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UNITED STATES v. BULLOCK

January 30, 1953

UNITED STATES EX REL. COLTMAN
v.
BULLOCK.



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

  In this petition for writ of habeas corpus, the petitioner seeks release from the custody of the Armed Forces of the United States and from alleged illegal detention by Colonel Stephen E. Bullock, Commanding Officer, Fort Sheridan, Illinois. The petitioner alleges that he is unlawfully detained and deprived of his liberty without due process of law and without his consent by the respondent under alleged color of law "by reason of a certain purported order to report for induction, issued by Local Board No. 98 of the Selective Service System of Cook County, Illinois, located in Evanston, Illinois, on September 26, 1952; that said order to report for induction was entered pursuant and subsequent to a classification of petitioner in Class I-A, notice of which was mailed to petitioner by said local board on September 3, 1952. In substance, the petitioner alleges that he is employed in an essential classification in an industry which is engaged in work defined as critical to the "national health, safety, or interest"; that the Selective Service System, through its local board and board of appeal and though the National Office of the National Director of the Selective Service System, in placing the petitioner in a I-A classification, has acted contrary to its regulations in an arbitrary capricious and discriminatory manner, thereby denying the petitioner's right to be placed in a deferred classification. The petitioner further alleges that he has pursued all available remedies within the Selective Service System and denies that there is any administrative remedy under the Army Regulations. The respondent denies all material allegations and questions the jurisdiction of the Court on the ground that the petitioner has not exhausted his remedy under Army Regulations.

Habeas corpus is an extraordinary writ. It constitutes a collateral attack upon a judgment and it is held that it may not be resorted to until all other available remedies for relief have been exhausted. U.S. v. Sing Tuck, 194 U.S. 161, 24 S.Ct. 621, 48 L.Ed. 917; Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572; Whelchel v. McDonald, 5 Cir., 176 F.2d 260; McMahan v. Hunter, 10 Cir., 179 F.2d 661. Scrupulous adherence by the federal courts to this doctrine is required. The remedy must be exhausted by the petitioner even if it has been created after he commenced his action in the federal court. Ferguson v. Ragen, 338 U.S. 833, 70 S.Ct. 50, 94 L.Ed. 508; U.S. ex rel. Peters v. Ragen, 7 Cir., 178 F.2d 377. This doctrine has been invoked in those cases which involve a criminal prosecution for violation of the Selective Training and Service Act, where the defendant has sought to attack the validity of a selective service board's decision. Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305; Swaczyk v. United States, 1 Cir., 156 F.2d 17, certiorari denied 329 U.S. 726, 67 S.Ct. 77, 91 L.Ed. 629.

In his pleadings, the petitioner alleges that he has exhausted all administrative remedies provided by the Selective Service System. The petitioner, however, is now a member of the Armed Forces and is in the custody and control of the U.S. Army. He makes no showing that he has exhausted the remedies, created by Army Regulation No. 615-365, which was issued by the Department of the Army on October 13, 1952, and which supersedes the Regulation of June 14, 1951. 32 C.F.R. § 582.3. This regulation provides as follows:

    "3. Categories for which Authorized — a. Except
  as otherwise indicated, the Secretary of the Army has
  delegated to the commanders specified in paragraph
  14, AR-615-360, the authority to order enlisted
  personnel discharged or released from the active
  military service for the convenience of the
  Government for the following reasons:

"(1) * * *

    "(2) To dispose of cases involving an individual's
  claim that prior to induction he was denied a
  procedural right as provided by the Universal
  Military Training and Service Act as amended by the
  Act 19 June, 1951 (65 Stat. 75; 50 U.S.C.App. Supp.
  V, 451 et seq., [50 U.S.C.A.Appendix, § 451 et seq.])
  and was therefore erroneously inducted. All requests
  for discharge under this provision will be forwarded
  to the officer having discharge authority and by him
  to the Director, Selective Service System, Washington
  25, D.C. for his recommendation. The officer having
  discharge authority will discharge the individual or
  retain him in the service in accordance with the
  recommendation made by the Director of Selective
  Service.
    "4. (4) National health, safety or interest —
  Enlisted personnel may apply for separation from the
  service on the basis of importance to national
  health, safety or interest. Application for
  separation under this provision, with supporting
  evidence submitted by the enlisted person will be
  forwarded for final determination direct to the
  Adjutant General, Department of the Army, Washington
  25, D.C. Attn. AGPO-XD, by the commander having
  discharge authority (see par. 14a, A.R. 615-360).
  Each application submitted by an individual having an
  unsatisfied service obligation imposed by the
  Universal Military Training and Service Act, as
  amended, will include a statement substantially as
  follows, signed by the enlisted person concerned; I
  understand that if this application is approved and I
  do not carry out the commitments made herein, I will
  be

  subject to the immediate re-entry into active
  military service."

