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UNITED STATES EX REL. WILKERSON v. COMMANDING OFFI

June 20, 1968

UNITED STATES of America ex rel. Levi Jeremiah WILKERSON, Petitioner,
v.
COMMANDING OFFICER, ARMED FORCES EXAMINING STATION, 39 Whitehall Street, Respondent


Wyatt, District Judge.


The opinion of the court was delivered by: WYATT

WYATT, District Judge.

This is a petition for a writ of habeas corpus. 28 U.S.C. § 2241. Petitioner, Levi Jeremiah Wilkerson (Levi), was on April 29 or 30, 1968, inducted into the Armed Forces of the United States. This took place at the Examining and Entrance Station at 39 Whitehall Street in New York County in this District.

 Induction was in obedience to an order to report for induction of Local Board No. 45 of New Orleans, Louisiana, mailed January 22, 1968; of an order for transferred man to report for induction of the Transfer Board of Local Board No. 5 of New York City mailed February 16, 1968; and of a direction to report for induction mailed April 25, 1968 by the Transfer Board of Local Board No. 5.

 By his petition Levi challenges the legality of the classification by the Local Board in New Orleans which enabled the induction. Levi asserts that - before any order to report for induction had been made - he presented to the Local Board information which would entitle him to deferment in Class III-A on account of extreme hardship to dependents. 32 CFR § 1622.30(b). He says that the refusal of the Local Board to reopen his classification was "arbitrary, capricious and illegal" and that his induction was not authorized by law.

 The Court has jurisdiction of the petition under 28 U.S.C. § 2241(c)(1) and (3). It has been said that situations such as that of Levi are "within the very limited reach of habeas corpus issuable after induction to challenge the legality of the classification which enabled induction". In re Abramson, 196 F.2d 261, 264 (3d Cir. 1952). The Supreme Court has referred to such jurisdiction, apparently with approval, in Jones v. Cunningham, 371 U.S. 236, 240, 83 S. Ct. 373, 375, 9 L. Ed. 2d 285 (1963):

 
"Habeas corpus has also been consistently regarded by lower federal courts as the appropriate procedural vehicle for questioning the legality of an induction or enlistment into the military service."

 It is true that an amendment to 50 U.S.C.App. § 460(b)(3), effective June 30, 1967, provides: "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 * * * after the registrant has responded either affirmatively or negatively to an order to report for induction * * *." It has been conceded for respondent that this amendment does not affect the traditional writ of habeas corpus. I do not believe that the amendment applies to petitions for writs of habeas corpus nor that it was intended by Congress to apply to such petitions. House Report No. 267 has this to say about the reason for the amendment ((1967) 1 U.S.Code Cong. & Adm.News, p. 1333):

 
"The committee was disturbed by the apparent inclination of some courts to review the classification action of local or appeal boards before the registrant had exhausted his administrative remedies. Existing law quite clearly precludes such a judicial review until after a registrant has been ordered to report for induction and has responded either affirmatively or negatively to such an order. In view of this inclination of the courts to prematurely inquire into the classification action of local boards, the committee has rewritten this provision of the law so as to more clearly enunciate this principle. The committee was prompted to take this action since continued disregard of this principle of the law by various courts could seriously affect the administration of the Selective Service System."

 Since suspension of the privilege of the writ of habeas corpus raises grave constitutional questions (Art. I § 9), only the most explicit language by Congress could be held to have that effect. See United States ex rel. Goldstein v. McNamara, 270 F. Supp. 892, 895 (E.D.Pa.1967).

 The writ issued in the case at bar on April 29, 1968; respondent has made a return. When the writ issued Levi was in the custody of respondent and has not been taken into the custody of this Court; apparently by informal arrangement respondent is keeping Levi within this District until his petition is decided.

 Levi was born on January 6, 1947 in New Orleans.

 On January 26, 1965, his completed Classification Questionnaire, SSS Form No. 100, was received by Local Board No. 45 in New Orleans ("Local Board" hereafter refers to Local Board No. 45 in New Orleans). Form No. 100 contains a section in which the registrant specifies persons who are wholly or partially dependent upon him for support. Levi left this section blank.

 On February 17, 1965, the Local Board classified Levi I-S(H), high school student; this was done under 32 CFR § 1622.15(a). A notice of classification on SSS Form No. 110 was mailed to Levi the same day.

 On September 21, 1965, A Current Information Questionnaire, SSS Form No. 127, was mailed to Levi. His completed questionnaire was received by the Local Board on September 27, 1965; he stated that he was then a full-time student at Grambling College, Grambling, Louisiana, and that he expected to receive his degree in June of 1969. Verification from the college was received by the Local Board on September 28, 1965.

 On October 12, 1965, the Local Board classified Levi as II-S, college student; this was done under 32 CFR § 1622.25. Notice of classification on SSS Form No. 110 was mailed to Levi the same day.

 Under date of December 6, 1966, the Local Board wrote Levi at a New Orleans address that no verification of his enrollment in college had been received for the 1966-67 academic year and ...


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