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PERMUTT v. ARMSTRONG

January 22, 1953

PERMUTT
v.
ARMSTRONG ET AL.



The opinion of the court was delivered by: Campbell, District Judge.

This is a suit for declaratory and injunctive relief, brought under the provisions of the Declaratory Judgment Act, 28 United States Code Annotated, §§ 2201 and 2202.

Plaintiff seeks, among other things, to question the validity of section 4(i) of the Universal Military Training and Service Act, 50 United States Code Annotated Appendix, § 454(i), and of certain regulations and practices adopted by the Selective Service System and the United States Army pursuant thereto. Said section authorizes the President to require the special registration and induction into the Armed Forces of certain persons qualified in needed "medical and allied specialist categories."

It is alleged in the complaint that defendant, Paul G. Armstrong, is the Illinois Director of the Selective Service System, in charge of the State Headquarters, and Transfer Board No. 1, located in Chicago, Illinois; and that defendant, William B. Kean, is a Lieutenant General of the United States Army, and is the Commanding Officer of the Fifth Army, with authority over the induction center located in Chicago, Illinois. During oral argument, counsel advised the Court that General Kean has been dismissed as a party defendant.

It is further alleged that plaintiff is a citizen and resident of the State of Illinois; that plaintiff is a medical doctor, admitted to the practice of medicine in the State of California; that in 1948, plaintiff registered with Local Board No. 105 at Los Angeles, California, and was placed in classification 3-C as a veteran with over 31 months service in the Army of the United States; that on October 16, 1950, pursuant to law, plaintiff registered for Special Registration No. 1 as a medical doctor; that on September 23, 1952, he received a notice from said Local Board to report for induction on October 30, 1952, and that he was advised by said Local Board and by Major L.F. Schutt, Assistant Adjutant General of the Sixth Army, that he would be afforded an opportunity to state his intention as to whether he would accept a reserve commission in the United States Army Reserve; that plaintiff executed the required applications for such a reserve commission, and on October 31, 1952, was formally notified that by direction of the President he was appointed a First Lieutenant in the Army of the United States effective that date; and that on November 3, 1952 plaintiff executed an oath of office for such a reserve commission.

It is also alleged that in a letter dated November 6, 1952, and signed by said Major Schutt, plaintiff was advised that his appointment as a First Lieutenant in the United States Army Reserve was cancelled; that on December 7, 1952, plaintiff received a notice from said Local Board No. 105 to report for induction in Los Angeles on December 30, 1952; that on plaintiff's request, he was transferred to Transfer Board No. 1 in Chicago, Illinois, and on December 19, 1952 he was ordered by said Transfer Board to report for induction on January 15, 1953. In an amendment to the complaint, plaintiff alleges that on January 10, 1953, he was notified by said Transfer Board to report for induction on January 28, 1953, instead of January 15, 1953.

It is alternatively alleged in the complaint that if the attempted cancellation of plaintiff's appointment is not a nullity, then any attempt to induct plaintiff into the Army of the United States as a private under the terms of section 454(i) is a denial to plaintiff of due process under the Fifth Amendment to the Constitution, and that said section, as applied to plaintiff, a medical doctor not otherwise subject to induction, is arbitrary, capricious, and discriminatory, and therefore unconstitutional.

The complaint asks that this court enter a declaratory judgment declaring the attempted cancellation of plaintiff's appointment as a First Lieutenant in the Officers Reserve Corps to be a nullity and of no force and effect, and that he be declared not liable for registration or induction into the Armed Forces under the terms of section 454(i). In the alternative, the complaint asks that this court declare that the attempted cancellation of plaintiff's appointment as a First Lieutenant, as aforesaid, because of his exercise of a constitutional privilege in connection with a loyalty oath executed by him at the time of application for said appointment, constitutes a denial to plaintiff of due process under the Fifth Amendment to the Constitution, and is, therefore, a nullity, and that plaintiff be declared not liable for registration or induction into the Armed Forces under the terms of section 454(i).

As a second alternative, the complaint asks that the court declare that section 454(i), as applied to plaintiff, is arbitrary, capricious, and discriminatory, and, therefore, unconstitutional, and that any attempt to induct the plaintiff into the Army of the United States as a private under the terms of said Section constitutes a denial to plaintiff of that due process of law required to be accorded to him under the Fifth Amendment to the Constitution.

Plaintiff also asks the court to enjoin defendant, Paul G. Armstrong, his agents, deputies and assistants, and their successors in office, from seeking to compel the plaintiff to report for induction into the Army as aforesaid, and to further affirmatively command said Paul G. Armstrong, his agents, deputies and assistants, and their successors in office to cancel the Order for Induction heretofore issued to plaintiff.

Plaintiff has requested that a district court of three judges be convened to hear and determine this cause, pursuant to the provisions of section 2282 of the Judicial Code, and has moved for a temporary restraining order, pending a hearing on the merits of his complaint. After oral argument, the matter was taken under advisement by the court.

At the outset, the court is faced with a difficult jurisdictional problem. Section 2201 of the Declaratory Judgment Act provides (in part):

    "In a case of actual controversy within its
  jurisdiction, except with respect to Federal taxes,
  any court of the United States, upon the filing of an
  appropriate pleading, may declare the rights and
  other legal relations of any interested party seeking
  such declaration, whether or not further relief is or
  could be sought."

The Section thus makes available a separate and distinct remedy to aggrieved persons, and, in that sense, enlarges the jurisdiction of the federal courts. Clearly, however, the Section was not intended to alter, and cannot alter, the constitutional limits of judicial power. It has long been settled that the federal courts may decide only "actual and adversary" issues, Coffman v. Breeze Corporations, 1945, 323 U.S. 316, 324, 65 S.Ct. 298, 89 L. Ed. 264, or, to use the language of Section 2201, decisions are limited to cases of "actual controversy." The reasons underlying this ...


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