The petitioner, however, contends that a resort to the administrative remedies, afforded by the Army Regulations, would oppose his position in this case. It is his position that the induction was illegal and a nullity and that he is not properly a member of the Armed Forces. He further contends that his use of the Army Regulations would constitute a waiver on his part to challenge the validity of his induction in a habeas corpus proceeding. The Court considers these answers as being inadequate. The remedies provided by the quoted portions of Army Regulation No. 615-365 are designed to grant relief when the action of the selective service board was improper and the induction was illegal. It is one of the necessities of the administration of justice that even fundamental questions should be determined in an orderly way. Where, as in the case before the bar, an effective administrative remedy has been established, the writ will not be employed to summarily by-pass or interrupt such procedure. U.S. v. Sing Tuck, 194 U.S. 161, 168, 24 S.Ct. 621, 48 L.Ed. 917. The Court is unable to apprehend the basis for the statement that the prosecution of the remedy under the army regulation would constitute a waiver of the right to challenge the validity of the action of a selective service board at a judicial hearing. The pursuance of a remedy under Army Regulation No. 615-365 certainly cannot be considered as being consistent with a position that the action of the selective service board is proper and legal. It cannot be said that one, who seeks a release under this military regulation, has acquiesced in the board's action so that he thereby waives any objection to it. As a matter of fact, one who seeks release under this regulation must do so on the ground that the board's action was improper. The petitioner seeks support for his position in the cases of Bronemann v. United States, 8 Cir., 138 F.2d 333 and Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567. Both cases involved criminal prosecutions for violation of the Selective Training and Service Act. In the former, the defendant failed to report for work of national importance; in the latter case, the defendant refused to submit to induction. In both cases, the defendants used all appellate procedures provided by the Selective Service System; these represented the whole of their administrative remedy. In neither case, during the course of the discussion of the propriety of the remedy of habeas corpus, has there been any judicial repeal of the fundamental jurisdictional requirement in this type of action, namely, the exhaustion of all other available remedies. On the contrary, the latter case repeats this principle of law with approval insofar as a judicial review of an administrative determination is involved. Estep v. United States, 327 U.S. 114, 123, 66 S.Ct. 423, 90 L.Ed. 567.

Since it is clear that the petitioner has not exhausted his remedy under Army Regulation No. 615-365, it is the view of this Court that it has no jurisdiction. The Court, however, will not rest its decision upon the jurisdictional basis alone.

The petitioner's selective service file reflects that he was classified I-A, which means available for military duty, on June 6, 1950, by his local board. Thereafter, on June 18, 1950, the petitioner wrote to the Selective Service System at 226 West Jackson Boulevard, Chicago, Illinois, and advised them that he had received notice of his classification. He also expressed a desire for an immediate appointment to discuss this classification with the board for the reason that on January 8, 1946, he had been classified I-C (classification of member of Armed Forces and certain registrants separated therefrom) by Local Board No. 2 in Wilmette, Illinois, having served with the Merchant Marine from October 4, 1944 to December 28, 1945.

On July 28, 1950, the Republic Molding Corporation of Chicago, Illinois, directed a letter to the board, signed by Carroll J. Lord, treasurer and director and James W. Crawford, director, wherein it advised that the petitioner was employed as vice president and general manager. It also stated that this corporation was engaged in certain government work. The letter also summarized the petitioner's service with the Merchant Marine. As the petitioner's employer, this corporation requested a deferment for him.

