Pvt. Melvyn S. Hall v. Brigadier General Darrie Richards

447 F.2d 98, 1971 U.S. App. LEXIS 8538

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 13, 1971
• Docket: 26138
• Status: Published

Opinions

PER CURIAM:

The District Court granted the appellee’s petition for a writ of habeas corpus.¹

A local Selective Service Board issued an Order that the appellee report for induction into the armed services.² Thereafter, the Board considered the appellee’s claim for occupational deferment, presented by him and his employer. After the original Order to report for induction was issued, the appellee also notified the Board of the pregnancy of his wife and claimed a III-A deferment.

On this appeal, the appellants argue that the Board found no change in the registrant’s status which resulted from circumstances beyond his control, that there was no reopening of his I-A classification, and that the appellee was therefore not entitled to attack the validity of the Order for induction. We reject the argument upon the basis of our conclusion that the Board did in fact reopen the appellee’s classification. See Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970). See also Miller v. United States, 388 F.2d 973 (9th Cir. 1967). Inasmuch as there was a de facto reopening, Hall’s claim for the III-A deferment should have been granted.

Affirmed.

1 . Habeas corpus is an appropriate remedy in the circumstances of the present case. See Breen v. Selective Service Board, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970) ; cf. Andre v. Resor, 443 F.2d 921 (9th Cir. 1971).

2 . The appellee’s induction followed a postponement of an Order first issued on October 23, 1968, over seven months before another notice, as distinguished from Order, to report. Because of the lapse of time, the validity of the Order is questionable. See, e.g., United States v. Munsen, 443 F.2d 1229 (9th Cir. 1971) ; United States v. Foster, 439 F.2d 29 (9th Cir. 1971) ; United States v. Stevens, 438 F.2d 628 (9th Cir. 1971) ; United States v. Lonidier, 427 F.2d 30 (9th Cir. 1970). It is, however, unnecessary for us to reach that issue.