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UNITED STATES EX REL. O'NEILL v. NEFF

May 11, 1971

The UNITED STATES of America ex rel. Michael J. O'NEILL
v.
Col. Donald F. NEFF, Commanding Officer and Stanley R. Resor, Secretary of the Army


Knox, District Judge.


The opinion of the court was delivered by: KNOX

KNOX, District Judge.

 The petitioner, Michael J. O'Neill, was a selective service registrant registered with Local Board No. 135, Santa Ana, California. He later moved to Pittsburgh, Pennsylvania, and on February 18, 1971, was ordered to report for induction on February 25, 1971. Local Board 135 on February 11, 1971, transferred the induction procedure to Transfer Board 15, Pittsburgh, Pennsylvania, and he was again ordered to report for induction at Pittsburgh on April 13, 1971. Petitioner reported as directed and was inducted on April 13, 1971. He immediately filed this application for a writ of habeas corpus contending he was unlawfully inducted and was entitled to an occupational deferment. This procedure is in accordance with that approved by the Court of Appeals for the Third Circuit in Scott v. Commanding Officer, 431 F.2d 1132.

 A hearing was held before the court at which time a stipulation of facts was entered into between the petitioner and the office of the United States Attorney which appeared for the respondent. From this, it appears that petitioner was originally classified II-S by Local Board 135. After he completed his undergraduate education, he was classified II-A (occupational deferment), on April 10, 1969. This resulted from a request for occupational deferment by his employer, Westinghouse Electric Corporation, because of his work as a junior engineer and indications in their request that he was irreplaceable. The Pennsylvania Scientific Advisory Committee had recommended that his employment could be determined as essential.

 At the expiration of the one-year occupational deferment period, petitioner's employer requested a continuation of the occupational deferment. However, on April 9, 1970, he was classified I-A by Local Board 135 and he was again so classified by the Appeal Board for the Western District of Pennsylvania on December 9, 1970, notwithstanding a second recommendation by the Scientific Advisory Committee that his employment be considered essential. After the December 9, 1970, decision, further requests and material asking occupational deferment were submitted by the employer.

 Meanwhile, petitioner had applied for an appointment to the Commissioned Officers Corp of the United States Public Health Service and so informed Local Board 135 by letter dated January 18, 1971. On January 21, 1971, and again on February 5, 1971, the local board advised petitioner and his employer that they were of the opinion that the facts presented did not warrant the reopening of petitioner's case for reclassification. His induction thereupon followed.

 Concurrently, with the filing of the petition for the writ, a temporary restraining order was issued by this court and the petitioner was placed on leave by the Army until May 13, 1971. The temporary restraining order was extended to this date. We have received and studied exhaustive briefs of counsel on both sides. At the hearing, the entire file before the local board was produced and offered into evidence and we have examined this thoroughly and have concluded that the petition must be denied.

 The court's scope of review of the action of the selective service system is set forth in the Act of 1967, 50 U.S.C. App. 460 as follows:

 
"* * * provided that such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards and the President only when there is no basis in fact for the classification assigned to such registrant."

 This was interpreted by the Supreme Court in Estep v. United States, 327 U.S. 114, 122, 66 S. Ct. 423, 427, 90 L. Ed. 567, as follows:

 
"It means that the courts are not to weigh the evidence to determine whether the classification made by the local boards was justified. The decisions of the local board made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant."

 The requirements with respect to occupational deferment are set forth in selective service regulations 32 C.F.R. Sections 1622.21 and 1622.23 providing that occupational deferments shall be for a period not to exceed one year at the expiration of which time classification shall be reopened and the registrant classified anew. It is provided that an occupational deferment shall only be granted for an occupation found by the local board to ...


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