On August 22, 1950, the petitioner submitted in his handwriting a completed and signed S.S.S. Form No. 100, commonly referred to as the "Classification Questionnaire". This document reflects that he was born on September 29, 1926. He recites his service in the U.S. Maritime Service from December 19, 1944 to January 8, 1946, when he received an honorable discharge. During this period, he was also a cadet midshipman at Kings Point, Long Island. He indicates that he is single and has no dependents. The petitioner reports that as of January, 1947, and earlier he was employed by his present employer, the Republic Molding Corporation, which is engaged in the business of designing and molding plastic products. In May, 1949, he assumed the duties of "Vice President and Gen. Mgr. in charge of all operations and development and engineering — including present time work for government development." In August of 1950, he worked an average of 60 hours per week at a salary of $100. He lists engineering as prior work experience. The petitioner also states that he completed eight years of elementary school as well as four years of high school. He also attended Northwestern University at Evanston, Illinois, for four years at the end of which he was awarded a Bachelor of Science degree in chemistry and production engineering. Under the caption "Registrant's Statement Regarding Classification", the petitioner states that, in his opinion, his classification should be IV-A, which is reserved for those registrants who have completed honorable service in the Armed Forces. Selective Service Regulations, Section 1622-40. The basis for this opinion is recited by the petitioner as follows: "13 mo. military service with 8 mo. overseas duty with award of 3 combat area ribbons — plus present employment work on government contracts." The questionnaire also reflects that the petitioner is an American citizen, that he has no court record, and that he is in good physical condition.

This questionnaire was enclosed in a letter from the Republic Molding Corporation, signed by Carroll J. Lord and James W. Crawford, to the Local Selective Service Board No. 98 on August 22, 1950. This letter advised that additional military work had been taken on, and more was being considered. The services of the petitioner were termed essential for this work.

On October 6, 1950, the petitioner appeared before the local board, and there is a notation in the minutes of actions by the local board that there would be no change in the classification until further information was presented to it.

Such further information was presented to the board by the registrant in the form of a letter dated October 11, 1950, in which the registrant represented that he was general manager and had complete charge of all operations of the Republic Molding Corporation. The registrant further stated that this corporation was engaged in critical war work, which was outlined to the draft board in detail. The letter was accompanied by another, dated October 13, 1950, and signed by the treasurer of the Republic Molding Corporation, Carroll J. Lord, in which the registrant's statements were confirmed.

Thereafter, on November 9, 1950, the registrant was again classified I-A, and he was duly notified on November 13, 1950. The Republic Molding Corporation, on November 16, 1950, requested an oral hearing before the local draft board. On November 30, 1950, the registrant was given a 60-day deferment, during which time he was classified II-A, deferred because of civilian occupation, until February 21, 1951.

On January 4, 1951, Bertram William Coltman, Sr., the registrant's father, directed a letter to Colonel Paul G. Armstrong, State Director of the Selective Service System, wherein he asked for an appointment with the Director. He also emphasized the fact that the corporation was continuing operations in essential war work. The father also attached photostatic copies of the petitioner's service documents.

On January 9, 1951, the State Director sent his reply to the father. In this letter, he advised the father that members of the Merchant Marine were not considered as veterans; they are not exempt under the law as passed by Congress. He further advised the father that the question of the petitioner's essentially was to be determined by the local board. The state office does not classify registrants and it would not intervene in the petitioner's case. He further informed the father as to the petitioner's appellate remedies in the event of a reclassification into I-A. The letter closed in the following manner:

    "Under present law, with a very limited number of
  men available for military service, namely, only the
  single non-veterans physically qualified for military
  service under 26 years of age, there are few
  deferments being given. The statement of Carl Vinson
  of the House Military Affairs Committee indicates
  that he will request that even the present tight
  restrictions on deferment be restricted even more if
  we are to build the force of the nation to a point
  where we may reasonably expect to be able to defend
  ourselves. I do not see where it is going to be
  possible to do anything other than withdraw present
  deferments to accomplish the job set up by the
  Congress. I do not want to be arbitrary. My time is
  very limited, and if this letter is not enough
  indication that this office will not intervene in the
  matter, I will be glad to discuss the matter briefly
  with you. At the moment I can offer no particular
  encouragement to you."

