Petitioners Brief — Orloff v. Willoughby

INDEX A

: 5518.

za

Sussecr [xpex Me

' : \ Page

Opipions Below | ages a ieee 1

Jasidiction RR et ese er eee 1 .

Statutes Involved . Ns 2

~» Statement of the Case : ‘ 5

. Specification of Krrors 6

mre@ement os eee eer ae:

: I.. The Issue in the Case. *. |. G

II. The Purpose of the Statute: 8\\

Il. ‘The Statute’s Language and Method of | *.

Operation ... e: 1j-

IV. The Regulations Implementing the -.. Len

Statute _.. 21

V. The Opinion Below ‘21

VI. The Canons of Statutory CGostonction

Compel the Interpretation Contended

for by Petitioner |... 28

-VIT. The Statute Should Be. Construed So

As to Avoid Its U aE cre uty 28

: Conclusion’ we pe ata Meare ON mage tee 32

ae C'ASES C ITED:

Pra Fire & Cas. Co. v. Finn, 341 USS. 6. 28

-Ex Parte Endo, 323). S. 283. . , 30

. Hirabayashi v. Un States. 3 320 U. S. 81 30)

_doimt Anti Fascigt Refugee Committce v ve McGrath, ;

SAG ae oa 3

Orloff-y. Lovett, 101 F Supp. 750 ya : 4

Orloff v. Willoughby, 195 F. 2a 209. | + 5, 6, 2 ol, 22, 20

Russian V olunteer Fleet v. United States, 989 Si S.- —-

ae ese ee e.- d on:

United States v. American Trucking Associations,

— 810 U.S. 534 . f 3 28

United States v. C. I. O., 335 U. S, 106. 28

U nited States v. Katz, 971 U. Sv354 98

eh Gee . 3 INDEX |

Page

United States ex rel. Orloff v. W Villoughby, 104 F

PR Re hice ot Et rg nee ae BS eye hy eae

-Vermilya-Brown Co.-v. Connell, 335 U.S. 377. . *. 23

Wong Yang Sung y. McGrath, 339 U.S. 33... tae

“‘Srirt TES AND REGULATIONS

Public Law 779, Sist Cong., 2dSess...............2 17,19

Ale tL Bae (OP es lec PT A ol eR RL SA vo 19

me U.8.C. 1254. « uk ES ASA im, ae an 1

wet eo Gok... SISA STARA | ako eect Rae 17

LS SL pe "DMR RRRIIS SSGnaes aa een cen ie! VS

Bhan 1-050) Abe (a): : 42..9./2 8 $9

50 App. U.S. C. 454 @) (1). pein hy

‘32 C. F. R. 1622.30 » | Pe pe . 20

eG ee A <i Pea aes A eee ae

$2 C. FR. 1650.8 (c) . 0... e - 21,30

Weta a, SN UBD Ais eee e ok a eae dans ee

Bee SOOO: oe ee eee lo ee

@ . MuIscELLANEOUS

Executive Order 9835... {\:, Reeeitsicgcinn! f

Presidential Proclamation 29N6, 15 E. R. 6845 ee re 3

Presidential Proclamatioa 2915, 15 F. R. 9469.0... 7, 21

Hearings before Committee ‘on Armed Services of

the House of. Representatives on If. R. 9554, No.

210, Slst C ong, 2d “ey SS, ,

olgday GS, 11, 12, 13,16, 17; 18; 19, 20, 2223.25

‘ learings before a Siechosmamil tee of the Committee

- on Armed Services of the U. S. Serfite on S. 4029, . °

‘Sist Cong., 24 Sess... .. ii. By Lay Ady 14,19, 25, 26.

H: Rep. 3015, 81st Cong., 2d Sesg...”........... ... 8,9,18

II. Rep. 3039, 81st Cong., @d Sess) Deere ns Men ES 8

S. Rep. 2449, 81st. Cong., 2d Sess. PSAs be eke ee 8

96 Cong. Ree. is: -, 8, 9, 15, 18, 20, 22, 26, 29

oe

5

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1952

ae . No. 444

va

7 \

STANLEY J. ORLOFF,

3 Petitioner,

US,

COLONEL REX E, WILLOUGHBY, Commaypayt or

Fort Lawron, SeatrLe, WasHINGToN

ON WRIT OF CERTIORARI TO THE UNITED STATES: COURT OF

“eae

* APPEALS FOR THE NINTH CIRCUIT.

- BRIEF FOR PETITIONER —

Opinions Below

~The. opinion of the-Court of ‘Appeals’? is apa at 195

* F. (2d) 209. The opinion of the’ District Court is reported

at 104 F. Supp. 14: :

; | Jurisdiction ' ? :

The jurisdiction. of the Court rise on 28 U: S. Code See-

_ tion 1254.. The petition for a writ of certiorari was grante d

on November 10, 1952 (R. wales | | ae

2

ae eee ‘Statutes Involved

D0 App. U. S. Code, sec. 454(a) provides in part as

follows:

No person, without his consent, shall ‘be inducted for

training ard service in the Armed Forces or for train-

ing in the National Securit? Training Corps under this

’ title, except as otherwise prov ided herein, after he has

attained the twenty-sixth anniversary of his birth,

Public Law 149, 81st Cong. 2nd Sess. provides i in part as :

-. follows: |

Notwithstanding any other provision. of. this title

*. . vy the ‘President is authorized to require special «)

registration of and, on the basis of requisitions sub-

mitted by the Départinent of Defense and approved

- by him to’ make special calls for male persons qualified

in needed— | :

’

(A) medical; and ellied speciatist categories who

have not. yet reached the age of fifty at the time of

. registration, and . 7 jes

(B) dental and allied spr lalist.categories who have

“not yet reached the age of fifty at the time of regis-

tration.

