The opinion of the court was delivered by: Robson, District Judge.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS AND
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
The defendants in this suit for mandamus, declaratory relief
and injunction have moved to dismiss. The plaintiff has also
moved for summary judgment. For the reasons set forth below, this
court is of the opinion that the motion to dismiss should be
denied, and the motion for summary judgment should be granted.
The plaintiff is a third-year law student at Loyola University.
During the academic year 1967-1968, he was classified by the
defendant Selective Service Local Board No. 151, in Waukegan,
Illinois, in Class II-S. On November 6, 1968, the plaintiff was
reclassified I-A. In January, 1969, he was given a physical
examination and found to be fit for service. On April 3, 1969,
the defendant Local Board No. 151 sent the plaintiff an order to
report for induction on April 28, 1969. On April 7, 1969, he
asked the Local Board to grant him a I-S deferment, which would
hold off induction until the end of the academic year. The
defendant Local Board No. 151, on April
18, 1969, postponed his induction until the first induction call
after August 31, 1969. This postponement will allow him to
graduate from law school on June 8, and take the Illinois Bar
Examination on August 19, 20 and 21, 1969. Both the state and
national offices of the Selective Service System have declined to
modify the Local Board's denial of a I-S classification. The
parties have stipulated to the above facts, and have further
stipulated that the plaintiff has not been deferred as a student
under Section 6(i)(2) of the Selective Service Act of 1948 prior
to July 1, 1967, or at any other time, that the plaintiff has not
had any postponement of his induction under Section 6(i)(2), and
has not been granted a I-S deferment under the Military Selective
Service Act of 1967. 50 App.U.S.C. § 456(i)(2).
The Supreme Court has recently held that pre-induction judicial
review is permissible under certain circumstances. Oestereich v.
Selective Service Board, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d
402 (1968). Where there is "a clear departure by the [Local]
Board from its statutory mandate," judicial review is proper.
Id., at 238, 89 S.Ct. at 416. On April 8, 1969, the Seventh
Circuit Court of Appeals held that judicial review is proper
prior to induction in cases involving I-S classifications, such
as the one before this court. Foley v. Hershey, 409 F.2d 827,
(7th Cir. 1969). The court said, at 829:
"For the reasons ably expressed in Carey v. Local
Board No. 2, 297 F. Supp. 252 (D.Conn. 1969), we agree
that plaintiff is entitled to a I-S classification.
Therefore, defendant Local Board No. 172 is ordered
to reclassify him I-S as of April 8, 1969, and until
the end of his academic year. This Court's February
22, 1969, injunction against the induction of
plaintiff is continued in effect until the Board
complies with our reclassification order."
The Carey case, as well as the Foley case, concerned graduate law
students who had received II-S classifications prior to their
requests for I-S classifications, as is the case with the present
plaintiff. The Local Boards there, as here, relied on the
regulation promulgated by the National Headquarters, which says
that anyone who had received a II-S classification at any time
would be ineligible for a I-S. 32 C.F.R. § 1622.15(b). The Carey
court, supra, whose reasoning was adopted fully by the court in
Foley, supra, held that this regulation violated the plaintiff's
"clear statutory right to a I-S deferment [which was] not subject
to local board discretion." Carey v. Local Board No. 2, supra,
297 F. Supp. at 260. The fact that the plaintiff here is a
third-year graduate student does not affect his right to a I-S
classification, since the statute speaks in terms of "[a]ny
person * * * satisfactorily pursuing a full-time course of
instruction at a college, university, or similar institution."
The stipulation shows that the plaintiff fulfills this
requirement. The conclusion cannot be avoided that this
plaintiff, at the time he requested a I-S classification, was
entitled, as a matter of right, to this I-S classification. The
Local Board disregarded the "clear statutory mandate," and,
therefore, acted without authority. The induction order which
resulted from this illegal act of the Local Board would seem to
be similarly unwarranted.
The defendants argue, however, that since this plaintiff has
had his induction stayed until after August 31, 1969, that the
need for a I-S has evaporated and the plaintiff will not be
injured by what might even be conceded to be an illegal act of
the Local Board, since the requested I-S would run out on June 8,
1969, the date of plaintiff's graduation. But the plaintiff does
stand to be injured so long as the induction order remains
outstanding. The plaintiff could not, if he so chose, fulfill his
military obligation with a Reserve unit of the armed forces or
the National Guard. 32 C.F.R. § 1622.13(f) (1). In addition, with
an induction order outstanding, the Local Board can only reopen
the registrant's classification to grant a I-S where the
registrant's status has changed due to circumstances beyond his
control. 32 C.F.R. § 1625.2 and § 1625.3. The plaintiff points
out that this would prevent him from obtaining a job which might
or could entitle him to an occupational deferment, since such an
occurrence is not beyond the registrant's control.
If, however, the Board, under direction of this court, grants
plaintiff a I-S classification as of the date of this order, as
was done in Foley v. Hershey, supra, he may be subject to
induction sooner than the time now set. This is plaintiff's risk.
It is therefore ordered that the defendant's motion to dismiss
be, and it is hereby denied.
It is further ordered that the plaintiff's motion for summary
judgment be, and it is hereby granted.
It is further ordered that the defendant Local Board No. 151
reclassify the plaintiff I-S as of June 3, 1969, and until the
end of the academic year.
It is further ordered that this case be, and it is hereby
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