On February 7, 1951, the petitioner's father was sent a letter from Col. Armstrong, advising the father that Brig. Gen. Louis H. Renfrow, National Deputy Director of the Selective Service System, had visited the state offices and had surrendered the father's correspondence, which had been filed with the National Headquarters of the Selective Service System. This correspondence, dated December 8, 1950, set out the position of the petitioner in the Republic Molding Corporation and complained of the action of Local Board No. 98 in reclassifying the petitioner from I-C to I-A. The petitioner's service documents had also been forwarded to Washington, D.C. by the father. Col. Armstrong had these papers placed in the petitioner's selective service file. Once again, the State Director advised the father of the petitioner's appellate remedies within the Selective Service System, and also emphasized the fact that the petitioner would have no further appeal should the appeal board affirm the classification of the local board unanimously.

On February 8, 1951, Brigadier General Louis H. Renfrow, Deputy Director, National Headquarters, Selective Service System, wrote to the father of the petitioner, advising that he had discussed the case of his son with the State Director, and that they had come to the conclusion that in view of the fact that the son's hearing before the local board regarding his classification was set for February 21, "no action should or could be taken prior to the action of the local board." The father was further advised that if there was dissatisfaction with the classification, there could be recourse to an appeal, and if the appeal in turn was not satisfactory, the matter should then be discussed with the State Director. "This process," wrote Brig. General Renfrow, "of Selective Service must be followed if we are to have an orderly withdrawal of manpower. I am sure that you as an attorney can fully understand and appreciate why this is necessary."

On February 9, 1951, the father of the petitioner, in response to the State Director's letter of February 7, 1951, requested a conference with the State Director.

On February 20, 1951, the Republic Molding Corporation forwarded to Local Board No. 98 of Evanston its petition for the indefinite or extended deferment of the petitioner. The petition represented the corporation as a war industry, which was organized in January, 1946, and which, at that time, employed 100 people. It itemized all current war contracts as well as those under consideration. It set out the petitioner's service record in the Merchant Marine. It represented the petitioner as the sole operating head, who could not be replaced and whose induction into the Armed Forces would necessarily force the cancellation of all existing war contracts as well as negotiations for future contracts and the termination of all operations of the corporation. This petition was supported by eleven affidavits. Seven representatives of other corporations stated in their affidavits that they knew the petitioner as the sole operating head of this corporation, that it was difficult to replace a man of his training, that it would require four to five years to train a person in order to replace the petitioner. The three directors of this corporation, Carroll J. Lord, James W. Crawford and Bertram Wm. Coltman, Sr., who is also president, gave affidavits wherein they stated that they were not active in the corporate management and that the petitioner was the sole operating head. They further stated that the corporation was engaged in war work, that it was about to assume additional war contracts, that the petitioner could not be replaced, and that his induction would force the cancellation of all war work and the termination of all corporate operations.

On March 8, 1951, after the hearing of February 21, 1951, the petitioner was classified I-A once more. SSS Form No. 110 was mailed to him on March 9, 1951. By a letter of March 15, 1951, the Republic Molding Corporation requested a personal appearance before the board. By letter of March 16, 1951, the board advised the corporation that it had several appearances before the board, that it was the board's opinion that another appearance was unnecessary, that the petitioner would be included in the next "Preinduction physical," and that if the petitioner were found acceptable the corporation could appeal the case. On March 19, 1951, the board mailed to the petitioner SSS Form No. 223, whereby it ordered him to report for the Armed Forces physical examination on April 11, 1951. On March 22, 1951, a further hearing was granted before the board at which the registrant and his father appeared. There appears this notation in the file, dated March 22, 1951, and initialed by the members of the board:

    "Father appeared with son. Hearing granted. The
  opinion of the Board is that this is a family holding
  company carried on in order to keep boy from Service.
  The Board has given this great consideration and
  feels this boy is not essential."

On April 3, 1951, the petitioner appealed from his I-A classification, urging his essentiality in a war industry and his prior service in the Merchant Marine as grounds for the appeal. On April 20, 1951, Local Board No. 98 mailed the petitioner Form No. D D 62, whereby he was notified that he was found acceptable for service in the Armed Forces. On June 6, 1951, he was classified II-A until December 6, 1951, by the appeal board.

By a letter, dated December 3, 1951, and signed by Carroll J. Lord, the Republic Molding Corporation requested Local Board No. 98 to continue the petitioner in the deferred classification of II-A. The essentiality of the petitioner, the difficulty of his replacement, and his previous Merchant Marine service were repeated. It was also pointed out that the defense work had increased very substantially during the previous months.

