Peller v. Selective Service Local Board No. 65

313 F. Supp. 100, 1970 U.S. Dist. LEXIS 12448
CourtDistrict Court, N.D. Indiana
DecidedMarch 19, 1970
DocketCiv. No. 70 H 24
StatusPublished
Cited by6 cases

This text of 313 F. Supp. 100 (Peller v. Selective Service Local Board No. 65) is published on Counsel Stack Legal Research, covering District Court, N.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Peller v. Selective Service Local Board No. 65, 313 F. Supp. 100, 1970 U.S. Dist. LEXIS 12448 (N.D. Ind. 1970).

Opinion

OPINION

BEAMER, District Judge.

This is an action for a declaratory judgment to the effect that plaintiff is entitled to a I-S classification under the Military Selective Service Act of 1967, 50 App.U.S.C. § 451 et seq., and for a preliminary injunction prohibiting his induction until the primary action is disposed of. The facts are undisputed.

Plaintiff enrolled as a full-time student at Purdue University in September, 1966. After registering with the Selective Service System, he was classified II-S. At the beginning of his sophomore year, he contracted mononucleosis and was forced to reduce his course load. Nonetheless, he remained in good standing with the University and continued to attend classes. In the spring of 1968, he developed a condition of severe anaclitic depression, which eventually required psychiatric treatment, and fell further behind.

In the fall of 1968, Local Board No. 65 discovered that plaintiff was still classified as a second-semester sophomore. On October 22, 1968, it reclassified him I-A. The apparent basis for the reclassification was 32 CFR § 1622.-25(c), which provides, in substance, that an undergraduate has to complete twenty-five per cent of his credit hours each year to retain his II-S classification. Plaintiff appealed, but the local board’s decision was upheld.

Plaintiff was examined and found fit for service, and on July 15, 1969, the local board ordered him to report for induction on August 7. At plaintiff’s request, his induction date was postponed until August 31, to permit a reconsideration of his fitness for service in light of his medical history.

On July 30, 1969, the State Director sent the following letter to the local board:

After reviewing the file of the above-named registrant, we cannot determine whether or not he should have been reclassified from Class II-S to I-A.
We suggest that the local board request the registrant to furnish them with a transcript of his school record. When it is reviewed the local board should also take into consideration the fact that he had mononucleosis during one school year.
If the local board determines that the registrant qualifies for a II-S deferment, the State Director of Selective Service acting under the provisions of Section 1625.3 of the Selective Service Regulations hereby au[102]*102thorizes your local board to reopen and consider anew the classification of this registrant, canceling the order to report for induction.
In any event he should not be ordered to report for induction again until the Surgeon General makes a determination.

On August 15, plaintiff submitted the transcript referred to by the State Director, along with an explanatory letter from his psychiatrist, but the local board decided not to reopen his classification. On August 21, plaintiff was advised by the Surgeon General that he had again been found medically qualified for induction. On September 12, the local board sent him a letter ordering him to report for induction on October 9. On September 24, however, the board sent him another letter postponing his induction “until further notice.”

Meanwhile, plaintiff had begun the fall semester at Purdue, and the local board was duly notified of his student status. On November 18, plaintiff’s file was again reviewed, and the local board again refused to reopen his classification.

On December 9, 1969, plaintiff’s attorney advised the local board that plaintiff was satisfactorily pursuing a full-time course of instruction at Purdue, and asked that he be classified I-S. On December 16, the local board decided that plaintiff should be permitted to complete the fall semester and officially postponed his induction until January 31. On December 18, it sent a letter to plaintiff’s attorney stating that plaintiff was not eligible for Class I-S because he was not a full-time student on July 15, 1969, the date of his original order to report for induction.

On January 13, 1970, the local board sent plaintiff a letter ordering him to report for induction on February 5, 1970. This action was filed on February 3; and on February 4 the Court issued a temporary restraining order enjoining defendants from inducting plaintiff before February 14, 1970. At all times relevant to this action, plaintiff has been regarded by Purdue University as a full-time student in good standing.

The present proceeding is governed by 50 App. U.S.C. § 460(b) (3), which provides that:

No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title [section 462 of this Appendix], after the registrant has responded either affirmatively or negatively to an order to report for induction * * *.

Whether this proceeding is regarded as an action for an injunction or a declaratory judgment action, the process of determining whether or not relief is warranted would inevitably involve “judicial review” of plaintiff’s classification, and thus fall within the statutory prohibition.

Recognizing that fact, plaintiff relies on Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), where the Supreme Court held that despite the broad language of the statute, preinduction review is proper in extreme cases, where the conduct of the local board is “blatantly lawless” or constitutes a clear departure from statutory mandate. Plaintiff contends that this case satisfies that test because the local board clearly violated Section 1625.3(b) of the Selective Service Regulations.

That section provides as follows:

The local board shall reopen and consider anew the classification of a registrant to whom it has mailed an Order to Report for Induction (SSS Form No. 252) whenever facts are presented to the local board which established the registrant’s eligibility for classification into Class I-S because he is satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution of learning.

[103]*103It should be read in conjunction with Section 1622.15(b) of the Regulations, which provides that:

In Class I-S shall be placed any registrant who while satisfactorily pursuing a full-time course of instruction at a college, university or similar institution of learning and during his academic year at such institution is ordered to report for induction. •X* vr vf

Both of these regulations should be read in the light of 50 App.U.S.C. § 456(i) (2), the statute that authorizes I-S deferments :

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 under this title, shall, upon the facts being presented to the local board, be deferred (A) until the end of such [sic.] academic year, or (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier * * *.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Thomas Courtney Cook
505 F.2d 1124 (Second Circuit, 1974)
United States v. Cook
383 F. Supp. 353 (N.D. New York, 1974)
United States v. Edmund Herman Rothfelder
474 F.2d 606 (Sixth Circuit, 1973)
United States v. Rothfelder
338 F. Supp. 1164 (W.D. Michigan, 1972)
United States v. Wood
329 F. Supp. 68 (D. New Hampshire, 1971)

Cite This Page — Counsel Stack

Bluebook (online)
313 F. Supp. 100, 1970 U.S. Dist. LEXIS 12448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peller-v-selective-service-local-board-no-65-innd-1970.