Ex Parte Catanzaro
138 F.2d 100
3rd Cir.
1943
Check Treatment

*1 BIGGS, MARIS, JONES, аnd Before GOODRICH, Judges, GANEY, Circuit Judge. District GOODRICH, Judge. Circuit was held in the of the United States Marshal for the dis- Jersey charge trict New of viola- tion of the Selective and Service Act seq., he failed et because for in- 1, 1942, duction on as directed June petition Draft Local Board. filed his applied for writ of habeas District in the United States Court for Jersey. applica- the District of tion denied the District appealed to this Court. The first made attorney suggestion is the controversy that the has now become moot because, following the denial of the *2 101 issued, up if violation of of viola- be set a petitioner to has been convicted Court, might serve and is the rule of which law tion of the Selective Service confession, hardly as avoidance. penitentiary at Lewis- a an the federal now in in Pennsylvania, longer the We think it whatever burg, and no clear that rights We petitioner through his Marshal. custody the United States of they plication corpus, proposition disagreement for a writ of habeas have with by upon by government lost not whatever of the case relied application not decide done that the Court will to him between his to effect Ridenour, apрeal. point. See Voloshin decision of his case a moot 1924, But that undis- F. 134. 5 299 us, then, brings That the merits. to help here. puted does not us proposition alleges registered under Catanzaro that he he Selective Service law and that below closes The record from the court regular duly exemption claimed as appeal from with the says religion. ordained minister of know writ. All of denial of we Appeal that the Local and the Board imprison- subsequent petitioner’s trial Jersey Board of the State of refused government ment is what his counsel and proof to consider thе submitted nothing in us. There counsel have told prisoner status, of he his ministerial that he to indicate that is still record hearing denied a fair was and that custody of the United States within the powers Boards abused their and that he Marshal. open had him exhausted the remedies to Furthermore, believe do ‍‌​​​‌​‌‌‌​‌​​​​​‌​‌‌​​​​‌‌‌‌​​​‌​​‌​‌​‌​​‌​‌‌​​‌‍nоt system. The under the Selective Service body prison passing of a that about presented is, therefore, question whether after a to another er from one custodian open to a habeas to applied for habeas has been writ of persons review action of thе bodies jurisdiction can Court defeat charged with the administration of the the merits refuse the writ on to or following Selective Service law his re- general rule of application. is a obey an fusal to order for induction but subject to law where one has become that prosecution prior dis- such jurisdiction jurisdiction obedience. arising proceedings in all out of continues body mounting A substantial appeals litigation as and writs of such authority that now holds a defendant Beale, 1 error. The Conflict of Laws prosecuted obey an for failure par (1935) general 76.1. This rule § tendеr as a for induction corpus proceedings as to ticularized habeas Board acted defense that his Draft unfair par. 45, 1 in Rule of the Rules of the ly making in the order. Court, Supreme following 28 U.S.C.A. sec Grieme, Cir., 1942, 3 128 United States v. 354, provides: “Pending tion which re States, 811; 5 Fletcher v. United F.2d refusing view of decision a writ of 262; Cir., 1942, 129 F.2d custody prison corpus, the of the habeas 1942, 818, Bowles, Cir., 3 131 affirmed F.2d er shall not be disturbed.” See F.C.A. 1943, 33, grounds, U.S. on other S. This rule (1937) p. 601. 1194; United States 912, 87 L.Ed. Ct. 1886. 117 the Court since Nor Cir., 1943, 133 F.2d 703.1 Kauten, 2 McKane, C.C.S.D.N.Y.1894, 61 F. re induction, have registrant, prior may the provision appears An in identical Rule by certiorari. reviewed his classification 17, par. (1942). Rules of this Court County Berks Local Board Drumheller v. Pending Writ It states: “If Refused. 1942, 1, Cir., F.2d refusing decision a writ review of a case, supra, In the Kauten prisoner corpus, the page the court way called attention be disturbed.” F.2d at shall not the statute as explain inability pro 10(a) (2) showing an could Marshal possible response “Congress intended far in as duce the supported substantial Circuit assumed for discus- evidence. The Sixth States, 1942,129 deciding, sion, F.2d Rase v. United the decision collaterally such local “The decisions boards of Draft Board at- except appeal prosecution an where is au shall be final in a tacked for violation rules with such in accordance thorized Selective Service but found may pre regulations particular the President had a fair case there hearing and Board scribe." the conclusion of the prevent delay disruption Hirabayashi and even the States, 1943, 63 v. United the Selective administration of S.Ct. L.Ed. where he says: and Service Act court inter- “There are other instances steps ference with the various law where one must an order before *3 required to administrative boards are he can attack as erronеous the classifica point goes take.” The out court on placed. tion which he has it Thus contingent that induction commonly is a matter until held that one is a con who after in- the medical examination of the scientious objector privilege defy has completed ductee has been and that orders the Act and refuse Selective Service by steps Appeal Local and Boards fail to be inducted. He must submit to leading up acceptance authority to a final or re- the law. But holds that line Army jection by Army. “Only the the when that habeas through after induction he obtаin corpus hearing legality makes steps choice are the a its administrative the pro- taken and administrative by his classification the draft board.” ceeding (citing concluded.” authorities). qualified But the here has not judicial be assumed that a review review, himself for whatever its judicial alоng of Draft Board action somewhere scope be, under rule above way registration between and authorities. To it to him at the registrant’s acceptance by final the armed not, believe, he chosen has forces ob- would be even and more more Congress. conform to will of Nor is jective juries than verdicts of various required protection it for the of his con- try asked a a Draft Board’s as fairness rights. stitutional prosecution. a defense in criminal To that interposition corpus extent the of habeas Affirmed. proceedings registration in- between and duction would be a less serious inter- BIGGS, Circuit (dissenting). functioning ference with draft allegations petition The of Catanzaro’s machinery permitting than a defendant’s a for writ of habeas assert he attack on his Draft Board to come into regularly duly is a ordained minister disobeying trial its orders. for Never- of the Watchtower Bible and Tract interject be- theless it would court review Society Brooklyn, York, and a proceeding fore “the administrative [is] religious member sect known as concluded.” charges Witnesses. He in sub- Jehovah’s not, Congress did Selective stance that the selective service tribunals judicial capricious- Service statute talk about review in his case acted ly, regard Board of Draft such local boards