McLaughlin, Adams and Gibbons, Circuit Judges. Adams, Circuit Judge (concurring). Gibbons, Circuit Judge (dissenting).
GERALD McLAUGHLIN, Circuit Judge.
Appellant filed a complaint in the United States District Court for the Western District of Pennsylvania with a motion asking that the United States Selective Service System be temporarily enjoined from inducting him into its Armed Services, for a full evidentiary hearing and a permanent injunction to the same effect. The matter was tried on October 15 and 16, 1970. Plaintiff's motion was denied March 17, 1971.
Appellant, then a Michigan resident, registered with the Royal Oak, Michigan Selective Service Board. The latter reclassified him as I-A, March 13, 1969. He was ordered to report for induction on October 16, 1969. He meanwhile had changed his address to Pittsburgh, Pennsylvania and at his request his induction was transferred to Local Board 15 in that city. On December 2, 1969 the Transfer Board ordered him to report for induction December 9, 1969. On that day the doctor for the Local Board, after examining appellant's medical records, noted under "disqualifying effects" that Haggerty had first degree spondylolisthesis of the fifth lumbar vertebra. In that local report if the doctor's comment meant he thought that Haggerty was disqualified from serving in the Army by reason of his particular condition, the doctor was badly mistaken. Army Regulation 40-501 specifically covers the situation, ruling that "The causes for rejection for appointment, enlistment, and induction are * * * Spondylolysis or Spondylolisthesis that is symptomatic or is likely to interfere with performance of duty or is likely to require assignment limitations." (Emphasis supplied). Admittedly Haggerty's condition is not symptomatic and there is not the slightest indication throughout the record, of it being likely to interfere with performance of duty or to require assignment limitations. Actually, Haggerty has been a member of the Pittsburgh Steelers National Professional Football team for the last four years, at least the last two of which he has been playing offensive tackle. On July 8, 1971, he was traded to the New England Patriots, also a National Football League team, whose general manager announced that the Patriot club was "very happy to acquire Haggerty since he should give us good offensive line depth and could challenge for a starting job." According to Dr. Best, a witness for appellant, the latter was born with the said condition. At the time of the hearing Haggerty was twenty-five years old, weighed 250 pounds and was six feet, four inches in height.
Dr. Best testified that to ascertain a first degree condition it was necessary to have xrays. The xrays which were used here were taken by an xray specialist, Dr. Mazzei. His report addressed to Haggerty's physician, Dr. W. O. Willoughby, states as to Haggerty's condition " The alignment of the lumbar spine is satisfactory. There is a defect of the pars interarticularis of L-5 with minimal spondylolisthesis of L-5 on S-1. The sacro-iliac joints appear normal." (Emphasis supplied). There is no claim by Haggerty that Dr. Best ever treated him for anything. Dr. Best is the physician for the Pittsburgh Steelers. He stated that his connection with the Steelers and the Pittsburgh Penguin Hockey team "is about all I do, except practice orthopedic surgery." He is not a Fellow of the American Academy of Orthopedic Surgeons. According to Haggerty, he has never had any treatment for his back except from the Steelers' trainer.
Prior to Haggerty's pre-induction physical examination above mentioned, he had been physically examined for Selective Service on August 18, 1969, at Detroit, Michigan. The medical examiner there knew of his Spondylolisthesis and his medical history and found Haggerty qualified for induction. After the examination of December 9, 1969, the Commanding Officer of the Pittsburgh AFEES station in accordance with the directive of the order of the Secretary of the Army of April 28, 1966, forwarded the Selective Service records regarding Haggerty to the Office of the Surgeon General of the Army for review and thereafter final decision as to Haggerty's acceptability. This procedure was applied to Haggerty because it included "Registrants concerned are defined as: Registrants achieving national prominence by virtue of their personal ability in athletics, * * *." This designation of Haggerty is contested on his behalf because it is claimed that the Steelers at the time had lost nine games. It is also urged that there is no specific statute justifying that sort of processing.
The contention that a first string offensive tackle on a National Football League team, one of the most demanding posts in football, could not be of national athletic prominence because his team had lost nine games is frivolous. It is an axiom that on any given day any National League Football team could very well defeat any other League team. At most, the national prominence of an athlete is a question of judgment and in this instance there is strong evidence to support the Armed Services' view. It was also well within reason to consider very carefully whether Haggerty, found to be an athletic personality of national prominence, is medically fit for Armed Forces service. If he is so found then he must be properly inducted and not excused from that service unjustifiably in order that he might play high salaried professional football and so subject the whole Selective Service System to what would be an undeniable charge of favoritism.
