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07/16/71 Myles James Swift, v. Director of Selective


July 16, 1971




Bazelon, Chief Judge, and Robinson and Wilkey, Circuit Judges.




Appellant Swift sought an injunction to prevent his induction into the Army, asserting that his induction order was invalid for two reasons. He urged first, that his draft status must be governed by the new Random Selection Sequence Regulations, *fn1 not by the order of call existing on the date of his original induction order; and, second, that his local board acted unlawfully in refusing to reopen his classification in response to his post-induction order claim of conscientious objection. The District Court resolved the first contention against appellant on the merits. We affirm that decision for the reasons given in Part II of this opinion.

The District Court further held that appellant's second contention was barred from pre-induction review by Section 10(b) (3) of the Military Selective Service Act of 1967 (50 U.S.C. (Supp. V, 1970) ยง 460(b) (3)). In our initial opinion in this case of March 16, 1971, we disagreed with that conclusion and held, Judge Wilkey dissenting, that under United States v. Gearey *fn2 appellant had stated a claim that the board had acted unlawfully which could be reached on pre-induction review. However, we noted in our March 16, 1971, opinion that if we had chosen to follow Ehlert v. United States *fn3 "appellant would have no feasible claim that his board acted lawlessly in refusing to reopen his classification."

Subsequently, before the mandate of this court had issued, the Supreme Court affirmed the Ninth Circuit's decision in Ehlert, *fn4 holding that under the applicable regulations a claim of conscientious objection which matures after issuance of an induction order may not be entertained by the Selective Service, but must be considered by the military after induction. Ehlert obviously removes the basis for appellant's contention that his board unlawfully refused to consider his post-induction order claim to conscientious objection. We therefore vacate our opinion of March 16, 1971, and thus also affirm the District Court's action in denying a preliminary injunction on this second ground. I. FACTS

Appellant was classified I-A *fn5 by his local board in Allentown, Pennsylvania, in March 1969. He took an appeal, *fn6 and was classified I-A-O *fn7 by an appeals board. On September 12, 1969 he received an order

In the meantime, by letter of December 19, 1969, the local board had ordered appellant to report for induction in Allentown on January 15, 1970. He did so, but no final decision as to his acceptability was reached because further physical tests were needed. On January 21, 1970, appellant was ordered by his local board to report to Walter Reed Army Hospital on February 11, for the tests. He reported as directed, and on February 17 he was informed that he had been found fully acceptable for induction. The next day he was ordered by a letter from his local board to report for induction in Allentown on March 2, 1970. *fn12 Later, appellant's request for a transfer of induction was granted, and he was to have reported for induction in the District of Columbia on April 7, 1970. Court proceedings leading to a stay of induction order from this court were started on April 1, 1970. *fn13 II. RANDOM SELECTION

Appellant argues that his induction order was terminated by the events of January 15, 1970, when he reported to the Armed Forces Entrance Examination Station and was not inducted because of an inability to complete his physical examination on that day. Thereafter, appellant maintains, he could only be inducted pursuant to a new induction order, issued in conformity with the order of call established by the new regulations effective January 1, 1970, calling for a lottery. *fn14 Since resolution of this question involves only a legal issue, and does not call for a review of a factual determination or the exercise of discretion by the local board, we think it plainly can be reached on preinduction review. *fn15

Appellant emphasizes that his original order to report for induction (SS Form 252) dated September 12, 1969, which was postponed several times, was still in effect on January 15, 1970, and that he fully complied with this order by reporting at the time and place designated and being physically examined. Appellant alleges, and the District Court took as true on his expressed willingness to testify and on the Government's representation that no dispute of fact existed, that on January 15 he was sent from the AFEES and told by AFEES personnel that the next orders he would get would be from his local board. He asserts that the reason for this was that his physical examination had only been partly completed, that further examination in regard to his problems of flat feet and a bad back could not be done at the local station, and the facilities of a hospital such as Walter Reed were required. He subsequently was sent to Walter Reed for further examination which resulted in his being determined medically acceptable, as he was informed by the notice sent February 17, 1970.

On this state of facts appellant argues that his order of induction of September 12, 1969, was thus terminated or exhausted, that a new order of induction from the local board was necessary to put him once again in line for military service, and that such order had to be issued under the new random selection regulations.

Appellant does not, and the Government asserts he cannot, point to any provision in the statutes, Selective Service regulations, or Army regulations that states specifically that the failure to induct a registrant into the Armed Forces on the day he reports pursuant to an order of induction, when the reason for the delay is an incomplete physical examination, has the legal effect of canceling or terminating his previously issued induction order. On the other hand, appellant asserts that the Government can point to no statute, regulation, or other authority which says that the induction order continues in full force and effect. *fn16

It is probable that many thousands of registrants have been treated in the same manner as appellant here, i. e., the registrant has reported for a physical examination, some problem has been encountered which is beyond the capacity of the particular examining station to determine with finality, and the registrant has been told to go back to his residence and that he will be advised later as to when and where his physical examination can be completed. The registrant has then been found medically acceptable or unacceptable, and the Selective Service process has functioned in a normal manner in taking or rejecting him.

