board") a short time after his eighteenth birthday. At that time, petitioner was attending Oberlin College. While the petitioner attended Oberlin College, he annually received a II-S deferment (a student deferment) until his graduation in June of 1968. Thereafter, the petitioner was classified I-A on August 30, 1968. The petitioner did not appeal this classification. In the early part of September, 1968, the petitioner entered the Princeton University Graduate School. During the academic year, the petitioner was ordered to report for a pre-induction physical. The examination was transferred to Trenton, New Jersey and was held around March 3, 1969. On March 25, 1969, the Board mailed to the petitioner at his New Jersey address a statement of acceptability, that is, the petitioner was found fully acceptable for induction into the armed forces. Three days later—March 28, 1969—the Board mailed to the petitioner an order to report for induction. In this order, he was told to report to the induction center on April 23, 1969. Since the petitioner was in Cleveland during his spring vacation, he did not have actual notice of this order until April 2, 1969, when he returned to Princeton University.

Upon a request by the petitioner in a letter dated April 7, 1969, the Board, pursuant to 32 C.F.R. § 1632.2, postponed his induction until after June 10 in order to allow him to complete the academic year.

The issues in this case are an outgrowth of the petitioner's spring vacation in Cleveland. On March 26, 1969, the petitioner made application to the Cleveland Board of Education for its junior high school mathematics teacher training program. This program was designed to recruit qualified persons who would fill the void in the number of secondary level math teachers. The program consists of several parts. At first the participant attends a seven-week summer training course. During the summer he receives practical teaching experience. He also participates in discussions and hears lectures with respect to problems in education. Upon completion of the summer program, the participant is assigned a full time teaching load under the supervision of an experienced teacher. In addition to classroom responsibilities, the participant takes graduate school courses at Cleveland State University. After three years of study, the participant can be awarded a masters degree in education. Within a one year period, he can also be certificated to teach by the Ohio State Board of Education. The Cleveland Public Schools (hereinafter the "School System") accepted the petitioner into this program around April 29, 1969.

Thereafter, the petitioner and Mr. Jack Belcher, Assistant Supervisor of the Division of Personnel of the School System, respectively requested that the Local Board grant the petitioner an occupational deferment. (See letters dated April 29, 1969, and May 7, 1969.) On June 18, 1969, the Local Board advised Mr. Belcher that the Board had received his request. The Board, however, noted that Mr. Belcher's letter was received subsequent to the petitioner's order to report for induction. The Board concluded by saying that it did not recommend delaying any further petitioner's induction. The petitioner was ordered to report for induction July 9, 1969. He and Mr. Belcher were so advised.

The petitioner and Mr. Belcher each petitioned the Ohio State Headquarters of the Selective Service System in essence to review the Local Board's action. The Ohio Selective Service Headquarters granted the request, reviewed the petitioner's file, and then returned the file to the Local Board. In the meantime, the petitioner's induction was postponed in order for the Local Board to review the record again.

The School System further supplied information with respect to the petitioner's case in letters dated July 3 and July 9. In these letters, the School System noted that the petitioner had signed a three year commitment to teach in an inner city Cleveland junior high school. It was noted that "his teaching certificate, without which we could not employ him, is being processed by the State Department of Education. * * * On their assurance that he will be certificated, we have issued him a contract." A commitment of employment form, dated June 25, 1969, was attached to one of these letters. (The petitioner also forwarded a copy of this agreement to the Board on August 5, 1969).

On July 12, 1969, the petitioner requested that the Board reopen his classification and classify him anew. The petitioner alleged that there was information in his file which was not considered previously and which, if true, would justify a change in classification. He claimed that the change in his status was beyond his control. He also enumerated the events of his spring vacation which led to his application to the teaching training program. In conclusion he requested a II-A classification or occupational deferment.

On July 23, 1969, the Local Board notified the petitioner and the School System the results of its review. The Board advised them that the occupational deferment was reviewed, considered, and denied. The Board also noted that the additional information did not warrant the reopening of the petitioner's classification. The petitioner, on July 25, 1969, was ordered to report for induction August 11, 1969. On that day, the petitioner did submit to induction.

The petitioner contends that the Board should have reopened his classification. He alleges that there was no basis in fact for the Board's denial of his request for an occupational deferment. He further claims that he presented a prima facie case to the Board that he was entitled to a reopening of his classification. The petitioner alleges that the failure upon the Board's part to reopen his classification denied him due process of law. There was a denial of due process of law since the failure to reopen precluded the petitioner from the valuable rights of a personal appearance and of an appeal. See United States v. Freeman, 388 F.2d 246 (7th Cir. 1967). The Court finds that the petitioner's contention that the Board should have reopened his classification is well taken.

Before considering the petitioner's contention, a review of the law is in order. Under 50 U.S.C. App. § 460(b) (3), the decisions of the local boards are considered final. Thus, this section in pertinent part reads:

"No judicial review shall be made of the classification or processing of any registrant * * * except as a defense to a criminal prosecution * * * after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to the local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant." 50 U.S.C. App. § 460(b) (3).

With respect to the classification of a registrant, the United States Supreme Court has interpreted this section to mean that "the decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant." Estep v. United States, 327 U.S. 114, 122-123, 66 S.Ct. 423, 427, 90 L.Ed. 567 (1946). (Emphasis added.) Thus, a court can interfere with a classification in two circumstances, namely, when there was no basis in fact for such classification or when the local board acted arbitrarily and thus denied the registrant due process of law. Estep v. United States, supra; see Parrott v. United States, 370 F.2d 388, 392 (9th Cir. 1966), cert. denied, Lawrence v. United States, 387 U.S. 908, 87 S.Ct. 1690, 18 L.Ed.2d 625 (1967).

The scope of review in selective service cases is quite narrow. See United States v. Willard, 312 F.2d 605, 607 (6th Cir.), cert. denied, 372 U.S. 960, 83 S.Ct. 1014, 10 L.Ed.2d 13 (1963). It must be remembered that the court must confine its review to the evidence which the board acted upon, that is, the selective service file. Cox v. United States, 332 U.S. 442, 455, 68 S.Ct. 115, 92 L.Ed. 59 (1947); United States v. Mohammed, 288 F.2d 236 (7th Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 37, 7 L.Ed.2d 26 (1961); United States v. Ruppell, 278 F.Supp. 287, 290 (E.D.N.Y.1968); see United States v. Longworth, 269 F.Supp. 971, 976 (S.D.Ohio 1967). Thus,

"the Court is not permitted to create a new record by considering new or additional evidence and thus substitute its judgment for the decision of the Board. Otherwise the Congressional intent relating to the administration of the Selective Service System would be defeated." United States v. Ruppell, supra, 278 F.Supp. at 290.

In the present case, the petitioner seeks Court review...