United States v. Powell

• Decision Date: 10 April 1941
• Docket Number: No. 158a.,158a.
• Citation: 38 F. Supp. 183
• Parties: UNITED STATES ex rel. FILOMIO v. POWELL et al.
• Court: U.S. District Court — District of New Jersey

38 F. Supp. 183

UNITED STATES ex rel. FILOMIO v. POWELL et al.

No. 158a.

District Court, D. New Jersey.

April 10, 1941.

Stein & Wiener, of New York City, for petitioner.

Charles M. Phillips, U. S. Atty., of Newark, N. J., and Thorn Lord, Asst. U. S. Atty., of Trenton, N. J. (A. A. Melniker, of Jersey City, N. J., and John T. Daly, of New York City, of counsel), for respondent.

FORMAN, District Judge.

The petition for a writ of habeas corpus filed herein is executed on behalf of Fred Filomio by David Stein, his attorney, and alleges the following facts:

Fred Filomio is confined and restrained of his liberty at Fort Dix, New Jersey by reason of an order of Local Board No. 102, County of Bronx, State of New York, pursuant to the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix § 301 et seq.

On or about December 24, 1940, the Local Board classified Fred Filomio in Class I-A as available and fit for general military service on the basis, among other things, that his sister Evelyn Filomio was then working and was able in part to contribute towards the support of Fred Filomio's father and mother. He was notified to appear for induction in the armed forces of the United States on the 13th day of January, 1941.

Subsequent to this classification Evelyn Filomio lost her position, and became unable to contribute to the support of the said parents. Accordingly, Fred Filomio filed with the Local Board a request for a reclassification on the ground of dependency. The Local Board on or about January 10, 1941, considered the application but declined to re-classify him on the basis of the change in status, and failed to notify him of this action.

Fred Filomio appealed from this action by letter directed to the Local Board demanding in part: "That you consider this my appeal from your failure to re-classify and transmit my entire folder to the Appeals Board for action."

The Local Board declined to transmit the folder to the Appeals Board, and notwithstanding the fact that an appeal stays induction under the Selective Training and Service Act of 1940, Filomio has been transferred to Fort Dix, New Jersey, but he has refused to take an oath of induction.

In consequence of the above allegations a writ of habeas corpus was issued directing that Filomio be produced before this court.

At the hearing on the return of the writ the following facts were disclosed:

The questionnaire filed with the Local Board shows that Filomio's father, mother, and sisters, Angelina and Evelyn, all living in the same household, were dependent upon him for support. Except for Filomio's contribution the only income of these dependents was in the amount of $250 annually received by the mother, and $700 annual wages received by Evelyn, who contributed about $5 a week to the support of the family.

Eugene L. Larkin, Chairman of the Local Board, testified that it was dissatisfied with the statements in Filomio's questionnaire, and, hence, it had Filomio before it for a hearing on November 22, 1940, and it determined "that his family were very comfortably situated, that they had a country place where they spent the summer, and his income was unimportant to the family." Accordingly, he was placed in Class I under the Act. When the physician's report was received on December 24, 1940, Filomio was placed in Class I-A. Notice to report for induction on January 13, 1941, was received by Fred Filomio on December 26, 1940.

On January 4, 1941, David Stein, attorney as aforesaid, wrote a letter to Joseph R. Damico, the Appeals Agent of the Local Board, which was received on January 6, 1941, describing the financial dependency of Filomio's parents and sisters. In addition, it was stated that notwithstanding the fact that time for appeal had elapsed, the Local Board should either permit an appeal in view of the fact that induction had not yet occurred, or in the alternative, re-classify.

On January 8, 1941, David Stein addressed another letter to the Board and forwarded it together with Fred Filomio's affidavit so that it was received by the Board on the same day. The letter stated that Evelyn Filomio no longer worked or contributed funds to her parents. An extension of time to appeal from the original classification was requested, or in the event the Board felt powerless to grant such extension, application for re-classification was made and upon denial of the latter an appeal was sought from that ruling.