It is obvious that the reason this question has seldom arisen in court before is that few registrants ever found themselves with the attractive alternative possibility that appellant here claims, i. e., if the induction order was exhausted by appellant reporting on the day specified and the Armed Services were unable to complete his physical exam until space could be secured for him to be examined at a more elaborate medical facility such as Walter Reed, then appellant could only be reordered to report for induction under the new random selection regulations. With lottery No. 342, appellant would naturally prefer this alternative if in law it does exist.

We think the answer to this question is indicated by Army Regulation 601-270, Section 3-31 of March 18, 1969. *fn17 This section is the Armed Services' effort to provide administrative instructions for handling registrants at the Armed Forces Entrance Examination Stations under various contingencies. Insofar as the medical examination itself is concerned, it is obvious that each registrant will fit into one of three categories: one, medically acceptable; two, medically unacceptable; or three, medical acceptability undetermined for any of several reasons. Sub-paragraph a. gives specific instructions as to what officials at the AFEES are to do with those registrants found "medically unacceptable," specifying which forms will be filled out and what transportation will be provided the registrants, etc. Subparagraph b. is a similar effort to instruct officials at the AFEES as to how to handle registrants "whose medical acceptability is undetermined" on the first day of examination. These pertinent instructions state:

b. Registrants whose acceptability is undetermined.

In the case of registrants whose acceptability for induction in undetermined, pending . . . further hospital study/consultation, or additional mental evaluation, their records may be held at the AFEES for completion upon final determination of acceptability. The registrant will be advised that his acceptability for induction is undetermined pending the above determinations and that he will be further advised by his Local Board. The registrant will be returned to his Local Board in the same manner as other registrants rejected at time of induction. Disposition of the registrant will be shown on SS Form 261 as "acceptability undetermined" with the remark "pending medical, mental or administrative action" as applicable.

It is readily apparent that a good many reasons could arise as to why the medical examination for some registrants could not be completed at the AFEES medical facilities. In the case of appellant, his problems of flat feet and a bad back needed more expert evaluation, which was only obtainable at a facility like Walter Reed. On oral argument, the question was posed to appellant's counsel as to whether sub-paragraph b. would also govern a situation in which the AFEES facility ran out of x-ray film, the registrant needed his chest x-rays completed, and he had to be told to come back at a subsequent date. Appellant's counsel stated that this situation of exhausted x-ray film would be comparable to appellant's situation of necessary further evaluation of flat feet and a bad back.

We find nothing in sub-paragraph b. which has the effect of or indicates that it is intended to have the effect of canceling or terminating any registrant's previously outstanding order of induction, unless and until he is found finally "medically unacceptable." Rather, we find in subparagraph b. an effort to provide detailed instructions, even as to precisely which forms are to be completed by the official at the AFEES, and what handling the registrant is to receive, all in contemplation of the registrant's remaining in an undetermined status until his medical acceptability can be finally determined. To us it seems highly illogical that any of innumerable possible happenstances which would interrupt the completion of the physical evaluation of a registrant have the legal effect of terminating his previously extant order of induction. For example, if for any reason an AFEES had to close for one day, this would necessarily throw all the registrants being processed that day back to their local boards to receive new orders to be inducted, on the inescapable logic of appellant's argument here. There is nothing in Section 3-31 which indicates that the effect of suspending temporarily the medical examination of a registrant until he can be processed at the proper medical facility was intended to exhaust the effectiveness of the order of induction under which the registrant and the AFEES were operating.

The fact that sub-paragraph b. calls for the registrant to be returned to his local board is to our minds a mere administrative convenience. It is certainly a logical feature of the Selective Service System that the registrant should look to only one place for his orders with respect to the draft -- his local board. If his medical examination is interrupted and is to be continued a short time later, it is logical that the local board should have the authority to notify him. To hold that because of a fortuitous event at the AFEES an already selected registrant is thrown back to his local board to be processed again in a different order of priority with other registrants at that same local board would do violence to the whole rationale of the Selective Service System. The rationale of that system must be that the registrant, once validly called on his current draft classification, retains his relative place in the priority call, otherwise the whole system of just and fair priorities of selection for service is thrown out. *fn18

In fact, it appears that the system contemplates that the induction of registrants in this position is to be neither cancelled, nor postponed, as those categories are defined by the regulations. *fn19 Rather, their induction is merely administratively " delayed." Selective Service Operations Bulletin No. 326, *fn20 dealing with delay of induction, provides as follows: *fn21

5. The authority of an AFEES Commander to delay an induction for reasons other than challenges to physical qualifications, as specified in paragraph 3, is limited to the following:

a. When a registrant is found unacceptable or acceptability cannot be immediately determined at the time of induction as a result of the routine induction processing procedure prescribed in AR 601-270.

This is further evidence that the Army and the Selective Service authorities quite realistically contemplated that many registrants of ultimate physical acceptability might not be immediately and finally so determined on the day of reporting, and therefore the AFEES Commander had to be told by the appropriate regulations what he was authorized to do about their situation. The provisions of paragraph 3-31, subparagraphs a. and b., of AR 601-270 are thus part of the regulatory scheme envisaged in the Selective Service Act, giving detailed instructions to the AFEES Commander for the action to be taken when the registrant is found physically unacceptable or when his acceptability is undetermined for a period of time.

