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Sloup v. Hershey

November 22, 1971

GEORGE PAUL SLOUP, PLAINTIFF-APPELLANT,
v.
LEWIS B. HERSHEY, DIRECTOR OF SELECTIVE SERVICE, ET AL., DEFENDANTS-APPELLEES



Duffy, Senior Circuit Judge, Cummings and Pell, Circuit Judges.

Author: Duffy

DUFFY, Senior Circuit Judge.

Plaintiff is and was a registrant at Selective Service Local Board No. 106, Berwyn, Illinois. On September 2, 1969, the Board mailed plaintiff an induction order to report on September 29, 1969. Upon receipt of that order, plaintiff informed the Board of his status as a third year law student in good standing and requested a continuing student deferment, I-S(C), until the end of the 1969-70 school year.

The Board denied the request as did the Illinois State Director of Selective Service. On September 23, 1969, plaintiff filed a complaint in District Court for a declaratory judgment seeking an order in the nature of mandamus, directing Local Board 106 to cancel his induction order, to reopen his I-A classification and to reclassify him I-S(C). Plaintiff also sought to enjoin all defendants from inducting him into the armed forces and asked that the injunction remain in effect until he was reclassified I-S(C). However, before the cause was heard in the District Court, plaintiff's induction was indefinitely postponed by the Illinois State Director of Selective Service.

On September 26, 1969, in an ex parte proceeding, a preliminary injunction was denied by the District Court with plaintiff's agreement, on the premise that plaintiff might be able to administratively resolve his classification without judicial interference. The District Court then ordered the case to be removed from the active court calendar with leave to reinstate the suit within 90 days and with explicit instructions from the Court for the plaintiff to do so if administrative remedies failed. However, the plaintiff failed to reinstate the case within the 90-day period which expired December 28, 1969. Plaintiff then finished law school in June 1970.

Plaintiff was, in fact, allowed a 90-day continuance. The Court's action was obviously designed to give the administrative process a chance to operate without the necessity of premature judicial intervention. There can be no doubt that the Court and the plaintiff so understood it.

On October 22, 1970, plaintiff was ordered to report for induction on November 17, 1970. On November 9, 1970, plaintiff moved the District Court for leave to reinstate his original case and filed a motion to enjoin his induction until the issues were resolved. The District Court denied this motion on the ground that the action had died when plaintiff failed to reinstate it on the court calendar.

In an ex parte proceeding on November 12, 1970, the Court entered a nunc pro tunc order simultaneously reinstating and dismissing plaintiff's suit for want of prosecution, and made said order retroactive to December 28, 1969. On the same date, plaintiff's induction date was again postponed by the Selective Service System. Also, on November 12, 1970, plaintiff filed a notice of appeal to this Court.

Sometime during the month of November 1970, plaintiff filed with the Local Board an application for conscientious objector status. That application was refused by the Board on April 7, 1971, but his classification was not reopened due to a finding that there had been no change in his status over which he had no control.

On May 17, 1971, plaintiff was ordered to report for induction on June 16, 1971. He failed to report alleging illness.

During the 90-day continuance period, plaintiff did not apply either for administrative or judicial relief despite specific warnings by the Court including the responsibility which had been placed on plaintiff to take timely action.

The Government points out that no action was taken by the plaintiff to obtain a reclassification until he filed a belated motion for the reinstatement of his case, nearly eleven months after the December 28, 1969 deadline had expired.

In his brief, plaintiff lists the alleged errors upon which he relies for his appeal as "the trial court erred in refusing to order that appellant's induction order be cancelled" and that "he be classified I-S(C)." Also, that "the trial court later erred in its refusal to order plaintiff classified I-A after his school year had ended" assuming he previously was entitled to a I-S(C) classification.

A registrant's right to the I-S(C) classification was considered by this Court in Robinson v. Hershey, No. 17697, 2 SSLR 3191 (7 Cir., 7/14-7/29/1969). In Robinson, supra, we affirmed a District Court ruling that the statutory entitlement to a I-S(C) classification was designed to prevent the interruption of a particular academic year and does not relate to a multi-year course of study. The plaintiff herein received his first induction order on September 2, 1969. While he might have been preparing for his last year of law school, the order for induction did not interrupt ...


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