Persons called hereunder shall be liable for indnetion

for not to exceed twenty-four months of.service in the.

Armed Forces.

This portion of the statate appears in the U.S. Code as

50 are U..S. Code, see. 454 (i)(1).

* Statement of the Case _

ae _ The petitioner, ‘Dr. Stanley J. Orloff, is a private in the

, U nited States Army. He is married and has two ebildren.

He halds a degree of doctor of, medicine and is duly licensed

_ to practice médicine’ in the States of Louisiana and New

York. Prior to his induction into the United States Army,

on

3-

he was actively engaged in the practice of medicine, special-

izing in psychiatry at Creedmor State Hospital, New York’

City, New York. He was also engaged in psychobiologic

studies for the Institute for Psychobiologie Studies, New

York Department,of Mental Hy giene (R. 2,'23, 32-34).

_ ‘The petitioner was inducted into the Army on July 26,

19 , after she had passed his twenty-seventh birthday.

Although over the twenty-six year age limit for the regular

draft, 50 App. U.S. Code, see. 454 (a), the petitioner was

drafted in accordance with the provisions of 50 App. U. S.

Code, sec, 494(1)(1), which -anthorizes the drafting of

medical’ doctors who are under the age of fifty (R. 2, 5-6,

22-23). On July 5, 1951, prior to petitioner’s induction us

a private, he had bese granted a commission as a Captain

in the Medical Corps, U. S. Air Force, but this commission

was revoked on July 24, two days prior to his Induction

- ($. 11, 30-1). cae

The regulations and praetice of the United States Army

provide that an individual can serve as a doctor of medicine

in the United States Army ioe if he holds a rank asa com

missioned officer (R. 2, 8-9, 23-24). Subsequent to his ‘in-.

duction, petitioner sh for a commission, so that he.

i be employed as a doctor.in the army in. accordanée

vith the provisions of the statute under which he wag in-

aaa ted (R. 2, 23-24). The petitioner completed the appli-

éation form for commission inelnding a required loyalty

certificate. The form required a statement as to peti-

tioner’s membership, association or connection in ¢ any man-

her with any of the listed organizations designated by the

Attorney General pursuant to Exeeutive Order 9835. (sor

Joint Anti-PFascist Refugee Committee v. McGrath, 34

U.S. 123). Petitioner answered that he had attended meet-

-ings or classes of certain of. the organizations listed, Kut

claimed his federal constitutional privilege: as provided

for in the form with ‘regard to his connection with other.

4.

organizations. He concluded his statement as follows:

‘However, I have never considered myself an organiza-

tional member of any of the aforesaid.’’ (Exh. 2 2, pp. 10-12).

Petitioner was finally advised that it might take from six

months to a year before the application for a commission

_ ould finally be acted upon. He thereupon requested. a dis-

| charge while the Army had his application for a commis-

sion under consideration, but this request was denied (R.

3, 13). Subsequent to the rearing in the District Court, his

application for a: commission was formally denied by the

Army. | ‘ ; . ;

Petitioner was elassified by the Army {** potential mili-

tary occupation. specialty’’) as a medical labr atory techni-

cian (R. 6.) - This classification does not require or utilize »

any of the petitioner’s training and experience as a doctor ;

men with no previous training or experience of any kind

are assigned to this classification after elitioner haf bins

testhree monihs training i in fhe army. Petitioner had him-’

self, prior to being assigned to this classification, received

the same training in preparation for it as was. usually given

to a high school graduate (R. 34- 39). :

Petitioner, contending that his retention in the army

under these cireumstances was unauthorized and in viola-

tion of the applicable provisions of the Selective Service

Act, sought to obtain his release from the army by writ of

habeas corpus.

Petitioner first filed a petition for a writ in the U nited

_ States District Court for the District of Columbia. The

petition, however, was dismissed for lack of jurisdiction.

Orloff v. Lovett, 101 F- Supp. 750. The petitioner was then

transferred to Fort Lawton, Seattle, where he instituted

the present action. (R. 6-7). ’

Aftera hearing upon the merits, -the District Y ourt denied

/ the writ. The District Court held that although the peti-

tioner had been drafted tinder a special provision authoriz-

ing his induction. solely because he Was a doctor, his status

#

‘ was the same as any other inductee. The District Court

said: ‘‘Therefore, as the Court interprets the law, a doctor

inducted under the statute applicable is in the service in

_ the same status as he WwW ould be had he been inducted under

other applicable statutes, and whether, he is used in a medi-

cal category or not.’’ 104 F. Supp. at 16. The District Court

added that it saw no ‘constitutional objection to this con-

struction of the statute. s

On appeal, the-Court of Appeals. affirmed the District

- Court, but its reasoning was different. The majority of the

Court found that the petitioner ‘is not being utilized in a

capacity wholly outside the medical ffeld.’’ It held that the

act drafting doctors solely because they. were doctors and

admittedly. for that purpose ‘did. not’ make mandatory,

. usé of the inductees strictly in their professional capacities, i

and concluded that the petitioner *‘having been given a duty

assignment within what we find to be the,minimal permis-

siblé area, we are without power to control the exercise of |

military: diseretion.’’ 195 F, (2d) at 211.

