United States v. Bullock, Civ. A. No. 52 C 2091.

• Decision Date: 30 January 1953
• Docket Number: Civ. A. No. 52 C 2091.
• Parties: UNITED STATES ex rel. COLTMAN v. BULLOCK.
• Court: U.S. District Court — Northern District of Illinois

110 F. Supp. 126

UNITED STATES ex rel. COLTMAN v. BULLOCK.

Civ. A. No. 52 C 2091.

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

January 30, 1953.

COPYRIGHT MATERIAL OMITTED

John Gannon, Chicago, Ill., for relator.

Otto Kerner, Jr., U. S. Atty., Anthony Scariano, Asst. U. S. Atty., Chicago, Ill., for respondent.

PERRY, District Judge.

In this petition for writ of habeas corpus, the petitioner seeks release from the custody of the Armed Forces of the United States and from alleged illegal detention by Colonel Stephen E. Bullock, Commanding Officer, Fort Sheridan, Illinois. The petitioner alleges that he is unlawfully detained and deprived of his liberty without due process of law and without his consent by the respondent under alleged color of law "by reason of a certain purported order to report for induction, issued by Local Board No. 98 of the Selective Service System of Cook County, Illinois, located in Evanston, Illinois, on September 26, 1952; that said order to report for induction was entered pursuant and subsequent to a classification of petitioner in Class I-A, notice of which was mailed to petitioner by said local board on September 3, 1952. In substance, the petitioner alleges that he is employed in an essential classification in an industry which is engaged in work defined as critical to the "national health, safety, or interest"; that the Selective Service System, through its local board and board of appeal and though the National Office of the National Director of the Selective Service System, in placing the petitioner in a I-A classification, has acted contrary to its regulations in an arbitrary capricious and discriminatory manner, thereby denying the petitioner's right to be placed in a deferred classification. The petitioner further alleges that he has pursued all available remedies within the Selective Service System and denies that there is any administrative remedy under the Army Regulations. The respondent denies all material allegations and questions the jurisdiction of the Court on the ground that the petitioner has not exhausted his remedy under Army Regulations.

Habeas corpus is an extraordinary writ. It constitutes a collateral attack upon a judgment and it is held that it may not be resorted to until all other available remedies for relief have been exhausted. U. S. v. Sing Tuck, 194 U.S. 161, 24 S.Ct. 621, 48 L.Ed. 917; Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572; Whelchel v. McDonald, 5 Cir., 176 F.2d 260; McMahan v. Hunter, 10 Cir., 179 F.2d 661. Scrupulous adherence by the federal courts to this doctrine is required. The remedy must be exhausted by the petitioner even if it has been created after he commenced his action in the federal court. Ferguson v. Ragen, 338 U.S. 833, 70 S.Ct. 50, 94 L.Ed. 508; U. S. ex rel. Peters v. Ragen, 7 Cir., 178 F.2d 377. This doctrine has been invoked in those cases which involve a criminal prosecution for violation of the Selective Training and Service Act, where the defendant has sought to attack the validity of a selective service board's decision. Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305; Swaczyk v. United States, 1 Cir., 156 F.2d 17, certiorari denied 329 U.S. 726, 67 S.Ct. 77, 91 L.Ed. 629.

In his pleadings, the petitioner alleges that he has exhausted all administrative remedies provided by the Selective Service System. The petitioner, however, is now a member of the Armed Forces and is in the custody and control of the U. S. Army. He makes no showing that he has exhausted the remedies, created by Army Regulation No. 615-365, which was issued by the Department of the Army on October 13, 1952, and which supersedes the Regulation of June 14, 1951. 32 C.F.R. 582.3. This regulation provides as follows:

"3. Categories for which Authorized —a. Except as otherwise indicated, the Secretary of the Army has delegated to the commanders specified in paragraph 14, AR-615-360, the authority to order enlisted personnel discharged or released from the active military service for the convenience of the Government for the following reasons:

"(1) * * *

"(2) To dispose of cases involving an individual's claim that prior to induction he was denied a procedural right as provided by the Universal Military Training and Service Act as amended by the Act 19 June, 1951 (65 Stat. 75; 50 U.S.C.App. Supp. V, 451 et seq., 50 U.S.C.A.Appendix, § 451 et seq.) and was therefore erroneously inducted. All requests for discharge under this provision will be forwarded to the officer having discharge authority and by him to the Director, Selective Service System, Washington 25, D. C. for his recommendation. The officer having discharge authority will discharge the individual or retain him in the service in accordance with the recommendation made by the Director of Selective Service.

