The opinion of the court was delivered by: LUONGO
Marshall F. Garrell, Jr. was inducted into the Armed Forces of the United States on February 6, 1970. On the same day he filed this petition for writ of habeas corpus seeking release from the Armed Forces on the ground that the order under which he was inducted was issued in violation of the Selective Service Act of 1967, 50 U.S.C. App. § 451 et seq., and the regulations promulgated pursuant thereto. Petitioner's complaint is that the local draft board failed to reopen his classification, as it was allegedly required to do under § 1625.2 of the Selective Service Regulations, 32 C.F.R., to consider whether his I-A status should be changed to II-A
(occupational deferment) or III-A
(hardship deferment). A temporary restraining order was issued to prevent respondents from removing petitioner from the jurisdiction of this court pending hearing and disposition of this petition.
Hearing has been held. From the evidence submitted, the following facts emerge:
Marshall F. Garrell, Jr., registered with Local Board No. 59, Upper Darby, Pennsylvania in January 1966. At that time Garrell was a student at the Philadelphia College of Pharmacy and Science and he was accordingly classified II-S (student deferment). The course of study at the College of Pharmacy was completed in June 1969. On July 10, 1969 the local board (Board) reclassified Garrell I-A and mailed to him notice of the classification and of his right to appeal. On the following day Garrell wrote to the Board requesting a personal appearance before the Board for the purpose of obtaining a six months' deferment to enable him to complete the internship required for a pharmacist's license. By letter dated July 23, 1969, the Board set July 31, 1969 as the date for personal appearance and advised Garrell that following that hearing he would receive a "Notice of Classification" which he could appeal within 30 days. When he personally appeared before the Board, Garrell was advised that his classification would remain I-A but if he was called for induction prior to the date of the final examination for his license the Board would postpone his induction for a sufficient period of time to enable him to get his "degree". Thereafter, on August 20, 1969, the Board mailed to Garrell notice that he had been classified I-A and informed him of his right to appeal that classification. No appeal was filed.
On November 18, 1969 the Board issued to Garrell its Order to Report for Induction on December 2, 1969. At Garrell's request, the Board sought and obtained from the State Selective Service Headquarters permission to postpone induction until February 1970 to enable Garrell to complete the internship and qualify for state licensure.
By letter dated January 22, 1970 Garrell was ordered to report for induction on February 6, 1970. On January 23 Garrell delivered to the Board a letter (dated January 22, 1970) advising that his father, in whose pharmacy he had been working while going to school and while serving his internship, had severe hypertension and a circulatory disease of the legs; that the father had suffered from these conditions for five years and that it would be a hardship for his father to continue to work more than twelve hours a day. Enclosed with Garrell's letter was a note on a prescription blank of a Dr. Robert Mitterling, dated January 21, 1970, addressed "To Whom This May Concern" certifying that Garrell, Sr. "is under my professional care for severe essential hypertension, and arteriosclerotic occlusive vascular disease of the legs. Marshall, Jr. has been helping the father in their drug store." Also submitted were letters dated January 22, 1970 from Garrell, Sr. describing symptoms he had been suffering for five years, and from a Reverend Roy Grace, advising that Garrell, Sr.'s "physical condition has been deteriorating and he has been depending very heavily on the help his son has been able to give him" and "[if] Marshall Garrell, Jr. is inducted into the service it is highly improbable that his father will be able to continue in business alone and it will become necessary for him to discontinue and move from the neighborhood."
On January 26, 1970 the registrant requested a personal interview to explain the claim that his induction would cause hardship to his father, mother, younger brother and sister. By letter dated January 28,
1970, the Board granted the interview and fixed it for February 2, 1970. Garrell was advised to prepare a written summary of the information he would discuss at that meeting.
The interview was held on February 2. Garrell submitted the requested written summary, setting forth therein that his father's diseases had worsened to the extent that he could no longer successfully mange and operate his pharmacy alone; that the pharmacy was open 80 hours a week and that the income from it was $9,932 which would not permit the hiring of a pharmacist 40 hours a week at $5 per hour to work under Mrs. Garrell's supervision; that the solution would be to permit petitioner to continue to work with his father to enable him to keep the pharmacy open.
The interview brought out this additional information: Garrell was working 60 hours a week for his father for which he was paid $15 a week; the father could not afford to hire anyone to take Garrell's place and would be unable to keep the pharmacy open without his help; the father owns, free of encumbrance, the building in which is located the pharmacy as well as the apartment in which the family lives; the father owns, subject to a mortgage, an adjoining building which contains an office, rented to a Doctor Marjorie Meyer, and an apartment, also rented. In response to a question from a board member, Garrell indicated that he had waited until the order of induction was issued before requesting a hardship deferment because he didn't think it was necessary to do so until he was licensed as a pharmacist and also because he did not realize how serious his father's condition was.
On February 3, 1970 the Board advised Garrell that his classification had been discussed and the Board had concluded that neither further postponement nor reclassification was warranted and he was therefore ordered to report for induction on February 6, 1970, as scheduled. On that same date (February 3), Garrell, having been advised that he had passed the laboratory examination and qualified for a pharmacist's license, requested that his case be reopened to consider a II-A (occupational) deferment. On February 6, 1970, having received no response to his latest request, Garrell submitted to induction and filed the instant petition for writ of habeas corpus.
Habeas corpus is a proper remedy for determining whether the procedure leading to an order of induction violated due process. United States ex rel. Lauritsen v. Allen, 154 F.2d 959 (8th Cir. 1946). The scope of review in Selective Service cases, however, is narrow. The action of a local board in classifying a registrant or in refusing to reopen a classification may only be disturbed if there is no basis in fact for the board's action. Dickinson v. United States, 346 U.S. 389, 74 S. Ct. 152, 98 L. Ed. 132 (1953); Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567 (1946); Robertson v. United States, 404 F.2d 1141 (5th Cir. 1968); United States v. Ransom, 223 F.2d 15 (7th Cir. 1955); United States v. Burlich, 257 F. Supp. 906 (S.D.N.Y. 1966).
The Selective Service regulations provide not only for the right to appear before a local board in connection with classification of registrants, but also the right to appeal. Those rights are available whenever a classification is reopened, but there is no right to appear or to appeal where a reopening of classification is denied. If a request to reopen a classification is made before the registrant has been ordered to report for induction, the board must reopen "where new facts are presented which if true would justify a change in classification." United States v. Turner, 421 F.2d 1251 (3d Cir., filed Feb. 10, 1970). But if the request is made after the registrant has been ordered to report for induction, the registrant must establish that a change in his status, resulting from circumstances over which he had no control, has occurred. United States v. Kroll, 400 F.2d 923 (3d Cir. 1968), cert. denied, 393 U.S. 1069, 89 S. Ct. 728, 21 L. Ed. 2d 713 (1969).
The regulations governing the instant controversy are 32 C.F.R. §§ 1625.2 and 1625.4 which ...