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WARWICK v. COMMANDING OFFICER

August 7, 1970

Michael Joseph WARWICK
v.
Commanding Officer, Commander Thomas M. VOLATILE, Armed Forces Examining and Extrance Station, Philadelphia, Pennsylvania, and Secretary of Defense


Higginbotham, District Judge.


The opinion of the court was delivered by: HIGGINBOTHAM

Petitioner, Michael J. Warwick, was inducted into the Armed Forces of the United States on February 6, 1970. By petition for Writ of Habeas Corpus he has challenged the lawfulness of that induction. As has become the almost common practice, Warwick presented, on the eve of induction, information about changes in his status which he alleged would create extreme hardship to a dependent and thus entitle him to a III-A deferred classification. These changes were called to the Local Board's attention in some instances only a few days before he submitted to induction, and, indeed, it was only on the very afternoon (3:00 P.M. to 3:30 P.M.) before induction that a Doctor of Osteopathy for the first time in some detail informed the Board that "I am convinced that if Michael is inducted [his mother] will require hospitalization for mental illness. She is definitely on the verge of a complete nervous breakdown."

 The petitioner has presented two alternative grounds for relief. He claims that: (1) Local Board No. 59 failed to reopen and consider anew his classification as required by 32 CFR, § 1625.2, the Selective Service Regulations; or (2) Local Board No. 59 while purporting to not reopen and consider anew his classification, did reopen but refused to grant him appeal rights as required by 32 CFR, § 1625.13.

 I find that petitioner's second theory is wholly unsupported. There is no evidence to support a finding that the Local Board did in fact reopen and consider anew his classification. After an interview at the Local Board on November 7, 1969, the members determined that the information submitted by petitioner as to the economic status of his family did not warrant the reopening of his classification. In compliance with 32 CFR, § 1625.4, the Board so notified petitioner by letter dated November 7, 1969.

 Petitioner's first theory merits a more extensive discussion. Warwick claims that he submitted new information during the period February 2-February 6, 1970 and that his Local Board failed to reopen and consider anew his classification as required by 32 CFR, § 1625.2. The pertinent part of that regulation provides:

 
"§ 1625.2 When registrant's classification may be reopened and considered anew.
 
"The local board may reopen and consider anew the classification of a registrant (a) upon the written request of the registrant * * * if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant's classification; * * * provided * * * the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * * unless the local board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control." (Emphasis added.)

 Warwick claimed that his induction would result in extreme economic hardship to his mother or would cause extreme hardship by reason of his mother's increasing nervous exhaustion resulting from the prospect of his entering the Armed Forces.

 The Supreme Court of the United States, in a preinduction case, recently approved the proposition that "where the registrant has set out new facts which establish a prima facie case for a new classification, a [Selective Service] Board must reopen to determine whether he is entitled to that classification." Mulloy v. United States, 398 U.S. 410, 90 S. Ct. 1766, at 1770-1771, 26 L. Ed. 2d 362 (1970).

 When a Local Board has acted, the area of review open to the District Court is a narrow one indeed. However strongly the Court may disagree with the ultimate conclusion of a Local Board, the Court can rescind the Local Board's action only if there is "no basis in fact" for the Board members' judgment. Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567 (1946); Dickinson v. United States, 346 U.S. 389, 74 S. Ct. 152, 98 L. Ed. 132 (1953). The "basis in fact" test is applicable to a Board's refusal to reopen a registrant's classification. Petrie v. United States, 407 F.2d 267 (C.A. 9, in banc, 1969).

 Because Warwick did not seek a reopening of his classification until after he was ordered to report for induction, Local Board No. 59 could not reopen unless it first specifically found that there had been a change in his status resulting from circumstances over which he had no control. Further, to gain reopening and classification anew, the registrant was obligated to present facts not considered when he was classified which, if true, would justify a change in his classification.

 The disposition of Warwick's petition requires a consideration of the following question: Did Warwick present to his Local Board new facts -- resulting from circumstances over which he had no control -- which established a prima facie case for a new classification? If he did present such new facts, then the Board's failure to reopen has no basis in fact, and petitioner Warwick will be granted a Writ of Habeas Corpus. If he did not, the Board's action will stand and the petition will be dismissed.

 A hearing was held and briefs were filed with the Court. The following facts emerged:

 Petitioner Warwick was classified I-A on August 20, 1969. He was advised of his right to appeal to the State Appeal Board and of his right to make a personal appearance before his Local Board, but he took neither action during the thirty ...


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