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.
The examining physician did not reclassify the appellant.
The appellant, a registrant with Local Board No. The medical examiner there knew of his Spondylolisthesis and his medical history and found Haggerty qualified for induction. The latter reclassified him as I-A, March 13, 1969. Appellant was never handicapped in proving anything to the contrary.
He could have but did not request a waiver of the fitness standards. There is no way of knowing how the Michigan Local Board would have classified the appellant had it known of the disqualifying defect.
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. There is nothing in this record to suggest that the procedure with reference to appellant violated procedural due process of law.
Since by this time he was no longer a Michigan resident his induction was transferred to Local Board No. This is precisely the condition which was found by the physician who examined appellant at the Pittsburgh Armed Forces Examining and Entrance Station on December 19, 1969. The regulations, 32 C. The causes for rejection of appointment, enlistment and induction are —.
Neither the Pittsburgh Transfer Board nor the Michigan Local Board had any information about the supposed findings of the Surgeon General's orthopedic consultants that appellant was not suffering from a subpart 2-36 h disqualification, and it is disingenuous to rely upon those findings, disclosed for the first time in the district court, as a justification for the induction order. 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.
But assuming the induction order under attack resulted not from a medical waiver under Subpart UP 2-43 of AR 40-501 but from a finding in the Surgeon General's office that the conclusion of the physician at the Pittsburgh examining station was wrong, appellant still is left with two substantial grounds for due process attack upon the order.
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. The first ground is the patent invalidity of the authority under which his file was singled out for ex parte appellate medical review.
That cause as is the present issue was also governed by 10 b 3 of the Selective Service Act of 1967, 50 U. The district court opinion suggests that the April 23, 1966, letter will pass due process muster because the registrant can present information relevant to his status as a person of national prominence at the examining station. There is no claim by Haggerty that Dr. The waiver provisions should not have been applied to appellant. It is an axiom that on any given day any National League Football team could very well defeat any other League team.
The "prominent persons" letter is not issued on the authority of the President, who by virtue of the Selective Service Act is authorized to prescribe regulations 50 U.
The standards in AR 40-501 apply to:. This regulation of the Selective Service System is issued under the authority of 50 U. If the letter applies to induction as well as pre-induction physical examinations, paragraph 2 dealing with transmittal of records to Washington contravenes the plain language of 32 C.
As the adjutant's letter of transmittal discloses, the determination was made because the appellant "is currently playing professional football for the Pittsburgh Steelers.
The Surgeon General has promulgated regulations for medical acceptability applicable generally to candidates for and inductees into the Armed Forces.