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August 9, 1971

Curtis W. TARR, National Director of the Selective Service System et al., Defendants

Frankel, District Judge.

The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

The chief and least bearable costs of war are paid in human lives. The young doctors who bring this suit, together with the communities they serve, present one aspect of that reckoning. It is claimed that plaintiff physicians and their "class," unquestionably subject to statutory draft obligations, must be deferred because of assertedly gross flaws in the standards and procedures for allocating scarce medical personnel in places of civilian as against military need. A preliminary injunction is sought which would have the effect of blocking the draft of unwilling doctors and erasing even the allegedly inadequate procedures by which allocations are now made. The court concludes that threshold jurisdictional obstacles and the likelihood that plaintiffs will fail on the merits compel denial of their motion for a preliminary restraint.


 The original plaintiffs, offering themselves as representatives of two classes (draft-eligible physicians and the community in which they work), are two physicians, Dr. Marc Greenwald and Dr. Andrew Rosenblatt, two public service corporations concerned, inter alia, with health care and facilities in the Bronx, a State Senator, and the executive director of one of the plaintiff corporations. Defendants are Selective Service officials: the National Director, two local draft boards, the Medical Advisory Committee for New York City and the National Selective Service Medical Advisory Committee. *fn1" Other physicians have been allowed to intervene since the suit began. However, most of them have actually been deferred or found unfit for military service in the weeks of the pendency of the case, and it appears now that only plaintiff Rosenblatt and two intervenors among those suing face probable induction. Deferments of the others have been granted on the advice of the Medical Advisory Committee, which is the main target of the action. While that bears upon the propriety of allowing this to proceed as a class suit, it is not vital for the other issues now to be considered. At the same time, to avoid superfluous detail, it will be sufficient to outline the pertinent facts in terms of Drs. Rosenblatt and Greenwald without the others.

 Dr. Rosenblatt is 25 years old. He registered for the draft, as did other youths of his age, in 1964. He was thereafter deferred continuously as a student until June of 1970, allowing him to complete undergraduate and medical school. He proceeded then to serve as an intern in medicine at the Bronx Municipal Hospital Center from July 1, 1970, to June 30, 1971. On July 20, 1970, he was reclassified 1-A, available for military service. He was duly informed of, but chose not to exercise, his right of personal appearance before his Local Board or the State Appeal Board. He was examined and found fit for service on September 24, 1970. On March 19, 1971, the Local Board mailed him an order to report for induction on July 1, 1971, a date that allowed for completion of his internship. There followed the efforts, detailed below, to obtain his deferment, culminating in the present lawsuit.

 Plaintiff Greenwald is Rosenblatt's contemporary and has a biography similar in respects pertinent here. As has been noted, however, despite his joinder here, he has lately been deferred following a finding of essentiality by the Medical Advisory Committee, which reached a different advisory opinion in the case of Rosenblatt.

 To focus, then, on Rosenblatt, after the notice of March 19, ordering his induction on July 1, 1971, his Local Board received three letters from hospital officials and one from Congressman Badillo. These reported that Dr. Rosenblatt's internship was scheduled to be followed by a residency beginning July 1, 1971. The letters urged a vital community need for his continued services and said he would be difficult to replace because of a shortage of physicians in the Bronx. The Board postponed the induction pending receipt of a recommendation from the Medical Advisory Committee, the nature and functions of which are outlined below. Dr. Rosenblatt's file was forwarded to that Committee through State Selective Service Headquarters. The New York City Medical Advisory Committee -- or, more precisely, its Bronx subcommittee, consisting currently of one physician -- concluded and advised on April 27, 1971, that Dr. Rosenblatt should not be considered so essential where he is as to warrant deferment. While that recommendation was not yet finally adopted by the Local Board when this suit was brought, the court treats Dr. Rosenblatt, seemingly alone among the physicians appearing as plaintiffs, as sufficiently aggrieved or threatened to be suing. *fn2"

 Some brief description becomes appropriate -- though we find remarkably little in plaintiffs' papers -- of the scheme for drafting and deferring doctors. We start, and may ultimately end, with undisputed statutory authority for such a draft. The starting-point is, of course, a universal obligation of males 18 to 26 years old to register for the draft, as Dr. Rosenblatt did when he was 18, 50 U.S.C. App. § 453. Omitting numerous details, we have, then, a system of deferments for those training for careers in medicine, balanced, as it were, by a Doctors Draft Act, 64 Stat. 826, which in its present form provides in pertinent part for draft liability of such men extending to age 35, 50 U.S.C. App. § 456(a)(1). Another significant factor in striking the balance is that the young man pursuing a career in medicine is not only deferred for his years of study, but is fairly well assured that his military duties will be in the area of his profession, unlike the situation of most other draftees. Orloff v. Willoughby, 345 U.S. 83, 73 S. Ct. 534, 97 L. Ed. 842 (1953). There is no statutory right of a man like Dr. Rosenblatt to be deferred because he is urgently wanted in some civilian post. In addition, there is no statutory right in any community or place to have such deferments, although the Executive, evidently responsive to Congressional pressure, *fn3" has acted to mitigate the most severe of local hardships.

