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United States v. Neff

decided: August 17, 1971.

UNITED STATES OF AMERICA EX REL. ARTHUR KAMESHKA, APPELLANT,
v.
COL. DONALD F. NEFF, COMMANDING OFFICER, ARMED FORCES EXAMINING AND ENTRANCE STATION, PITTSBURGH, PENNSYLVANIA, AND STANLEY R. RESOR, SECRETARY OF THE ARMY



Hastie, Chief Judge, and Freedman*fn* and Gibbons, Circuit Judges.

Author: Hastie

Opinion OF THE COURT

HASTIE, Circuit Judge.

In the court below petitioner Arthur Kameshka, a registered Pennsylvania pharmacist who had been drafted into military service, sought a writ of habeas corpus for release from the Armed Forces on the ground that his I-A classification and resultant induction order were illegal because his employment as a pharmacist in Allegheny County qualified him for a II-A occupational deferment which the local board illegally denied. The district court, 327 F. Supp. 459, denied the writ stating, "the classification of the petitioner was an exercise of discretion by the Selective Service System which we cannot say lacked a basis in law or fact." This appeal has been taken from that decision.

An examination of this registrant's file reveals the following facts. Appellant is a registrant of Local Board No. 12, Pittsburgh, Pennsylvania. He was originally classified II-S while a student at the University of Pittsburgh School of Pharmacy. On June 6, 1968, after graduation, he was classified I-A by the local board, but received a II-A classification as a result of action by the appeal board on August 21, 1968. On March 27, 1969 the local board again classified the petitioner I-A; but again, on June 25, 1969, the appeal board reversed and classified him II-A.

On January 22, 1970, for the third time, the petitioner was classified I-A by the local board; but this time the appeal board concurred with the local board's classification. Following this an appeal was taken by the Pennsylvania State Director of Selective Service to the President and on July 8, 1970, the National Selective Service Board affirmed the I-A classification. Thereafter petitioner was inducted into the Armed Forces on September 15, 1970, following which he filed this petition.

We have carefully examined Kameshka's file to determine what basis in fact there was for the denial of his II-A deferment request. 32 C.F.R. § 1622.22(a) provides: "In Class II-A shall be placed any registrant whose continued service is found to be necessary to the maintenance of the national health, safety, or interest in an activity identified as essential by the Director of Selective Service upon the advice of the National Security Council. * * *" Acting on advice of the National Security Council the Director of Selective Service on April 19, 1968 suspended the then existing "list of critical occupations" leaving within the local board's discretion the determination of which activities are necessary to the maintenance of the national health, safety or interest. L.B.M. issued April 19, 1968, as amended April 23, 1970.

Accordingly, a registrant seeking a II-A deferment must now show that the activity in which he is engaged is "necessary to the maintenance of the national health, safety, or interest." In addition, he must show that it is essential to the maintenance of the national health, safety or interest that he, personally, continue in the activity. He can do this by proving: (1) that he is actually engaged in the activity, (2) that he cannot be replaced because of a shortage of persons with his qualifications or skill, and (3) that his removal would cause a material loss of effectiveness in such activity. 32 C.F.R. § 1622.23(a). Administrative application of each of these requirements, excepting "engagement in the activity," involves the exercise of judgment and discretion upon the basis of some justifying facts.

On two prior occasions -- August 21, 1968 and June 25, 1969 -- it was administratively decided that appellant's employment as a pharmacist in Allegheny County warranted a II-A deferment. In August 1968 the evidence submitted to support appellant's claim included a letter from appellant, together with letters from Max L. Miller, Executive Secretary of the Pennsylvania Pharmaceutical Association; Ronald Macosko, President of the Allegheny County Pharmaceutical Association; Edward Hudak, owner of Bell's Drug Store; and Meyer Rosen, President of Rosen Drug Stores, Inc. In sum, these letters attested that Kameshka was a registered pharmacist in the State of Pennsylvania, employed full time at Bell's Drug Store and doing relief work at two others. They emphasized the critical shortage of pharmacists in the area. For example, Max L. Miller, Executive Secretary of the Pennsylvania Pharmaceutical Association, asserted in a letter dated May 22, 1968, that "* * * Kameshka is making it possible for two (2) important pharmacies to remain open and serve the health needs of two communities thru [sic] the proper distribution of drugs in Pennsylvania. * * *" The president of the Allegheny County Pharmaceutical Association stated, May 27, 1968: "There aren't enough pharmacists to go around and relief help is almost impossible to come by." And Meyer Rosen, president of Rosen Drug Stores, Inc., at which Kameshka performed relief work, stated on May 28, 1968: "Because of the critical shortage of registered pharmacists in Pennsylvania, it would be almost impossible to replace him, if drafted."

This information, unless contradicted by other evidence in Kameshka's file, constituted a strong prima facie case for a II-A deferment under the standards of the pertinent regulations noted above. Indeed, this must have been the conclusion reached by the appeal board in August 1968.

The letters submitted in 1969 were mainly from the same parties and presented essentially the same claims with respect to the need of Kameshka's services and the shortage of persons with his qualifications. At this time Kameshka was employed full time at Slaton's Pharmacy in McKeesport, Pennsylvania. Once more, on June 25, 1969, the appeal board viewed appellant's status as warranting a II-A deferment.

On the third occasion, the classification which we review in this appeal, the appeal board acquiesced in the local board's third ruling that appellant's employment as a pharmacist did not warrant a II-A classification. It is true that on this occasion the registrant submitted only two letters, one from himself and the other from his employer, in support of his request. Appellant's letter asserted:

"* * * I am a registered pharmacist in the State of Pennsylvania, employed full-time at Slaton's Pharmacy, 1709 Eden Park Blvd., McKeesport. Because of the shortage of pharmacists, it would be very difficult to replace me in this position. Also, because of the shortage, I have done relief work at Kessling Pharmacy, Liberty Boro; Prescription Center, Munhall; Sherman's, Munhall; Berkeley Hills Pharmacy, McKnight Road.

"It would be impossible to replace me at these places if drafted. * * * In a recent issue of Drug Topics Nov. 24, 1969), it was stated the ratio of pharmacists per 100,000 population has been dropping. In 1957 it was 66 pharmacists per 100,000; In 1968 it was 61 per 100,000. In the Munhall area this can be seen at Corbett's, Ron Kendall Pharmacy, Prescription Center Pharmacy, Caruso Pharmacy and ...


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