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March 17, 1971

Michael Kettel HAGGERTY, Plaintiff,

Gourley, District Judge.

The opinion of the court was delivered by: GOURLEY

Plaintiff, a Selective Service registrant, seeks an injunction restraining the defendant from enforcing its Order of September 8, 1970, directing plaintiff to report for induction. The defendant moved to dismiss the Complaint on the ground, inter alia, that pre-induction judicial review was precluded by Section 10(b)(3) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 460(b)(3). Finding that the Complaint alleged procedures of the Board and the Secretary of the Army unauthorized by statute and violative of the Constitution, the Court concluded in its Opinion of October 6, 1970 that the claim fell within the exception to Section 10(b)(3) recognized in the case of Oestereich v. Selective Service Board, 393 U.S. 233, 89 S. Ct. 414, 21 L. Ed. 2d 402 (1968).

 The matter presently before the Court is plaintiff's request for a preliminary injunction. A hearing was conducted upon plaintiff's request on October 15, 1970, and a Temporary Restraining Order originally entered on September 11, 1970 was extended pending adjudication of the matter. Counsel for the respective parties were directed to file briefs and proposed findings of fact and conclusions of law upon the filing of a transcript of the record of the hearing. Unfortunately, the adjudication of this matter has been long delayed for the reason that compelling priorities precluded the Court Reporter from filing the transcript until January 18, 1971. This is particularly regretted in the light of the fact that, upon a review of the pleadings, briefs, record and law applicable herein, I am of the opinion that injunctive relief should be denied.

 Plaintiff is a registrant of Michigan Local Board No. 323, located in Royal Oak, Michigan (hereinafter "the Michigan Board"). His Selective Service file is substantial, and it is necessary to recount only what is material to the issues presented here.

 Plaintiff was a student at the University of Miami, Coral Gables, Florida, from 1963 through January of 1969 and received successive student deferments during that time. In response to a Classification Questionnaire, SSS Form 100, plaintiff advised the Michigan Board on June 9, 1965 that he then knew of no physical or mental condition which, in his opinion, would disqualify him from service in the Armed Forces. By Order of the Michigan Board dated June 19, 1967, plaintiff was directed to report for a pre-induction physical examination on July 5, 1967. Plaintiff was examined on the scheduled date, and, based upon the examination, the Armed Forces Entrance and Examining Station (AFEE Station) in Detroit, Michigan, returned to the Michigan Board a Statement of Acceptability, DD Form 62.

 The Michigan Board reclassified plaintiff as I-A on March 13, 1969. After his reclassification but before receiving notice of the same, plaintiff, on March 19, 1969, wrote a letter to the Michigan Board enclosing therewith a letter of Dr. John M. Best indicating that an examination of the plaintiff in February of the same year revealed the existence of a condition known as first degree spondylolisthesis of the fifth lumbar vertebra, which rendered plaintiff "more liable to injury of his lower back." The condition appears to have first become manifest to plaintiff subsequent to an automobile accident occurring in January of 1969.

 Although the correspondence in the file contains some ambiguity, it appears that the letter from Dr. Best and other medical papers were forwarded to the AFEE Station in Detroit, Michigan, which had previously examined plaintiff. Upon receipt of the records, Captain Chandler, Assistant Processing Officer of the AFEE Station, sent a memorandum to Michigan State Headquarters, Selective Service System, wherein he advised that the evidence furnished was not sufficient to warrant a change in the registrant's acceptability and suggested that the plaintiff be returned to the AFEE Station for re-examination. It was suggested further that the plaintiff submit a letter from his physician at that time. State Headquarters communicated this information to the Michigan Board, requesting at the same time that plaintiff be ordered to report for another pre-induction physical examination.

 Plaintiff was ordered to report for the additional pre-induction physical examination on August 18, 1969. On the appointed day, plaintiff provided to the Detroit AFEE Station a medical history of his back trouble and the names of physicians Dr. Walter Willoughby and Dr. John Best. Noted on the medical history was "malformed spine" and spondylolisthesis. However, on the basis of the history and examination, the Detroit AFEE Station returned to the Michigan Board a Statement of Acceptability, DD Form 62, on the day of the examination.