 Plaintiffs do refer to one subsection of the draft law as supportive of their position. This does not constitute a statutory ground for deferring any physician. But it is a statutory startingplace for discussion of the problems in the case. 50 U.S.C. App. § 454(j) provides for establishment by the President of "a National Advisory Committee which shall advise the Selective Service System and shall coordinate the work of such State and local volunteer advisory committees as may be established to cooperate with the National Advisory Committee, with respect to the selection of needed medical and dental and allied specialist categories of persons." The Committee is to be comprised of people "outstanding in medicine, dentistry, and the sciences allied thereto * * *." The national, state and local committees are directed by the statute to "give appropriate consideration to the respective needs of the Armed Forces and of the civilian population for the services of medical * * * personnel; and, in determining the medical * * * personnel available to serve the needs of any community, such committees shall give appropriate consideration to the availability in such community of medical * * * personnel who have attained the thirty-fifth anniversary of their birth." The committees are "to make determinations with respect to persons in residency training programs who shall be recommended for deferment for the purpose of completing such residency programs, and in making such determinations shall give appropriate consideration to the respective needs of the Armed Forces and the civilian population."

 In a statutory framework that is not questioned or seemingly open to question in this case, Congress made occupational deferments, including those for medical specialists, a matter for executive judgments from time to time. See 50 U.S.C. App. §§ 454(g) and 456(h); Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 465, 24 L. Ed. 2d 653, 90 S. Ct. 661, and id. n. 5, 90 S. Ct. 661, 24 L. Ed. 2d 653 (1970). The fundamental determinations are made on the basis of advice from the National Security Council to the Director of Selective Service. To go only to the recent background of the instant case, it appears that in February of 1968, the Security Council advised the Director, who adopted the advice, that deferments "based on the lists of essential activities and critical occupations should be suspended." Among the considerations underlying this advice, in addition to an overall appraisal of both civilian and military needs, was:

"The inherent inequity, at a time when men are called upon to risk their lives for the Nation, in any such occupational deferments from military service which may in practice turn into permanent exemptions." *fn4"

 Cf. Boyd v. Clark, 287 F. Supp. 561 (S.D.N.Y. 3-judge court 1968), affirmed, 393 U.S. 316, 89 S. Ct. 553, 21 L. Ed. 2d 511 (1969). Similarly, in limiting severely the deferments available to graduate students, the Security Council acted upon the joint judgment of the Secretaries of Health, Education, and Welfare (Gardner), Labor (Wirtz) and Commerce (Trowbridge) that extension of such privileges beyond stringent limits "is unfair to the thousands of other young men, who lack the social and economic advantages to pursue graduate study." *fn5" Such notions of fairness -- suggesting that occupational or educational deferment is for public needs appraised nationally, not for the individuals who may happen to be deferred as a result -- are among the basic policies in the background of this case.

 Against that background, the National Security Council, in April of this year, advised the Director of the Selective Service System that procedures should be instituted to grant "deferments for medical and allied specialists subject to special induction calls * * *." *fn6" This stemmed from the conclusion of the NHRAC "that a civilian need exists to defer certain doctors who are essential to and irreplaceable in their communities." *fn7" Agreeing with this view, the Security Council stressed at the same time "that the critical needs of the Armed Forces in this time of strife are equally compelling and cannot be allowed to suffer with the implementation of this advice." *fn8"

 Acting upon the advice of the Security Council, the Director of Selective Service, on April 26, 1971, instructed his State Directors to reopen and reconsider claims for deferments of physicians based upon "community essentiality." His letter on this subject advised that a physician "may be considered as essential in the community only if he is directly involved in patient care and his removal from the community would result in an extreme shortage of an especially critical community service where a replacement cannot be found by the community involved in the time allotted by a postponement of induction." He stressed too, with underscoring, that it is "vital that each state fill its call and that the Selective Service System meet the schedule provided by the Department of Defense for bringing special registrants to active duty."

 Transmitting these determinations and basic policies to the State Medical Advisory Committees, the NHRAC Chairman, on April 30, 1971, suggested "that in determining community ...

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