United States ex rel. La Charity v. COMMANDING OFFICER, ETC.

• Decision Date: 01 May 1944
• Docket Number: No. 317.,317.
• Citation: 142 F.2d 381
• Parties: UNITED STATES ex rel. LA CHARITY v. COMMANDING OFFICER OF UNITED STATES ARMY INDUCTION CENTER, BUFFALO, N. Y.
• Court: U.S. Court of Appeals — Second Circuit

142 F.2d 381 (1944)

UNITED STATES ex rel. LA CHARITY v. COMMANDING OFFICER OF UNITED STATES ARMY INDUCTION CENTER, BUFFALO, N. Y.

No. 317.

Circuit Court of Appeals, Second Circuit.

May 1, 1944.

Klocke & Rovner, of Buffalo, N. Y. (James O. Moore, Sr., of Buffalo, N. Y., of counsel), for appellant.

George L. Grobe, U. S. Atty., of Buffalo, N. Y. (Eugene J. Donnelly, Asst. U. S. Atty., of Buffalo, N. Y., of counsel), for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

SWAN, Circuit Judge.

The relator, who was inducted into the United States army on October 20, 1943, and furloughed until until November 10th, applied for a writ of habeas corpus to test the legality of his induction. A writ was issued on November 1, 1943, directed to the Commanding Officer of the United States Army Induction Center at Buffalo, New York; a return thereto was duly filed in behalf of the United States and a hearing was had which resulted in an order discharging the writ. From that order the relator has appealed.

In 1940 the appellant duly registered under the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq., with Local Board No. 3 of Lancaster, Pa. Originally the board classified him in III-A as a registrant having dependents. But on March 1, 1943, after appearing before the board he was given a classification of I-A and notice thereof was duly mailed to him. He took no appeal from this classification. Thereafter he wrote the board requesting a reconsideration of his classification and transmitted affidavits in support of deferment on the grounds of (a) dependency and (b) engagement in essential industry. He appeared before the Board in support of these claims April 12th. The following day he was notified by a letter that the board "after again going over your case very thoroughly has continued your classification I-A but postponed your induction for a period of 30 days from the above date." On April 16th he notified the board that he desired to appeal and to have the appeal transferred to the Appeal Board located in Buffalo, N. Y., where he resided and where the corporation of which he was president had its principal place of business. The board refused to entertain the appeal or to transfer it to the Buffalo Appeal Board on the ground that he had failed to appeal from its March 1st classification and was not entitled to appeal from its refusal on April 12th to reclassify him. The correctness of this ruling is the first question for our determination.

Appeals are governed by § 627 of the regulations. Subdivision (a) of § 627.2 gives the right to "appeal to a board of appeal from any classification of the registrant by the local board"; and subdivision (c) provides that the appeal must be taken "within ten days after the date when the local board mails to the registrant a Notice of Classification (Form 57)." Such a notice was mailed to the appellant on March 1, 1943. In his brief it is stated that no notice of I-A classification was received until April 13, 1943, but we find nothing in the record to support the statement. On the contrary his letter of March 19, 1943, requested the board to "reconsider my draft classification." It is conceivable, though unlikely, that this request referred to the classification given him on February 8, 1943, namely Class I tentative, rather than to the action of the board on March 1st. However this may be, it is enough that the record shows the mailing of the March 1st notice and does not show that the registrant failed to receive it. Whether if such a failure were proved, it could have any legal effect upon the registrant's right to appeal is a question not before us and therefore not considered. Under the regulation mailing of notice started the running of the time for appeal; consequently the appellant's time to appeal from the March 1st classification expired on March 11th.

The appellant urges that the action of the board in continuing his I-A classification after the hearing on April 12th was a new classification from which he should have been granted the right to appeal. Section 626.2 authorizes the local board to consider anew a classification previously made but no provision of the statute or the regulations has been pointed out giving a right to appeal from a reconsideration which results in no change of classification. We are satisfied that no appeal lies from such a decision. The evil of a contrary rule is obvious; if there were an appeal from every refusal to change a classification, a registrant could interminably delay his induction by successive requests and appeals, as Judge Forman pointed out in United States ex rel. Filomio v. Powell, D.C.N.J., 38 F.Supp. 183, 188. Had the board arbitrarily refused to consider the appellant's request for reclassification, it is possible that he might be entitled to judicial intervention; but no such charge is made against the board. Nor can it be said that in refusing to change the classification the board acted in so arbitrary a manner that its decision lacked all legality. On the contrary under the evidence its decision seems well justified, although the sufficiency of the evidence before the board is not a matter for judicial review. United States ex rel. Kotzen v. Local Exemption Board, D.C.S.D.N.Y., 252 F. 245, 248. Since no appeal lay from the refusal to reclassify no wrong was done the appellant by denying his request to transfer his file to the Appeal Board in Buffalo.

The next contention is that the board acted illegally in not putting the appellant in Class IV-F after he was rejected at the Induction Station at Buffalo on May 17th and July 12th, 1943. The report of his physical examination on May 17th found "Low back syndrome with limitation forward bending" and stated that he "is disqualified for military service because of limitation of quota for limited-service men for the month of May. He may be sent in with the next group." The report of the July 12th physical examination was similar. It stated that he "is physically qualified for limited military service only, by reason of low back syndrome"; also that he "is disqualified for military service because of administrative rejection limitation of quota for limited-service men." Thereafter on July 21, 1943, the local board at Buffalo returned the appellant's papers to the board at Lancaster with a letter stating: "These papers have just been returned to us by the Induction Station. Please note that this man has been placed in Class IV-F." On August 10th the Lancaster board sent the file to Selective Service Headquarters at Harrisburg, Pa., with the request that it be reviewed. The State Director's reply read:

"The cover sheet has been rechecked and it has been determined that if this registrant was administratively rejected due to limitation of quota for limited-service men, that he be considered Class I-A(L) and processed for induction as a limited service registrant when Call is received from this Headquarters for delivery of registrants of this class."

On August 23rd the board classified him as I-A(L). He gave notice of appeal but the board refused the appeal. Thereafter he was again examined at the Induction Station at Buffalo and on October 20, 1943, was accepted and inducted into the army for general service. The district court was of the opinion that the local board's failures to place the petitioner in Class IV-F after his examinations on May 17th and July 12th were "procedural errors not prejudicial to substantive rights" and were therefore not grounds for the relief sought. We do not find this conclusion untenable see United States ex rel. Bergdoll v. Drum, 2 Cir., 107 F.2d 897, 129 A.L.R. 1165, certiorari denied 310 U.S. 648, 60 S. Ct. 1098, 84 L.Ed. 1414, but we prefer to rest our decision on broader ground. After careful examination of the record and...