In the situation we think that the directive of the Secretary of the Army to thoroughly check out nationally prominent registrants as to whether they are acceptable for Armed Services, is clearly within the Secretary's general statutory powers, 10 U.S.C. Section 3012. It is also soundly argued that since the Army is under the authority of the Secretary of Defense (10 U.S.C. Section 3010) and the latter by 50 U.S.C. App. Section 454(a) prescribes acceptability standards for registrants, the final responsibility for the type of directive with which we are dealing is with the Secretary of Defense.
The review of Haggerty's medical records in the office of the Surgeon General was conducted by Lt. Col. Richard Toys and Lt. Col. William Peard, both staff officers and both orthopedic specialists. From the records and on the solid basis in fact above indicated they found Haggerty acceptable for the Armed Services under both 2-36H and 2-43 of Army Regulations 40-501. We agree with appellee that the issue of "vocational waiver" is moot and should not be passed upon here.
There is nothing in this record to suggest that the procedure with reference to appellant violated procedural due process of law. The close inspection of Haggerty's physical condition was not only called for by the facts but if it had not taken place it would have been a gravely inequitable lack of investigation of Haggerty's claim. His witness Dr. Best swore that the physical defect was and is first degree, not symptomatic, that it needed an xray to detect it. Dr. Best testified that the stretching over a period was the dangerous element. From his testimony and that of the xray specialist there was no stretching whatsoever in Haggerty's condition in the twenty-four or twenty-five years of his existence. Under the governing Army Regulation Haggerty was fit for Armed Service. There is not one word in the record to the contrary. Haggerty was in no way injured by the following through of the investigative process. To this moment there is no pretension for appellant that he is not in truth acceptable for service. There is no attempt to assert that the Army acceptability for service of the nonsymptomatic first degree spondylolisthesis, which beyond all doubt is all that Haggerty has, is erroneous medically. Whether Haggerty is a football player or not makes no difference to the only possible honest result in this case. It is passing strange that in the years during which Haggerty has been playing perhaps the most formidable position in professional football, the most attention he has needed has been from the team trainer. All that is now climaxed by Haggerty, within the last few days, joining another National Football Club which was "very happy to acquire Haggerty since he should give us good offensive depth and could challenge for a starting job."
None of the cases cited for appellant touch the obvious facts before us. The closest decision to our problem is Steiner v. Officer in Command, etc., 436 F.2d 687 (5 Cir. 1970). That cause as is the present issue was also governed by 10(b) (3) of the Selective Service Act of 1967, 50 U.S.C.A. App. § 460(b) (3). The pertinent part of the Act reads:
"No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title [section 462 of this Appendix], after the registrant has responded either affirmatively or negatively to an order to report for induction, * * * Provided, that such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant."
In this appeal the applicable Selective Service and Army Regulations procedure was strictly followed. As stated it was of vital importance for the integrity of Selective Service and for the individual Haggerty, that his medical record be examined in depth by the highest Army medical authority. All of the facts affirmatively showed that the first degree spondylolisthesis was a minor ailment that had not developed stretching or other harmful result to Haggerty in all of his years, including those spent in most rugged professional football. The Army Regulations governing statement as to the kind of spondylolisthesis which renders an inductee unacceptable and that which does not bar acceptability is revealed as a hundred percent correct. All of the medical evidence presented by plaintiff shows that the Selective Service and Army follow up was necessary, was fair and was sound. Appellant was never handicapped in proving anything to the contrary. Judge Gourley in the District Court explicitly insisted on everything that might be helpful to him decisionally be put into evidence. Reading the evidence of the Steelers' doctor and his letters which are in the record, point to him as doing what he could for Haggerty but palpably avoiding any affirmative suggestion that Haggerty was unacceptable physically. Dr. Mazzei, the xray expert, was not only honest but frank. Dr. Willoughby, who Haggerty said was his private doctor, did not even testify. In the circumstances the total evidence is that Haggerty has nothing the matter with him that makes him unacceptable for Service. The quibbling as to whether appellant is promient nationally in sports is quite in line with the sort of claim being urged. There is substantial basis for the Army scrutinizing his acceptability from that standpoint because he is a first string offensive tackle in the National Football League which latter is the most popular sport presentation in the entire United States.
We find that the Army acceptability test for inductees with spondylolisthesis is correct, is a proper guideline and was so used. There was no violation of procedural due process.
The judgment of the District Court will be affirmed.
ADAMS, Circuit Judge (concurring).
I concur with the result reached by Judge McLaughlin.
