The opinion
TUTTLE, Circuit Judge
(dissenting);
Although I agree with much that is said in the majority opinion, I must respectfully dissent.
I agree that since Oestereich v. Selective Service System, etc., 393 U.S. 233 , 89 S.Ct. 414 (1968) § 10(b) (3) of the Military Selective Service Act is no longer a bar to preinduction review. I further agree that preinduetion review is not limited toncases in which deferments are revoked in a blatantly lawless manner, but includes those which a registrant alleges the blatantly lawless removal of procedural rights guaranteed to him by the regulations promulgated in accordance with the Selective Service Act. The fact that a procedural right to a hearing rather than a substantive right to a deferment is involved is not controlling. The key factor in keeping with the policy of § 10(b) (3) is the extent to which the court must become involved in either the discretionary or fact finding functions of the local board. Since courts ought not to become super draft boards, preinduction review should be limited to only those cases which involve purely legal error. I am compelled to dissent for I feel that this is such a case.
At the heart of my disagreement with the majority is the proper interpretation of 32 CFR § 1627.5 , already set forth in the majority opinion. However, before discussing it in detail, it should be noted that nowhere is it alleged that the State Director ever saw appellant’s second claim. The record simply states that with regard to this request, his local board informed him that it had been denied along with his first request by the President. As Justice Harlan noted in his concurring opinion in Oestereich:
* * * a challenge to the validity of the administrative procedure itself * * * renders irrelevant the presumption of regularity. Id. at 243 , 89 S.Ct. at 419 .
Thus, even if this regulation is relevant, and I do not think it is, the record does not substantiate its proper application.
However, even assuming that the State Director did see appellant’s second request, the most reasonable interpretation of § 1627.5 is that it applies to additional information concerning the same claim; that is, the classification action which is on appeal. The regulation itself speaks of “the classification from which the appeal to the President is taken.” In the case at bar, “the classification” on appeal is the 1-A resulting from the denial of appellant’s request for a II-A deferment based on his research in psychology. Indeed, section 1627.3 of the regulations states:
Where a registrant has been classified by the appeal board and one or more members of the appeal board dissented from that classification, the registrant * * * may appeal to the President * * *
It is clear that at the time of the appeal board’s decision nothing concerning ap *297 pellant's acceptance into the Peace Corps was on file. Thus, “that classification” from which the registrant appealed to the President was the 1-A resulting solely from the denial of his first deferment request. It was additional information regarding this claim and this claim alone that could be reviewed at the discretion of the State Director.
There are strong policy reasons for this approach. It is simply alien to our basic notions of fairness to interpret this regulation as meaning that because one claim is on appeal to the President, the registrant is deprived of his procedural rights in all subsequent claims. Though, as the majority points out, United States v. Karlock, 427 F.2d 156 (9th Cir., 1970), dealt with a claim on appeal to the state board, the principle enunciated is fully applicable here:
If he was entitled to any consideration of his claim, he was entitled to it at the beginning level, as well as the appellate level.
Moreover, this court has long emphasized the importance of procedural safeguards for a registrant. See Olvera v. United States, 223 F.2d 880 (5th Cir., 1955). Most recently, this court stressed the importance of a personal appearance in Margo v. Cassidy, (5th Cir.) 426 F.2d 137 stating that it is at this time that a registrant may:
“ * * * discuss his classification, * * * point out the class or classes in which he thinks he should have been placed * * * direct attention to any information in his file which he believes the local board has overlooked or to which it has not given sufficient weight, and * * * present such further information as he believes will assist the board in determining his proper classification.” Knox v. United States, 200 F.2d 398, 399 (9th Cir., 1952), quoting former provisions of 32 C.Fr. § 1624, 2(b).
Finally, the Supreme Court, in Mulloy v. United States, 90 S.Ct. 1766 , has recently emphasized the importance of “a chance to be heard and an opportunity for an administrative appeal.”
Clearly, in light of these cases it is totally anomolous to interpret § 1627.5 so as to deprive a registrant of a hearing and a right of appeal when he has submitted a second and separate deferment request. Though the majority correctly notes that it is the President who ultimately has power to decide “all claims and questions” of a registrant’s classification, it is only reasonable to presume that any decision be based on as complete a record as possible. This is accomplished by adhering to the regulations and providing a hearing and an opportunity to perfect an appeal.
The majority also concludes that appellant failed to allege facts which would make out a prima facie case. What appellant did allege, however, was that he requested a II-A deferment for his Peace Corps activity from his local board. If they determined that he had made out a prima facie case, they were compelled to reopen, notify appellant and grant a hearing if requested. If they did not so feel, they were nonetheless compelled to notify appellant of that fact pursuant to 32 C.F.R. § 1625.4 1 Thus, in any event, *298 by transmitting appellant’s second request to the President without providing appellant any notice whatsoever, the local board failed to abide by the regulations. As the Eighth Circuit has recently noted in a case involving an appeal by the State Director of a local board decision where the Director refused to provide the registrant the reasons for the appeal:
Every citizen, including youthful registrants under the Selective Service laws, is entitled to be substantively informed as to any governmental action which may affect his liberty or life. No governmental procedure may stand which fails to provide such information. To be both fairly and timely advised is fundamental to the basic concepts of due process. ‘Clandestine due process’ has never found favor or constitutional basis in courts of law. United States v. Cummins, 425 F.2d 646, 649 (8th Cir., 1970).
In short, the local board failed to follow the regulations. Because their errors were of a purely legal nature, I strongly believe that the lower court had jurisdiction to entertain appellant’s claim, even though he had not yet been inducted. I, therefore, would reverse.
. § 1625.4 Refusal to reopen and consider anew registrant’s classification.
When a registrant, any person who claims to be a dependent of a registrant, any person who lias on file a written request for the current deferment of the registrant in a case involving occupational deferment, or the government appeal agent files with the local board a written request to reopen and consider anew the registrant’s classification and the local board is of the opinion that the information accompanying such request fails to present any facts in addition to those considered when the registrant was classified or, even if new facts are presented, the local board is of the opinion that such facts, if true, would not justify a change in such registrant’s classification. In such a case, the local board, by letter, shall advise the person filing the request that the information submitted does not warrant the reopening of the registrant’s classification and shall place a copy of the letter in the registrant’s file. Xo other record of the receipt of such a request and the action taken thereon is required.