Talcott v. Reed, 14218

• Decision Date: 23 October 1954
• Docket Number: No. 14218,14208.,14218
• Citation: 217 F.2d 360
• Parties: Warren E. TALCOTT, Jr., Appellant, v. George A. REED, Lt. Col., Inf., Commanding Officer, Los Angeles Recruiting Main Station, United States Army, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

217 F.2d 360 (1954)

Warren E. TALCOTT, Jr., Appellant, v. George A. REED, Lt. Col., Inf., Commanding Officer, Los Angeles Recruiting Main Station, United States Army, Appellee.

Nos. 14218, 14208.

United States Court of Appeals, Ninth Circuit.

October 23, 1954.

J. B. Tietz, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Max F. Deutz, Glendale, Cal., Arline Martin, Manley J. Bowler, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before STEPHENS, FEE and CHAMBERS, Circuit Judges.

STEPHENS, Circuit Judge.

We have before us, on a consolidated record and briefs, an appeal from each of two judgments which were rendered by different judges of the same district court.

The first judgment was in case number 14208, rendered on the 25th of September, 1953, by the Honorable Dave W. Ling and the second judgment was in case number 14218, rendered by the Honorable Harry C. Westover.

Each of the judgments constitutes a denial of a petition filed by appellant-petitioner Warren E. Talcott, Jr., by relation of his mother in which petitioner seeks the issuance of the writ of habeas corpus and through the writ his release from commanding officers of the Army of the United States.

Instead of the writ issuing in either case, show cause orders were issued and the hearings were on the show cause orders and the usual responsive pleadings, and the appeals are presented to us as though the writ had issued in each case and had been discharged.

Petitioner (born October 2, 1925) registered with a Los Angeles local board under the Selective Service System, now the Universal Military Training and Service Act, 62 Stat. 604, Title 50 U.S. C.A.Appendix § 451 et seq., and his file, upon its face, shows him as classified IV-F (unfit). Under date of January 31, 1950, he was sent the regular notice of the classification which informed him that he could appeal and could request a personal appearance within ten days. He made no response.

On April 7, 1952, the local board ordered petitioner to report for physical examination and after determining him to be acceptable, notified him of such action and, on October 7, 1952, classified him as I-A, and nine days later the board received a letter from petitioner objecting to the classification. The board reviewed the file but made no change as to petitioner's status, and sent the file to the appeal board which board did likewise. On November 25, 1952, petitioner was ordered to report for induction. Several postponements of induction were made while investigations were had as to "hardship" which induction would cause, and he was inducted under date of August 21, 1953.

All of the factual matters just recited apply to each appeal as do the claims made for causes for issue of the writ. The only difference between the petitions is that the second petition sets out that after hearing on the first show cause order, petitioner first learned that the board did not consider the statements made by petitioner in his returned questionnaire as to his physical condition.

As we are following material events in the order of their happening as nearly as may well be done, we now proceed to consider petitioner's letter to the board protesting the classification of I-A. It is petitioner's contention that the letter constituted a request for a review by the local board, a request for a personal appearance, and in case of an adverse view, an appeal. It is agreed that the letter was all of these things except that respondent claims contrary to petitioner that it was not a request for, but was a waiver of, a personal appearance.

We have very carefully analyzed the letter in the light of the waiver issue and have concluded that it did not constitute a waiver of a personal hearing before the local board. Inasmuch as a personal hearing is a definite right given every registrant by the Congress, there is no question but that such right should not be construed as having been waived unless the facts leave no other reasonable conclusion open.¹

The problem is presented to us with every facet exposed exactly as it was exposed to the local board and to the court who rendered the judgment. All of the evidence is in writing and neither the board nor the courts below had ever seen the registrant-petitioner before making their conclusions. In such cases it is often said that the reviewing court is in as favorable a position to adjudge the problem as were the triers of fact.

Still, this court does not sit as an original trier of fact and, we think, it takes an imponderable moiety more than an even balance to justify a reversal. We approach the problem with these principles in mind.

We quote, in full, the first paragraph of the letter:

"Members of the Board,

I wish this to serve as my notice of appeal from my classification into I-A. Since my appeal is based on circumstances extending over the last five years, I would have preferred to appear before you to relate these circumstances more fully. However, the distance and expense present difficulties. However, after reviewing this appeal, if you feel my appearance would offer a more complete hearing, I will be glad to appear in person."

The balance of the letter is mainly statements and arguments as to hardship which induction will cause.

Petitioner's letter to the board was not a complete abandonment or waiver of his right to a personal appearance. It is couched in polite deference to the board and appears to be carefully written so as to assure the members that he is not attempting to avoid discussing his situation face to face with them and that he values the right to do so.

Both the file and the letter show that petitioner had removed from Los Angeles to New York where he had entered into business, and it is patent that such fact would "present difficulties". Yet he does not give up his right to appear but says:

"However, after reviewing this appeal, if you feel my appearance would offer a more complete hearing I will be glad to appear in person."

Construed strictly, the last quoted sentence may be said to leave it up to the board as to whether his appearance would change the situation. Laying aside the question as to whether the board should or could assume to decide such a question, we think the quoted sentence, when read with the whole letter, cannot reasonably be construed to mean that he has abandoned his right. What it does mean is that he thinks if the board will review his file in connection with his letter, the members will be convinced that his claim is good and that a personal appearance with its expense and other untoward circumstances is not needed. If, after the board has given it this requested attention and remains unconvinced, he writes, "I will be glad to appear in person."

We think both the Board and the district court were in error in regarding petitioner's request as a waiver of a personal appearance. This conclusion requires that the petitioner be ordered released from the Army.

Without retreating from our foregoing viewpoint, we now proceed to discuss the case as though we had determined the issue of waiver against Talcott's contentions.

As to hardship, we think the showing is not sufficient to require a reversal. A showing of hardship in some degree could be made as to every selectee. Army life removes the young man from regular pursuits. We think in a very extreme case only would a court be justified in reversing a board's order on this point. Petitioner's lot was a hard one but he had very considerable deferment owing to the situation at his home, especially on account of his wife's pregnancy. Some time after petitioner was ordered inducted but before induction, the wife conceived, and all of the requirements as to this fact in connection with deferment were furnished the board. However, notice thereof was not furnished the board until after the notice of induction had been mailed to petitioner, and § 1622.30(c)(2), regulations, provides that no registrant shall be placed in III-A because he has a child not yet born, unless prior to the time the local board's notice to appear for induction had been mailed to the registrant he has filed a certificate of a physician stating that a child has been conceived.

Respondent-appellee also cites § 1625.2 of the Regulations which provides that a classification can not be reopened until and unless the local board first finds there has been a change in the registrant's status resulting from "circumstances over which the registrant has no control". Respondent then cites General Hershey's Operation Bulletin No. 57, issued to the local boards, in his brief as follows:

"* * * that pregnancy is a status over which the registrant does have control, and it is therefore not a claim which can be classified under `hardship\' such as sickness, death, or an extreme emergency beyond the registrant\'s control."

We think the contents of the bulletin are morally and legally wrong. It invades the most sacred precinct of family life at a time when there should be the most complete mutuality between the spouses and in the face of nature's most demanding and significant urge in nature's scheme for propagating the species. It obliquely charges the youth of the land with corrupting the family relation into a way of avoiding service for cowards.

The remaining contention of petitioner-appellant is that the original IV-F classification was void, and therefore he never occupied the status of a deferred registrant; that he was twenty-six years old before he was classified I-A; and that the law limited the...