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UNITED STATES v. JARVIS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


April 12, 1972

UNITED STATES of America
v.
Malcolm Harris JARVIS

Edward R. Becker, District Judge.

The opinion of the court was delivered by: BECKER

MEMORANDUM AND ORDER

EDWARD R. BECKER, District Judge.

 This is a Selective Service case in which defendant is charged with willfully refusing to submit as ordered for induction. The case was tried to the Court on a jury waiver.

 The defendant's selective service file contains an impressive submission on the subject of his right to an occupational deferment as a result of his service as a special education teacher at the Warrendale Youth Development Center-School near Pittsburgh. The letter of Ervin Biggs, the principal of the School, dated August 22, 1969 and directed to defendant's Local Board, sets forth that: (1) the defendant was handling the most a-social and academically retarded of the delinquent boys at the School; (2) he is the only one who ever was able to effectively motivate and stimulate these boys; (3) he had shown unique abilities and stamina and had remarkably and effectively restructured the goals of these boys; (4) prior to defendant's arrival, five different people had been hired to work in the same position and they all either quit or had been fired due to their inability to work effectively with these students in the maximum security cottage; and (5) it is extremely difficult to recruit such a rare individual teacher. Mr. Biggs' letter concludes with the statement that the loss of defendant would be "devastating", and that he was "indispensable to the program of the School." The balance of the defendant's selective service record contains nothing of substance contra. The local board did not state its reasons in writing for denial of the occupational deferment claim.

 Our review of the record satisfies us that the criteria of 32 C.F.R. 1622.22, pertaining to the requirements for occupational deferments, are satisfied here, and that defendant was in fact irreplaceable. Cf. United States v. Hoffman, 444 F.2d 117 (9th Cir. 1971). We conclude that the denial of occupational (II-A) deferment was without basis in fact, *fn1" and, alternatively, that the failure of the Local Board to reopen defendant's classification upon receipt of significant new information in August of 1969 invalidates the order to report for induction. *fn2"

  The foregoing determinations make it unnecessary for us to reach defendant's arguments that he is entitled to an acquittal because: (a) there was no basis in fact for the denial of his hardship deferment claim; (b) he was denied due process by virtue of the cursory review of his and other files by the Appeal Board; *fn3" (c) the local board erred in failing to consider his (post induction notice) conscientious objector claim; *fn4" and (d) the Board did not state its reasons in writing for denial of the occupational and hardship claims. *fn5"


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