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decided: May 23, 1955.


Author: Willson

Before BIGGS, Chief Judge, HASTIE, Circuit Judge, and WILLSON, District Judge.

WILLSON, District Judge.

Appellant Justin K. McCarthy was inducted into the army on November 23, 1954, pursuant to the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 451 et seq. His induction was involuntary and under protest. On the day of his induction he filed an application for a writ of habeas corpus in which he sought his discharge from service. A full hearing was had in the district court on the rule to show cause why the writ should not issue. The district judge discharged the rule and denied the writ. This appeal followed. The district court will be affirmed.

The evidence taken in the district court discloses the facts. They are not in dispute. In the district court and on this appeal, appellant asserts his induction was illegal because:

1. Local Draft Board No. 114, Northampton County, Pennsylvania, was illegally constituted.

2. He was denied procedural due process in that the board refused to give him a personal hearing as requested in writing on February 9, 1952.

3. He was classified I-A and while in such classification reached and passed the twenty-sixth anniversary of his birth and therefore the local board had no further jurisdiction to direct that he be inducted.

At the outset it is important to refer to the extent of the permitted judicial review of this type of case.The Supreme Court in Dickinson v. United States, 346 U.S. 389, at 394, 74 S. Ct. 152, at page 156, 98 L. Ed. 132, said:

"The Universal Military Training and Service Act does not permit direct judicial review of selective service classification orders. Rather the Act provides, as did the 1917 and 1940 conscription Acts before it, that classification orders by selective service authorities shall be 'final.' However, in Estep v. United States, [1946, 327 U.S. 114, at pages 122-123], [66 S. Ct. 423, at page 427, 90 L. Ed. 567], a case arising under the 1940 Act, this Court said: 'The provision making the decisions of the local boards "final" means to us that Congress chose not to give administrative action under this Act the customary scope of judicial review which obtains under other statutes. It means that the courts are not to weigh the evidence to determine whether the classification made by the local boards was justified. The decisions of the local boards made in conformity with the regulations are final even though they may be erroenous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant.'"

The Supreme Court has also held that an inductee seeking a discharge by habeas corpus has the burden of showing that he was prejudiced by the procedure adopted and followed by the selective service officials. The range of inquiry is limited. The court does not sit in review. It is the impact of the procedure on the person seeking the writ that is crucial. Whatever potentialities of abuse a particular procedure may have, the case is at an end if the challenged proceeding cannot be said to have been so corrupted as to have made it unfair. Eagles v. United States ex rel. Samuels, 329 U.S. 304, 67 S. Ct. 313, 91 L. Ed. 308, and Eagles v. United States ex rel. Horowitz, 329 U.S. 317, 67 S. Ct. 320, 91 L. Ed. 318.

As the facts established in the district court are conclusive because uncontradicted, they are reviewed with the purpose primarily to inquire whether McCarthy established prejudice in his case.

Appellant was born August 28, 1927, at Bethlehem, Pennsylvania. He is a graduate of Lehigh University and of the law school of Columbia University. In 1945, appellant joined a naval reserve unit and entered training as a midshipman. His training duty as a midshipman ended in February, 1947. He registered under the 1940 Selective Training and Service Act on March 27, 1947. He was then in his twentieth year. Under the 1948 Act, now Universal Military Training and Service Act, he registered September 10, 1948, with Local Board 114, Northampton County, Pennsylvania. After returning his questionnaire he was classified I-D on August 11, 1949, which was based on his participation in the naval reserve. Appellant re-entered the naval reserve in September, 1948, but his re-entry did not qualify him for I-D because a condition precedent under the 1948 Act, effective June 24, 1948, for a I-D, required a minimum of ninety days of active duty in one of the armed services, that is army, air force, navy, etc., which appellant had not had. See 32 C.F.R. § 1622.13. At the date of the I-D classification, appellant was about to enter his senior year at Lehigh University. At that time he made no request to appear before the board, nor did he otherwise communicate with it. The I-D classification remained as such through 1950 and 1951.At the hearing in the district court, appellant acknowledged familiarity with the selective service regulations, and of the fact that under the 1940 Act his classification I-D was proper, but that under the 1948 Act it was improper. When the exact time that this realization came to appellant was not clearly shown. In February of 1952, while appellant was in his second year in law school, and after returning a questionnaire, he was given a I-A classification, the notice of which was dated February 5, 1952. On February 9, 1952, appellant wrote his board acknowledging the notice of classification, stating that he was a student in the law school at Columbia, and stating that he expected to attain his degree in June of 1953. He appealed from his I-A classification and also said in his letter: "* * * respectfully request that I be afforded the opportunity of appearing in person before your Board, No. 114." Appellant received no response from the board with regard to his request to appear. However, he very shortly did receive copies of SSS Form No. 109, one from Lehigh and one from Columbia. These forms were copies of a notice from each university to the draft board as to his student status. The record does not indicate that appellant requested that the universities prepare and send Form 109 to the board.The next communication from the board to appellant was a notice of February 27, 1952, placing appellant in Class II-S "until 6-52." In between his I-A and his II-S classifications, on February 11, 1952, Columbia by letter informed the board that appellant was a student and urged that he be given a student's deferment of II-S. Appellant did not appeal from the II-S classification, nor communicate with the board. The next notice from the board to appellant was on August 4, 1952, notifying appellant that he had been placed in Class II-S "until 6-53." As to this second II-S classification, appellant testified that he had sought the advice of the advisor to veterans at Columbia. He filled out a request form and "* * * dropped it in the box which was then picked up and processed by the registrar, which sent out a Form 109 again, * * *."

It is noted that the 1948 Act required that student classifications be reviewed annually. Appellant did not appeal from the second II-S, nor otherwise communicate with the board with regard thereto.

On May 28, 1953, appellant was classified I-A. On June 1, 1953, appellant wrote the board a two paragraph letter in which he acknowledged notice of his classification I-A, but said that he would not be eligible to graduate from Columbia until the first week of October, 1953; that he was not eligible to take the examinations for admission to the Bar of Pennsylvania without his degree; and that the registrar had assured him that he would forward a Form 109 as soon as his grades were computed and his scholastic standing determined, which would take place in the near future. The second paragraph of this letter requested the board to advise appellant whether he was entitled to take an appeal from the I-A classification until such time ...

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