*1 POPE, Before ORR and Judges, Circuit District Judge. ORR, Judge. Circuit Appellant petitioned for a writ of corpus. habeas was denied. appeals. doctor, He is a medical specializing psychiatry. July 26, On 1951he was inducted into the armed forces private by authority of the so-called Law,” “Doctors Draft Public Law Sess., 2d 1950 U.S.Code Con Service, p. gressional 885. The statute grants the President of the United States “ * * * require authority special reg requisi on the basis istration of Department by the tions submitted of De *2 210 10, special appellant 1951 approved by him, reapplied make for a commis
fense to and qualified application sion persons pending. in needed— and his now calls for is male Upon (A) specialist categories take being medical and allied informed that it would fifty age ap from six yet year have reached the of months to before his who * * plication passed upon, Per registration finally the time of *. was and the at Army unable, for be liable called hereunder shall non-com sons twenty-one status, induction for exceed missioned to use him as a doctor not to interim, appellant brought in the Armed the petition2 months of service his [now 24] U.S.C.A.Appendix, 454(i). attempt 50 His initial from Forces.” secure release to § 779, Army 2d 1. Public Law Sess. was the District Court for § Thus, gen while under the terms of the was of Columbia. law, of jurisdiction. eral draft Service Act there lack Selective dismissed of for 1948, Lovett, persons D.C.D.C.1951, 26 are not age F.Supp. Orloff v. 101 over eligible induction, U.S.C.A.Appen Upon pres 50 Fort arrival at Lawton the dix, Law 454(a), as amended Public ent and proceeding the Dis instituted § specialists, 779, doctors,' adversely trict Court dentists and ruled on the merits to allied population, contrast with the may up Ap age to the inducted question The fundamental before pellant 26 time age was over the at the Ap statutory us is one of construction. date of his of his induction. Prior to the pellant urges that a inducted under doctor induction, upon the Selective advice of the Act must be used as a doctor in the System, being in Service and to avoid services, requirement armed that such is Act,1 applied 2appellant Act, mandatory under the and that since his granted captain a commission as a and was purpose only, induction was for if the one Corps, United States Air the Medical Army give cannot or will not him such However, his commission was re Force. work, interpre discharged. he must be His July 24, days on two before voked premise pur tation is based that the on induction, the date of his scheduled be failure, pose of the was to enable armed Act Air cause his to execute certain medical, services to secure needed dental dealing Force forms his commission specialists unnecessarily and allied application. Appellant presently a is supply depleting the short of such civilian States, private of the United Army in the persons, consequently and that to draft assigned of Enlisted Re to and a member capacity doctor use him in another is Center, Lawton, placement Washing Fort directly opposed congressional to intent be ton, shipment the Far Eastern Com supply depleted, (1) cause the civilian is Army his induction the has mand. Since and, (2) demand remains un appellant potential military occupa given any give satisfied. To to the statute specialty (PMOS) of medical labora tional construction, argues appellant, would ren repeatedly tory has technician. primary der it unconstitutional. That Army assign him requested the work as doctors, purpose drafting not otherwise grade regardless or medical subject supply was to rank, that has been informed but specialists forces with needed armed this permit only commissioned of apparent. Certainly, category, is that was practice doctors. On December ficers to being accepted exempts induction term or Act, members of the § 1. The rejected again for a commission. In the from induction. Reserves according appellant’s interim, claims, nothing in the in- is record to 2. There capacity he will be forced to serve ain present applica- dicate statutory violating command, or in will be looked tion pursuance an invalid statute. Under upon by more favor- the Armed Forces special circumstances do these we application. ably his first such than prematurely think that this action is year finally may take a act on brought argued as it insofar appellant so, application if will ap- should await action on his almost three-fourths his served have plication for commission. require in- justified granted ground on a commission which the bill contrary, may well be it also ductees. On the Congress military. And seems bear the contemplated urged that the will not apparent words used impress normally meaning seeks inductees under the Act would *3 upon them. in the form capacities. A The is written in Act professional utilized their Service re- of an amendment the Selective reading Congress is the debates in 1948, by acting merely, plete congression- Act of seems such a and references to law, See, 96 within the framework of the understanding Cong. al desire. and eligible men hand, describe additional classes of Rec. other we 13859. On the latter, for induction the statute. question have for of whether under decision the men in- understanding nothing There is indicate that Congress and enacted its positive ducted the draft par- desire into made such under this new section of law and treated, entrance- into ticular use of inductees law are to be after professional man- upon forces, differently from men in- datory armed military. the the is provisions. sig- under It The case briefed argued was and that a Congress nificant when intended by appellee theory that, us broad un- on the a registrants particu- class of in to be used statute, der the doctors could drafted and manner, lar as case of conscientious in the fit; any purpose used for the saw objectors, type of designated the work duty that the matter assignment for such persons assigned to which such should be in simply military inductees was matter of a U.S.C.A.Ap- 50 the Armed Forces. See response, urges discretion. In pendix, 456(j). not think that the We do § that such a construction renders Act the preclude Army’s the words of statute subject to constitutional attack as unrea- present utilization of discriminatory legislation. sonable and class history legislative of the Act bears The unnecessary We find it decide the con- Congress deeply out this construction. question. stitutional The is concerned over use that would be capacity wholly utilized outside inductees, made Forces the'Armed the medical it is true While that un- field. military waste and that should not their practice der he cannot written, talents. as bill Justification such, medicine as he is nevertheless being allaying congressional fears and employed type in a