Lumbard, Waterman and Feinberg, Circuit Judges. Feinberg, Circuit Judge (dissenting).
Donald Zelman was classified I-A by his local draft board and issued a notice of induction. After exhausting his administrative appeals, he sought a writ of habeas corpus which was granted in Western District of New York on the ground that the draft board had had no basis in fact for issuing the I-A classification. The United States has appealed. We reverse.
Judicial review of a draft board's classification of a registrant has always been restricted to determining whether the board had a "basis in fact" for its determination. Estep v. United States, 327 U.S. 114, 122-123, 66 S. Ct. 423, 90 L. Ed. 567 (1946); 50 U.S.C.App. § 460(b) (3). Review of this nature only seeks to ensure that the board has not acted arbitrarily; the reviewing court may not substitute its judgment for that of the board and review is limited to those facts actually presented to the board.*fn1 Cox v. United States, 332 U.S. 442, 68 S. Ct. 115, 92 L. Ed. 59 (1947); Helwick v. Laird, 438 F.2d 959, 965-966 (5th Cir. 1971); Keefer v. United States, 313 F.2d 773, 776 (9th Cir. 1963); United States v. Ruppell, 278 F. Supp. 287, 289-290 (E.D.N.Y.1968); see Silberberg v. Willis, 420 F.2d 662, 665 (1st Cir. 1970); Bates v. Commander, 413 F.2d 475, 477 n. 2 (1st Cir. 1969). Applying these principles to the evidence before the board at the time the board reclassified Zelman, we find that the board did have a basis in fact for classifying Zelman I-A in September 1969. Accordingly, we reverse the order of the district court.
In September 1968, Zelman, who had recently been classified I-A by the local draft board, requested that his classification be changed to III-A on the ground that his induction into the armed forces would cause his mother extreme hardship. 32 C.F.R. 1622.30. Zelman filed a dependency questionnaire which indicated that his mother's annual income was $1,200 and that he contributed $875 annually to her support. He further stated that his mother's house had been recently sold, but the sale price was not revealed.*fn2
On November 7, 1968, Zelman appeared before the board with his mother. Zelman told the board that his father had died in January 1967 and he was his mother's sole support, although he had recently been fired from his job. He had an older brother in the armed forces, but his brother had a wife and child and could not help support his mother. Mrs. Zelman stated that she had been under a strain since her husband had died and did not work. She received $103 per month from Social Security.
Based on this information, the board granted Zelman a III-A classification until February 1969.
On January 26, 1969, Zelman filed another dependency questionnaire with the board. He indicated that his mother had an approximate annual income of $100 (obviously an error) and that he contributed approximately $1100 annually to her support. In the space on the form for a statement by the dependent, Mrs. Zelman wrote that her income was now "$115 a month" or $1380 per year.
Zelman appeared before the local board on March 13, 1969. The board inquired whether there had been any changes in his status since his last appearance before the board and Zelman said that his brother had been released from the armed forces. Zelman's III-A classification was then continued for six months.
On July 30, 1969, Zelman filed a dependency questionnaire which indicated that his mother's annual income was $1100 and that he contributed $1300 annually to her support.
On September 4, 1969, Zelman again appeared before the board. In response to the board's inquiry about changes in circumstances, Zelman replied that he had a new job and that his mother was working, but that "she is not going to stay because she is not able to keep up with it."
Based on the information in the latest dependency questionnaire and the other information before it, the local board classified Zelman I-A.
Zelman then requested a personal appearance before the local board pursuant to 32 C.F.R. 1624.1 to present new information to the board that might warrant the reopening of the I-A classification. On November 6, 1969, he appeared before the local board and told the board that he was now earning $170 per week and that his mother was no longer working. The board refused to reopen the classification. Zelman then appealed to the Western District Appeal Board for New York and, on January 14, 1970, the appeal board by a 4-0 vote affirmed the I-A classification.
On February 17, 1970, Zelman was mailed a notice of induction which required him to report for induction on March 18, 1970. Zelman then sought a writ of habeas corpus alleging that the local board had had ...