The affidavit of Fred Filomio stated that Evelyn Filomio, who had been employed in a doll factory at $15 a week, was no longer employed. The same relief is requested as in the letter of David Stein; specifically, in the following language: "In the event that you deny me re-classification and deny an extension of time to appeal, that you consider this as my appeal from your failure to re-classify, and transmit my entire folder to the Appeals Board for action."

The Board declined to permit an appeal from the original classification, and took the position that since the application was not made within the five-day period prescribed by the regulations (see Selective Service Regulations, Paragraph 371a, quoted in full infra) an extension would not be granted.

Furthermore, the Local Board declined to re-classify although it does not appear that a formal hearing was had in this respect. The Chairman of the Board, Eugene L. Larkin, with reference to this conclusion, stated: "* * * there was nothing, no new evidence here; the fact that the sister who contributed $5 a week to the support of the family had lost her job, which he explained to us at great length at a prior occasion, was a seasonal job, she worked on dolls, I think it was, didn't constitute any reason for reopening the case. $5 a week is just enough to feed a person, not to support a family. We didn't give that any consideration whatsoever, and told him so, that his status was the same and we didn't see any reason for having a rehearing on his case unless some new evidence could be produced." Record, p. 17.

The Board also declined to forward papers in connection with Filomio's case to the Appeals Board, and, hence, in this fashion it declined to permit an appeal from its denial of re-classification.

Preliminary questions herein have been proffered by counsel for both the petitioner and the government. Filomio complains of the Board's failure to mail a notice of continuance of classification following its denial of re-classification. The regulations provide that: "If the local board refuses to reclassify, after the registrant has requested reclassification, because of a change in circumstances, it shall mail a Notice of Continuance of Classification (Form 58) to the registrant." Selective Service Regulations, Paragraph 387, quoted in full infra. Good practice upon the part of the Local Boards undoubtedly requires a notice of continuance of classification to be mailed. Fortunately, no harm has been done by this omission, since it appears that Filomio was apprised by Chairman Larkin of the refusal to reclassify on the very moment of denial. For that reason we cannot say that a fatal error has been committed by the failure of the Board to transmit form 58.

The government contends that the petition should be dismissed, because there is a variance between the proof and allegations. The petition alleges that Filomio was originally classified on December 24, 1940, whereas the testimony reveals he was classified on November 22, 1940. It does not appear that he was finally classified as early as November 22, 1940. He was only placed in Class I at that time, and was not placed in Class I-A until the physician made his report on December 24, 1940. Furthermore, Filomio did not receive notice of classification until after December 24, 1940, and, hence, could not have known of his partial classification on the earlier date.

The government also contends that Filomio's failure to fill out and sign the "Appeal to the Board of Appeal" blank on his questionnaire, pursuant to the procedure established by the regulations is fatal. This regulation provides as follows: "If the person appealing wishes the board of appeal to review any other appealable determination of the local board, the person appealing shall fill out and sign the `appeal to board of appeal' on the questionnaire. The person appealing shall attach to the questionnaire a written statement specifying the class or classes in which the person appealing believes the registrant should be placed." Volume Three, Selective Service Regulations. Executive Order No. 8560, Promulgated by the President October 4, 1940, Section XXVII, Paragraph 372b.

It appears that the questionnaire is lodged with the Local Board, and unless the Local Board returns it to the applicant it is impossible to perfect an appeal on that form pursuant to the above quoted regulations. Evidence is conflicting as to whether Filomio demanded the questionnaire in order that he might perfect his appeal. We do not feel that it was readily available, and hence his omission in this respect was beyond his control.

The government questions the jurisdiction of this court to consider the case on its merits. It is suggested that if Filomio had declined induction and subjected himself to charges of desertion by the military authorities he could then appropriately test his detention in a habeas corpus proceeding. It is claimed that his failure in this respect confines his application for relief to the procedure provided in 10 U.S.C.A. § 652 as follows: "When by reason of death or disability of a member of the family of an enlisted man, occurring after his enlistment, members of his family become dependent upon him for care or support, he may, in the discretion of the Secretary of War, be discharged from the service of the United States."

This attack upon the jurisdiction of the court is further based upon the case of Ver Mehren v. Sirmyer, 8 Cir., 36 F.2d 876. The petitioner in that...