Judge Goodman originally concurred in the decision of

the Court of Appeals on the mistaken view that petitioner’s

failure to obtain a-commission was due to his refusal to

* coniply with regulations. He ‘specifically disagreed, how-

ever, with the reasoning of the majority, stating as’ follows:

>

In my opinion, C ongrdss did not leave to the military

the power to fix the duties of a drafted doctor within

some general undefined limits. For if that be so, then

a drafted doctor, for example, coyld be put to work by

'. the military, cleaning sponges or instruments in’ an

operating room, upon the theory that such work has a

reasonable relationship, within a ‘permissible area,’ to

medical services (195 F. (2d) at 213). ot

On petition for rehearing Judge Goodman changed his

concurrence to a dissent, stating that ‘‘due process under

the ‘Doctors Draft Law’ requires the Army to use appellaft

6

as a doctor or return him to civilian life.’’? 195 F. (2d) at

4 eee va si

Upon appli ‘ation by petitioner, Mr. Fisiien Douglas, in

order to protect the jurisdiction of this Court on review,

cranted a stay against the removal of petitioner from the

control and custody of the respondent pending the timely

filing and disposition of the petition-for certiorari, Subse-

quently, upon the application and representation of thee

rovernment that the respondent herein would maintain ‘his

control and custody of the petitioner,. Mr. Justice Douglas

modified this stay order to permit the petitioner’s assign-

ment anywhere within the United. States provided — that

respondent’s control and custody of the petitioner would

not be disturbed. > ;

| Specification of Errors |

The court below erred in affirming’ the judgment of the

rial court because: | aie &

(t) The statute which authorized the petitioner’ s indue-

ion into the ‘armed services requires that- the petitioner be

itilized as a doctor.

(2) The record shows that petitioner is not eine utilized/

is a doctor, as required by the statute which authorized his

nduction. °

(3). The statute as construed and applied by the courts

elow constitutes an unreasonable discrimination against

loctors as a class, in conflict with the Fifth Amendment.

(4) Upon the record and the law the petitioner is entitled

o an order discharging him from the Army.

: Se ARGUMENT

) I. The Issue in the Case

The statute which furnishes authorization for the indue-

ion of the petitioner, Title 50 App. U.S. Code, See, 454

1)(1), is by its terms an exception to the general pro ovisions

7 ig dengan

of the draft act. It authorizes the PPsident to ‘‘Notwith-

standing any other provision of this title . . . require

special registration of and, on the basis of requisitions sub-

mitted by the Department-of Defense and approved by him,

to make special calls for male persons qualified in needed

... . medical and allied specialist categories who have not _

yet reached the age of fifty at the time of registration . . .”’

There is no question that apart from this excepti nal stat-

ute, the petitioner was over age and not subject tothe draft.

Nor is there any question that he was subject to the provi-

sions of this statute because he held a degree as a doctor of

medicine, and that in the absence of such a qualific ation, he ,

was not required to register under the statute.1We -

In our view, the authorization furnished by the ‘statute

-permits the induction into the armed services of only those

doctors or other medical or allied specialists whom the

armed services need and utilize in their specialist categories.

In other words, the authorization goes no further than the

justification in, terms of need. Simple common sense

dictates that Congress ep hoes authorize the armed services

to go qutside the regular Age limits set by the draft in order

to induct doctors so that these’ doctors might serve as in-

fantrymen or company clerks or laboratory technicians or

é

whate ees might come to mind. \

_ Accor

reason or another do not choose to utilize; the services of a

doctor drafted under this statute, it cannot thereupon deter-

mine tlo use him in some other capacity. The special au-

thorization which empowered the armed services to.take him

strom civilian life has teased, and he must be released. The

situation is no different than if the armed services retained

a particular individual in the service without his consent

beyond the time limit authorized by statute.

iy See Pr residential Proclamation No. 2906, Oct rea 6, 1950, 15 + F. R. 6845,

and No. 2915, Dee ember 28, 1950, 15 F. R. 9469.

C3

ingly, if the armed services do not need, or for one -

e*

ay yBds ~ +

This interpretation, Which is the only rational one that

can be made of the statute, is fully borrie out by the language

of the statute, its purpose and legislative history,’ the regu-

lations issued to implement the statute, and its position in

the overall ‘statutory scheme.

€ .

Il. The Purpose ofthe Statute

The statute here under consideration was made necessa ry

by the nature-of the existing draft program. The age lim#

in the present draft law, unlike that in the previous draft,

is set at the low figure of twenty-six. With so low an age

limit, the dra¥t obviously could. not bring into the service

persons in certain needed specialist categories who, because

of the years of training required to attain certain skills,

would inevitably have reached an age above thé twenty-six

year limit. The clearest example of this class is doctors of

medicin,. relatively few of whom would fall under the age

of twenty-six. Unquestionably, the armed services could

not function properly without an adequate supply of physi-

cians. As a result, the armed services found it necessary

to make extensive calls on those doctors who had served in

the last war and remained in the Reserves. But Congress Ak

believed it unfair to require those who had served once to

serve again while others who had not served at all were still -

available. The present statute was enaeted to meet this |

problem by authorizing the induction: of doctors who are

- under the age of fifty. -

2 The relevant legislative materials are: Seasians before Committee’ on

Armed Services of thé House of Represen tives on H. R. 9554, No. 210,

8Ist Cong. 2d Sess.; Hearings before a Subcommittee of thé Committee on ;

-Armed Services of the United States Senate on S. 4029, Slst Cong., 2d

Sess.; H. Rep. 3015, 81st Cong., 2d S ss.; | . Rep. :.2449, S8lst Cong.,

2d Sess.; H. Rep. 3039, 81st Cong.,. 2d Sess.; "96 Cong. Ree. 13855 to

13870, Sist 7a 2d Sess. (House dehate} ; 96 Cong. Ree. 13707°to 13712,

8lst Cong., 2d Sess., (Senate debate), ae

9

Thus H. Rep. 3015, 81st Cong., ‘2nd Sess. p. 2, stated:

