United States v. Christian Winslow Hayden

JERTBERG: Circuit Judge

(concurring in part and dissenting in part.)

I am in complete agreement with the statement in the majority opinion that:

“The Board’s order for Hayden to report for induction was invalid, running afoul of the rule of Gutknecht v. United States, 396 U.S. 295 , 90 S.Ct. 506 (1970).”

Therefore, I concur in the majority opinion reversing appellant’s judgment of conviction for his failure to report for induction.

However, I must part company with the majority in its reasoning and action in reversing the judgment of conviction for failure to report for a preinduction physical examination.

The following is summarized from the majority opinion:

Appellant’s first I-A classification was issued April 4, 1967; that appellant requested that his classification be reopened in order to detail his conscientious objection to war; that upon its receipt of the completed questionnaire and supporting documents, the Local Board, on July 11, 1967, again classified appellant I-A. Appellant made a timely request for personal appearance, and, on October 5, 1967, was notified that his appearance had been scheduled for October 17th; that appellant failed to appear as scheduled. Because the Board erroneously treated his request for a personal appearance as an appeal, also, it sent his file to the Appeals Board, while continuing his I-A classification. The Appeals Board unanimously upheld the I-A classification on November 16, 1967, and appellant was so notified by the Local Board on November 28, 1967.

On December 6, 1967, appellant returned his classification notice to the Board, explaining that the day before his scheduled appearance he had surrendered his draft card to the Attorney General, and further stated that he would thereafter refuse to cooperate with the Selective Service System “in any way” and he would no longer carry any Selective Service documents.

Appellant was ordered to report for induction on March 5, 1968. He failed to report for induction and was indicted for such failure. Appellant was acquitted of such offense and the Local Board was notified of such acquittal. The Board requested appellant to appear for an “Informal Interview,” in order to “develop further facts on which your Conscientious Objector claim is based, and the sincerity of such claim.”

Appellant replied to the Board in writing, stating that he did not believe that such an interview was necessary, and declined the invitation. Upon receipt of this letter the Board again reclassified appellant I-A, finding that the record before the Board was insufficient to substantiate appellant’s 1-0 claim, and that an adverse inference was being drawn regarding *1376 appellant’s sincerity from his refusal to accede to the invitation to appear for the “Informal Interview.”

No appeal was taken by appellant from such I-A classification and when the time for appeal expired, the Board ordered appellant to submit himself for a pre-induction physical examination. Appellant failed to appear and thereafter was ordered to report for induction, and thereafter appellant was indicted for failure to appear for pre-induction physical examination and for failure to report for induction. Following trial before the court, he was convicted of both offenses.

It appears from the foregoing summary of the record that throughout the history of this litigation appellant’s classification by the Board and the Appeal Board was I-A. No appeal was taken by appellant from the last order of the Board classifying him as I-A. He failed completely to exhaust his remedies within the Selective Service System.

Contrary to the view taken by the majority, I believe the decision in United States v. Zmuda, 423 F.2d 757 (3d Cir.), cert. denied, 398 U.S. 960 , 90 S.Ct. 2176 , 26 L.Ed.2d 545 (1970), from which a quotation appears in the majority opinion, to be convincingly persuasive that the majority erred in reversing appellant’s judgment of conviction for failure to appear for a pre-induction physical examination.

The facts in Zmuda practically parallel the facts in the instant case, and in my view the following quotations from Zmuda apply with equal force to the case before us:

“The validity of a I-A classification has no relevance to the registrant’s obligation to undergo an examination to determine his physical eligibility to serve in the armed forces. McKart v. United States, 395 U.S. 185 , 89 S.Ct. 1657 , 23 L.Ed.2d 194 (1969). Should the result of the examination reveal that the registrant is physically ineligible to serve, then his I-A classification would obviously be changed.

“ * -* *

“Stripping the surplusage from the various arguments advanced on this point, the appellant’s complaint is simply that the local board had no basis in fact for rejecting his conscientious objector claim. But in the posture of the record before us, we are precluded from inquiring as to whether there was a “basis in fact” for the I-A classification, or, conversely, whether Zmuda met his burden of proof in establishing a conscientious objector exemption. We are placed in this position because appellant failed to avail himself of the review procedures available within the selective service system for the rectification of what a registrant believes to be an improper classification. [Footnotes omitted.]

it * * *

“We recognize that some may regard the application of the exhaustion requirement as an insensitive and inflexible formalism — a judicial preoccupation with form over substance. It should be remembered, however, that nothing is more basic to our jurisprudence than the constant application of procedural rules. It is what Mr. Justice Brandéis called ‘due process in the primary sense.’ Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 681 , 50 S.Ct. 451, 454 , 74 L.Ed. 1107 (1930). And when Congress has designated an administrative agency as the initial forum for the adjudication of contested rights, only a clear demonstration that recourse to the agency would be futile, self-defeating or judicially wasteful will justify the abandonment of the exhaustion requirement. No such demonstration has been made here. The appellant deliberately refused to utilize the administrative apparatus available to rectify what he considered unjust. He will not now be heard to complain of the denial of due process from a system he chose to ignore.”