action: “The decisions evidence and ”* * * law, contrary ‍‌​​​‌​‌‌‌​‌​​​​​‌​‌‌​​​​‌‌‌‌​​​‌​​‌​‌​‌​​‌​‌‌​​‌‍be final shall and that he was denied a If language hearing. is the there is to be used. á asserts that he has еx- review, distinguished from his court hausted administrative remedies. The court below refused issue the peals provided regulations writ and author- statute, petition. dismissed by ized it because must judicial review is constitutional decision, affirming majority provide which courts must whether a stat- (putting this court ditional to onе side their ad authorizes not. This Court has ute it or reason that the administrative decided, said, though not that a review processes provided by the Selective Train corpus proceedings may through habeas ing and Service Act have not been com registrant presents had where the him- рleted) enjoy that a hold induction in accordance with his self a writ the benefits of of habeas the terms the law. Board’s obeyed if he has the order of his local Grieme, Drumheller and Bowles See placed board and has draft custody himself in the Circuit, cases, Second supra. by a military аuthorities, thus recently held. step further going divided one than court went Downer, And F.2d 521. Grieme, Cir., in United States propriety Circuit reviewed Sixth Cf. F.2d 811. Drumheller v. Berks classification, County up- Board inductee’s it Local anof F.2d denying Ben- Since Catanzaro did judgment writ. held Underwood, 1942, of his board and induction, F.2d order say esch majority, he has made by assumed to be law Mr. himself likewise This imposed Douglas concurring opinion penalties to the in his liable Section Justice it, point in time is that the Appendix, as understand' § 11 of the U.S.C.A. ele- important de wrongfully is immaterial and therefore is that because of the fact liberty But ment consists prived arrest. his his obligations registrant had not fulfilled imposed upon him fact think the overlook the 3, 50 scope writ nature and thereby 303, he has App°endix, U.S.C.A. corpus in the United States § the courts of imposed Sec- penalties incurred the enlarged liberal greatly 311; that very heart of tion goes ized. The writ deprived unlawfully therefore he was not detention the reasons for an individual’s liberty. deter of provides summary means for il mining whether the words, a dis- majority make In other *4 liberty deprived due legally of his puni- validity the the of between tinction tive sanction of the solely by process of law. invoked Aсt when of an in- of violation the reason deprived registrant It is clear that a is validity the induc- of and the duction order liberty when of his he is arrested because said, sanction, it is The order itself. tion is unassailable re- report he fails The to for induction. even the induction wrongful is if draft straint the order of the order, the sole the violation of which is registrant in- board violated valid, the nullity. imposition, is a mere basis its it be unless true the Selective the nature of But think that indefensible provides the and Service Act by the is demonstrated case this distinction obeyed any be in and un- order must event registrant within of the one of groups who any however, der The circumstances. exempted training and serv- from provide. I a glaring does not see incon- 5, 50 provisions ice the of sistency proposition regis- in the that the 305, and ordered obeys who an trant invalid order of his report be- the to for induction nonе less reports may draft board and for induction capricious- his board has acted cause draft avail of the himself writ as the means of arbitrarily him a ly or or has denied having adjudged nullity, the while respect Surely hearing in his status. to registrant obey the who does not a similar- registrant be may then that the said it ly reporting invalid order for induction (who exhausted his administrative consequence may in is arrested not do duty report- the remedies) has incurred majority validity so. hold that if he ing for induction and that do fails may action draft board imposed by penalties he incurs Sec- so tion 311. instance, tested thе writ in the first they not in give second. think that do not My position up summed as fol adequate explanation an for this dis- True, in tinction. the first lows. There is provides section the Act which instance the everyone obey any must or writ issued at later in time and the order der report registrant had executed of a draft board for induc after exempted majority, Categories or the board. answer deferred tion. v. Holiday 1 Johnston, Mangum, 309, 237 case of In Frank v. the recent U.S. 342, 582, 969, 550, 1015, 332, 589, 351, 61 59 L.Ed. 313 S.Ct. 35 S.Ct. U.S. 1018, 1392, Supreme L.Ed. Mr. Justice stated on Roberts Court * “* * stated, recently emphasized obligation “We have rest writ * * * upon policy respect- uрon ing us, liberal broad and the district ing through form into the office use writ of ha- look [is] very protec- in the mat beas interest of and substance heart * *” * tion of freedom to contrast with individual the end that We ter. very Justice truth substance of the cause statement of the broader Mr. person’s dissenting opinion detention be disclosed his Holmes justice v. page 346, Waley Id., case, be done.” at See also same U.S. 595, 101,104, 969, Johnston, 964, page U.S. at 59 L.Ed. which S.Ct. S.Ct. “* * * 1302; law; viz., Johnston, ha 86 L.Ed. Walker is now v. think 830; 275, 574, through 61 S.Ct. cuts forms and L.Ed. beas v. very O’Grady, 329, goes tissue the structure. Smith 312 U.S. S.Ct. Johnson outside, 859; Zerbst, 572, from in sub L.Ed. It comes 458, 465-467, 1019, proceedings, and al 58 S.Ct. 304 U.S. ordination Mooney Holohan, though every pre form L.Ed. 113, they served, opens inquiry L.Ed. whether 294 U.S. 55 S.Ct. empty have more than shell.” 98 A.L.R. an 406. HOBOKEN LAND & registrants CO. by Section IMPROVEMENT are set 5. up If OF INTERNAL registrant one of these COMMISSIONER comes within categories hearing, and is or REVENUE. denied a fair capriciously if or his local board acts contrary law in dеter Appeals, Circuit Court of Third Circuit. status, mining registrant (having his Argued March exercised his administrative remedies full) benefits of the entitled to ‍‌​​​‌​‌‌‌​‌​​​​​‌​‌‌​​​​‌‌‌‌​​​‌​​‌​‌​‌​​‌​‌‌​​‌‍the Sept. 15, Decided obey if he is arrested for failure requiring void order him to corpus proceeding In a induction.2 ought through legal the court to look istic distinction which the registrant’s draw between the violation of Act because of failure to or der and his violation of the order itself. thing The vital and fundamental is that deprived liberty because and his wholly because of re *5 fusal to an order which was process void it was since made due of law. Under such сircumstances the name nature agency or of the officer of States who holds him in custody is immaterial. agree Nor I ruling can with the processes that the administrative completed until, are not language in the Kauten, Cir., United States 703, 706, 133 F.2d Army “the makes its choice” and accepts registrant fоr service after'he passed physical examination. The registrant military authorities from the moment he has induction, reported even those reject authorities see fit him subse-

