Lewis v. Secretary, Department of the Army

• Decision Date: 11 December 1968
• Docket Number: No. 21905.,21905.
• Citation: 402 F.2d 813
• Parties: Timothy Floyd LEWIS, Appellant, v. SECRETARY, DEPARTMENT OF THE ARMY, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

402 F.2d 813 (1968)

Timothy Floyd LEWIS, Appellant, v. SECRETARY, DEPARTMENT OF THE ARMY, Appellee.

No. 21905.

United States Court of Appeals Ninth Circuit.

September 5, 1968.

Rehearing Denied December 11, 1968.

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

Carolyn M. Reynold (argued), Asst. U. S. Atty., Wm. Matthew Byrne, Jr., U. S. Atty., Frederick M. Brosio, Asst. U. S. Atty., for appellee.

Before CHAMBERS and JERTBERG, Circuit Judges, and WEIGEL,^* District Judge.

JERTBERG, Circuit Judge:

Appellant Lewis, on February 20, 1967, petitioned the District Court for a Writ of Habeas Corpus to order his release from the armed forces and prevent his removal from the jurisdiction of the Court. On the same day, the Court issued an Order to Show Cause. A Return to the Order to Show Cause and an Answer to the Petition for Writ of Habeas Corpus were filed on February 28, 1967. On that date, the present appellee was substituted for the original respondents. Later, supplemental pleadings were filed. After a hearing, the District Court, on April 13, 1967, denied appellant's petition. Appellant filed a timely appeal.

This Court has jurisdiction under 28 U.S.C. § 2253.

Appellant was born on September 15, 1942. He registered with the Selective Service System on September 26, 1960.

On August 1, 1962, appellant's Local Board mailed him a Classification Questionnaire and he executed and returned it. In the Questionnaire appellant stated that he lived with his widowed mother, age 60 years; that she was "partially" dependent upon him; that he contributed $600 per year to her; that her other income was $1800 per year; and that his two brothers (one of whom lived with appellant and his mother) were capable of contributing to his mother. He further stated that "Both my brothers are capable of contributing to the support of my mother. It was not my intention to infer that she is entirely dependent on me since this is not the case." Appellant was classified I-A on October 3, 1963.

On March 27, 1964, appellant appeared, as ordered, for physical examination. He was found temporarily not acceptable because of braces on his teeth, and was classified I-Y.

In the meantime, appellant received another Dependency Questionnaire. In it appellant stated that he contributed approximately $175.00 per month to the support of his mother, but that "this amount varies. For example, it is considerably more when taxes and insurance are due." He also stated that his mother's other income was $1560.00 per year. In regard to his brothers, appellant said that neither could now contribute to their mother's support. Appellant said that one brother "supports a wife and four children," and that the other brother (then living in Virginia) was "heavily burdened with debts." Both appellant and his mother remarked that his presence at home was necessary to its maintenance, and if she became ill, to her well-being. A doctor's letter said that appellant's mother was unable to work because of her physical condition.

On the basis of the Questionnaire, the Local Board classified appellant III-A (Registrant Deferred by Reason of Extreme Hardship to Dependent) on June 18, 1964, which status was subject to review within one year.

In June 1966, another Dependency Questionnaire was filled out by appellant wherein he stated that he contributed approximately $175.00 per month to his mother's support, and more "when property taxes, insurance, etc. comes due." He further stated that he had a gross annual income of $8500; that he lived with his mother in the family home and had monthly obligations in the amount of $400 for "Personal loan, groceries, taxes, doctor bills, utilities, gas, insurance, upkeep on home, etc." Appellant stated that his mother received $1188 a year from Social Security and $700 from dividends, and:

"with regard to my brothers, my oldest one lives in New York and supports a large family. My other brother lives here in Los Angeles and is married with one child (and another expected soon). He is heavily in debt and is presently unemployed. I have found it necessary to loan him over $200 in the past few weeks to help get him buy (sic) until he can find employment. Financially he is incapable of giving any support to my mother.

"My father, Floyd B. Lewis, passed away in Glendale, California on June 3, 1957 and I have worked first part time, and then (presently) full time to help maintain our home and support.