The purpose of the bill is to provide the necessary

authorizations throughly which the Armed Forees can

meet the demands being made for additional personnel

inthe medical, dental, and allied categories to support

the expanding forces without requiring the large-scale

‘all to active duty without their consent of Reserve

Officers who have had substantial periods of service in

World War UL... | 3

« The objectives and purposes d6f the statute and an analy-

sis of its provisions are set out most fully in the statement

on the bill made to the House of Repfesentatives by Con-

gressman Vinson, Chairman of the House Committee on

the Armed Services (96 Cong. Rece., 13856-13857 ) :

. . . Mr, Chairman, the Army, Navy, and Aw’ Force

have a pool of 30,000 physicians and 12,000 dentists in

‘their Reserve components who can be called to active

e duty. |

The problem here is to provide a fair and orderly

| ‘system of priorities under which medical, dental, and

: related personnel will enter military service,

; t is in the best.American tradition of fair play that

those who have rendered little or no service, and who

are otherwise qualified, should be the first to, serve.

There are a number of doctors and dentists who have

‘given no service af any time. On the other hand, the

rast majority of dactors and dentists now -on_ the

Reserve rolls have already served their country faith-

f - fully and with distinctiom

In. an endeavor to furnish a more satisfactory. solu-

tion to the problem, the hill now under consideration

was introduced, which proposes to amend thes Selective

Service Act of 1948 in this regard.

The. bill authorizes the. President to require. the

rs special registration of all male medical, dental, and

allied specialist categories under the age of 452 - It

* The bill was amended, before final passage, to set the age limit at 50,

13)

~ 10_

authorizes the imduction of qualified individuals from

this group and makes them liable for military sérvice

for a period not to exceed 21 months . .

Under the present provisions of Public Law 354,

Kighty-first Congress, the Career Compensation Act,

physiciatis and dentists who volygaeer for aétive duty

with the. Armed Forces or thegited States Public

Health Service receive an -ad@¥fonal $100 a month.

Because of the wording of this le@islation the Reserve

officers and National Guard officers receiving orders

to accompany their units on active duty are not eligible

to receive the additional pay. This is indeed ‘unjust.

The bill, therefore, has bben amended so as to permit

these offigers to qualify for*’such additional benefits,

but persons inducted under the authority of the pro-

posed legislation will not be-entitled to the extra pay.

In ‘order that the talent available to the Armed

Forces in the fields of medicine, dentistry, and the

allied sciences may be distributed efficiently among the

three military services, fhe Secretary of Defense may

now detail such personnel between the three services

as reqnyred, Officers so detailed often desire to further

their careers inthe service to which detailed. The

bill, therefore, authorizes the Secretary of Defense to

effect these transfers under the following conditions:

“The individual officer must request the trangfer him-

self; both the service from which he is to be transferred,

and. the serviee he is, to enter must coneur. RN f

are made for protecting the promotion, seniority, re-

_tirement, and leave rights and benefits:of officers who

7 tvetransferred under-this authority .

X ‘ think that all Members of the House will agree that

‘the comprehensive treatment which the bill gives to

this: important subject furnishes a satisfactory basis

upon which the Congress can enact sound legislation.

©The statute was amended in 1951 to extend the period of service to 24

onths.

11

; - To sum up, we now have 6,226 doctors and 2,358

‘dentists on active duty in the armed services. By July

1, 1951, we will need a total of 11,250 doctors, and 5,000.

dentists. ,

» Thus, itis our belief that this levislation will provide

the means by which the armed services will obtain 5 5,000

moreloctors and 2,600, more. dentists. :

Again and again throughout the hearings and the debates

in Congress, Congress indicated that the purpose and intent

of the statute was that doctors drafted thereunder be util-

ized as doctors and nothing else. A failure to carry out

this purpose-was described as an unwarranted invasion of

the rights of doctors as well’as an unnecessary injury to

the civilian population which would be deprixgd. of the

doctor’s services,

The same theme that doctors be utiliz&l solely as doctors

and that noge be removed from the ability to serve civilians

unless absolutely necessary for the. armed services was

stressed in the Congressioftal hearings’ by the representa-

_ tives of the armed services who were the sponsors and pro-

ponents of the legislation, by other government officials, and

by representatives of interested organizations such as the

American Medical] ‘Association. ‘The memb rs of the Com-

mittets holding the hear ings invariably shared these views.

Thus in the House hearings, during the testimony of —

John G. Adanis, Assistant General Counsel, Office of the

Secretary of Defense, Congressman Vinson said: ‘‘It is

highly important that'thére be a National Advisory Comi-

mittee, as a means of extending this down into towns, sO

that the civilian population can be served with doctors. as

well assthe armed services’? (71 8-7149).

A prepared statement olNgjor General Raymond W.

Bliss, the Surgeon General, United States Arniy, presented

to both the House and Senate Committees, emphasized that

the purpose of the statute was ‘‘to insure that our soldiers,

é hc Awe 12

° .

sailors, and airmen are given adequate medical care with-

out, however, depriving our civilia4 population of a single

physician or dentist who is 5 not required in the active sup-

port of the niilitary. force of this Nation.”’ (House Hear-

ings, 7151; Senate Hearings, 47).

The following colloquy seat a bs the t testimony of

srigadier General Robinson, who Appeared for the Surgeon

General of the Army:

a ae |

Mr. Gavin: | would like to ask a question as to/

oa ther they expect to use the doctors to doctor of

whether they will do a lot of -paper. work and take ap

their time with a lot of winecessary things. Are they

voing to confine them to handling patieuts?

General Robinson : We have worked Wan ache

since the war ona development of a Medical -C orps to

do the functions that the doctors’ should be doing.

