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WARWICK v. COMMANDING OFFICER

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


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

HIGGINBOTHAM, District Judge.

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 days provided by the Regulations. 32 CFR, §§ 1624.1, 1626.2.

 On September 30, 1969, Local Board No. 59 ordered Warwick to report for induction on October 20, 1969. By letter dated October 5, 1969, petitioner's mother, Mrs. Dorothy A. Warwick, contacted Local Board No. 59 "to make an appeal for my son Michael J. Warwick." Mrs. Warwick related that her husband had died of cancer 18 years earlier, leaving her with a married daughter and the registrant. One of her daughter's two children was afflicted with a rare disease. Mrs. Warwick informed the Board that she was "only able to work three days a week and [required] Michael's help to keep my home going." Mrs. Warwick's letter was sent two weeks and two days after the expiration of the thirty day period for filing an appeal, a fact she attributed to a "lack of understanding my right to appeal." In effect, Mrs. Warwick requested that her son be reclassiied from I-A to III-A. 32 CFR, § 1622.30 provides in pertinent part: "In Class III-A shall be placed any registrant whose induction into the armed forces would result in extreme hardship * * to his * * * parent * * * who is dependent upon him for support * * *."

 The Local Board replied to Mrs. Warwick on October 8, 1969, telling her that her letter could not be considered a valid appeal. The Board's letter did conclude, however:

 

"We will attempt to schedule an interview before the local board prior to Michael's induction date to permit his discussing the hardship that might occur at home if he is inducted. You may accompany him to this interview."

 Petitioner's scheduled induction was postponed until November, and he was asked to meet with the Local Board on November 7, 1969. Mrs. Warwick again wrote on October 12, 1969 to inform the Local Board that Michael's uncle had been "killed in the service of our country * * * during the Second World War" and that her son was thus "the sole surviving heir of the Warwick family."

 On November 7, 1969, petitioner appeared before Local Board No. 59. The record does not indicate that Ms. Warwick attended the interview. Petitioner submitted a handwritten summary of "approximate household maintenance and expenses" which totalled $4,916.40. Items listed included utilities, insurance costs and food expenditures. Petitioner also filled out and returned a Dependency Questionnaire which revealed that from an income of $5,257.43, he contributed $2,080 to the upkeep and maintenance of his mother's home. Mrs. Warwick's approximate annual income amounted to $3,838 of which the net income was allegedly $2,983.

 Michael stated that "[my] mother needs my financial and moral support. It is necessary that I give her $40.00 a week to help her meet household expenses." In a written statement Mrs. Warwick concluded that "I could not do without Michael's weekly contribution of $40.00."

 Local Board No. 59 concluded otherwise. Perhaps impressed by the fact that Mrs. Warwick owned her mortgage-free home and had a $16,000.00 bank account, the Board determined that the information submitted by petitioner did not warrant the reopening of the registrant's classification. In compliance with 32 CFR, § 1625.4, the Board so notified petitioner on November 7, 1969. Warwick was ordered to report for induction on November 14, 1969.

 With the Local Board's action of November 7, 1969, I find no error. Our task is limited and well-defined. Certainly there was a basis in fact for the Board's decision not to reopen petitioner's classification. It was within the province of the Board members to find that, given Mrs. Warwick income and her $16,000 bank account, the loss of some part of her son's contribution would not result in an "extreme hardship" for her. The Board could certainly conclude that petitioner had presented no new facts -- resulting from circumstances over which he had no control -- which established a prima facie case for a new classfication.

 But petitioner's case did not end on November 7, 1969; nor can our consideration. Warwick's Selective Service file reveals that he obtained a job with General Electric Company as an "Inspector-Electro-Mechanical Development, in the Re-Entry and Environmental Systems Division" and sought an occupational deferment which was denied. Warwick was again ordered to report for induction, first on December 2, 1969, and finally by letter dated January 22, 1970, he was ordered to report on February 6, 1970.

 The events from Monday, February 2, 1970 to Friday, February 6, 1970, require the closest scrutiny for the determination of this case. On February 2, 1970, Dr. Theodore C. Loux filed or caused to be filed with the Board a handwritten note on his prescription blank form. The note stated: "This is to advise that Mrs. Dorothy Warwick has been under my care for nervous exhaustion. She is unable to work at this time." While I find that Dr. Loux's letter taken alone is so vague that it does not constitute a prima facie case for a change in classification, it does represent petitioner's first attempt to bring new information to the attention of the Board.

 The next day, February 3, 1970, the petitioner wrote a three page letter to the Board, asking the members to reconsider his induction into the armed forces. "The reason I am making this appeal," Warwick wrote, "is because of the illness of my mother." While I find that petitioner's letter of February 4, 1970 either alone or when considered with Dr. Loux's letter of February 2, 1970 does not constitute a prima facie case for a change in classification it does represent still another attempt by petitioner to bring new information to the attention of the Board.

 On February 4, 1970 petitioner retained legal counsel. On February 5, 1970 between 3:00 P.M. and 3:30 P.M., petitioner's attorney, Mr. Read Rocap, Jr., appeared at the office of the Local Board and presented to the Board's Executive Secretary, Miss Rebecca M. Boggs, his own letter and a second letter from Dr. Loux. Mr. Rocap's letter requested a postponement of the induction scheduled for February 6, 1970 and a reopening of Warwick's classification "in consideration of the prima facie case presented for a deferment under 3-A (hardship)." Mr. Rocap's letter concluded: "This request is based upon information which has been previously presented to the Board and the more detailed information and opinion sent to the Board by Dr. Theodore C. Loux." While I find that Mr. Rocap's letter of February 5, 1970 added nothing to petitioner's claim for reopening and is in substance merely a series of unsubstantiated legal conclusions, it at least represents a third attempt to call to the attention of the Board the alleged changed medical status of registrant's mother.

 Dr. Loux's February 5, 1970 letter to the Local Board is of sufficient importance to warrant quotation in full:

 (Letterhead of)

 DR. THEODORE C. LOUX

 1201 Garfield Avenue

 Havertown, Pa., 19083

 HIlltop 6-0700 February 5, 1970 "Local Board No. 59 LOCAL BOARD NO. 59 405 Center Building 405 CENTER BLDG. 6800-16 Market Street 6800-16 MARKET ST. Upper Darby, Pa. 19082 DARBY, PA. Re: Warwick, Michael Joseph "SSS# 36-59-46-35

19700807

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