quently. I think the writ should in the issue case for, at bar as have in the indicated ‍‌​​​‌​‌‌‌​‌​​​​​‌​‌‌​​​​‌‌‌‌​​​‌​​‌​‌​‌​​‌​‌‌​​‌‍first paragraph opinion, of this Catanzaro as- he is exemption serts that entitled to the

provided by 5(d) and that he has hearing. been denied authorized to am state that joins in this

MARIS dissent. 2 making upon these I am In statements actions a draft board issuance corpus the courts habeas limited unaware have held that to the issues jurisdiction registrant is entitled to of whether the boards had habeas validity test the actions of the draft and had afforded him a fair respect hearing. Kinkead, boards after induction. In See United States v. D.C., Stingle’s 12 Stat. 248 F. 1863 Draft ‍‌​​​‌​‌‌‌​‌​​​​​‌​‌‌​​​​‌‌‌‌​​​‌​​‌​‌​‌​​‌​‌‌​​‌‍see affirmed this Stingle, case, Fed.Cas.No.13,458. Murray, Cir., re F. In Franke v. respect.to 865, L.R.A.1918E, 1015; F. Selective Draft Aсt Shimola 42, D.C., seq., F.Supp. U.S.O.A. Local Board No. et Woodside, Cir., Arbitman v. also been held see F. that a writ of judiee, Under the Act sub see the available to correct de a clas cision of court sification made United States draft board based

Grieme, upon a mistake of F.2d 811. law. United States v. Baird, D.C., F.Supp. It has held that a review of the