# United States v. John Douglas Broyles > Court of Appeals for the Fourth Circuit · March 19, 1970 · 423 F.2d 1299 URL: https://www.frixlaw.com/law-library/cases/9455450 ## Case - **Full name:** UNITED STATES of America, Appellee, v. John Douglas BROYLES, Appellant - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** March 19, 1970 - **Citations:** 423 F.2d 1299; 1970 U.S. App. LEXIS 10232 - **Precedential status:** Published - **Opinion:** Dissent by Bryan - **Judges:** Haynsworth, Sobeloff, Boreman, Bryan, Winter, Craven, Butzner - **Cited by:** 76 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9455450 ## Opinion text ALBERT V. BRYAN, Circuit Judge (dissenting): The majority’s decision, at bottom, overturns appellant’s conviction exclusively on the failure of the Selective Service Board to state reasons for denying the registrant a conscientious objector classification. Yet this bald premise of decision is nowhere found in the Selective Service Act or regulations. See United States v. Curry, 410 F.2d 1297, 1299 (1 Cir. 1969). Nor can it rest on the assertion of “basic fair play”. See United States v. Morico, 415 F.2d 138, 143 (2 Cir. 1969), petition for cert. filed Sept. 29, 1969, Dkt. No. 672, 38 USLW 3224 . Nevertheless, a statement of reasons is made the indispensable cornerstone of every Board rejection of a CO classification, once a prima facie claim has been established. The Court holds that without an announcement of the reasons for denial, an order to report cannot stand. The majority goes so far as to say that the Board must state “whether it has found the registrant incredible, or insincere, or of bad faith, and why’’ (Accent added.) The rationale advanced for the exaction from the Board is that without it the right of judicial review preserved by the Act is not possible. This conclusion, it seems to me, flows from the failure to recognize the separation and distinction between the respective functions of Board and court. Here, the majority, in disregarding the difference, disjoints the adjudication of a CO claim. The function of the Board is to make the classification. Once it has done so, the Board’s responsibility is at an end. It has played its part, starkly or embellished with reasons, n’importe. Then, and not before, judicial review enters. I recognize that the scope of this review is narrow. The statutory duty of the court is to ascertain if “there is no basis in fact for the classification”. 50 *1310 U.S.C. App. § 460(b) (3). But, necessarily, even this limited review contemplates a canvass of the entire record. If the Board does not articulate reasons, the efficacy of the judicial decision is not affected a tittle. Similarly, if reasons are expressed, the duty of the court is not thereby discharged. While a recitation of reasons might be helpful to the court, the absence or presence does not conclude the judicial consideration. The court must police all the areas of contention which were before the Board. Should the Board state its reasons, they would not conclusively prescribe the precinct or beat of judicial review. So much appears to have been recognized by the Supreme Court in Witmer v. United States, 348 U.S. 375, 382 , 75 S.Ct. 392 , 99 L.Ed. 428 (1955). Despite these irrefutable propositions, the majority still insists that in conscientious objector claims the statutory grant of review is meaningless without knowledge of the Board’s reasons. The Court urges that they are needed, as already noted, to insure “basic fair play”. For support, the majority cites decisions under the former procedure of referring these claims to the Department of Justice for investigation and recommendation. This procedure, concededly, was condemned for its elements of non-disclosure, in Nugent, Simmons and Gonzales, cited by the majority. But in 1967 Congress deleted this step and thereby muted these decisions. The House Committee on Armed Services said of the omission: “Registrants claiming conscientious objection will therefore be awarded the same appeal procedures and administrative remedies that are available to all other registrants.” 1 U.S.Code Congressional & Administrative News, 90th Cong., 1st Sess., at 1348 (1967). (Accent added.) This explication by the Committee, later in effect adopted by Congress, stresses the element of fair play, for it subjects the registrants, including the CO applicants, to identical processing. The procedures and remedies which apply to every registrant demand, among other things, that he keep the Board informed of any fact which may affect his status. 32 CFR 1625.1(b). Moreover, while the registrant has a right to a personal appearance before the Board, he must place in writing the information he wants considered, or if orally presented, he must submit a written summary of such information to the Board for inclusion in his file. 32 CFR 1624.2(b). The registrant also has the further opportunity to supplement his file on administrative appeal. 32 CFR 1626.12. Even at this stage, he may rebut any adverse evidence, for this appeal is actually a de novo determination. 32 CFR 1626.26. See Ayers v. United States, 240 F.2d 802, 809 (9 Cir. 1956), cert. denied 352 U.S. 1016 , 77 S.Ct. 563 , 1 L.Ed.2d 548 (1957). Thus all information of the registrant’s claim may be laid by him before the Board. In view of this comprehensive pattern of uninhibited rights and privileges, I think that “basic fair play” is not denied merely because a conscientious objector applicant is not furnished with a statement of the Board’s reasons for its decision. If the rule were as the majority would have it, then the Board would be a partisan, obligated to “make the case” against the registrant if its determination were unacceptable to him. It would force the Board and registrant into adversary roles. Such a posture, condemned by inference in the Nugent, Simmons and Gonzales cases, is interdicted by the philosophy and cast of the present Act. The registrant is the advocate with the burden of establishing the foundation of classification. The consideration of divorcing the Board from the controversy may well have been a factor-prompting Congress not to call the Board to account for its decision. Practical considerations were also probably weighed. The reviewing courts would be flooded with litigation upon the reasoning of the Board’s reasons. Their meaning, their relevancy and a myriad of other interrogations would become issues. The Selective Service Sys *1311 tem would become a Serbonian bog defeating its need for speed. Moreover, this discussion of the motive for inaction is not without legislative history. At the time of the deliberations upon the 1967 amendments, various sources had offered proposals for the requirement of a written statement by the Local Board or Appeal Board of its reasons for refusal of a claimed classification. See, e. g., National Advisory Commission on Selective Service, In Pursuit of Equity: Who Serves When Not All Serve? (1967) [commonly called the Marshall Commission Report]; Hearings on the Review of the Administration and Operation of the Selective Service System Before the House Armed Services Committee, 89th Cong., 2d Sess., at 9922 (1966). Nonetheless, Congress refused to favor these suggestions. With these considerations in mind, I cannot join in the opinion of the Court. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9455450. Public record. Not legal advice.