work for which Lis accomplished by from the mil- assurances peculiarly medical training renders him itary that men inducted under the Act adaptable. many specialized There are capaci- professional would be used in their duty assignments within Armed Forces Hearings See before House Armed ties. require performance tasks on Services Committee H.R. competence well within the of doctors due 7164, 7174, Cong., 2d Sess. These 7176. training. to their extensive medical Such arguments assurances were in turn used as assignments well be criticized as waste- passage during the bill debates. utilizing ful because not the inductee’s ca- necessity Cong.Rec. 96 pacities ability, of his the full level but implies congressional such reassurances they the area are nevertheless within written, recognition that, simply bill as competence. think special We con- persons eligible a new described class of military may struction that the make such mandatory, not make did use duty assignments is as far as we go need strictly profession- inductees in their of the construction, this case. Such a capacities. Congress passed al think We relationship spe- clear between the of the relying upon the bill the form it did they inductees and the work cial class of military’s representations good faith of the required perform, may be removes the professional talents of the inductees question from constitutional case. effectively would utilized. statute, terms, words of having given duty assignment been within require appellant’s construction do permissible we find to the minimal what type of alone can particular work area, power as are we to control the they, terms, Nor do signed to inductees. exercise of discretion. pre- remain on as an General
Problems nature similar to enlisted man?” of a replied: Hear- were discussed before Robinson “That is correct.” sented this case ings Representatives Ameri- before House on Congress. of the Committee Armed Services, supra, can and American then was Medical Association that not problems might Dental unaware of the Association were concerned inducted, might men under the Act before arise in the case of necessari- be inducted men ly Yet, applications privates, their were as even- for commissions the Act. upon. they proposed tually adopted, Accordingly, acted bears silent'witness bill rejection legislative proposals spe- of in- provide that the bill for deferment cifically applica- designed pending duction of had to deal with such situa- men who however, *4 addition, apparent, tions. provision that a be It seems that the tions in induction doctor placed prohibiting tendering induction of of a the law without by of a commissionis to a commissions and will continue men who had been refused exceptional very Hearings The Medi- the Armed Forces. See before case indeed. Corps cal this Armed Services of the Force in case Subcommittee of Senate Air way went out its 2d Sess. to have com- Committee on S. 11, 19, induction, by representatives postponing of the missioned requirements the certain American criticized accom- Dental Association order. to plish this. purposes Bill our It was refusal to Senate (which comply, actually with that resulted in his be treated as the bill “ * * * by passed) that it did not revoked. can- saying not be said to be fault in provide commissioning causing at a mechanism personnel situation which dental who he now finds least the medical and himself. * * * although Nor is be censured in might if to this be inducted particular personnel case. It with it itself an in- such are commissioned found [not] Board, profession- sent would be difficultto utilize their ductee Selective Service not, regulations, which it al services the maximum extent under .could to system.” use doctor in a existing corps Id. at sense. We full have not as supra, At an- been advised to how the Hearings, see House could legally discharge point the inductee under American Dental Associa- such representative circumstances. It him on its asserted: “It is the has hands tion using capacity and is him in employing Associ- a conviction of the American Dental some his skills. We see no professionally ation that trained men should more it could capacities. do. professional be used their Forces possible If is not for the Armed it judgment is affirmed. * * * then, personnel,
so to utilize such professional is better that the skill it (concur- Judge person the civil- such be made available to ring). population.” Id. at 24. A bill was in- ian result, I concur in the I because believe House and. died in troduced com- that the “Doctors Law” Draft was admin- prohibited regis- induction of mittee which fairly by Military istered and in ac- they had been a com- trants until tendered n Congressional intent, cordance with as to Hearings before House Com- mission. See appellant. He was commissioned. The Services, supra, 7206. It mittee on Armed commission was revoked because re- a man not in- recognized could comply regulations. fusal to This fully into a commissioned status but justified the denial the writ Court private. drafted would have to be below’ Robinson, Surgeon General General Army, agree testified before House Commit- I do not with the view court’s permits upon being military drafted it would be the statute to tee make any duty assignment Army policy tender commission to the to drafted only permissible “minimal inductee, it could be done if he within area.” but that It Kilday Representative that this accept holding seems to me is not it. neces- would accept sary for decision' in this case. “If it he would Since he would asked: decision, I can- made the been basis has agree it. not leave opinion, did my
In power fix the duties military unde- within some
a drafted doctor so, then draft- if For that be fined limits. put doctor, example, could ed sponges or military, cleaning by the work room, upon the operating in an instruments reasonable re- has a
theory such work area,” “permissible lationship, within a services.
medical intended that my opinion, Congress
In doctor in the be a doctor should
a drafted service, pre- refusal own unless his discharged Otherwise he should
vents. civilian medical status.
and returned *5 Rehearing.
On Petition petition rehearing is denied. (dissent- Judge
ing). decision af- court’s I concurred below, denying writ
firming the order my appellant’s
because, opinion, own deprived him commis- of his officer’s
fault However, abstained specifically I
sion. concurring decision in the basis of
from majority the court.
reached persuaded petition
Now, I am that, irrespective
rehearing, of the action brought about the loss prior his “Doctors Draft process
due requires to use
Law” bim civilian return life. or
Consequently from the order de- I dissent rehearing.
nying STATES. et al. v. UNITED
METCALF
No. 11446. Appeals States Court
United Sixth Circuit. 24, 1952.
March