Mr. Gavin: To let the doctors do the doctoring?

General Robinson: To let the doctors do the dottor-

ng; yes, sir. (House Hearings, #164.)

This same point was stressed ayain during the testimony

of Dr. Richard I. Mieling, Director of Medical Services,

Office of the Secretary of Defense : 3 ;

Mr. Kilday: Is it the purpose of the Department of

Defense to adopt any regulation or policy that will see

to it that the medical personnel are used for medical

purposes and that the supply of doctors is conserved?

Dr. Mieling: Yes. The Secretary of ‘Defense has

taken very active steps to assure that. (Jd., 7174.)

. * oe * co * *

Mr. Kilday: Now, on the matter of the assignment

‘of ‘medieal personnel to medical dutv—-a Mem her was

showing me a letter that he received from one of his’

constitue nts, a doctor, who served in the last war, and

he said that he had spent no more than 10 percent of

his time in the service on medical duty. | The balanee

of his time had been spent On hoards, ‘courts martial,

J cries

13

-and admuyistrative duty. Will there be a coneen-

trated effort to put.men from the medicai Service| on

jobs which do not require the professional. training

and skill of doctors and dentists? —

Dr. Mieling? It-is the policy of the Department of

Defense that this shall be done, and, with that in mind,

it is the policy of the Secretary of Defense that we will

review the’ reqtirrem¢ yts and requests for the eall up

of medical officers in ae attempt to increase the size of

the medical service board to take care of these non-

professional duties. (/d., 7176.)

Dr. Walter! B. Martin, testifying for the American

Medie] Association, endorsed the bill, but only on the as-

sumption that doctors drafted under the bill would be

utilized as doctors, a view that was shared by the Chairman

of the Comunittee. Thus:

ee

Dr. Martin: This “bill provides a diseriminatory

«call-up ‘of physicians beyond the present draft age due

to the special needs of the Armed Forces in the present

national emergency that cannot be met otherwise. The

American Medical Association supports this step but,

at the same t#ne, expects that the physicians who are

‘required-to serv eowill be assigned to-duties which ‘are

essential to the war effort.

a Gy Sa 7 * . * es:

The Chairman: That.is a very fine conclusion, and

no doctor drafted should he assigned to do work that

is hot essential to the waf effort.- There. are no two

ways in the world about that. We should not put them

in there just to be putting.them in there to do something’

that hus no direct béaring on the medical care of the

men or their physical welfare. care .

Dr. Martin: Yes. We are aéeepting a disc ‘riminatory

law, and we feel that we should be protected. (1d,

7193). z

Pot

5 Dr. Ma artin maide the sanie point in his testimony before the Senate

Committee (at p: 12). : ‘

14

Juring’ the ‘hearings on the Senate side,Senator Gurney,

o had introduced the bill i in the Senate described its pur-:

as follows

I fee! that this bill does recognize the dual responsi-

*Sility of Congress, first, in providing doctors for the

military and, second, for keeping the necessary doctors

for the civilian communities. (Senate Hearings, 15.) .

[he same theme was stressed in the debate on the House

: v

’ ° . >

;

x

?

Mr. Scrivner: I find therg is some miisgiving in the -

mindgof some Members as {6 the justice of picking out

a certain class or a certain group of professional men

te be taken In. I have received many letters frum my

boys and they are just as fine as any. to be found any-

where. I am sure the chairman can say a few words of

reassurance in the problem they present. It is this:

During World War II there were: skilled men, many

specialists who were confined to merely routine desk

jobs. They want to feel sure that if these men are taken

in that their skill in their profession will be used and

that their time will not be Avasted warming a chair.

Was that question gone into? ~

Mr.-Vinson: That was discussed yesterday, and we

had the assurance of the medical corps heads that when

‘they call doctors they are going to be used for. their

_ professional qualifications. ;

Mr. Scrivner: I am glad to have’that assurance.

Mr. Short: Mr. Chairman, will the gentlepramyield?

> Mr. Vinson: I Field.

Mr. Short: Iam very happy that the gentleman from

Kansas asked that question, because we all know there

weré grave abuses in the last world war... The rentle-

man from Texas [Mr. Kilday], chairman of the sub-.

committee, found a lot of doctors sitting out in the.

Cosert doing nothing when we had gn acute shortage of

them back home. They were doing housekeeping. work,

administrative work, and so forth. We have been as-

sured that tRat mistake will not be repeated, ;

1)

Mr, Vinson: The gentleman is correct. (96, Cong.

Rec, 13857.)°

* « * - * * * *

» Mr. Judd: Why should they require 4.5 doctors per

thousand men? —

Mr. Vinson: Because the people wile administer the

law and who have charge of the he: lth of the armed

services estimate that is what they need. Ido not kiow

whether it is right or wrong, and I do not think any of

us is in a position to say it is too high or too low. All

we want'to do is to seé@ that every man that is breught

_-Anto the medical service performs the duties for which

lie is brought in, and that the medical force of the armed

services is not overstaffed: (id. 13859.) ise

7

Hl. The Statute’ s Language eae Method of dies ration

That the intent and purpose of the statute was that doc-

tors. inducted thereunder be. utilized as ‘doctors ié ié shown

further by the manner of operation of the statute and its

Spe cific language. .

‘The statute by its terms provides for the. specific registra-

tion of, and induction on thé basis of requisitions submitted

by the Department of Defense of, ‘‘male persons qualified

in needed .°. .ymedical and allied specialist categories.”

