# Petitioners Brief — Orloff v. Willoughby

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1953
- **Citation:** 345 U.S. 83

## Text

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

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)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0214%3A2. Public record. Not legal advice.