The opinion
ELY, Circuit Judge
(dissenting):
I respectfully dissent. This appeal has had a long and troubled history, and I now file the sixth opinion to be issued in the case. Indeed, the vacillation of the majority in striving to enunciate a palatable rationale for its result reinforces my conviction that the judgment should be affirmed.
The majority filed its first opinion on October 9, 1969, reversing Atherton’s conviction because the appeal board failed specifically to recite a finding that Atherton’s belated protestations of conscientious objector beliefs were insincere. I dissented from that opinion also. Thereafter the Government, “with the approval of the Solicitor General of the United States,” filed a Petition for Rehearing En Banc, vigorously urging that the majority’s original opinion conflicted with numerous precedents, including prior opinions of our own court. The majority then withdrew its original opinion and issued, on April 1, 1970, a substitute that I found equally unacceptable. That second opinion, as I saw it, substituted the majority’s judgment for that of the Selective Service authorities on *747 the question of the sincerity of Atherton in the profession of his alleged conscientious objector beliefs. I dissented from the second opinion, setting out, in fine detail, the “objective facts before the Appeal Board * * * [which] east doubt on the sincerity of [Atherton’s] claim.” Witmer v. United States, 348 U.S. 375, 382 , 75 S.Ct. 392, 396 , 99 L.Ed. 428 (1955).
The Government then filed a second Petition for Rehearing Ehi Banc, attempting to demonstrate that the majority’s second disposition was also wrong and that there was indeed a “basis in fact” for the challenged classification. Apparently, the majority now agrees with the Government’s and my position in that respect also, for it now withdraws its second opinion and substitutes its third. If I interpret this third opinion correctly, the majority has now, in essence, reverted to that position which was so vigorously assailed by the Government in its first Petition for Rehearing.
The issue on which my Brothers and I part company is whether, despite the presence of a “basis in fact,’-’ this record presents sufficient facts to overcome the presumption that Atherton’s appeal board considered the relevant information in his Selective Service file and based its classification upon those facts which cast doubt on his sincerity. See generally Oestereich v. Selective Service Board, 393 U.S. 233, 239 , 89 S.Ct. 414 , 21 L.Ed.2d 402 (1969) (Harlan, J., concurring) ; Storey v. United States, 370 F.2d 255 (9th Cir. 1966); DeRemer v. United States, 340 F.2d 712 (8th Cir. 1965); Tomlinson v. United States, 216 F.2d 12 (9th Cir. 1954), cert. denied, 348 U.S. 970 , 75 S.Ct. 528 , 99 L.Ed. 755 (1955). See also Keene v. United States, 266 F.2d 378 (10th Cir. 1959); Koch v. United States, 150 F.2d 762 (4th Cir. 1945); United States v. Richmond, 274 F.Supp. 43 (C.D.Cal.1967); cf. Shepherd v. United States, 217 F.2d 942 (9th Cir. 1954); Wells v. United States, 158 F.2d 932 (5th Cir. 1946), cert. denied, 330 U.S. 827 , 67 S.Ct. 867 , 91 L.Ed. 1276 (1947); United States v. Fratick, 140 F.2d 5 (7th Cir. 1944).
In reversing the conviction, the majority holds, in effect, that because the registrant’s local board applied erroneous standards and his appeal board expressed no reasons for its decision, we must presume that the later classification was invalidly made. Since, indubitably, there was “basis in fact” for the challenged classification, I must assume that the majority would uphold the District Court had the appeal board simply noted, “The facts before us east doubt upon the registrant’s sincerity, and his claim to exemption is therefore denied.” I cannot adopt this technicality. 1 Our limited scope of review is “the narrowest known to the law.” Blalock v. United States, 247 F.2d 615, 619 (4th Cir. 1957), and the majority injects a new requirement of mere formalism into the processing of Selective Service registrants which the presumption of validity seeks to avoid. The presumption of the validity of that processing which we are obliged to apply was designed, it seems to me, to avoid just that kind of formalism.
Furthermore, I simply cannot reconcile the majority’s reasoning with Bishop v. United States, 412 F.2d 1064 (9th Cir. 1969), and the wealth of precedent on which that decision was based. The majority cites Bishop in its present opinion but buries the citation in its footnote 7 and does not undertake to explain its conclusion that Bishop is distinguishable. Since I was the author of our court’s opinion in Bishop , I am confident that I have a fair understanding of its thrust. 2
*748 In Bishop , the appellant argued at length that his local board applied erroneous standards when it denied his conscientious objector claim. Indeed, there was evidence that Bishop’s local board acted upon an improper basis; nevertheless, we declared:
“Initially, we must reject Bishop’s assumption that were we to decide that incorrect standards were applied by his local board, reversal is required. That question was settled in Tomlinson v. United States, 216 F.2d 12 (9th Cir. 1954), cert. denied, 348 U.S. 970 , 75 S.Ct. 528 , 99 L.Ed. 755 (1955), wherein we explained that it is the very purpose of the appeal board to correct any local board errors by making its separate investigation of the registrant’s file and an independent classification decision. Accordingly, we limit our scrutiny to the standards applied by Bishop’s appeal board.”
