The opinion of the court was delivered by: LORD, III
The plaintiff registrant is a full-time student in the second year of graduate study in psychology at Lehigh University. During the academic year 1967-1968 he enjoyed a II-S deferment. On June 7, 1968 the plaintiff was reclassified I-A. Having exhausted his appeal rights and having been found fit for induction, he requested a I-S deferment. His request was denied. The defendants have not responded to the plaintiff's written request for an appeal of the refusal to grant him a I-S deferment. The plaintiff's call to induction has been stayed until the decision on this case.
The plaintiff seeks a writ of mandamus to compel the defendants to grant him a I-S deferment under Section 6(i)(2) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 456(i)(2) so that he may complete the current academic year of graduate study. The defendants move to dismiss on the ground, inter alia, that the court lacks jurisdiction to afford pre-induction relief. Section 10(b)(3) of the Act of 1967, 50 U.S.C. App. § 460(b)(3). The government agrees that the real question here is whether the deferment sought by the plaintiff is mandatory or whether it is within the discretion of the local board.
If it is mandatory, i.e., "plain and unequivocal," we have jurisdiction notwithstanding the language of Section 10(b)(3). Oestereich v. Local Board No. 11, 393 U.S. 233, 89 S. Ct. 414, 21 L. Ed. 2d 402, 406 (1968).
Thus, our decision on the question of jurisdiction to adjudicate the merits of this case will constitute a decision on the merits as well.
The source of the plaintiff's asserted mandatory right to a I-S deferment is Section 6(i)(2), which reads:
"Any person who while satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution is ordered to report for induction under this title, shall, upon the facts being presented to the local board, be deferred (A) until the end of such academic year, or (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier: Provided, That any person who has heretofore had his induction postponed under the provisions of section 6(i)(2) of the Selective Service Act of 1948; or any person who has heretofore been deferred as a student under section 6(h) of such Act; or any person who hereafter is deferred under the provision of this subsection, shall not be further deferred by reason of pursuit of a course of instruction at a college, university, or similar institution of learning except as may be provided by regulations prescribed by the President pursuant to the provisions of subsection (h) of this section. Nothing in this paragraph shall be deemed to preclude the President from providing, by regulations prescribed under subsection (h) of this section, for the deferment from training and service in the Armed Forces or training in the National Security Training Corps of any category or categories of students for such periods of time as he may deem appropriate."
Has the plaintiff "been deferred under section 6(h) of [the Selective Service Act of 1948]?" Plaintiff was classified II-S as an undergraduate before the passage of the 1967 Act under the provisions of the law as it then stood, to wit, the 1948 Act, as amended by the Act of 1951. The government argues that the reference to the Selective Service Act of 1948 must be interpreted to include the 1951 Act, which, although it even changed the name of the earlier act, purported only to amend it. Act of June 19, 1951, ch. 144, § 1, 65 Stat. 75. It could also be argued that to interpret the exceptions to apply to deferments granted under the 1948 Act, unamended, would mean that the 1967 Act exceptions would operate only in a very limited sense. Marsano v. Laird, 298 F. Supp. 280 (E.D.N.Y., March 20, 1969). To come within the first two exceptions it would be necessary for a man to have had his induction postponed or deferred before June 19, 1951, the effective date of the 1951 Act. Assuming that a man could have received his postponement or deferment immediately after his registration with the local board, the youngest registrant within the class subject to the exceptions would have been over thirty-four years old on June 30, 1967, the effective date of the 1967 Act; he would have reached the age of twenty-six on June 18, 1959; and, unless he received a II-S under the 1951 Act, would, on the date the 1967 Act came into effect, have been immune from the draft for over eight years.
The plaintiff concedes that under his reading the first two exceptions would have applied to a very small and rapidly disappearing class on the date of the 1967 act (men deferred under the 1948 Act, who had their liability extended until age thirty-five by receiving a 6(h) deferment under the 1951 act or otherwise, and who were at least thirty-four years old). However, he points out that defendants' interpretation is at least equally unlikely: it would deny a I-S deferment to all who had ever received a II-S, contrary to the legislative intent in the enactment of Section 6(i)(2).
"* * * Although Congress expected that graduate II-S deferments would be reduced in proportion to the reduction of categories of graduate study, it did not intend that the rights of students in graduate schools to a I-S be disturbed. [citing the House Report and the Conference Report, the latter of which] specifically noted the 'strong conviction' of the House conferees that 'those students presently accepted for or actively participating in graduate studies, be permitted to continue these studies with a deferred status until they achieve or fail to achieve the degree which would normally make the completion of their present level of training.' Without an elaborate discussion of the mass of relevant considerations underlying this 'conviction' there was the concern of Congress with the expectations, careers, plans, and commitments up to that time of those currently in or about to enter graduate school. Although a I-S would not allow in every case for the completion of study over several years to a graduate degree, it would avoid the waste and hardship of an interrupted academic year."
Carey v. Local Board No. 102, 297 F. Supp. 252 (D.Conn. February 13, 1969).
The fact that the language of the exceptions refers to the 1948 act by its original name and not by the new name by which the act was amended in 1951 supports the plaintiff's position. In order to evaluate this issue it is necessary to understand the function the two exceptions were to perform in the 1951 act, which were adopted without change in the 1967 act. Clearly, the first two exceptions were designed to exclude from the I-S classification those persons who had received student deferments under the 1948 act unamended, since those persons, if they did not receive II-S deferments under the 1951 act, would be liable only until age twenty-six. Congress did not want such people to insulate themselves from the draft past age twenty-six at which time they would be exempt. Carey, supra, 297 F. Supp. at 256 n. 5. This interpretation of the exceptions is strongly supported by the use of the word "heretofore." Rich v. Hershey, 408 F.2d 944, (C.A. 10, April 1, 1969) (judgment for defendant on another ground).
Other instrinsic evidence, moreover, leads to the ineluctable conclusion that Congress in 1951 never intended that men receiving II-S deferments under the amended act would be ineligible for the I-S classification. Briefly, the three exceptions applied to the following registrants:
(a) "any person who has heretofore had his induction postponed under the provisions of section 6(i)(2) of the ...