Appellant places considerable emphasis on the last sentence of subparagraph b., which refers to local board action concerning a registrant whose acceptability has been undetermined for a period, as was appellant's here. This last sentence states: "His [the registrant whose acceptability has been undetermined] other records will be completed and distributed in the same manner as for registrants found acceptable at time of pre-induction, except Section VIII, DD Form 4722 will not be completed until such time as the registrant is again ordered to report for induction." Appellant argues that this last phrase has the effect of terminating the existing order to report for induction and that the whole intent of sub-paragraph b. is to require the board to reprocess a registrant, the determination of whose medical acceptability is deferred; and that such reprocessing be accomplished by the issuance of a new SS Form 252, order to report for induction. However, it seems to us that this sentence means only that the registrant will be notified by his local board of his new reporting date after his physical examination has been satisfactorily completed.This ties in with the phrase earlier in sub-paragraph b. : "The registrant will be advised that his acceptability for induction is undetermined pending the above determinations and that he will be further advised by his Local Board." This is consistent with the idea that all information to the registrant is to come from one source, his local board.

It may be helpful to look at what actually occurred here in the case of appellant. He was ordered to report for induction (SS Form 252) by local board 89 on September 12, 1969. The reporting date of October 1st was subsequently delayed more than once, at times because of appellant's request and at times for the board's convenience. However, subsequent to the issuance of the formal order on Form 252 the board communicated with the registrant by simple letter, not by any particular formal order. For example, the board's letter of December 11 rejected the claim for a I-O classification, and stated, "you[r] Induction Order, therefore, is still in effect. You will be advised by letter when and where to appear for Induction into the U.S. Armed Forces." On December 19th the board wrote a simple letter stating "You are hereby ordered to report for induction . . . on January 15, 1970." This was the instruction to report at a certain time and place, which appellant had no difficulty in accepting as being unquestionably valid and obligatory on him, and this was a letter of instruction by the local board, based on the continuing validity of the September 12 "Order to Report for Induction" on Form 252. Subsequently, on February 18, local board 89 sent a similar simple letter stating "You are hereby ordered for induction into the U.S. Armed Forces of the United States [sic] and to report . . . on March 2, 1970."23 It was thereafter that appellant asserted that he must receive a new formal order 252 from the local board and that this new order had to be based on the new random selection regulations, since somehow his reporting on January 15 had exhausted the authority of the previous order for induction which hitherto had been in full force and effect. We see no difference between the effect of the letter of December 19, advising of a new date and place of induction on the basis of the order of induction of September 1969, on Form 252, still in full force and effect even as construed by appellant, and the same form of letter dated February 18, which was likewise based by the local board on the previous order of induction of September 1969 being in full force and effect. Each of these letters written by the board to the appellant merely represents advising him of a new time and place of reporting pursuant to the previously existing order, although the board uses the language in the letter "you are hereby ordered," which apparently would conform with the last sentence of subparagraph b. of AR 601-270, paragraph 3-31.

We therefore conclude that appellant's induction order was not cancelled or in any way terminated by the delay of his induction resulting from his physical condition being found medically undetermined on January 15, 1970. III. APPELLANT'S OTHER CLAIMS

1. Appellant has also complained that his classification as I-A-O instead of I-O was without a basis in fact. This claim is plainly barred from pre-induction review by Clark v. Gabriel.24

2. Appellant further contends that the Military Selective Service Act of 1967 is limited by Article I, Section 8, Clause 12 of the Constitution to a term of two years, and therefore expired on June 30, 1969.

We treat this issue on the merits because we find that, as it is wholly frivolous, we can resolve it expeditiously. For this reason, a three-judge statutory court25 normally called for by this type of question is not required. Also for this reason pre-induction review is appropriate.26

Article I, Section 8, Clause 12 of the Constitution provides as follows: "The Congress shall have power . . . to raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years . . .."

Since in our view the Military Selective Service Act of 1967 is in no way an "Appropriation of Money," we resolve this issue against appellant.

3. Finally, in his response to the Government's petition for rehearing, appellant represents that since the issuance of our opinion of March 16, 1971, he has had occasion to examine his Selective Service file and has discovered therein certain documents which indicate that his induction order of September 12, 1969, may have been cancelled by National Headquarters of Selective Service sometime around November 5, 1969.27

Appellant therefore asserts that his November 22, 1969, claim for I-O status was not, as has been supposed throughout this litigation, a post-induction order claim, entitling him to a reopening upon presentation of a prima facie case. See Mulloy v. United States.28 This claim, and the facts necessary to support it have never been presented to the District Court. It is thus not properly before us for decision and we decline to pass upon it in any way.

The opinion and judgment of this court of March 16, 1971, and the order of this court of April 13, 1970, staying appellant's induction into the Army will accordingly be vacated, and the judgment of the District Court of April 13, 1970, will be




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