"My mother\'s income comes from Social Security and Dividends and the total of these two fall far short of what it takes to maintain our home. Property taxes, house insurance, and necessary repairs to her house would have taken over half her income in the past 12 months. What is of more concern to me is the fact that she is not in good health. (There is medical evidence of this in my Selective Service File in the form of a letter from our family doctor). She hasn\'t worked since 1927 and is completely unable to do so now. During the past several years she has been completely bedridden on one occasion. One illness lasted eight months during which I gave her constant care. The other was when she fell and broke her wrist, again requiring constant care on my part. As she has no one to depend on but myself, I feel that it is imperative to her health and well being that I remain in my present position and I therefore ask for a continuance of my present classification until the present circumstances change."

The mother furnished a statement, saying:

"Since the death of my husband several years ago, I have depended greatly on my son to maintain our home, both financially and otherwise. He helps pay the taxes, insurance, house repairs, etc. He also takes care of the yard work and other such things. During the past few years I have been ill on several occasions which have required him to do the housework, cooking, etc., as well as taking care of me. Since I have no one else to depend on for the support he gives me, I would be unable to get along without his help."

After receipt of the Dependency Questionnaire, the Local Board requested appellant to present himself for an interview in order to clarify the information in his file.

On July 14, 1966, he was interviewed by the Board. Appellant stated that his father died in 1957 and left $8500 of insurance which his mother used to pay bills, and invested the balance. He said that his mother received $700 per year from the investment. When asked how long he had supported his mother, he stated that his mother put him through high school and then he started to work full time. He also stated that his mother owned the home clear, and that it contained two bedrooms; that he had two brothers, one of whom was unemployed, and the other had a wife and four children. When asked why his two brothers left him with the burden of supporting his mother, he replied that he always assumed responsibility and that his older brother would have helped if he had to.

On July 14, 1966, the Board reclassified appellant I-A.

On July 21, 1966, appellant requested permission to examine his file.

On July 29, the Local Board received another letter from the doctor stating that appellant's mother was unable to work. On August 18, 1966, appellant appeared before the Board and stated that he couldn't understand why his classification was changed when the situation had not changed. The Board informed appellant that he was not in position to question the authority of the Local Board in determining classifications. He stated that he contributed $175 per month towards his mother's support and pays the property taxes of $418.00 a year.

The Board did not reclassify appellant from I-A but forwarded his file to the Appeal Board.

Appellant was ordered to report for physical examination on August 31, 1966, and was found acceptable for military service.

The Appeal Board reviewed appellant's file and on December 22, 1966, he was classified I-A by unanimous vote. Appellant was thereafter ordered to report for induction on February 20, 1967.

Appellant wrote to the Board requesting a review of his case and cancellation of the induction order on the ground that his "back condition" disqualified him for military service, and stated "I realize that I should have handled my case along these lines over and above my dependency claim but I was ill-advised (not by the Selective Service) on this matter."

The Board denied appellant's request for postponement of his induction or reopening of his classification, and on February 20, 1967, appellant was inducted into the United States Army. On that day appellant filed with the District Court his Petition for Writ of Habeas Corpus. As previously noted, the District Court, following a hearing, denied the petition.

The District Court in its Findings of Fact and Conclusions of Law, found and concluded:

"III

"The Petitioner\'s showing is insufficient to warrant this Court granting the writ of habeas corpus discharging Petitioner from the Armed Services of the United States.

"IV

"All procedural rights were accorded to Petitioner and he was not denied due process in his classification.

"V

"The Selective Service file shows that there is substantial evidence to support the classification."

On this appeal, appellant first contends that his classification from III-A to I-A was without basis in fact, capricious, arbitrary, and contrary to law. This contention is developed as follows:

Appellant was classified III-A on June 18, 1964, based upon the information then before the Board, which we have previously summarized. Appellant remained in this status for slightly more than two years, when he was directed by the Board to file another Dependency Questionnaire. Appellant did so and made a personal appearance before the Board, both of which we have previously summarized.

On July 14, 1966, appellant was reclassified in I-A, based on the information supplied in the new Questionnaire, in the...