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FALCON v. SELECTIVE SERV. SYS.

August 7, 1970

James FALCON
v.
SELECTIVE SERVICE SYSTEM, LOCAL BOARD #169, GREENSBURG, PENNSYLVANIA


Gourley, District Judge.


The opinion of the court was delivered by: GOURLEY

GOURLEY, District Judge.

 In this civil action, plaintiff, a registrant of Local Board No. 169, Greensburg, Pennsylvania, seeks to enjoin his induction into the Armed Services of the United States. Jurisdiction of the Court is invoked under §§ 1331, 1361, 2201 and 2202 of Title 28 of the United States Code. A Complaint and Motion for Preliminary Injunction was filed on July 15, 1970, and a hearing was conducted by this member of the Court on July 21, 1970 upon the Motion. Prior to the hearing, the parties entered into a Stipulation of Facts, attaching thereto a copy of registrant's Selective Service file, and filed the same with the Court. Upon consideration of the pleadings, Stipulation of Facts, briefs and arguments of counsel and the evidence offered at the hearing, the Court concludes that the Motion must be denied.

 The operative facts can be briefly stated. Plaintiff enjoyed the benefits of a II-S student deferment until October 27, 1969, which deferment enabled him to complete his graduate education from the Duquesne University School of Law in June of 1969. He was classified I-A on October 27, 1969. On June 18, 1970, plaintiff was ordered to report for induction on July 21, 1970. Plaintiff was born on July 18, 1944 and reached the twenty-sixth anniversary of his date of birth on July 18, 1970. Thus, plaintiff, by an Order of Local Board No. 169 issued prior to his twenty-sixth birthday, was directed to report for induction on a day subsequent to his attaining the age of twenty-six.

 The sole issue presented is whether Local Board No. 169 has acted within the authority of the Military Selective Service Act of 1967, 50 U.S.C. App. § 451 et. seq. It is plaintiff's contention that 50 U.S.C. App. § 454(a) prohibits the Local Board from ordering plaintiff to report for induction at a time subsequent to his attaining twenty-six years of age.

 Congress has provided in 50 U.S.C. App. § 454(a), in pertinent part, as follows:

 
"Except as otherwise provided in this title (Sections 451, 453, 454, 455, 456 and 458-471 of this Appendix), every male citizen of the United States * * * who is between the ages of 18 years and 6 months and 26 years, at the time fixed for his registration * * * or who is otherwise liable as provided in Section 6(h) of this title (Section 456(h) of this Appendix), shall be liable for training and service in the Armed Forces of the United States: * * *"
 
* * *
 
"No person, without his consent, shall be inducted for training and service in the Armed Forces or for training in the National Security Training Corps under this title (Sections 451, 453, 454, 455, 456 and 458-471 of this Appendix), except as otherwise provided herein, after he has attained the twenty-sixth anniversary of the day of his birth." (Emphasis added.)

 In contending that paragraph (a) of Section 454 renders nugatory plaintiff's order to report for induction on July 21, 1970, after he had attained the age of twenty-six, plaintiff overlooks the exceptions to which paragraph (a) refers, particularly the exception contained in 50 U.S.C. App. § 456.

 In paragraph (h) of § 456, 50 U.S.C. App. § 456(h), Congress provides for the deferment of students, subject to a proviso. Section 456(h) provides in pertinent part:

 
"(h)(1) * * * the President shall, under such rules and regulations as he may prescribe, provide for the deferment from training and service in the Armed Forces of persons satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution of learning and who request such deferment. * *"
 
* * *
 
"(h)(2) * * * Provided further, That persons who are or may be deferred under the provisions of this section shall remain liable for training and service in the Armed Forces under the provisions of section 4(a) of this Act [section 454(a) of this Appendix] ...

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