On January 17, 1952, the petitioner was re-classified by his local board from II-A to I-A. Notice of this reclassification was duly mailed on January 18, 1952. On January 23, 1952, the petitioner requested a personal appearance before the board. On January 25, 1952, the petitioner supplemented his letter of January 23, 1952, to the local board, stating:

    "This letter constitutes a written notice of appeal
  by me from a change of my classification from II-A to
  I-A, according to the notice from you dated January
  18, 1952. At the hearing I shall submit additional
  evidence bearing on my right to deferment."

By a letter, dated February 8, 1952, and signed by Carroll J. Lord and J.W. Crawford, the Republic Molding Corporation requested a deferment for the petitioner. The fact that this industry was engaged in critical defense work, the petitioner's training and essentiality to the corporation without whom it could not continue to operate, and the difficulty of his replacement were stressed in this letter.

On February 14, 1952, a hearing was granted the petitioner before the local board and he was continued in a I-A classification. The following memorandum appears in the petitioner's selective service file:

"2/14/52.

"Hearing granted.

  "I feel that the registrant in question, Bertram W.
  Coltman, Jr., is actually the managing director of
  the Republic Molding Corporation and as such is
  indispensable to this particular business.
  "This business does about one and one half million
  dollars per year of which 50% is war work on
  contracts as submitted.
  "I do not believe this man is making any effort to
  replace himself but, nevertheless, I feel he is
  entitled to a II-A deferment.

"s/ F.N. Remien."

On February 18, 1952, the petitioner's file was forwarded to the appeal board by Local Board No. 98. On February 25, 1952, petitioner submitted a document which he labelled "Appeal." He specifically set out the fact that he was appealing the action of Local Board No. 98 on February 15, 1952, whereby he was classified I-A. He repeated an account of his previous service with the Merchant Marines. He further set out the fact that he was then employed as vice president and general manager of the Republic Molding Corporation of Chicago, Illinois, and that he worked for this company since it was organized in January 1946. The petitioner represented himself as sole operating head of this company. He further emphasized the fact that this company was engaged in critical war work. Details of his educational background and of his duties with the company were outlined. He further stated that the corporation was encountering great difficulty in replacing him and that his imminent induction in the Armed Forces would probably result in the discontinuation of all corporate activities. Carroll J. Lord, treasurer and director, joined in the petitioner's request for deferment and re-classification on behalf of the corporation, and the petitioner also enclosed two letters from individuals who are strangers to the corporation. These letters emphasized the fact that the petitioner was the sole operating head of the Republic Molding Corporation and that it would be extremely difficult to replace him. Local Board No. 98 forwarded this additional information to the appeal board on February 25, 1952.

On April 3, 1952, the Appeal Board sustained the I-A classification by a unanimous vote of 4 to 0. Proper notification was given to the petitioner and his employer. On April 10, 1952, the registrant was ordered to report for induction on April 28, 1952.

On April 14, 1952, the petitioner filed his presidential appeal with the Local Board No. 98 basing "this Appeal upon facts already set forth in the papers of record and also upon facts to be set forth in supporting papers to be filed by me as soon as possible." The Republic Molding Corporation, through Carroll J. Lord, director, concurred in this action. On April 16, 1952, the officials of Local Board No. 98 telephoned Mr. Felt, State Deputy Director, who informed them that they would not be required to consider the presidential appeal. (Under Selective Service Regulations 1627.3 there is no presidential appeal from the unanimous action of an appeal board.) On April 16, 1952, the petitioner was advised of this fact by a letter from Local Board No. 98. A copy of this letter was sent to the Republic Molding Corporation.

During the week prior to Monday, April 14, 1952, Colonel Brown of the Manpower Division, who is stationed at the National Headquarters of the Selective Service System, telephoned Mr. Felt, Deputy State Director, regarding the case of the petitioner. In response to that telephone call, Mr. Felt wrote the following letter to the National Headquarters on April 14, 1952:

          "Re: Coltman, Bertram William
               "SS #11-98-26-115
                14 April 1952
    "EHF:mg
    "Major General Lewis B. Hershey
    "National Director SSS
    "1712 G Street, Northwest
    "Washington 25, D.C.
    "Attention: Colonel Brown
                Manpower Division

"Dear Colonel Brown:

    "After receiving your telephone call of last week,
  I requested the file in the above case and I have
  reviewed it. I have also called the secretary of the
  board and I have ...

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