United States ex rel. Bent v. Laird, 71-1570.

• Decision Date: 06 December 1971
• Docket Number: No. 71-1570.,71-1570.
• Citation: 453 F.2d 625
• Parties: UNITED STATES of America ex rel. Lewis Godfrey BENT, Appellant, v. Melvin R. LAIRD, Secretary of Defense, et al.
• Court: U.S. Court of Appeals — Third Circuit

453 F.2d 625 (1971)

UNITED STATES of America ex rel. Lewis Godfrey BENT, Appellant, v. Melvin R. LAIRD, Secretary of Defense, et al.

No. 71-1570.

United States Court of Appeals, Third Circuit.

Argued October 18, 1971.

Decided December 6, 1971.

Donald L. Doernberg, Levy, Gutman, Goldberg & Kaplan, New York City (Jeremiah S. Gutman, New York City, on the brief), for appellant.

Roger S. Steffens, Asst. U.S. Atty., Trenton, N. J. (Herbert J. Stern, U.S. Atty., Newark, N. J., on the brief), for appellees.

Before ALDISERT, GIBBONS and ROSENN, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

Petitioner Lewis Godfrey Bent appeals from an order of the district court denying his application for a writ of habeas corpus. Bent, who on April 14, 1971 submitted to induction pursuant to the Military Selective Service Act of 1967, 50 U.S.C.App. § 451 et seq. (1971), sought in his habeas corpus petition to review the legality of his order to submit to induction. The petition, which is directed to the proper military respondents, alleges that his Local Board improperly refused to classify him III-A—deferred for reason of hardship.

The petition was filed on April 27, 1971 and was served upon the United States Attorney on the same date. On April 27, 1971 the district court issued an order restraining the respondents from transferring Bent from the jurisdiction of the court until they should show cause on June 7, 1971 why a writ of habeas corpus should not issue. The court held a hearing on the petition on June 3, 1971. The record does not disclose why the return date was so advanced. No transcript of the hearing on June 3 was prepared. At that hearing the court received in evidence four exhibits:

                  G-1  Bent's Selective Service System
                file
                  G-2  A two page transcript of a colloquy
                       before Honorable Milton
                       Pollack of the United States District
                       Court, Southern District of
                       New York, in the matter of
                       United States v. Bent, 71 Cr. 261
                  G-3  A certified copy of a nolle
                       prosequi in 71 Cr. 261
                  G-4  A certified copy of Indictment
                       71 Cr. 261
                

No responsive pleading was filed and so far as the record before us discloses, no testimony was taken. On June 11, 1971 the district court filed an opinion and order denying the petition for a writ of habeas corpus. As ground for the denial, the court's opinion states:

"The petitioner is estopped from attacking the decision of the Selective Service Board by his submission to induction which was followed by the nolle prosequi of his indictment in the Southern District of New York. See United States ex rel. Deans v. Clifford, 420 F.2d 30 (3rd Cir.1970). Once petitioner submitted to induction and was favored by the dropping of the criminal charges against him on the representation that he would serve, he was estopped from challenging his induction. He should seek relief through the Army\'s administrative remedies."

The facts which were before the district court do not warrant the summary rejection of the petition. We reverse.

Bent is a twenty six year old resident alien who immigrated from Jamaica in 1966. He registered with Local Board 10, Mount Vernon, New York, which on December 6, 1967 classified him I-A. On January 12, 1968 he filed with the Local Board a Dependency Questionnaire (SSS Form 118) and a request for a III-A hardship deferment. On February 8, 1968 the Board mailed him a new notice of classification in Class I-A and a form (SSS Form 212) advising him of his right to a personal appearance and appeal. See 32 C.F.R. Parts 1624, 1626 (1971). He replied, requesting a personal appearance and an appeal. The Local Board arranged for a personal appearance and on February 29, 1968, it received additional information from Bent. On March 6, 1968 the Board voted to continue his I-A classification. No reasons were given for the Local Board decision. Bent's file was forwarded to the Selective Service Appeal Board on April 12, 1968. The Board records and the fact that an appeal was permitted make clear that the personal appearance was a reopening of his classification pursuant to 32 C.F.R. § 1625.13. On May 23, 1968 the Appeal Board without reasons continued Bent's I-A classification. He was advised of this action, and on June 3, 1968, he wrote once again outlining the hardship which would result to his family if he were inducted. On July 1, 1968, however, the Local Board issued an order to report for induction. Despite that order, and for reasons which do not appear in the record before us, the Board on July 8, 1968 granted what its records classify as a "discretionary interview" rather than a personal appearance pursuant to 32 C.F.R. § 1624.1. As a result of this interview the Board postponed Bent's induction pending further review, and he was so notified on July 9, 1968. (SSS Form 264). On that date the Board obtained from Bent a new Dependency Questionnaire. Although the Board records classify the July 8, 1968 interview as a discretionary interview, the scope of the inquiry was actually broader than when it reopened Bent's classification in February, 1968. The Board determined that it would obtain an independent investigation. On July 12, 1968 it wrote to the Department of Public Welfare of the County of Westchester:

"By mutual agreement between the New York State Department of Social Welfare and New York State Headquarters of the Selective Service System, and in accordance with the provisions of the Universal Military Training and Service Act, as amended, it is requested that you make an investigation of the subject person for the reason checked below:

x Request for deferment due to dependency or hardship

* * * * * *

Registrant\'s claim, in brief:

Support of parents.

We request a statement of facts upon which the local board may determine the registrant\'s correct classification. The following types of information should be included in your report:

a. The composition of the registrant\'s immediate family including name, age, relationship and address.

b. Income and expenses. c. Employability of the registrant\'s dependents.

d. Other information pertinent to the case.

A recommendation or an opinion by your agency is not required."

On August 22, 1968 the Department of Social Services, County of Westchester, Division of Family and Child Social Services replied with a lengthy report of the results of its investigation. Without repeating the details, this report, together with information previously supplied, discloses that Bent arrived from Jamaica in 1966, soon surrounded himself with a mother, father, six siblings and two nieces. To provide shelter for these relatives, he purchased a home on which first and second mortgage payments run $289.94 a month. He also supports an illegitimate child in Jamaica. The report sets forth other significant household expenses. Bent's situation is compounded by the fact that Bent and several of the siblings have undertaken efforts to further their education. The people and numbers set forth in the record fall into that area which Judge Hastie described in United States ex rel. Kameshka v. Neff, 446 F.2d 1164, 1168 (3rd Cir.1971):

"While a board had wide discretion in acting on a claim for ... deferment, its adverse action appears to be arbitrary when the record fully justifies the deferment and shows neither facts nor stated reasons that support its denial of deferment. United States v. Pyrtle, 8th Cir.1970, 423 F.2d 772. This is but a particular application of the established principle that a board\'s rejection of a registrant\'s prima facie showing of entitlement to exemption or deferment must be supported by something in the record that indicates the existence of a proper factual basis for that action. Dickinson v. United States, 1953, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132; Witmer v. United States, 1955, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428."

The Board records disclose no reaction to the report from the Department of Social Services until December 18, 1968. On that date, the Cover Sheet (SSS Form 101) discloses, Bent was classified I-A. No reasons appear for this decision. The fact that a reclassification was made indicates that the July 8, 1968 "discretionary interview" was treated by the Board as a reopening pursuant to 32 C.F.R. § 1625.2. The Selective Service file (Exhibit G-1) does not disclose that any new notice of classification (SSS Form 110) was mailed to Bent, or that he received a form advising him of his appeal rights. (SSS Form 217). He must have been notified of the Board's December 18, 1968 decision in some manner, however, because on December 31, 1968 he wrote to the Board, acknowledging receipt of the I-A classification and requesting an appeal. The Local Board acknowledged the letter and on January 17, 1969 granted an appearance pursuant to 32 C.F.R. § 1624.1. On that date he presented a letter detailing his hardship claim and appeared before a single board member who advised him that his case would be presented for consideration by the full Board at its next meeting. Apparently as a result of a request from the Board, or the Board member who conducted the January 17, 1969 personal appearance, Bent on January 20, 1969 furnished copies of the federal and New York State income tax returns on which he claimed two siblings as dependents.

The Board records disclose no reaction to either the contents of the January 17, 1969 personal interview or the income tax returns until February 5, 1969 when the Cover Sheet (SSS Form 101) discloses, the Board classified Bent I-A. No reasons appear for the classification. The Selective Service file does not disclose that any new Notice of Classification (SSS Form 110) was mailed to Bent or that he received a form (SSS Form 217) advising him of his appeal rights. He must have been notified of the Board's February 5, 1969 decision in some manner, however, because on March 10, 1969 Bent wrote to the Board:

"I have applied to

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