Id. at 1066 (citations omitted). There, as in the instant case, Bishop’s appeal board expressed no reasons for rejecting his appeal; • nevertheless, applying the usual presumption of validity, we affirmed when our review of the registrant’s file revealed a “basis in fact” for the denial of his claim. This approach has long been followed by courts when reviewing Selective Service classifications in cases wherein the registrants’ local boards assertedly applied erroneous standards. See, e. g., Storey v. United States, supra; DeRemer v. United States, supra; United States v. Chodorski, 240 F.2d 590 (7th Cir. 1956); Reed v. United States, 205 F.2d 216 (9th Cir. 1953); Davis v. United States, 203 F.2d 853 (9th Cir.), cert. denied, 345 U.S. 996 , 73 S.Ct. 1138 , 97 L.Ed. 1403 (1953); Tyrrell v. United States, 200 F.2d 8 (9th Cir. 1952); Cramer v. France, 148 F.2d 801 (9th Cir. 1945). Hence, it is very clear, at least to me, that, heretofore, the fact that improper standards were applied by a local board is not of itself sufficient to overcome the presumption that the appeal board acted correctly.
Nor am I persuaded that the cases collected in footnote 7 of the majority’s
new opinion can be read as direct authority for its present holding. In United States v. Stepler, 258 F.2d 310 (3rd Cir. 1958), the registrant had been denied a ministerial exemption by his local board. The State Director reviewed the file and requested the local board to reopen and consider anew the registrant’s claim. The board refused to do so, thus violating the requirement of section 1625.3(a) of the Selective Service Regulations. The court held that the failure to reopen constituted a denial of due process and that silent appeal board action could not cure a fundamental procedural error that denied the registrant a fair hearing. Similarly, ip Niznik v. United States, 184 F.2d 972 (6th Cir. 1950), the evidence before the trial court revealed that the members of the local board had strong prejudices against Jehovah’s Witnesses. Again, since the registrant had been denied a fair hearing by the discriminatory practices of the local board, the appeal board could not be presumed to have had before it sufficient information upon which to base a valid independent determination. Moreover, it does not appear that the question of the presumption of appeal board regularity was raised either there or in Niznik’s previous appeal from a former conviction for the same offense. Niznik v. United States, 173 F.2d 328 (6th Cir. 1949).
Likewise, Mintz v. Howlett, 207 F.2d 758 (2d Cir. 1953), raises the same point. There, the court decided that the registrant had been entitled to a personal appearance and a hearing on a critical issue of fact. Since he never had an opportunity to present his arguments, it was held that the appeal board could not have had before it a record on which it could have made a valid classification. Furthermore, as the majority forthrightly recognizes, the question of presumptive regularity was not raised in United States v. Balogh, 157 F.2d 939 (2d Cir. 1946), or in United States ex rel. Levy v. Cain, 149 F.2d 338 (2d Cir. 1945). The majority cites United States v. Corliss, 280 F.2d 808 (2d Cir. 1960). It *749 notes that its quotation from that case is dictum, but I think we should not overlook the sentence in Corliss which immediately precedes the majority’s quotation:
“It is settled that where there is no evidence that the Appeal Board has been misled, unfair conduct by members of the Local Board will not upset a classification.”
Id. at 816 (citing several Courts of Appeal decisions). As I have pointed out, the eases relied upon by the Corliss court in support of its dictum cannot be read so broadly.
I cannot interpret the Supreme Court’s holdings in Siourella, Ypparila, and See-ger as inconsistent with the proposition that mere application of erroneous standards by the local board is not sufficient to overcome the presumption of regularity on the part of the appeal board. First, in Siourella, the petitioner, a member of Jehovah’s Witnesses, had been denied classification as a conscientious objector when the Department of Justice, although admitting the sincerity of the petitioner’s beliefs, categorically stated that his claim should be denied because of his willingness to engage in “theocratic wars.” The Supreme Court reversed because of the strong probability that an appeal board, comprised of non-lawyers, would be greatly influenced by an interpretation of existing law which was supplied to it by the Department of Justice and which specifically directed that the registrant’s sincerity be disregarded. Similarly, the executive policy toward conscientious objectors’ admitting willingness to fight “theocratic wars” was the deciding factor in Yppari-la. There, the question was whether the National Selective Service Appeal Board applied erroneous standards when it took the highly unusual course of overturning a partial exemption which the registrant’s appeal board had granted and imposing its own I-A classification. Owing to the likelihood that this extraordinary action was prompted by application of the erroneous policy then followed by the Government, the court invalidated the appellant’s conviction. And in Seeger, another Supreme Court case mentioned by the majority, the petitioner’s conviction was overturned after the Supreme Court had assured itself that the registrant’s classification was not based upon the consideration of sincerity —the appropriate standard — but upon an erroneous interpretation of the law.
In conclusion, then, I simply cannot agree that when a local board applies incorrect standards and the appeal board states no reasons to support its subsequent denial that, ipso facto, the presumption of validity is erased, especially where, as here, we are now apparently in agreement that the record reveals a “basis in fact” for the appeal board’s denial of the claimed exemption. 3
I would affirm. 4
. Surely, we should not expect that all those who serve as lay members of Selective Service bodies are equipped to prepare findings with the technical perfection and specificity required of judges in nonjury judicial proceedings.
. Since my Brother Hamley joined in the issuance of our opinion in Bishop , I attribute his and my present disagreement to imprecision in my Bishop writing. But see United States v. Leavy, 422 F.2d 1155 (9th Cir. 1970).
. I note United States v. Haughton, 413 F.2d 736 (9th Cir. 1969), which the majority does not cite. To the extent to which the opinion in that ease might be read to conflict with the Bishop rationale, I think it, too, represents an undesirable departure from salutary principles which have long guided the courts in their review of Selective Service classifications.
. I do not protest the decision that the Government shall not be permitted to attack the majority’s latest opinion by a petition for rehearing. Our court should now make its final disposition of this particular controversy. There remains, however, the unanswered question of the extent, if any, of the retroactive application of the majority’s opinion; hence, I expect that we shall soon be required generally to review the problem again.