* * * * * *

"4. (4) National health, safety or interest — Enlisted personnel may apply for separation from the service on the basis of importance to national health, safety or interest. Application for separation under this provision, with supporting evidence submitted by the enlisted person will be forwarded for final determination direct to the Adjutant General, Department of the Army, Washington 25, D. C. Attn. AGPO-XD, by the commander having discharge authority (see par. 14a, A.R. 615-360). Each application submitted by an individual having an unsatisfied service obligation imposed by the Universal Military Training and Service Act, as amended, will include a statement substantially as follows, signed by the enlisted person concerned; I understand that if this application is approved and I do not carry out the commitments made herein, I will be subject to the immediate re-entry into active military service."

The petitioner, however, contends that a resort to the administrative remedies, afforded by the Army Regulations, would oppose his position in this case. It is his position that the induction was illegal and a nullity and that he is not properly a member of the Armed Forces. He further contends that his use of the Army Regulations would constitute a waiver on his part to challenge the validity of his induction in a habeas corpus proceeding. The Court considers these answers as being inadequate. The remedies provided by the quoted portions of Army Regulation No. 615-365 are designed to grant relief when the action of the selective service board was improper and the induction was illegal. It is one of the necessities of the administration of justice that even fundamental questions should be determined in an orderly way. Where, as in the case before the bar, an effective administrative remedy has been established, the writ will not be employed to summarily by-pass or interrupt such procedure. U. S. v. Sing Tuck, 194 U.S. 161, 168, 24 S.Ct. 621, 48 L.Ed. 917. The Court is unable to apprehend the basis for the statement that the prosecution of the remedy under the army regulation would constitute a waiver of the right to challenge the validity of the action of a selective service board at a judicial hearing. The pursuance of a remedy under Army Regulation No. 615-365 certainly cannot be considered as being consistent with a position that the action of the selective service board is proper and legal. It cannot be said that one, who seeks a release under this military regulation, has acquiesced in the board's action so that he thereby waives any objection to it. As a matter of fact, one who seeks release under this regulation must do so on the ground that the board's action was improper. The petitioner seeks support for his position in the cases of Bronemann v. United States, 8 Cir., 138 F.2d 333 and Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567. Both cases involved criminal prosecutions for violation of the Selective Training and Service Act. In the former, the defendant failed to report for work of national importance; in the latter case, the defendant refused to submit to induction. In both cases, the defendants used all appellate procedures provided by the Selective Service System; these represented the whole of their administrative remedy. In neither case, during the course of the discussion of the propriety of the remedy of habeas corpus, has there been any judicial repeal of the fundamental jurisdictional requirement in this type of action, namely, the exhaustion of all other available remedies. On the contrary, the latter case repeats this principle of law with approval insofar as a judicial review of an administrative determination is involved. Estep v. United States, 327 U.S. 114, 123, 66 S.Ct. 423, 90 L.Ed. 567.

Since it is clear that the petitioner has not exhausted his remedy under Army Regulation No. 615-365, it is the view of this Court that it has no jurisdiction. The Court, however, will not rest its decision upon the jurisdictional basis alone.

The petitioner's selective service file reflects that he was classified I-A, which means available for military duty, on June 6, 1950, by his local board. Thereafter, on June 18, 1950, the petitioner wrote to the Selective Service System at 226 West Jackson Boulevard, Chicago, Illinois, and advised them that he had received notice of his classification. He also expressed a desire for an immediate appointment to discuss this classification with the board for the reason that on January 8, 1946, he had been classified I-C (classification of member of Armed Forces and certain registrants separated therefrom) by Local Board No. 2 in Wilmette, Illinois, having served with the Merchant Marine from October 4, 1944 to December 28, 1945.

On July 28, 1950, the Republic Molding Corporation of Chicago, Illinois, directed a letter to the board, signed by Carroll J. Lord, treasurer and director and James W. Crawford, director, wherein it advised that the petitioner was employed as vice president and general manager. It also stated that this corporation was engaged in certain...