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September 1, 1971


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


This case comes on to be heard on the plaintiff's Complaint filed June 18, 1971 for an injunction and for a declaratory judgment. He alleges that he was about to be improperly inducted into the armed forces on June 25, 1971, two days after his 26th birthday. In order to understand how this came about, it is necessary to review some of the uncontested facts.

Initially, in 1969, plaintiff was classified I-A, but induction was deferred because of a criminal charge which he represented to be pending against him when he answered his original selective service questionnaire on February 13, 1969. He filed a similar response on his questionnaire dated Sept. 14, 1969. Someone other than the plaintiff wrote on this questionnaire: "Case has been struck. You will receive letter from lawyer very shortly (DATE OF TRIAL)," but no further information was furnished at that time. On July 11, 1970, plaintiff again answered a questionnaire and stated "Awaiting trial for felony."

When a fourth questionnaire was sent to plaintiff on January 20, 1971, it apparently bore the typed notation "In the Court Record Section please enter the date you are to go to court. If no date is set and you have a lawyer, please have him submit a letter to the local board concerning your case." Plaintiff dated the questionnaire as of February 6, 1971 and for the first time left the "Court Record" section completely blank. He did not answer the questions concerning whether he had ever been "convicted or adjudicated" of a crime or was being retained in the custody of a court of criminal jurisdiction.

On February 16, 1971 this questionnaire was received by the Board, and on the same date it also received a letter from plaintiff's attorney dated February 12, 1971 which stated:

  I am writing this letter to you concerning Eugene
  Schemanski and his law case No. 69 L 11969. In view
  of the backlog of cases in our court system, there is
  no way to give you a trial date. Under the present
  system they are just now trying 1965 cases and having
  pretrial conferences on cases filed in 1966. This
  present case is alive and pending and will in due
  time of course be tried.

If plaintiff had been inducted with the next group called after this letter was received, the parties agree that this would have been timely. The clerk of the Board apparently was not satisfied with the foregoing letter and questionnaire, however, and telephoned the attorney for more information. It does not appear from the record when this telephone call was made, but on March 18, 1971 the Board received a second letter from the attorney:

    Pursuant to previous phone conversation after
  receipt of my letter of February 12, 1971 for more
  data concerning the case of Eugene Schemanski known
  as Case No. 69 L 11969, please be advised that the
  case is one for false arrest and malicious
  prosecution in which Mr. Schemanski is suing the
  defendant for having him wrongfully arrested and
  prosecuted for the alleged theft of tires by Mr.
  Schemanski which in fact never took place.
    The defendant in the suit failed to ever complete
  prosecution for the criminal proceedings because of
  the fact that he had no case to begin with. I hope
  that this will suffice.

After receipt of this second letter, the Board promptly issued an induction notice for the next possible induction date, April 16, 1971. The notice was issued on April 5.

Plaintiff alleges he became ineligible after March 31, 1971. As a member of the Extended Priority Selection Group he asserts he should have received notification of induction only during the first quarter of the year, pursuant to 32 C.F.R. Section 1631.7(d)(5). This subsection provides:

  Members of the Extended Priority Selection Group who
  have not been issued orders to report for induction
  and originally scheduled for a date prior to April 1
  shall forthwith be assigned to the lower priority
  selection group to which they would have been
  assigned had they never been assigned to the Extended
  Priority Selection group; except that members of the
  Extended Priority Selection group who would have been
  ordered to report for induction to fill the last call
  in the first quarter of the calendar year but who
  could not be issued orders shall remain in the
  Extended Priority Selection Group and shall be
  ordered to report for induction as soon as
  practicable. Circumstances which would prevent such
  an order shall include but not be limited to those
  arising from a personal appearance, appeal,
  preinduction physical examination, reconsideration,
  judicial proceeding, or inability of the local board
  to act. [Emphasis added.]

When plaintiff received his induction notification for April 16, 1971, he obtained a postponement to June 25, 1971, but the fact that this falls after his 26th birthday is immaterial if the notification was valid. In order to gain time to resolve the problem, this court entered a temporary injunction on June 24, 1971 postponing plaintiff's induction further.

The defendants have filed an answer to the Complaint, denying that plaintiff exhausted his administrative remedies of appeal and also contesting this court's jurisdiction because of the narrow judicial functions allowed by 50 U.S.C. App. ยง 460(b)(3). Before these issues were litigated, the court and the parties proceeded to the factual issue of whether plaintiff's lawyer's notification to the Board by his first letter, received February 16, 1971, was sufficient to require the Board at that time to change his status and order him to report for induction in March, 1971. The defendants acknowledge that the Board would have had sufficient time to do this, but contend that the Board was not adequately advised that plaintiff was available until receiving the second letter from his lawyer on March 18, 1971. The defendants concede that, administratively, the Board did not then have ...

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