James Falcon, Appellant, v. Selective Service System Local Board #169, Greensburg, Pennsylvania, 434 F.2d 859 (3d Cir. 1970)

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U.S. Court of Appeals for the Third Circuit - 434 F.2d 859 (3d Cir. 1970) Argued October 8, 1970
Decided November 6, 1970

James R. Kelley, Greensburg, Pa., for appellant.

David M. Curry, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.

Before KALODNER, STALEY and GIBBONS, Circuit Judges.



The plaintiff Falcon, a draft registrant of Local Board No. 169, Greensburg, Pennsylvania, enjoyed the benefits of a II-S student deferment until October 27, 1969 which enabled him to complete his graduation from the Duquesne University Law School in June 1969. He was re-classified 1-A on October 27, 1969. On June 18, 1970 — one month before his 26th birthday on July 18, 1970 — Falcon was ordered by his draft board to report for induction on July 21, 1970.

On July 15, 1970 — three days before his 26th birthday — Falcon filed a Complaint in the United States District Court for the Western District of Pennsylvania challenging the validity of the June 18, 1970 notice to report for induction on July 21, 1970 on the ground that the latter date was three days subsequent to his attaining the age of 26 on July 18, 1970 and thus contravened the Selective Service Amendment Act of 1969, P.L. 91-124 and regulations pursuant thereto. Preliminary injunctive relief against enforcement of the induction notice was denied on August 7, 1970 by the District Court following hearing. The District Court in a Memorandum Opinion rejected Falcon's contention and held "plaintiff's induction into the Armed Services is in compliance with the Military Selective Service Act of 1967, as amended, and the Selective Service Regulations implementing the Act." On August 13, 1970 the District Court, following hearing, filed a Supplemental Opinion staying the effective date of its Order of August 7, 1970 until August 24, 1970 to allow appeal.

This Court, on August 25, 1970 denied Falcon's motion for a further stay and set the case for argument of the appeal during the first week of October.

On review of the record we are of the opinion that the District Court did not err in its disposition. The 1969 Amendment to the Selective Service Act of 1967, P.L. 91-124, did nothing more than repeal Section 5(a) (2) of the Military Selective Service Act of 1967, 50 U.S. C.A. App. 455(a) (2) and its sole effect was to repeal the prohibition against the institution of a random selection system. The Executive Order No. 11497 which amended the prior Selective Service Regulations proscribing random selection did not change in any way the extended liability for induction after age 26 imposed by the 1967 statute upon those registrants who at some time had enjoyed the benefits of a deferred status.

The Order of the District Court will be affirmed for the reasons so well stated by Senior District Judge Gourley in his Memorandum Opinion. 319 F. Supp. 1355.