DeRozario v. COMMANDING OFFICER, ARMED FORCES EX. & IND. S.

• Decision Date: 21 December 1967
• Docket Number: No. 21623.,21623.
• Parties: Maarten Crijns deROZARIO, Appellant, v. COMMANDING OFFICER, ARMED FORCES EXAMINING AND INDUCTION STATION and Secretary of Defense, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

390 F.2d 532 (1967)

Maarten Crijns deROZARIO, Appellant, v. COMMANDING OFFICER, ARMED FORCES EXAMINING AND INDUCTION STATION and Secretary of Defense, Appellees.

No. 21623.

United States Court of Appeals Ninth Circuit.

December 21, 1967.

J. B. Tietz (argued), Michael Hannon, Los Angeles, Cal., for appellant.

Herbert M. Schoenberg (argued), Asst. U. S. Atty., William Matthew Byrne, Jr., U. S. Atty., Frederick M. Brosio, Jr., Asst. U. S. Atty., Chief, Civil Division, Los Angeles, Cal., for appellees.

Before BARNES and MERRILL, Circuit Judges, and SOLOMON,^* District Judge.

BARNES, Circuit Judge:

This is an appeal from an order of the District Court for the Central District of California, denying appellant's petition for a writ of habeas corpus. The district court entertained the petition under 28 U.S.C. § 2241 (1964). This court has jurisdiction pursuant to 28 U.S.C. § 2253 (1964).

On August 9, 1966, a petition for a writ of habeas corpus was filed on behalf of the appellant Maarten Crijns deRozario, alleging that he was unlawfully "detained and restrained of his liberty" by the commanding officer of the Armed Forces Examining and Induction Station, 1033 South Broadway, Los Angeles, California, and by the Secretary of the Defense of the United States. C.T. 2-6. The ground upon which the petition was urged was that the appellant had arbitrarily and illegally been classified I-A (available for military service) by his local draft board, Local Board No. 116, Los Angles County; it was alleged that he should properly have been classified III-A pursuant to 32 C.F.R. § 1622.30 (b) (1967), which grants that classification's limited deferment to

"any registrant whose induction into the armed forces would result in extreme hardship (1) to his * * * parent * * * who is dependent upon him for support * * *."

The district court, after issuing an order to show cause, and an order restraining the respondents from moving deRozario out of the jurisdiction of that court, heard the case and denied the petition on its merits. It is from this order that deRozario appeals.

There are few, if any, facts in dispute in this case. Appellant, who was born in Indonesia, entered the United States on a permanent resident visa in 1962. In February 1963, after registering with Local Board No. 116 under applicable Selective Service regulations, he completed a Selective Service System Classification Questionnaire, which showed that he lived with his mother and one of his two brothers in Inglewood, California. Appellant also stated therein that he was a full-time student at a beauty school and that in the future he intended to be the "main supporter" of his mother, who was receiving a "small income" from Holland. Ex. A, 3-8. After considering the questionnaire, the local board classified appellant I-A. Ex. A, 10.

On September 2, 1963, appellant wrote to the board, emphasizing that his mother was unable to speak English, Ex. A, 90-91, and the board granted him an October interview. At the interview he stated that the pension received by his mother, a widow sixty-two years of age, amounted to ninety dollars per month, and that he was her sole means of support; his two older brothers, both married, contributed nothing. After the meeting the board reclassified appellant III-A for the following year. Ex. A, 86-87. Meanwhile, appellant had already reported for an armed forces physical examination, and had been found physically acceptable for service. Ex. A, 93.

On November 9, 1964, appellant was reclassified I-A. Ex. A, 10. He immediately wrote to the board and requested an extension of his III-A deferment on the basis of unchanged circumstances. Ex. A, 76. The board then mailed appellant a Dependency Questionnaire, which he completed and returned. The questionnaire revealed that one of appellant's two brothers lived in the same block in Inglewood as appellant and his mother, but was reportedly unable to contribute to the mother's support. The financial capacity of the other brother, whose home was in Denver, was listed as "unknown." In response, the board again reclassified appellant III-A, this time for the period ending in January 1966. Ex. A, 10, 77-79.

In February 1966 appellant completed another Dependency Questionnaire, providing essentially the same information that he had supplied previously. On March 4, 1966, however, the board reclassified him I-A, Ex. A, 2a, 73-75.

