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May 26, 1941

Application of GREENBERG

The opinion of the court was delivered by: FORMAN

The petitioner, Shirley Greenberg, has procured from this court a writ of habeas corpus directing Lt. Col. Holmes T. G. Paullin to produce Herbert Greenberg before this court for the purpose of inquiring into the cause of his detention and restraint. At the hearing upon the return the petition was amended, and it now alleges, among other things:

"That the cause or pretense of the imprisonment and restraint of said Herbert Greenberg * * * is that he was a registrant under the Selective Service Act, and that he was erroneously classified under the Class of I-A by the Selective Service Local Board No. 46, East 196th Street and Bainbridge Avenue, Borough of Bronx, City of New York, and that said classification was erroneously affirmed by the Appeal Board No. 25, located at 100 West 42nd Street, Borough of Manhattan, City of New York, which Appeal Board had jurisdiction of said Selective Draft Board; and said registrant further alleges that he was entitled to be classified under Class 3-A by reason of the fact that petitioner, his wife, was entirely dependent upon him for support at the time of said classification.

 "That the imprisonment and restraint of said Herbert Greenberg is illegal in that he should be entitled to a deferred classification and under such classification he would not be called for Selective Service for a considerable period of time, and that the said Selective Draft Board No. 122, of New York City, acted in an arbitrary and capricious manner and contrary to the law, and their decision was an abuse of the discretion committed to them by the statute."

 In December, 1939 the petitioner and Herbert Greenberg became engaged, the date for the wedding being set for January 4, 1941. This date was selected because it marked the fiftieth wedding anniversary of Greenberg's grandparents and the twenty-fifth wedding anniversary of his immediate parents.

 Following the enactment of the Selective Training & Service Act of 1940, 50 U.S.C.A.Appendix § 301 et seq. (approved September 16, 1940), Greenberg, pursuant to the Regulations promulgated, filed with his Local Board on November 20, 1940, a questionnaire indicating that he was the general manager of New Hub Cleaners, Inc., that his income from the business was $35 a week, that he had no dependents, but added: "I am getting married in early part of January, and am already saving money along with future wife for opening of home."

 Greenberg was notified to report for physical examination on January 6, 1941, but upon his request he was examined on January 3, 1941. He was married the following day, and on January 7, 1941, the Local Board placed him in Class I-A. He appealed from the classification to the Board of Appeal which sustained the conclusion of the Local Board. He was inducted into the Army, and his wife Shirley Greenberg now seeks relief in his behalf from this court.

 The Selective Service Regulations provide as follows: "a. In Class III (the deferment claimed by Greenberg) shall be placed any registrant upon whom one or more dependents, as defined in paragraph 355, depend for support in a reasonable manner." Volume 3, Section XXIII, Paragraph 354.

 The Regulations specifically include a wife within the definition of a dependent and provide that: "c. Such person, at the time the registrant is classified, must depend in fact for support in a reasonable manner * * * on income earned by the registrant * * *." Volume 3, Section XXIII, Paragraph 355 (italics supplied).

 Our problem for determination is whether the Local Board and the Board of Appeal acted arbitrarily in refusing to recognize the dependency of Shirley Greenberg "at the time the registrant is [was] classified" in which case relief may be had in this court. United States ex rel. Fred Filomio v. Fowell, D.C., 38 F.Supp. 183.

 Joseph F. Addonizio, Chairman of the Local Board, sought to justify the Board's determination on the ground that the petitioner would suffer no hardship. This was based upon two grounds: First, Greenberg had a one-third interest in New Hub Cleaners, Inc., and his income would continue therefrom irrespective of induction; secondly, the petitioner had been living with her family until her recent marriage, and could return. Accordingly, the Board concluded that Greenberg was a man of substance, and the question of dependency did not enter the case. In addition, the Local Board felt justified in ignoring the marriage, because (1) Greenberg was single when his questionnaire was filed, and (2) the marriage did not occur until after the physical examination on January 3, 1941, at which time Greenberg might well have contemplated induction.

 Samuel Wolchok, Chairman of the Appeal Board, sought to justify his vote for an affirmance of the Local Board as follows:

 "I based my answer on the following -- that he was not drafted while he was married; he was drafted while he was single". (The witness testified that it was his impression that Greenberg was classified in Class I-A on December 3, 1940.)

 "Mrs. Greenberg did not work for a year and a half prior to her marriage and did not intend to work after that either, and, therefore, we thought that we were ...

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