Orloff

Appellant petitioned for a writ of habeas corpus. The petition was denied. He appeals. Appellant is a medical doctor, specializing in psychiatry. On July 26, 1951 he was inducted into the armed forces as a private by authority of the so-called “Doctors Draft Law,” Public Law 779, 81st Cong., 2d Sess., 1950 U.S.Code Congressional Service, p. 885. The statute grants the President of the United States authority to “ * * * require special registration of and, on the basis of requisitions submitted by the Department of De *210 fense and approved by him, to make special calls for male persons qualified in needed— (A) medical and allied specialist categories who have not yet reached the age of fifty at the time of registration * * *. Persons called hereunder shall be liable for induction for not to exceed twenty-one [now 24] months of service in the Armed Forces.” 50 U.S.C.A.Appendix, § 454(i). Public Law 779, 81st Cong., 2d Sess. § 1. Thus, while under the terms of the general draft law, Selective Service Act of 1948, persons over the age of 26 are not eligible for induction, 50 U.S.C.A.Appendix, § 454(a), as amended by Public Law 779, doctors,' dentists and allied specialists, in…

(concurring).

I concur in the result, because I believe that the “Doctors Draft Law” was administered fairly by the Military and in accordance with Congressional ■ intent, as to appellant. He was commissioned. The commission was revoked because of his refusal to comply with regulations. This fully justified the denial of the writ by the Court below’

I do not agree with the court’s view that the statute permits the military to make any duty assignment to a drafted doctor within a “minimal permissible area.” It seems to me that this holding is not necessary for decision' in this case. Since it *213 has been made the basis of decision, I cannot agree to it.

In my opinion, Congress 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, could 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.

In my opinion, Congress intended that a drafted doctor should be a doctor in the military service, unless his own refusal prevents.…

(dissenting).

I concurred in the court’s decision affirming the order denying the writ below, because, in my opinion, appellant’s own fault deprived him of his officer’s commission. However, I specifically abstained from concurring in the basis of decision reached by the majority of the court.

Now, I am persuaded by the petition for rehearing, that, irrespective of the action of appellant which brought about the loss of his commission prior to his induction, due process under the “Doctors Draft Law” requires the Army to use appellant as a doctor or return bim to civilian life.

Consequently I dissent from the order denying appellant’s petition for rehearing.

195 F.2d 209 ORLOFF, v. WILLOUGHBY, Colonel, U.S. Army. No. 13248. United States Court of Appeals Ninth Circuit. March 13, 1952. Rehearing Denied April 17, 1952. John Caughlan, Siegfried Hesse, Seattle, Wash., for appellant. J. Charles Dennis, U.S. Atty., John E. Belcher, Asst. U.S. Atty. Seattle, Wash. (Robert O. Hillis, Major Jage, U.S. Army, Seattle, Wash., of counsel), for appellee. Before ORR and POPE, Circuit Judges, and GOODMAN, District Judge. ORR, Circuit Judge. 1 Appellant petitioned for a writ of habeas corpus. The petition was denied. He appeals. Appellant is a medical doctor, specializing in psychiatry. On July 26, 1951 he was inducted into the armed forces as a private by authority of the so-called 'Doctors Draft Law,' Public Law 779, 81st Cong., 2d Sess., 1950 U.S. Code Congressional Service, p. 885. The statute grants the President of the United States authority to ' * * * require special registration of and, on the basis of requisitions submitted by the Department of Defense and approved by him, to make special calls for male persons qualified in needed-(A) Medical and allied specialist categories who have not yet reached the age of fifty at the time of…