The district courts have also divided on this question. The two district courts in this circuit deciding the question on its merits favored the appellant's position: Kaplysh v. Allen, 303 F. Supp. 1007 (N.D. Ohio 1969); Ellis v. Hershey, 302 F. Supp. 347 (E.D.Mich. 1969). Under ยง 6(i)(2), any person who is enrolled as a full-time graduate student during the current academic year and is presently under an order to report for induction is entitled to receive a I-S classification which enables him to be deferred:
The local board's delay, coupled with both its evident reluctance to grant a I-S classification and the outstanding induction order might well have caused Rundle to conclude that registration for summer school was a futile act. For the same reason, Rundle's subsequent withdrawal of his request for a I-S deferment on June 23 and his application then to be considered for a I-A-O status cannot affect the board's mandatory duty under the regulations to reopen and consider anew his classification. In Ellis v. Hershey, 302 F. Supp. 347 (E.D.Mich. April 30, 1969), second year law students brought a class action seeking injunctive relief from the board's refusal to grant them I-S deferments under ยง 456(i)(2). Judge Kaess granted the injunction and wrote:
Regulation 1622.15(b) denies the right to a I-S deferment to a student who has previously received a II-S deferment, just as Regulation 1622.30(a) in the case before us denies a fatherhood III-A to registrants who have received a II-S. But upon a critical examination of the Act it has been clear to a number of courts, Ellis v. Hershey, 302 F. Supp. 347 (E.D.Mich. April 30, 1969): Bowen v. Hershey, 410 F.2d 962 (1st Cir. 1969); Carey v. Local Bd. No. 2, D.C., 297 F. Supp. 252, aff'd 412 F.2d 71 (C.A. 2, 1969); Foley v. Hershey, 409 F.2d 827 (7th Cir. 1969); Marsano v. Laird, 412 F.2d 65 (CA 2, 1969); that the Act forbade the granting of a I-S only to those students who had received an undergraduate II-S under Section 6(h)(1) of the Act, but not to those who had received a graduate II-S under the provisions of 6(h)(2) of the Act. We are cited to portions of the legislative history tendered in explanation of the scheme of the statute, but we do not view the Act as involving the kind of ambiguity that warrants an examination of the legislative history for our guidance.
They contend that an issue not previously elaborated upon is dispositive of this case in a manner contrary to the court's opinion. They argue that the order granting the plaintiffs' motion for summary judgment in the case of Ellis v. Hershey, 302 F. Supp. 347 (E.D.Mich. April 30, 1969) is binding upon this court by reason of the fact that that action was a class action brought on behalf of the plaintiffs for the benefit of all persons similarly situated. It appears that plaintiffs here fit precisely within the class. We have before us only the decison of the court in that case, from which we conclude that the question of whether or not that was a proper class action was never raised, considered, or determined.