Justia Federal District Court Opinions

The District Court granted the appellee's petition for a writ of habeas corpus.1

A local Selective Service Board issued an Order that the appellee report for induction into the armed services.² Thereafter, the Board considered the appellee's claim for occupational deferment, presented by him and his employer. After the original Order to report for induction was issued, the appellee also notified the Board of the pregnancy of his wife and claimed a III-A deferment.

On this appeal, the appellants argue that the Board found no change in the registrant's status which resulted from circumstances beyond his control, that there was no reopening of his I-A classification, and that the appellee was therefore not entitled to attack the validity of the Order for induction. We reject the argument upon the basis of our conclusion that the Board did in fact reopen the appellee's classification. See Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970). See also Miller v. United States, 388 F.2d 973 (9th Cir. 1967). Inasmuch as there was a de facto reopening, Hall's claim for the III-A deferment should have been granted.

Affirmed.

KILKENNY, Circuit Judge (dissenting):

I am convinced that appellee should have exhausted his administrative remedies pursuant to the provisions of Army Regulation 635-200.¹ Here, we are faced with a post-induction problem, rather than the pre-induction affair which was before the court in Breen v. Selective Service Board, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970), cited by the majority. Apparently, the exhaustion of remedies issue was not presented to the panel in Andre v. Resor, 443 F.2d 921 (9th Cir., June 11, 1971), another case cited by the majority. The record shows that the pregnancy occurred after the order to report for induction. The over-all legal philosophy employed in Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (April 21, 1971), should be here applied. I would reverse.