Petition of Soberman, 477.

• Decision Date: 06 March 1941
• Docket Number: No. 477.,477.
• Citation: 37 F. Supp. 522
• Parties: Petition of SOBERMAN.
• Court: U.S. District Court — Eastern District of New York

37 F. Supp. 522

Petition of SOBERMAN.

No. 477.

District Court, E. D. New York.

March 6, 1941.

Julius Blumenfeld, of New York City, for petitioner.

Harold Kennedy, U. S. Atty., of Brooklyn, N. Y., and Phillip J. Hirsch, Asst. U. S. Atty., of St. George, S. I., N. Y., for respondents.

GALSTON, District Judge.

The petitioner seeks a review of the action of the respondents, constituting Local Board No. 147, created pursuant to the Federal Selective Service Law, in classifying the registrant in Class 1-A and denying his request for deferred classification under 3-A. He sets forth that in his questionnaire he claimed deferment on the ground that he was the principal and main support of his parents and of his sister, a girl of eighteen years of age. The claim having been denied, he appealed to the Appeal Board, which refused to alter his classification. He is about to be inducted into the service of the army.

The petitioner says that since his appeal was heard by the Appeal Board, certain facts developed which would establish his claim for deferment. He says that he is employed at a salary of $28 per week, in addition to commissions, the two aggregating $40 a week; that his father is a tailor by trade but has not been employed regularly. His earnings varied between $500 and $600 a year. Now his father is sick, suffering from coronary thrombosis, which has prevented him from earning his usual income, and the petitioner's earnings have, therefore, been the principal and main support of the household. His father is completely bedridden and has been advised by his physician that his condition will not permit any further work to be done by him. His sister is a student at the Brooklyn College and has no income whatsoever. Moreover, by reason of his family obligations, he has been unable to marry, though he has been engaged so to do for a period of three years.

The petitioner complains that the Local Board unknowingly erred in its decision in placing him in Class 1-A, and as relief he seeks a review of his application for classification in 3-A.

The Selective Training and Service Act of 1940, U.S.C.A., Title 50, Appendix, § 304, provides that the selection of men for training in service shall be made in an impartial manner pursuant to such rules and regulations as the President may prescribe. Sec. 305 of the Act, subdivision (e) (1), authorizes the President, under such rules and regulations as he might prescribe, to provide for the deferment from training and service of those having persons dependent upon them for support. Sec. 310 of the Act relates to administrative provisions and authorizes the President to prescribe the necessary rules and regulations to carry out the provisions of the act. In subdivision (a) (2) the local boards, under rules and regulations prescribed by the President, shall have power within their respective jurisdictions to hear and determine, subject to the right of appeal to the appeal boards of questions with respect to granting exemption or deferment, and recites: "The decisions of such local boards shall be final except where an appeal is authorized in accordance with such rules and regulations as the President may prescribe."

The petitioner here invokes the jurisdiction of this court; but there is no provision in the act itself which gives the court jurisdiction to review the findings of the local board. The Judicial Code, Title 28 U.S.C.A. § 41, sets forth matters over which the District Court shall have original jurisdiction. Among the twenty-eight subdivisions of that section there is none which can be interpreted as covering a situation such as is presented here. True, subdivision 14 giv...