OLINGER v. PARTRIDGE

STEPHENS, Circuit Judge.

It is claimed in the petition of Ruth Huffman for habeas corpus on behalf of A. Paul Olinger that he was licensed as a first assistant engineer of steam vessels on November 9, 1948, and that since the Korean War began in June, 1950, and the President proclaimed a National Emergency on December 16, 1950, he is not liable to the Selective Service draft, Title 50 U.S.C.A. Appendix, § 451 et seq. because of an exemption under the provisions of Title 46 U. S.C.A. § 225, enacted May 28, 1896.1 He was inducted into the Army of the United States on February 6, 1951, through the Selective Service system and his contention is that since he has not been assigned to nor has he been performing the duties of a first assistant engineer of the Merchant Marine he is illegally restrained by Army officials in violation of Title 46 U.S.C.A. § 225. The petition was dismissed for lack of jurisdiction and the judgment of dismissal is here on appeal on behalf of Olinger.

Local Draft Board No. 126, Long Beach, California, hereinafter referred to as "draft board", acting under authority of the Selective Service Act and Regulations of the United States, classified Olinger as 1-A on October 8, 1948, and mailed to him a notice of that classification on October 11, 1948. The classification form which was sent contained a notice that an appeal from the classification must be made within 10 days.2 During the years 1948 and 1949 Olinger did not appeal from the classification and made no effort to appear and discuss his classification or to present new information to the draft board.

In August, 1950, upon receipt of a notice to report for a physical examination and prior to the date fixed for the physical examination, Olinger personally appeared at the draft board and orally requested a reclassification. No action has been taken on the request.

He failed to report for his physical examination on August 15, 1950, and on September 7, 1950, an order to report for induction on September 18, 1950, was mailed to him. He was unable to report on that date since he was at sea. On February 3, 1951, Olinger again appeared at the draft board to discuss his classification. At that time he was notified to report for induction as a delinquent on February 5, 1951, and was inducted into the Army on the next day.

Olinger argues that he has exhausted his administrative remedies by not pursuing them. We quote from his brief: "The sole question therefore presented by this appeal is whether appellant A. Paul Olinger who had not taken an administrative appeal from his classification by the local board, but had undergone actual induction into the military service, may by habeas corpus proceedings obtain a judicial review of the legality of his classification and induction." The cases cited in support of this contention are all cases where the administrative remedies have been exhausted, including appeals provided in the Selective Service Regulations, 50 U. S.C.A.Appendix, § 460(b)(3), 32 C.F.R. § 1626. Falbo v. United States, 1944, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305, is one of them. The theory of exhaustion of administrative remedies by default is without support in precedent or in reasoning. The authorities are all to the effect that the judicial machinery may not be invoked until all administrative remedies have been unsuccessfully pursued. Johnson v. United States, 1942, 8 Cir., 126 F.2d 242. Olinger's inaction does not exhaust his administrative remedies, but rather amounts to a waiver of any rights which he may have claimed under the Selective Service Act.3

Furthermore, as of the date of his classification, Olinger was a merchant seaman and as such was not exempt from the draft under the Selective Service Act of 1948.4

Affirmed.