In contrast to all other persons subject to the regular draft,

whe are inducted for ‘training and service,’’ docters in-

- dhveted-under the doctors draft are induct ed Ghly for “serv -

ice’? Thus it is perfectly apparent that doctors are to be

inducted only when needed to serve as doctors, and that they

99

are to he inducted solely for ‘service’? as doctors. By

omitting the word ‘‘training’’ from the authorization for.

persons inducted under this statute, Congress clearly ex-

pressed its intent that doctors would immediately go to work

as doctors, and it expressly denied tothe armed services any’

authorization to train doctors inducted under this statute to:

@ . ‘d we ras Ss : o

serve in, n.ariy other dapace” With this’ in mind, ‘Congress

expressed its intention that doctors. ‘inducted under this

- statute would become commissionéd $fficers-in ‘the Medical

(Brps of. one of. ‘the services so ‘that they would then be able,

under military regéflatio s,*to, fuhction as doctors. At the.

«hearings, representatives of the armed services testified

_ that any doctor whobad not been’commissioned prior to his

induction. would be egmmissioned imm diately thereaft

This was expressed most clearly in th testimony of Bfig.

Gen..Robinson before the House Committee. -

ais * ets : PR as m.

,Mr. Kilday: You propose to e

after they haye been drafted?

-. Gen ral Robinson: Ye§ Sir. . |

| ~ Mr... \Iday : Of courses you cannot edraft him. in a

e ‘. commission status? ee

Gen ral Robinson: That :i is ed ak

Mr: : After he has been drafted, if he Waite

that tong, he will be eémmissioned. -T assume y ou do not

expect to have to use the draft if you get es

General Robinson: That is correct.

"Mr. Kilday.: If he does wait to be drafted he would

eome in as-a private? . Te,

General Robinson: That is erred a

Mr. Kilday: And he would be immediately tendered

a commission? | :

General Robinson: ‘We w ould. tender a commission'to

hitn. It could’ bedone, provided he would accept it.

*.° Mr. Kilday:: “Tf few sould not accept it he would re-~.

main on as an saiistor man? 3

mission these men.-

* >

General Robinsori: That is correct.’ 3

_ Mr. Kilday: If he would pits it ‘it’ would he ten-

~ dered to him? °

| General Rohinson ;. ‘Yes, sir. (House Hearings, 7164.)

fe ® Ks ’ ° oO oe ,

Mr. Kildav: On that point, at whayeende wl you

~~ -eammission these men? - ~

teneral Robinsen:. We have.a reeulation that pre-

~e@e

: | = Mr. Kilday: First lieutenant? ~ .

~

° ‘ . x

eRe seed Beene

i ’ ectthas ate their grade will be. in acoprdance with

their experience: :

Mr. Kilday: What is the lowest grade? .

General. Robinson: First lieutenant.

General Robinson: Yes, sir. af Fob

Mr. Kilday: He is going to be drafted. He is going

_.to.be imMediately tendered.a commission, and not as a

second lieutenant, but- -as.a first lieutenant. mae

_ General Robinson: That is correct. (House Hear-

‘ings, 7166-7167.) |

Members of Congr ess assumed as a athe? of egurse that

doctors drafted under. the bill would immediately or shortly

after their induction be commissioned in the Medical Cor; -

of one of the armed services. Howev er, Congress did not

wish doctors inducted under the bill to receive a special, pay

of $100 a month, which it had previously provided for eom-

missioned officers in the Medical and. Dental Corps of any.

of the armed services. [Title 37 U.S. Code sec. 254. For

this reason it inserted in the bill before it section 5, W ‘hieh

provides ‘that ‘‘No person inducted under’ thespr oy isions of

this act shall be entitled to the benefits of section. 234 of titis

* \ 8 By definition, this special pay me ouly te

missioned officers in the Medical and Daal Corps. By

_ denying this special pay to those inducted under the statute,

Congress clearly indieated its intention nd understanding

that doctors inducted under the statute would become com-

‘missioned officers in the Medical Corps of Sne of the armed’

services. This was clearly stated i in the hearings hefore the

House Committee.

Mr. BI andford: May T explain one thing to the com-

mittee, which f think ‘should be éleared up with. the

departments at this point. “Ifyou induct a man, you’

induct him asa private: Now if you induct a doctor ag

ee

«

"6 This provision ‘appears in the US, ¢ ‘ode : as Title 3 7 see, 234 b. :

Borner ero L. Aw ts

a private; is it the intention of the departments to im-

_. mediately commissior that man following his induction

> Mr. Kilday: It was so testified yesterday.

Mr. ‘Blandford: Bécause the -law requires that, in

order fora man tg be entitled to $100, he must be a

commissioned : offic and it does not apply ‘to enlisted

» : ‘personnel. (House Hearings, 7223.)

e *.

4

‘See also H. Rep. 3015 on H.R. 9554, 81st Cong. 2nd oes,

at page 5, and the debate in the monet, 96 Cong. Ree. 13711,

81st Cong. 2nd Sess. _ | ee Ae

The purpose of section 5 of the Act was to deny to, those

' who were inducted under the act the extta compensation of

_ $100:a month, Conbress believi ing that this extra compensa-

tien sheuld be reserved for those who volunteered. Thus,

in the débate in the House, representatives of the Armed

Services Committee stated as follows:

Mr. Vinson: _Let.me say that we are hoping when this.

pill p: passes it will not be ecessary to draft any doctors.