Appellant then requested, and was granted, a personal appearance before the board to discuss his reclassification. On April 1, 1966, he appeared and, stating that his primary concern was not financial in nature, again emphasized his mother's difficulty with the English language. The board nonetheless declined to reclassify him III-A. Ex. A, 69.

By letter dated April 14, 1966, appellant then requested that the Selective Service Appeal Board review his local board's determination. In the letter he summarized his position, noting that his mother was unable to drive an automobile. He recognized, however, that her ninety dollar per month pension would be supplemented by a government allowance if he were drafted. On June 16, 1966, the Appeal Board unanimously upheld his I-A classification. Ex. A, 66-67, 99. And on July 8, 1966, the local board again decided that no change of classification was called for. Ex. A, 64.

Pursuant to an order dated July 20, 1966, appellant reported for induction on August 9 of that year. His own affidavit reveals that he was again examined and found qualified for service, but that before the induction ceremony he was taken aside and sent home; the Commanding Officer of the Armed Forces Entrance and Examination Station had that morning been served with the Order to Show Cause and Restraining Order issued by the District Court for the Southern District of California, hereinabove mentioned, enjoining him from moving appellant out of the jurisdiction of the district court until a hearing could be held on the petition for habeas corpus which had earlier that day been filed on appellant's behalf. C.T. 7-8.

Following the hearing, the district court on October 13, 1966, entered an order denying the petition on the ground that the board had not acted arbitrarily in failing to classify appellant III-A. The order notes the existence of appellant's two brothers, and concludes that he "was given ample time in which to solve his problem." C.T. 31. It is from this order that deRozario appeals, claiming that the local board's decision to classify him I-A, was "arbitrary, capricious, without basis in fact and contrary to law."

We hold that the denial of habeas corpus should be affirmed. It is questionable, in fact, whether we need even reach the substantive issue — the propriety of the local board's classfication of appellant — which was determined by the district court; for it appears that habeas corpus was prematurely sought.

The writ of habeas corpus is available to a petitioner in deRozario's position only if he is "in custody," either under or by color of the authority of the United States or in violation of its laws. 28 U.S.C. § 2241(c) (1), (3) (1964). Since its inception, in fact, the writ has been available only to test the validity of detention. See McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934). The traditional contours of the notion of "custody" in a context such as that presented here were set out by the Supreme Court in Wales v. Whitney, 114 U.S. 564, 572, 5 S.Ct. 1050, 29 L.Ed. 277 (1885), in which the Court stated,

"There must be actual confinement or the present means of enforcing it. The class of cases in which a sheriff or other officer, with a writ in his hands for the arrest of a person whom he is required to take into custody, to whom the person to be arrested submits without force being applied, comes under this definition. The officer has the authority to arrest and the power to enforce it. * * * Here the force is imminent and the party is in the presence of it. * * *

"It is said in argument that such is the power exercised over the appellant under the order of the secretary of the navy proclaiming him `under arrest\' and ordering him confined to the city of Washington. But this is, we think, a mistake. If Dr. Wales had chosen to disobey this order, he had nothing to do but take the next or any subsequent train away from the city and leave it. * * * And though it is said that a file of marines or some proper officer could have been sent to arrest and bring him back, this could only be done by another order of the secretary, and would be another arrest, and a real imprisonment under another and distinct order. Here would be a real restraint of liberty, quite different from the first. The fear of this latter proceeding, which may or may not keep Dr. Wales within the limits of the city, is a moral restraint which concerns his own convenience, and in regard to which he exercises his own will."

We believe the record here fails to show that appellant was, in accordance with this long-recognized principle,¹ in the custody of the appellees. In Billings v. Truesdell, 321 U.S. 542, 559, 64 S.Ct. 737, 746, 88 L.Ed. 917 (1944), the Supreme Court held that the demarcation line between civilian and military jurisdiction in induction cases turns, in the language of 50 App.U.S.C. § 462(a) (1964), on whether the individual concerned has been "actually inducted."

And, continued the Court, a selectee

"becomes `actually inducted\' within the meaning of * * * the 1940 Selective Training and Service Act, predecessor of the Universal Military Training and Service Act when in obedience to the order of his board and after the Army has found him acceptable for service he undergoes whatever ceremony or requirements of admission the War Department has prescribed."

Here, appellant had not taken the final step toward induction — the ceremony specified in Army Regulation 601-270, ¶ 37. He was not physically detained by appellees, nor was h...