United States v. Cain

• Decision Date: 30 April 1945
• Docket Number: No. 163.,163.
• Citation: 149 F.2d 338
• Parties: UNITED STATES ex rel. LEVY v. CAIN, Colonel.
• Court: U.S. Court of Appeals — Second Circuit

149 F.2d 338 (1945)

UNITED STATES ex rel. LEVY v. CAIN, Colonel.

No. 163.

Circuit Court of Appeals, Second Circuit.

April 30, 1945.

Meyer Kreeger, of New York City, for appellant.

Vine H. Smith, of Brooklyn, N. Y., for appellee.

Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

L. HAND, Circuit Judge.

This is an appeal from an order quashing a writ of habeas corpus, and remanding the relator to the custody of the military authorities after induction into the Army. The question is whether the action of the Local Board and the Appeal Board deprived him of any of the rights accorded to him by the statute and the regulations. The facts were as follows. The relator became eighteen years of age on November 29, 1943, on which day he registered with Local Board No. 190, in Brooklyn. That Board sent him a questionnaire on December 1st, which he returned on December 10th, properly filled out; and in which he claimed exemption from all service as a theological student preparing for the profession of rabbi, at the Mesifta Talmudical Seminary in Brooklyn, a "recognized" school of theology. Title 50 U.S.C.A.Appendix, § 305(d). The questionnaire he accompanied by a certificate from the registrar of the Seminary, declaring that he was a full time student, admitted on November 7, 1941, and that he would be ordained as a rabbi at the end of his course. On December 13th the Board classified him in Class I-A, because it did not appear at what time his course of study would be completed, or how much time he was then spending in theological studies every day. On the 17th, they asked the registrar to call at their office and bring the records of the relator and another registrant, who was also a student at the Seminary; and that official did appear on the 23rd, and was examined. He said that the two students were engaged in theological work from nine until five-thirty every day; that none of the teaching was secular; that the relator had entered upon "complete religious studies" for at least two years before; and that it ordinarily took ten years before a student received a "Rabbinical degree." Further, that, if at the end of a year a student in the seminary did "not show a promising future," and was not likely to "develop into a good Rabbi, he is advised to leave." At the end of this examination the chairman of the Board declared that the Board were not convinced that either student was studying primarily to become a rabbi; and asked the witness to submit a record of their studies, which he did on the 30th of December. This record showed that the relator had been admitted on November 7, 1941, had completed two years of study and was in his third year; and that all his studies were directly connected with training for the rabbinate. On the 7th of January, 1944, the Board sent the file to the Selective Service Headquarters in New York with a letter saying that there was "a paucity of information" as to how long it would take to complete the course of study; and how many hours the relator actually spent every day at the institution. They further said that the letter of December 30th indicated that the Seminary enrolled high school students or the equivalent, and that during the time a student pursued his high school studies, he devoted only twenty-eight hours a week to theological courses. They thought "that this premature enrollment of young boys who are mere high school students, in a seminary, is just done to give them a status of Rabbinical students, and for no other purpose"; and they recommended that "an investigation be made of the method of operation at the seminary."

On January 15th the officer in charge of the New York Headquarters requested the relator to appear at the Bar Association of the City of New York on the 19th, "for a special hearing." He appeared on that day before a body described as the "Advisory Panel on Theological Classifications," whose personnel the record nowhere discloses. This "panel" questioned him, and he declared that he expected to be ordained in five or six years; that the course was from nine to ten years; that he had entered the rabbinical division on November 7, 1941; that he had graduated from the secular high school in June 1942, and had been able to enter the higher courses only about a year thereafter; that he had decided to become a rabbi when he first entered the Seminary, having been influenced to do so by a member of the Seminary board. On February 4th, the New York Headquarters returned the file to the Local Board, with a copy of the examination, which they declared had been before the "Advisory Panel on Theological Classifications, composed of distinguished Rabbis and laymen"; and that "the panel voted to recommend that the registrant's status did not warrant his classification in Class IV-D." The letter concluded with an admonition to the Board that "final determination of the registrant's classification must rest with the Board itself, or the appropriate agency." On the 7th, the Board unanimously voted to continue the classification already made on the 13th of December. Thereupon, on the 13th of February, the relator requested a hearing, which was granted him on the 21st. Before that, and on the 15th, the registrar again certified that the relator was a student "in full attendance" and "in good standing," and might "anticipate a fruitful career as a Rabbi." On the 21st, the relator also filed a statement from the dean of the Seminary that he had had above the average rating, had persevered in his studies, had manifested the "highest degree of sincerity and steadfastness in his orthodox principles," and had met "the traditional criteria for an orthodox Rabbi," and at the close of the current academic year, would have completed five years of his ten year course. On the 21st, the relator appeared and testified, but added nothing of any consequence to what was already before the Board. A member of the Board at that time told him that he had been "heard by a group of the most prominent men of the Jewish faith in the great City of New York. It was their decision, and they¹ are bound by it, that you belong in the U. S. Army." At that time the relator's uncle, a lawyer, attended with him, and asked "upon what basis" the "panel" of rabbis had made the recommendation to the Board. The chairman answered that they did not know the basis of the determination; but that they were not wholly guided by the suggestion of the "panel"; on the contrary, the Board had already been of opinion, even before the matter was submitted to the "panel" "that this registrant properly belonged in Class I-A."

The Board thereupon again continued the classification, and relator appealed to the Board of Appeals on March 3rd. On the 13th the registrar and the relator submitted to that Board statements, in large measure a repetition of what had gone before, except the concluding passage of the relator's own letter, quoted in the margin,² in which he complained of unfairness of the "panel." On the 17th day of April, the Appeal Board classified the relator I-A by unanimous vote; and on the 28th of April, the relator petitioned the City Director to order the case reopened or to appeal to the President, supporting this application by a letter from the dean, detailing his theological studies. On May 9th, this application was in its turn refused; and the record closed with a letter from the City Director in New York to...