his I-A classification. (See Notes of Personal Appearance before Local Board on October 7, 1968). Both Kurjan and the University of Pennsylvania appealed this ruling.
The Local Board then sought an advisory opinion from the State Scientific Advisory Committee as to the "essential" nature of the petitioner's employment.
The Advisory Committee returned the file and requested further information, to wit, whether Kurjan was a graduate student. After being advised that Kurjan was pursuing a course of graduate study,
and after reviewing the Occupational Inquiry Form (SSSP-1674, dated December 2, 1968) which listed no salary being paid Kurjan for his research, the State Selective Service Headquarters, on February 13, 1969, returned the file to the Local Board without referring it to the Advisory Committee because State Headquarters had determined that "[This] man's occupation does not come within the purview of the Scientific Advisory Committee."
The file was then sent to the Appeal Board which, on March 3, 1969, voted 3-1 to classify Kurjan I-A. After receiving notice of the Appeal Board's action, and prior to receiving his order to report for induction, the petitioner requested his superiors at the Moore School to change his status from that of a graduate trainee to a full-time salaried research assistant. On March 19, 1969, Kurjan received his orders to report for induction.
On April 1, 1969, the petitioner was notified by the Moore School that his request had been granted and that, as of that date, Kurjan was to be a salaried employee of the Moore School and no longer a graduate trainee receiving a stipend from the National Science Foundation. Kurjan wrote his Board on April 3, 1969, timely advising them of the change in his status and requesting a personal interview to present the new information. The interview was held on April 17, 1969, at which time Kurjan told the Board that he was now a salaried employee. The petitioner also presented a letter, dated April 16, 1969, from Dr. Fred Haber, an Associate Professor at the Moore School, which confirmed the change in Kurjan's status as well as noting that Kurjan was solely responsible for the Avionics project, that he "would be very difficult to replace, and there would be a substantial loss (6 months to a year) in the development of the project." On the basis of these new facts, both Kurjan and his employer requested that the classification be reopened and that the petitioner be granted an occupational deferment (II-A).
On April 25, 1969, the Local Board sent the file to the State Board and requested a "decision or ruling" from them on the basis of the new information presented at the April 17, 1969 interview. On April 28, 1969, the State Board replied: "We concur with the I-A classification given this registrant by the local board and appeal board. In our opinion, this registrant is still primarily a graduate student and the induction order should remain in effect * * *" (emphasis supplied).
On May 20, 1969, by a vote of 4-0, the Local Board determined that the "information submitted does not warrant reopening classification." However, the Board felt that, " before final decision ",
a recommendation from the State Scientific Advisory Committee should be obtained as well as a statement from the University of Pennsylvania concerning the petitioner's salary. In addition, the Board mailed another Occupational Inquiry Form to the University and obtained a further postponement of induction.
On May 21, 1969, the University informed the Board that Kurjan's annual salary was $4,000.00, with the explanation that "this person's graduate program is taken into consideration in determination of his salary and * * * the salary does not completely reflect the stature and importance of his work." The Occupational Inquiry Form
merely stated that Kurjan was "involved" in acoustical research relating to military helicopters and made no mention of his salary. After reviewing this form and related data, the Scientific Advisory Committee, on July 22, 1969, recommended that petitioner's occupation be designated "non-essential." On July 25, 1969, the Local Board determined that the information submitted did not warrant reopening. The minutes of that meeting also reflect that the Board agreed with the recommendation of the Scientific Advisory Committee.
On July 30, 1969, the Board again postponed induction and sent yet another Occupational Inquiry Form to the University of Pennsylvania. This Form, which was returned to the Board on August 5, 1969, was far more thorough and emphatic than the one previously submitted. For example, it stated that Kurjan had "sole" responsibility for the project and possessed unique talents that made him currently irreplaceable. It is repeated that Kurjan is devoting full time to the project and it is also stated that his salary has been raised to $7,000 per year. The Local Board then sent the file to the Scientific Advisory Committee. Presented with this new information, the Scientific Advisory Committee, on September 18, 1969, declared that Kurjan's employment was "essential" and recommended a twelve month deferment. However, on October 21, 1969, the Local Board declined to follow this recommendation and by a vote of 4-1 decided against reopening the classification. In a letter from the Board, dated October 22, 1969, Kurjan was advised that the Local Board had reviewed and considered the entire file "and they feel that there is no change in your status." (emphasis supplied). Kurjan was later notified to report for induction on November 7, 1969, and he so complied. Then followed the instant petition for a Writ of Habeas Corpus.
Petitioner's claims are that (1) assuming that the Board did not in fact reopen and consider anew his classification on May 20, 1969 and thereafter,
such failure to reopen was unlawful and denied the petitioner his right to due process; and alternatively, (2) the Local Board, by its actions, did in fact reopen his classification, a consequence of which petitioner was entitled to a personal appearance and a right of appeal, and that the denial of these procedures violated the petitioner's right to due process and, as such, the order to report for induction was invalid.
I. "BASIS IN FACT" TEST
The applicable scope of judicial review of draft classifications by a Local Board is set out in 50 U.S.C. App. § 460(b)(3). In pertinent part, this section reads as follows:
"No judicial review shall be made of the classification or processing of any registrant * * * except * * * after the registrant has responded affirmatively or negatively to an order to report for induction * * * Provided, that such review shall go to the question of the jurisdiction herein reserved to the local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant."
As this section has been interpreted, a court can review a classification when there is no "basis in fact" for the classification or when the Local Board has acted arbitrarily and thus denied the registrant due process of law. 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); Parrott v. United States, 370 F.2d 388 (9th Cir. 1966), cert. denied, Lawrence v. United States, 387 U.S. 908, 87 S. Ct. 1690, 18 L. Ed. 2d 625 (1967). The "basis in fact" test applies both to classifications by the Local Board as well as Board determinations of whether or not reopening of a registrant's classification is warranted by the presentment of new facts. United States v. Ransom, 223 F.2d 15, 17 (7th Cir. 1955); United States v. Burlich, 257 F. Supp. 906, 911 (S.D.N.Y. 1966); United States v. Scott, 137 F. Supp. 449, 453 (E.D. Wis. 1956).
In the case at bar, petitioner asks this Court to review his Local Board's failure to reopen and consider anew his classification.
The complained of failures to reopen occurred after Kurjan received his notice to report for induction. In such circumstances, the applicable regulations are as follows:
"The local board may reopen and consider anew the classification of a registrant (a) 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 * * * provided * * * the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction (SSS Form 252) * * * unless the local board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control." 32 C.F.R. § 1625.2. (emphasis supplied).