Ex parte Fabiani

• Decision Date: 26 May 1952
• Docket Number: No. M-1494.,M-1494.
• Citation: 105 F. Supp. 139
• Parties: Ex parte FABIANI.
• Court: U.S. District Court — Eastern District of Pennsylvania

105 F. Supp. 139

Ex parte FABIANI.

No. M-1494.

United States District Court E. D. Pennsylvania.

May 26, 1952.

Edward A. Kallick, Philadelphia, Pa., for plaintiff.

Desmond J. McTighe, Norristown, Pa., for defendant.

McGRANERY, District Judge.

This matter arises on a petition for a writ of habeas corpus, and involves the power and scope of judicial review of a draft board classification.

Petitioner, now twenty-three years old, has desired to become a medical doctor since he was twelve years old. In his youth, as a high school student, he was known by the sobriquet "Dr. Kildaire." He matriculated at Villanova College, receiving the degree of Bachelor of Science in Biology in June, 1950. In addition to petitioner's receiving his degree with biology as his major area of study, he selected chemistry as his minor field. While in college, he belonged to the premedical fraternity. Beginning in the summer of 1949 and continuing into 1950, petitioner made vigorous efforts to secure an acceptance to an accredited medical school. Petitioner's quest moved in ever-widening circles. He had friends intervene on his behalf with the authorities at Jefferson Medical College and Temple University. He addressed applications to the medical schools of Georgetown University, University of Pittsburgh, University of Pennsylvania, and St. Louis University, as well as to Jefferson Medical College, Marquette University and Temple University. He also sought admittance to three Canadian medical schools, and to schools in England, Ireland, and Scotland. His long-continued efforts were uniformly unsuccessful.

There can be no question that petitioner's efforts to study medicine were totally unrelated to any covert desire on his part to avoid military service: at the time he initiated his efforts and for a year thereafter the Army was making no calls on Selective Service for draftees. In the newspaper phrase of the time, the draft was "in the deep freeze" in 1949. There it was to remain until the Korean outbreak in June, 1950. And petitioner's persistence in his project after the draft was again in operation is likewise no sign of any will to avoid army service: doctors are a class particularly sought by Selective Service, and are subject to a special call. See, e. g., Presidential Proclamation No. 2906, 50 U. S.C.A.Appendix, § 454 note.

While engaged in his endeavor to obtain admission to a medical school, the petitioner, then still a college student, attended a lecture by a Dr. Max Strumia, sponsored by his premedical fraternity. Dr. Strumia mentioned that he himself had received his professional training in Bologna, Italy, and detailed encouraging instances of American students who had gone to Italy to study medicine, returning to the United States to practice. Heartened by this lecture, petitioner discussed his plight with the dean of Villanova. He received from the dean a promise of assistance in his efforts to become a student at the Medical School of the University of Rome, as well as recommendations as to suggested courses that would better qualify him for admission to that school. These suggestions the petitioner followed.

We may note that there is nothing surprising or inexplicable in petitioner's choice of a medical school: he is of Italian parentage and he speaks Italian, as do his parents and sister.

The petitioner had registered under the Selective Service Act of 1948, 62 Stat. 604, 50 U.S.C.A.Appendix, § 451 et seq., on September 15, 1948, and was classified I-A on December 20, 1948.

Petitioner inquired of the secretary of his draft board in July, 1950, as to the procedure for medical deferment. He had his only interview with a member of his draft board, Local Board 107 of Bryn Mawr, Pennsylvania, on or about October 18, 1950, when he spoke with the chairman, Dr. J. Allyn Rogers, a veterinarian.

The petitioner's account of this interview was contradicted in no substantial particular by the board chairman. Petitioner testified that he told the chairman that he had an acceptance to the Medical School of the University of Rome; that it was possible that he might go to Rome for his medical studies. The chairman thereupon advised against petitioner's going "because that school was not recognized." (Italics supplied.) Told that the school was recognized, he replied, it is said, "Well, still, when you come back, they will give you a very difficult time in passing your State Board examinations." (Emphasis added.) Petitioner further stated that when he advised the chairman that his application was pending at Jefferson the chairman promised that once this information was confirmed in writing by Jefferson, he would receive a deferment pending final action on the application. Doctor Rogers admitted that he had said, "Something like that."

