United States v. Baird, Misc. No. 525.

• Decision Date: 20 June 1941
• Docket Number: Misc. No. 525.
• Citation: 39 F. Supp. 411
• Parties: UNITED STATES ex rel. PASCIUTO v. BAIRD, Colonel, et al.
• Court: U.S. District Court — Eastern District of New York

39 F. Supp. 411

UNITED STATES ex rel. PASCIUTO v. BAIRD, Colonel, et al.

Misc. No. 525.

District Court, E. D. New York.

June 20, 1941.

Charles L. Cusumano, of Brooklyn, N. Y., for relator.

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

Thomas J. F. Kirk, of Brooklyn, N. Y., Government Appeal Agent, Local Board 173.

ABRUZZO, District Judge.

The writ of habeas corpus in this proceeding was obtained on behalf of Michael Pasciuto upon allegations contained in the petition by Charles L. Cusumano, his attorney.

He was inducted into the United States Army on May 14, 1941, and assigned to Camp Upton, Yaphank, Long Island, where he is still stationed.

This selectee claims that there was no substantial evidence to support the conclusion of the Local Board that the selectee herein has no dependents. He asserts that there is ample proof to indicate that he had bona fide dependents at the time he was inducted into the Army and that therefore he has been deprived of his liberty illegally.

A chronological recitation of the facts before the Local Board follows. The selectee received the Serial No. 3914, and on the drawing of the National Lottery, the said Serial No. 3914 received order No. 491 of this Board.

On December 3, 1940, in regular order, a questionnaire was sent to the selectee, addressed to him at No. 956-59th Street, Brooklyn, New York. The relator answered and mailed the said questionnaire to the Local Board which was received on December 9, 1941. The information given by the selectee on his questionnaire indicates that he had no physical or mental defects or disease; that he was a contractor on ladies' blouses, self-employer, having his own business; and that he had five dependents, namely: Anthony Pasciuto, male, sixty, father; support began in 1935; total support.

Emilia Pasciuto, feminine, fifty, mother; total support since 1935; her earnings, none.

Clara Pasciuto, feminine, twenty-seven, sister; dependency began March 9, 1940; total support, no income from any source.

Joseph Pasciuto, male, nineteen, brother; support started in 1935; total support; no other income.

Nicholas Pasciuto, male, seventeen, brother; total support since 1935; no other income.

The selectee's questionnaire also stated that the net cost of maintaining his home for twelve months was $2,200 and that his net income was approximately $3,800.

On December 17, 1940, the Local Board duly classified the selectee in Class I. On February 11, 1941, he was mailed a notice to report for a medical examination on February 13, 1941. The records indicate that the relator was examined, at which time he "complained of pain in spine so that he can't sit down. This pain comes about once a month". As a result, the relator was examined at the Methodist Hospital, on February 21, 1941, and the X-ray report is as follows:

"Methodist Hospital

"Department of Radiology

"Consultation Record

Draftee X-ray Report

"Name: Pasciuto, Michael "Request: Lumbo-sacral spine Office X-ray No. 50,693 Dr. Grillo

"No abnormality in detail or outline of the individual bodies comprising the lumbosacral spine is noted. Laterally, there is no evidence of spondylolisthesis, the angle falling within normal variable limits. There is no evidence of pilonidal cyst, which is reflected in the negative bone findings.

"Diagnosis: Negative

"Feb. 21st, 1941 Dr. John Pepe, Consultant"

On March 3, 1941, the Local Board, after consideration of the medical report, placed the selectee in Class I-A. After a request to appeal to the District Board of Appeal from such classification of Class I-A, the relator submitted an affidavit and a joint verified statement by Anthony Pasciuto, Emilia Pasciuto and Joseph Pasciuto, to the Appeal Board members, dated March 7, 1941, to the effect that they were totally dependent upon the relator.

Pursuant to a communication, the selectee was interviewed on March 13, 1941, by the Chairman of the Local Board and a Government Appeal Agent; and again on March 21, 1941, when he presented another affidavit setting forth the physical disability and dependency of his brother, Joseph Pasciuto, age twenty, and additional information as to his brothers and sisters as follows:

"Brother, Carmine M. Pasciuto, age 33, employed as Social Investigator by the Department of Welfare. Resides at 1050 62nd Street, Brooklyn, New York. Receives $1,799.99 per annum. Married and has three children. Cannot contribute to support of father's family.

"Sister, Mrs. Fannie Toscanini, resides at 1133-69th Street, Brooklyn, New York. Married and has four children. Cannot contribute.