We hope they will volunteer and. join the resérves. We

say to'you, ‘If you volunteer and join he reserves then -

pensatiyn Act. gives to doctors. (96 Cones Ree. ‘13857-8. )

*y rou agp et extra pay ‘of $100’ which the, Career Com-

e : * * . - @ apts .*

oc Mr. Kilday: . ..... The provision of the Career Com-

pensation Act, which grants $100 a. month additional

pay to doctors who volunteer for service, will bea suffi-

cient incentive together with’ the provision that if a

man waits until he fs drafted, h® is not going to get that

additional compensation. I régard that as completely

just and basieally necessary in legislation of this type. |

— (96 Cong. Ree. 13862. )

“It is perfectly evident, however. that this discrimination

‘in pay was the dnly discrimination’ intended by Congress:

between dogtors who volunteer and doctors who are inducted

under this act. To interpret the act-so as ‘to permit a firr ther

- ‘ ae

hes Ps ee : | ; 19 | ; : : 3

$ rae ee

¥

discrimination, end to-authorizeyhe armed services to. keep

inducted doctors in an enlisted status and not employ them

as doetors—which is the situatioh in in thepresent taSp—is a_

fe clear violation, of the statute... |

Section 37 of the statute carries out the san scheme.

This section provides ‘in pertinent part as follows: ;

4“. 1-. the Secretary of Defense ... . is.authorized

to. transfer between the-arnied” services, ‘within the -

\ authorized commissiowed strength of ‘the iespective

Me: services, officers holding commissions in\the medical

services or. corps, including the reserve ‘components

thereof . . ®

‘Enactment of this provision as as part of the doctors draft

law further evinced the Congressional intent and assump:

>

tion that all inducted doctors would become commissioned.

officers.*® 3

The fact that under the acheine of the sited arid the

represéntations of the militéry,. doctors to be drafted under :

the statute were to be commissioned at a rank in accordance

- with their, age and experience was an e€¥ential considera-

tion in inducing Congress’to pass the statute. Congress

frankly rec cognized that ‘the statute was‘diseriminatory in

nature and could be justified only i in-terms of the need for «|

. doctors and. th ier that doctors to be inducted would be |

given special privileges.: This is-seen in the testimony of

Dr. Martin of the American Medical Association, quoted |

s - a ~

‘supra at page 13,.and even more clearly from the following

discussions on the floor of the House.

Mr. Kilday : The -fact that thie’ is discriminatory

legislation is frankly admitted by the committee. It

_. singles out one profession, and its allied professions,

7 This section appears in the U.S. Code as 5 U.S.C. see. I7la(g).

* The Congressignal intent and assumption that all inducted doeters

woulll become coynmissioned, officers is also evident in the House Hearings

at. pp. 7165, 7167, 7189, and in the Senate Hearings at pp. 49-41. °

&

Eee = 20

and provides for their induction into the service where -

others‘of their.own age g gyoup are not'indneted. I think -

‘it should be ‘stated that the Americap -Medical. Associ-

ation and the other associations affected. by the -bill

have endorsed it... They recognize the need for thediecal

' servite’to the extent. they. are willing to accept ‘this

- diseriminatory legislation in. the: public interest. ;

Sf Seat as ao “o * Ra Mae Ae. spe

Mr. Clemente: As‘an added inducement, is-it not a

fact when doctors are called into the armed services

they are given at least a first lieutenant’s otade? >.

Mr. Kilday: That. is correet. I point out the. fact.

that it is, discriminatory, because when you come to try. °

._ to explain the provisions of this bill as other provisions

‘of law may affect other groups, you cannot reason fhts

out on a logical basis, because this is an individual .

group that is picked out of the population, subjected

to special obligations and services, and entitled to cer:' \\,

tain privileges and advantages. (96 Cong. Ree. 13861 .)

The isccieinntion is hei¢htened by, the fact that the

petitioner in this case is married and has two children. - ee

he were subject to the provisions of the regular draft, he

would be deferred under the provisions of Title 32:0. F. Ri:

1622.30, which provides for the deferment of ordinary.

| registrants with children. “Congress was undoubtedly

aware that older men would have’ family responsibilities

toma much greater extent than men under 26. It was algo.

aware that the whole doctors draft would be defeated fie

deferments were allowed to all men with children. But

this problem was obviated in Congress’ mind by the fact

that the military had assured Congress-that doctors would

‘receive a eepnennen rank according to their age and

experience® and thus undoubtedly be able to discharge

their family respensibilities. It is inconceivable ak in

ral Ropinson—We have a ‘aarislaticn by which we commis-

sion in grade“in accordance with cértail} provisions, and one of those pro-

visions is the experience and, the trailing that the man ‘has.” (Ifouse

Hearings, 7167).

o ~*;, os ; ’ ' re

the absence of such an undersfanding, Congress would

- authorized doctors. to be discriminated against, because\of

age, and In addition to. be denied defermenits because

., dependencies which are granted to younger men. :

« &

a: Ty. The Regulations Imple menting the Statute

| The regulations of the Selective Service Administration

are designed to the same end. A separate set of regulations |

were promulgated to cover individuals who fall within the

scope of this statute. 32 C.F. R. 1650 ff. Persons covered _

_by the statute and sequired to register by Presidential’. -

Proclamation are at the time of régistration required to.

fill out-forms entitled ‘‘Initial Data fey Classification and

- Commissioning in Medical Services ror @Pedical, Dental and

Veterinary Corps.’ 32 C. F. R.-1650-8(¢). ° This data is

_ tobe forwarded.-to the,armed forces for their consideration.