The basic issue in this case--whether a court should enjoin Haggerty's induction into the Armed Services--is governed by the same principles the Supreme Court found controlling in Clark v. Gabriel, 393 U.S. 256, 89 S. Ct. 424, 21 L. Ed. 2d 418 (1968). Here, Haggerty alleged that the procedure utilized in determining his physical acceptability for service in the Army constituted a violation of procedural due process of law. However, in § 10(b) (3) Congress has deprived the federal courts of jurisdiction to review prior to induction "the classification or processing of any registrant", except as a defense to a criminal prosecution. Selective Service Act of 1967, 50 U.S.C. § 460(b) (3) (Supp. VI 1970). And the Supreme Court has held Section 10(b) (3) to be constitutional, although not applicable where a local board acts in a "blatantly lawless manner". Oestereich v. Selective Service System Local Board, 393 U.S. 233, 238, 89 S. Ct. 414, 21 L. Ed. 2d 402 (1968). See Breen v. Selective Service Board, 396 U.S. 460, 90 S. Ct. 661, 24 L. Ed. 2d 653 (1970); Steiner v. Officer in Command, 436 F.2d 687, 688-690 (5th Cir. 1970).
Haggerty, however, is asking that we review prior to induction his classification--the very matter precluded by § 10(b) (3). In order to succeed, then, Haggerty must demonstrate that what transpired was not a part of his pre-induction classification or processing or that his local board clearly departed from its statutory mandate in a "blatantly lawless manner". In this task, appellant has failed.
The heart of Haggerty's objection is that after his re-examination for induction,*fn1 at which the examining physician informed him of a physically disqualifying condition, his records were forwarded to the Surgeon General, who reversed the determination of the examining physician. These events were crucial stages in the determination whether Haggerty would be inducted, and therefore, come within the scope of that provision of § 10(b) (3) which refers to "processing".
In addition, the records were transmitted in accordance with an order of the Secretary of the Army affecting nationally prominent registrants.*fn2 Because of the broad grant of authority which Congress has given the Department of Defense and Secretary of the Army, see 10 U.S.C. §§ 3010, 3012 (1964); 50 U.S.C. § 454(a) (Supp. VI, 1970), the procedure followed in this case was not "blatantly lawless". Therefore, in this proceeding, we are interdicted from determining the ultimate validity of the order affecting nationally prominent registrants.*fn3 But cf., Hunt v. Local Board No. 197, 438 F.2d 1128 (3d Cir. 1971).
Further, Haggerty advances the argument that Army Regulation 40-501, para. 2-43, which pertains to waivers of physical defects where the registrant has demonstrated in his civilian occupation that he is likely to be able to perform his armed services duties, is invalid because it is not statutorily authorized.*fn4 However, in view of the statutes cited supra, the promulgation of this regulation may hardly be characterized as "blatantly lawless".
Appellant also contends he was denied a hearing before the Surgeon General, and thus deprived of due process of law. However, a hearing is essential only if a registrant's classification is reopened, and reopening of a classification is required only if the registrant makes nonfrivolous allegations of fact not previously considered and not conclusively refuted by other reliable information in the registrant's file. Mulloy v. United States, 398 U.S. 410, 90 S. Ct. 1766, 26 L. Ed. 2d 362 (1970). When the examining physician informed appellant that he was not physically qualified and recorded this conclusion on the medical form, he was merely reporting his findings for the use of the local board. The examining physician did not reclassify the appellant. Therefore, despite the examining physician's actions, Haggerty retained his I-A classification. Since appellant was never classified other than I-A, the action by the Surgeon General, reversing the medical findings of the examining physician, was similarly not a reclassification. It follows, therefore, that appellant was not entitled to a personal appearance before the Surgeon General.
Whether the procedures followed by the Selective Service System or whether the Surgeon General's medical findings conclusively refuted the appellant's allegations and the findings of the examining physician may be determined only during a habeas corpus proceeding after induction, or if appellant decides not to report for induction, during a criminal prosecution.
GIBBONS, Circuit Judge (dissenting).
The regulations of the Selective Service System dealing with determination of physical acceptability for induction provide for three separate stages of medical inquiry. These are a Local Board medical interview (32 C.F.R. § 1628.1 (1971)), a pre-induction physical examination (32 C.F.R. § 1628.10) and an induction examination (32 C.F.R. § 1632.16). The results of these three separate stages of medical inquiry are recorded in Section II--Local Board Medical Interview, Section VII--Determination at Preinduction Examination, and Section VIII--Determination at Induction Examination of DD Form No. 47, Record of Induction. This form is the basic record of the Selective Service System for each registrant.
The appellant, a registrant with Local Board No. 323, Royal Oak, Michigan, apparently received a Local Board medical interview in which the Local Board found no disqualifying physical defects. As required by 32 C.F.R. § 1628.3(b) the Local Board listed this finding in Section II of DD Form No. 47. This medical interview is of a cursory nature since neither laboratory nor X-ray work is authorized. 32 C.F.R. § 1628.3(a).
"After completion of the medical interview the local board shall determine, after considering the findings and recommendations of the medical advisor to the local board, whether or not to order the registrant to report for ...