 The Michigan Board issued an Order on September 22, 1969, directing plaintiff to report for induction on October 16, 1969. Plaintiff thereafter requested both a transfer of induction to the area of Pittsburgh, Pennsylvania, and a postponement of induction due to personal hardship, since his father was undergoing surgery at that time. Both requests were granted. Plaintiff's induction was transferred to Local Board No. 15, Pittsburgh, Pennsylvania, the defendant in this action (hereinafter, the "Transfer Board"). The Transfer Board issued an Order on December 2, 1969, directing plaintiff to report for induction on December 9, 1969.

 Upon reporting for induction, plaintiff received the standard physical examination which precedes induction. The examining physician had before him plaintiff's medical records including the X-ray report of Dr. Joseph Mazzei, dated February 8, 1969, indicating a finding of "spondylolysis of L-5 with first degree spondylolisthesis of L-5 and S-1." Based upon the medical records and his examination of plaintiff, the examining physician stated in his report "disqualifying defects or communicable diseases were noted this date."

 The Commanding Officer of the Pittsburgh AFEE Station then made the further determination that plaintiff was a "registrant of national prominence" within the meaning of a directive of the Secretary of the Army dated April 28, 1966 and, in accordance with the procedures established by that directive, plaintiff's medical records were forwarded to the Chief of Personnel Operations of the Department of the Army along with a memorandum noting "Mr. Haggerty is currently playing professional football with the Pittsburgh Steelers." In turn, the Chief of Personnel Operations submitted the medical records and attached memorandum to the Office of the Surgeon General for review.

 Plaintiff makes an all encompassing attack upon the procedures whereby he was found medically acceptable for service in the Armed Forces. He contends:

1. That the medical reports which plaintiff furnished to the Board and the finding of the medical examiner at the Pittsburgh AFEE Station, although presenting facts allegedly warranting a reopening of plaintiff's classification, were never considered by the Michigan or Transfer Board, resulting in a deprivation of plaintiff's right to procedural due process of law.
2. That the military directive whereby the medical records of persons of national prominence found to have disqualifying defects are forwarded to Army Headquarters for further medical review is standardless and deprived the plaintiff of due process of law.
3. That Subpart 2-43 of Army Regulation 40-501, providing for Vocational Waivers, is vague and standardless, unauthorized by statute and violative of due process of law.

 Plaintiff's first contention, that the Board failed to give requisite consideration to his back condition, newly discovered in January of 1969, is without merit. Plaintiff first advised the Michigan Board of his back condition by his letter of March 19, 1969 and enclosed report of Dr. John M. Best. Plaintiff already had been examined and found medically acceptable for military service before this date. The Michigan Board, in fact, did consider the medical report of Dr. Best and, in ordering plaintiff to report for another physical examination, acted in accordance with the applicable regulation, 32 CFR § 1628.4(e). Section 1628.4(e) provides:

"(e) If the local board determines that the registrant does not have a disqualifying medical condition or physical defect which appears in the list described in § 1628.1, or if the local board has any doubt concerning the existence of any such condition or defect, the local board shall order the registrant to report for armed forces physical examination as provided in section 1628.11."

 The action of the Michigan Board in ordering another physical examination was indistinguishable from the course taken by the registrant's Local Board in United States v. Smith, 423 F.2d 559 (9th Cir. 1970). The Court stated in the Smith case, at p. 562:

"* * * Here, Smith brought the matter to the Board's attention only after he had been examined and found acceptable. The local board did act on it; it ordered him to report for a second physical examination, a procedure that was in substantial conformity with 32 C.F.R. § 1628.4(e). In the absence of contrary evidence, we assume that the determination referred to in that subsection was made, i.e., that the board had a doubt as to the existence of the claimed disqualification. That determination is supported by ample basis in fact in the record."

 Similarly, I am here convinced that the Michigan Board did consider the new evidence submitted to it on March 19, 1969, and, finding itself in doubt as to whether it indicated a medical condition warranting reclassification, properly directed the plaintiff to submit for another physical examination.

 The case of United States v. Ford, 431 F.2d 1310 (1st Cir. 1970), cited by plaintiff, is different in material respects. There the registrant's physician and a psychiatrist sent letters to his local board advising that the registrant had a substantial psychiatric problem. A clerk at the Board, without referring the matter to the members of the Board for consideration, simply mailed the letters to an AFEE Station, where the registrant was found acceptable for military service. In the case at bar, unlike the Ford case, supra, the Board evaluated the medical evidence ...

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