Petitioner left the United States for Italy on October 28, 1950, traveling by airplane. He registered as a medical student in the University of Rome on November 2, 1950, beginning classes the same day. The academic year in the school runs from November 1st to October 31st, with a summer recess intervening. Until coming back to the United States in January, 1952 at the direction of the United States Attorney for this District, petitioner remained there in residence, continuously engaged in the pursuit of those courses leading to graduation. By letter dated November 10, 1950, petitioner advised his local board of his arrival in Rome; this letter bears the stamp of the local board as of November 28, 1950. Petitioner also secured from the Italian Minister of Foreign Affairs a certificate testifying to his residence in Rome Medical School; the original was dated November 28, 1950, and has the stamp of the local draft board dated December 13, 1950. This certificate was in the Italian language.

Petitioner further forwarded to the board an original certificate from the University of Rome dated December 6, 1950, setting out the fact of his residence and study in that school. This document bears the stamp of the local board as of December 13, 1950. Later, through his parents, he sent to the board a "Tessera" or identification slip of the School dated December 6, 1950, bearing his picture and testifying that petitioner was in the second year of medical school during the academic year 1950-1951. During the year 1951 he caused to be delivered certificates from the school witnessing his pursuance of the third year of medical study. Originals of such certificates are attached to the official file copy of this Opinion as Appendix "A".

Such were the steps taken by the petitioner to advise his local draft board of his whereabouts and his academic activities. No reply or communication from the board was ever sent to the petitioner. On this point his uncontradicted testimony was:

"Q. Now, after you sent these certificates and these documents to the draft board did you receive any further communication from the draft board? A. I never did receive any communication from the draft board.

"Q. You never did receive any? A. Never."

The Government has stipulated that this was so.

The board mailed to petitioner under date of November 7, 1950 an Order to Report for Physical Examination. He was to appear on November 22, 1950; he did not do so. The chairman of the board, Dr. Rogers, when examined by petitioner in his capacity as custodian of the draft board records, testified to the existence in the board files of a letter from the petitioner to his mother, dated November 15, 1950, discussing his experiences in the Rome Medical School. The mother gave that letter to the draft board at the same time that she returned to it the Order to Report for Physical Examination, and the board kept that letter. On this point Rogers stated:

"By the Court:

"Q. But that the letter of November 15th shows that he was in Rome for the purpose of attending Rome University? A. That was addressed to her, not to me.

"Q. But it had notice in there that he was in the Rome Medical School? A. Yes, sir."

The Chairman of the board asserted that he perused and filed this letter before November 28, the date the board stamped petitioner's letter from Rome advising of his arrival there. But despite the earnest urging of the Court, he could not fix the date more precisely than that; indeed, as the record appears, he may have considered it prior to November 22, 1950, the date on which petitioner failed to appear for examination. As we have seen, the local board had received petitioner's letter from Rome and a certificate from the Italian Ministry of Foreign Affairs by November 28th. It stamped a certificate from the University of Rome on December 13, 1950, and a "Tessera" or identification slip on December 27, 1950.

The local board made no use of all of this material, and assigned no weight to it. It simply sent an Order to Report for Induction to petitioner on January 8, 1951 and turned him over to the United States Attorney's office as a delinquent on February 1, 1951.

Dr. Rogers, the chairman, several times testified that he considered the case out of his hands on November 28, 1950; that the matter could not then be reopened. Yet petitioner's folder, which was sent to the State Headquarters "six or seven times" was first referred there on January 16, 1951. This was nearly two months after the chairman insists the matter was out of the hands of the local board. He further admitted that the record shows no correspondence whatever between the local board and the State Office with respect to the petitioner between November 7, 1950 and January 8, 1951, the date the Order of Induction was sent.

Rogers further conceded that once petitioner failed to report for his physical examination, "There was no important action taken after that time" by his board. At no time between the date of petitioner's failure to appear and his referral as a delinquent did the board as a board discuss petitioner's case, reopen it, or resolve to adhere to its former...