The opinion
CELEBREZZE, Circuit Judge
(dissenting) :
Regretfully I cannot agree with the conclusion of my brethren in this case. It is clear that the Defendant had every intention to violate the Selective Service Act, but the fact is that he had no duty under any “directions made pursuant to” the Act that he could be guilty of failing to perform.
Defendant was indicted and tried for failing “to comply with an order of his local board to report for and submit to induction * * *.” Section 456(o) of Title 50, App., provides that “ * * * the sole surviving son of such family [the father of which was killed in action] shall not be inducted * * * ” (emphasis added). The local draft board recognized at one time that the Defendant came under this exemption. When the Defendant’s mother died, the board decided that the exemption no longer applied because, in their opinion, there was no “family” left. In my view, that decision was contrary to the clear wording of the statute and to the clear intent of Congress in providing for the exemption. Hence, I conclude that the board’s order of induction was not “pursuant to” the Act but in contravention of the Act. Therefore, I can only conclude that regardless of how much he tried, and perhaps even wanted, to violate the Act, the Defendant was not guilty of the offense for which he was indicted and tried.
This is not a case where the existence of the exemption depends upon the board’s first making a factual determination. Here the board had already determined that the Defendant was entitled to the exemption; the termination of that exemption resulted from the board’s erroneous interpretation of the law. I feel, therefore, that application of the doctrine of exhaustion of administrative remedies is inappropriate in this case.
I would reverse and dismiss the indictment.