United States ex rel. Kellogg v. McBee

• Decision Date: 04 November 1971
• Docket Number: No. 18096.,18096.
• Citation: 452 F.2d 134
• Parties: UNITED STATES of America ex rel. Duncan Randall KELLOGG, Petitioner-Appellee, v. Colonel Willie H. McBEE, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

452 F.2d 134 (1971)

UNITED STATES of America ex rel. Duncan Randall KELLOGG, Petitioner-Appellee, v. Colonel Willie H. McBEE, Respondent-Appellant.

No. 18096.

United States Court of Appeals, Seventh Circuit.

November 4, 1971.

Rehearing Denied November 4, 1971.

William J. Bauer, U. S. Atty., Richard F. Sprague, Asst. U. S. Atty., Chicago, Ill., James R. Thompson, U. S. Atty., Chicago, Ill., for respondent-appellant ; John Peter Lulinski, Jeffrey Cole, Richard F. Sprague, Asst. U. S. Attys., of counsel.

Richard T. Franch, Jerold S. Solovy, Chicago, Ill., for petitioner-appellee ; Jenner & Block, Chicago, Ill., of counsel.

Before DUFFY, Senior Circuit Judge, FAIRCHILD and CUMMINGS, Circuit Judges.

DUFFY, Senior Circuit Judge.

A decision in this case was handed down on July 1, 1971. Thereafter, a petition for a rehearing en banc was filed and considered by this Court. The panel, after consulting with the members of the Court, determined to and did recall the former opinion dated July 1, 1971 and has substituted therefor the opinion which follows herewith:

Petitioner was placed in a I-A classification on November 19, 1966. On January 14, 1969, he was ordered to report for induction on February 26, 1969. On February 19, 1969, petitioner appeared in person at his local draft board and informed it that he was contemplating marriage, and that his fiancee was three months' pregnant. He stated that he was not then living with his fiancee. The local board postponed his induction until after March 26, 1969. Thereafter, he was ordered to report for induction on April 21, 1969.

On March 17, 1969, petitioner wrote to his local board informing it that he was now married, and that a child was due in August. He requested that allotment forms be mailed to him.

Defendant appeared before the board in person on April 9, 1969 and requested dependency form No. 118 which was handed to him. He also requested other forms relative to applying for a fatherhood deferment and apparently received the same. On April 10, 1969, he returned the completed forms to the board. The petitioner submitted to induction on the date ordered, but promptly filed a petition for habeas corpus on June 17, 1969.

The principal issue on the merits is whether the board erred in refusing to reopen petitioner's file to consider the deferment request. 32 C.F.R. § 1622.30(c) (3) requires that a registrant shall not be placed in Class III-A because of an unborn child "* * * unless prior to the time the local board mails him an order to report for induction which is not subsequently cancelled there is filed with the local board the certificate of a licensed physician stating that the child has been conceived, the probable date of its delivery, and the evidence upon which his positive diagnosis of pregnancy is based."

However, there is a claim in this case that the diagnosis of petitioner's fiancee's pregnancy was delayed until February 1969 because she had a kidney infection which simulated pregnancy and disrupted her menstrual period. The District Court below found that petitioner's failure to comply with the requirement of submitting proof of pregnancy before the mailing of the induction order was excusable here considering that the kidney infection delayed diagnosis. It was evident from the facts of the case and the doctor's statement that conception had occurred prior to the mailing of the induction order. Relying on Talcott v. Reed, 217 F.2d 360 (9 Cir., 1954) and United States v. Bruinier, 293 F.Supp. 666 (D.Oregon, 1958), the District Court properly held that such a situation was a circumstance over which the registrant had no control;¹ that petitioner had presented a prima facie case and the board was obliged to reopen the file.

On June 18, 1969, the District Judge ordered the Government to show cause on or about July 17, 1969, why the petition should not be granted. The Government did not file a return to the show cause order but, instead, on June 30, 1969, filed a motion to dismiss the petition for failure to state a claim. The Government averred the petitioner had not supplied his local board with the requisite physician's certificate indicating pregnancy before the induction order was issued as required by 32 C.F.R. § 1622.30(c) (3).

On July 18, the District Judge denied the motion to dismiss, and on July 28 entered an order that petitioner be released from Army custody. The order also provided that the matter be returned to the board for reopening and consideration of petitioner's claim in accordance with law.

Prior to oral argument before this Court, the Government moved to supplement the record on appeal with parts of the petitioner's selective service file which was not part of the record below and was not introduced into evidence. The Government argued these documents would indicate that the allegation of a kidney...