are Ex parte Albertson, D.C.D.C. 1951, 103 F.Supp. 617, Kirkland, D. J., and Imboden v. United States, 6 Cir., 1952, 194 F.2d 508.
At the second hearing had on this matter, Dr. Rogers, the chairman of the board, testifying as a government witness, stated that the petitioner had never 'specifically' requested that his classification be reopened and had never appealed to the State or National Directors of Selective Service or to the President. Reference was also made in the case to Selective Service permits to leave the United States, although Dr. Rogers somewhat puzzlingly testified that 'they (the board) could not' give petitioner such a permit. Neither of these factors impresses this Court as of substantial importance.
The fact that petitioner never 'specifically' requested the reopening of his case is unimportant. The steady stream of communications from overseas, coupled with the visit of petitioner's mother and the activities of his counsel, certainly amounted in effect to a continuing request by petitioner that his case be reopened. Of course, Regulation Sec. 1624.1(b) (CCH Emergency Labor Law: Wage and Manpower Controls, Par. 59, 656, p. 69,221) provides: 'That no registrant may be represented before the local board by anyone acting as attorney or legal counsel.' But that Regulation, it appears to the Court, envisages the usual situation where the registrant himself is in the United States and fit and available to speak for himself. And the mistake, if mistake it was, was cured by the sending of papers and documents directly by the petitioner himself. In addition, that same Regulation authorizes the board 'in its discretion, (to) permit any person to appear before it with or on behalf of a registrant.' And the board made an appointment with petitioner's counsel, at which he arrived belatedly.
Petitioner's failure to take an appeal is similarly without significance. He had been classified I-A in December, 1948, and his time to appeal from that classification expired ten day thereafter. Selective Service Regulations Sec. 1626.2(c). The local board's steadfast refusal to reopen his classification or to send him a new notice of classification adhering to its original decision effectively deprived him of any right to appeal thereafter.
Reference to the regulation dealing with permits to leave the United States (Sec. 1621.16 CCH Emergency Labor Law: Wage and Manpower Controls, Par. 59,541, p. 69,165) does not aid the Government's case. That section does not forbid any registrant without such a permit to leave the United States; it is permissive rather than mandatory. Moreover, the regulation instructs that the permit 'should issue * * * unless it is found that the registrant's absence is likely to interfere with the performance of his obligations * * *.' So had it been applied for, it should properly have been granted.
(c) Form of Relief
The Court is of the opinion that the petitioner is presently in constructive custody of the Government by reason of the United States Attorney's direction to him to return to the United States by February 15 or be indicted. He is not free to go where he pleases; in a sense, he is enjoying jail liberties. This type of detention was held sufficient to support the issuance of a writ of habeas corpus in Chin Yow v. United States, 208 U.S. 8, 28 S. Ct. 201, 52 L. Ed. 369, where a Chinese claiming to be an American citizen had been refused permission to come into the United States at San Francisco, and had been turned over to the General Manager of the Pacific Mail Steamship Company. A writ of habeas corpus will issue. Nevertheless, since the interest of this Court is to see substantial justice done in this case, and since, in the well-remembered rhetorical image of Professor Maitland, the forms of action, though dead, must not rule us from their graves, and injunction also will issue against the United States Attorney's office and the local board to protect the rights of the petitioner pending (1) appeal or (2) a composition between the petitioner and the board or (3) further order of this Court.
Submit decree in accordance herewith.
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