Seitz and Aldisert, Circuit Judges and Latchum, District Judge. Aldisert, Circuit Judge (concurring).
This appeal is from an order of the district court denying a petition for a writ of habeas corpus seeking petitioner's release from the custody of the United States Army. Petitioner asserts that his induction order was unlawful either because his local board erroneously refused to reopen his classification or, alternatively, because the board did in fact reopen and consider his classification anew while purporting to refuse to reopen.
Petitioner graduated from college in June 1969 and his local board classified him I-A in July. No appeal was taken. On October 6, 1969 he applied for a permanent teaching position with the Ridley Township School District. Informed that no full-time positions were then available, he became a substitute teacher.
On November 19, 1969 petitioner's local board sent him an order to report for induction on December 2, 1969. Subsequently, by letter of November 23, 1969, petitioner asked the local board to postpone his induction and reopen his classification. He told the local board he had just spoken to a school district official and that "he advised me that a teaching position at the 6th grade level was open and he requested me to accept the position." A letter from the school superintendent accompanied petitioner's letter. It stated that petitioner would assume a full-time teaching assignment on December 1, 1969. It further explained that "this appointment comes as a result of an emergency withdrawal of a present teacher" and that "we are unaware of any available teacher for this class on such short notice."
A few days later Pennsylvania State Selective Service Headquarters called the local board to postpone the induction until January 16, 1970 because petitioner was ill.*fn1 The local board subsequently met on January 14, 1970 and it notified petitioner it would not reopen his classification. The regulations provide no right to appeal a local board's refusal to reopen. Accordingly, petitioner reported as ordered, was inducted and immediately filed this petition for a writ of habeas corpus. The district court rejected both of petitioner's claims in an opinion reported at 312 F. Supp. 426.
If the local board illegally refused to reopen petitioner's classification the induction order was unlawful and the writ must be issued. A Selective Service regulation, 32 C.F.R. § 1625.2, provides in relevant part that
"The local board may reopen and consider anew the classification of a registrant * * * upon the written request of the registrant * * * if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant's classification * * *." See also 32 C.F.R. § 1625.4.
In the situation where no induction order has yet issued, it is established that when a registrant presents to a local board facts which prima facie set forth a basis for reclassification the local board must reopen. Hunt v. Local Board No. 197, 423 F.2d 576, 579 (3d Cir. 1970).
Although the Government disagrees, we may assume that the letters concerning petitioner's full-time teaching status presented a prima facie case for an occupational deferment. A prima facie case alone, however, would not have required the board to reopen since the operative facts here occurred after the board had ordered petitioner to report for induction. The fact that we are concerned with a post-induction-order request for reopening is pivotal because the above-quoted reopening regulation contains the following proviso:
"The classification of a registrant shall not be reopened after the local board has mailed to the registrant an Order to Report for Induction * * * unless the local board first specifically finds there has been a change in the registrant's status resulting from ...