"Sister, Mrs. Catherine Bruno, resides at 926-59th Street, Brooklyn, New York, married. One child. Unemployed. No contribution.

"Brother, Frank Pasciuto, resides at 1251-59th Street, Brooklyn. Married. No children. Unemployed. Expects employment in near future. Cannot contribute.

"Sister, Clara Pasciuto, resides at 956-59th Street. Single. Unemployed. Assists in shop and thereby earns her own livelihood.

"Sister, Mrs. Evelyn Di Paolo, age 25, married. One child. Unemployed. No contribution.

"Sister, Mrs. Antoinette Del Gaudio, resides at 1123-53rd St., Brooklyn, New York. Married. One child. No contribution. Unemployed.

"Brother, Joseph Pasciuto, 956-59th Street, Brooklyn, New York. Single. Unemployed. Assists in shop and earns own livelihood."

The selectee further stated that his induction into the Army would result in the closing of his factory and his brother, Joseph, and his sister, Clara, would be without employment. He claims to have organized the business about September, 1940, and that his mother and sister, Clara, and brother, Nicholas, help to run the business while the selectee is away from it.

The selectee endeavored to convince the Local Board that since he obtained the work for the business his induction would so cripple the business, due to lack of work, that it would of necessity have to be discontinued.

With all of the data submitted by the selectee, then comprising his Case Record, the appeal was transmitted to the District Appeal Board for its review and consideration. Its conclusion, noted on the questionnaire, was as follows:

"Minutes of Action of Board of Appeal— The Board of Appeal classified the registrant Class 1, Subdivision `A', by the following votes:

Ayes—3 Noes—0 "3/26/41 Julius Applebaum, Chairman."

The relator was sent a Notice of Continuance of Classification on March 27, 1941; and on April 4, 1941, an Order to Report for Induction was mailed to him, directing him to report to the Local Board at 7 A. M. on the 18th day of April, 1941.

The selectee, on his own accord, registered a complaint with Selective Service Headquarters, No. 331 Madison Avenue, New York City, as a result of which his induction was deferred until such time as an inquiry and investigation could be made by a Liaison Appeal Officer. On April 10, 1941, the selectee again presented himself before the Local Board at which the Liaison Appeal Officer was in attendance. After a thorough investigation by the Liaison Appeal Officer and a detailed report to the Selective Service Headquarters, the Chief of the Legal Division informed the Local Board on April 28, 1941, that the classification 1, subdivision "A", would not be disturbed.

A second order to Report for Induction on May 14, 1941, was sent to the selectee on April 29, 1941. On that date, May 14, 1941, the selectee was accepted by the Army officials at the Army Induction Center in Jamaica, New York; and on the same day, he appeared at the Local Board with his attorney, but pursuant to Regulations Nos. 165 and 166, the latter was not permitted to examine the Case Record. The selectee was sent to camp.

From a detailed review of all the data and testimony, it has developed that the selectee was a contractor in the finishing of ladies' blouses which he claims to have begun about September, 1940. He is twenty-two years of age, without any apparent prior business knowledge or experience, as indicated by his Work Record wherein he states that from 1935 to 1937 he was employed as an operator of a power press machine in cutting mica and other materials used in electrical appliances; and then, from 1938 to 1940, he was employed as a stock clerk.

Upon the hearing of this writ, the selectee does not now claim to be the sole support of his sister, Clara, nor of his brother, Nicholas; but claims three dependents: Anthony Pasciuto, father; Emilia Pasciuto, mother; and Joseph Pasciuto, brother.

It is apparent from the record that the selectee's mother, Emilia Pasciuto, and his sister, Clara Pasciuto, are actively employed in the business which the selectee claims he owns, which affords a substantial income, sufficient to support not only themselves but also the physically handicapped son (brother of selectee), Joseph. There appears to be no proof of the dependency of the father, Anthony Pasciuto. There was no evidence presented that the father could not work if he so desired.

The thorough detailed investigation of this case is illustrative of the interest and precaution taken by the authorities to insure the fair treatment of the selectee at the hands of the Local Board.

The law appears to be settled that the action of local boards within the scope of their authority is final and not subject to judicial review unless the board has acted contrary to law or has manifestly abused the discretion committed to them by statute.

The sole claim made here by the selectee is that there is no substantial proof to support the conclusion that the selectee has no dependents.

The Local Board was empowered to act under the Selective Training and Service Act of 1940, Section 10(a), Subsection (2), 50 U.S.C.A. Appendix § 310(a) (2), which provides: "* * * Such local boards, under rules and regulations prescribed by the President, shall have power within...