Thereafter registrants are not to be inducted uniess they

have been - ‘‘found acceptable for service in’ the armed.

forees:’”’ 32 C.F. RB. 1650. 40 to 1650.44. Acceptability in *

~-the aeiod services. 1s to be ev idenced by a Certificate of -

‘. Aeceptability. (D.D. Form No. 62). The xegulations pro-

_ vide that this certificate ‘for each ‘special registrant who

is found acceptable for service in the armed forces will show

the specialist eategory in which the armed forces will accept

him: for service.’’™ 32 C. F. R. 1650.30(f): Thus the regu- _

lations carrying out the scheme of the statute provide

specifically for induction for service in a specialist category. -

V..The Opinion Below

3 : e , . » Ms ; °

The court below recognized the intent and: purpose of the

statute to bring doctors into the armed services to serve as

doctors in the following words: (195 F. (2d) at 210-211):

That the primary purpose of drafting doctors, not

otherwi ise subject to induction, was to supply:the armed

“¥ .

10 See fn.-1, supra. °

11. mphasis supplied. .

y em,

Rees Be Re

Be ; ;

forces with needed’ ipseiiiinte in - this category, is

apparent. Certainly, that was the ground on which:

the bill was justifiec to Congress by the military. And

‘ it also seems apparent that Congress contemplated that

induétees under the Act would. normally be utilized in

their, professional capacities, . A reading of t ™lebates

in Congress is replete with references to such ): con:

gressional understanding and desire. See ;

Ree, pops aac :

Attioaeh thus recognizing athe clear’ intent of Congress

and the purpose and policy of the statute, the court below

chose to ignore this intent and the purpose of. the statute

* Cang.

on the ground that Congress had not expressly stated the .

limitation, inherent in the statute, requiring the armed

services to utilize doctors drafted under the Doctors Draft. -

Law as doctors. ~ Admittedly there is no language in the ,

‘statute expressly authorizing the armed services: to use

doctors in any other eApacity. But the court below ap-

parently found such authorization in the fact that the mili-

tary assured Congress that: doctors drafted | under the law

would be employed as doctors; and that these a’surances

were necessary. to secure enactment of the bill. See 195

F.*(2d) -at 211, where the court below makes reference to

pp. 7164, 7174, and 7176 of the House Hearings, supra, and |

to the debate reported at 96 Cong. Ree. 13857. Thus, f rom

the fact ‘that Congress accepted the assurancés of the mili- °

tary that’ it would use doctors drafted under the law only

as doctors, the lower, court’ firids an authorization-to the

armed servi izes to ‘employ them in some other capacity.

Such a statuter y construction is obviously irrational, in

the absgnce of some justification in terms of the purpose

and policy of the statute. None is offered, with the excep-

tion of the suggestion that the armed services should-have

power to deal with the situation of an inducted doctor who

refuses a commission and thus attempts to escape service

wi.”

iaiilinss prone: oeyhes oti rena Neate

| be - eee.

entirely. (195 F. (2d) at 212; see Hearings before House

C ommittee, supra at 7164.) But petifioner clearly does not |

fall in this category. The suggeation by the court below

a the’ revocation of petitioner *s commission by the Air -

arge pr ior to his induction puts him in a different category

| (195 F. (2d) at/ 212) is clearly inapposite. There ifono-

_ question that, Whatever may have. occurred prioefo his

induction, petitioner did, subsequent to induction; clearly

‘ indieate his: willingness and desire to accept a coiInmission,

complied with all regulations, and did. ‘everything that. he-

could to obtain such a commission... «|.

The Court.of Appeals, troubled by its own reasoning and

the constitutional problems raised! thereby, refused to fol:

low its reasoning to the logical conclusion that there was

‘no limitation et all upon the use of doctors drafted under .

the statute, 4: conclusion which was urged by respondent

and reached by the Distriet ¢ Yourt. The court accordingly

~ found that there was an ‘implied limitation in® in tlie statfite.

which restricted the Army to utilizing the petitioner within

"a ‘*minimal permissible area’? not ‘‘wholly outside. the

niedical field.’ (195 F. (2d) at 209.)

®But this concesgion. on the part of the court only demoi-

.strates the ‘invalidity of its holding.’. For -it constitutes a

recognition by the court that-the statute, in authorizing a

special draft-of doctors, can be justified only if, after in- .

duction, the professional skill of the doctor is utilized as °

such, and that this is a limitation ‘inherent in the statute

itself. But working as a laboratéry technician or, as Judge

Goodman put it, ‘‘cleaning sponges or ingtruments in an -

operating room’? (195 F. (2d) at 243), although perhaps

not ‘wholly outsidethe medical field,’’ does not require

or utilize a doctor’s professional skill.’ Thus the lower

court realized. that the statute could only be interpreted as

imposing a limitation on the manner in which the Army

could utilize the petitioner. But it irrationally rejected the

°

32 . ji ce ee

- Army. denne the ‘hone has no caieavits to keep <

hisfein the service and must discharge | him, —

a)

Se cen a a

Since the. pee volnias to émploy the polionar as a

doctor, it has no authority to keep him. under the provisions

of Title 50 App. U. S. Code see. 454(i) (1). ‘Since he does 6

eS not fall within the provisions of this section of the fraft ‘

act, his” retention. in the service is a klear violation of Title

50 App. U. 8. Code see. 454%), which specifically prohibits —

the induction of any person after he h&s passed the twenty-

sixth anniversary of his birth. - =

The judgment of the: lower court bhonld | be» versed and

the case should be remanded to the District ourt with

instructions that the Army. he ordered to discharge the

petitioner. ioe - ; eS ee

‘Respectfally: submitted, Pe

Davip Ret,

| ' Forer & Rein,

| cy Cn Fourteenth Street, WW.

= Pith. eas Washington, D, C.

| STANLEY FAvuLKNER, .

9 East 40th Street e

New York City, New’ York |

JoHN CAUGHLAN,

«SIEGFRIED” Hussr, — P

er te a 702 Lowman Building

See L _ Seattle 4, Washington ?

Counsel for Petitioner.

eee ns Pine

(5518)