The majority states that McKart, supra, “does not support the position as *1377 cribed to it in Zmuda , and here taken by the government.” 1 I believe that Mc-Kart bolsters the holding in Zmuda .

The precise holding in McKart was that exhaustion was not required in a claim for exemption as a sole surviving son because resolution of the claim called for a statutory legal interpretation not based on factual determinations or the exercise of any discretion by the Selective Service System. Unlike Mc-Kart, appellant’s claim as a Conscientious Objector was not one, the resolution of which called for a statutory legal interpretation not based on factual determinations or the exercise of any discretion by the Selective Service. As pointed out below in McKart , conscientious objector claims require the application of expertise, or the exercise of discretion and only the Local and Appeals Board have the necessary expertise. The Supreme Court stated in McKart , at p. 198, 89 S.Ct. at p. 1665 :

“In this sense, the issue is different from many Selective Service classification questions which do involve expertise or the exercise of discretion, both by the local boards and the appeal boards. 16

Further from McKart at pages 201-202, 89 S.Ct. at page 1667 :

“But more importantly a registrant is under a duty to comply with the order to report for a physical examination and may be criminally prosecuted for failure to comply. If the Government deems it important enough to the smooth functioning of the System to have unfit registrants weeded out at the earliest possible moment, it can enforce the duty to report for prein-duction examinations by criminal sanctions. In the present case, it has not chosen to do so. Petitioner has not been prosecuted for failure to report for his examination; he has been prosecuted for failure to report for induction, a duty he claims he did not have.” [Footnotes omitted.]

Further on page 203, 89 S.Ct. on page 1667:

“At the time Falbo [Falbo v. United States, 320 U.S. 549 , 64 S.Ct. 346 , 88 L.Ed. 305 ] was decided the regulations provided that the pre-in-duction examination was to be given at the time the registrant responded to the order to report for induction or to the work camp. See Gibson v. United States, 329 U.S. 338 , 67 S.Ct. 301 , 91 L.Ed. 331 (1946). Accordingly, the Selective Service System had no way to enforce the duty to report for an examination other than by a prosecution for failure to report for induction. An invalid classification, if allowed to be raised, would have been a complete defense to that prosecution; it would not be a defense today to a prosecution for failure to report for a pre-induction examination.” [Italics added.]

The majority finds further support for its position that appellant was not required to exhaust his administrative remedies because of the decision of Judge Ferguson, acquitting him of the offense of failing to report for induction, which charge was contained in an earlier indictment. I do not believe that *1378 Judge Ferguson’s decision, collaterally or otherwise, estopped the Selective Service System from further proceedings subsequent to such decision. Congress empowered the Selective Service System to make such discretionary determinations. The courts cannot usurp the functions and duties assigned to the Selective Service System.

The majority assumes that Hayden’s claim to a 1-0 classification had been completely established as a matter of law, notwithstanding his I-A classification by the Local and the Appeals Board, and the finding by the Local Board that the record before it was insufficient to establish appellant’s 1-0 claim. In this connection the majority states there was nothing in the record tending to cast doubt on Hayden’s sincerity.

The record discloses that throughout appellant chose to ignore the Selective Service System. He requested a personal appearance, which request was granted and a daté fixed. He failed to appear as scheduled. He returned his classification card to the Local Board and explained that he had surrendered his draft card to the Attorney General, and that he would refuse to- cooperate with the Selective Service System “in any way.” Following Judge Ferguson’s decision he was invited to appear personally before the Board. He declined the invitation stating that such appearance was not necessary.

The SSS Regulations 1660.20(a), the Local Board Memorandum No. 14, para. 3(b), as amended, and the Local Board Memorandum No. 64, para. 3(a), as amended, portions of which are quoted in the majority opinion, are not relevant. • Such regulation and memoranda relate to a registrant who has been classified as 1-0 by his local board and not to appellant whose board classification was always that of I-A.

The reliance by the majority on two district court decisions, United States v. Mendoza, 295 F.Supp. 673 (E.D.N.Y., 1969), and United States v. Walsh, 279 F.Supp. 115 (D.Mass.,1968), are weak reeds to rest upon.

In Walsh 2 the registrant was classified I-A-0 by his Local Board and was charged for his failure to report for induction and for failure to report for a pre-induction physical examination. Walsh was acquitted of both counts at a trial to the court on the grounds of arbitrary action by the Local Board, and the denial of procedural due process. In Walsh , it is stated at p. 121:

“In so ruling, the Court does not pass judgment on the merits of defendant’s claim for conscientious objector status; nor does the Court intimate what decision the local board should have made had it properly considered the question of reopening his case; nor does the Court in any way intimate what decision the local board would or should have reached had it reopened his case and proceeded to reconsider his classification.”

In Mendoza , unlike the instant case, the registrant was classified 1-0 by the Local Board. In the instant case he was classified I-A.

The vice in the reasoning of the majority opinion lies in the fact that the majority erroneously usurps the function of the administrative agency which alone is charged with the duty of classifying registrants, by treating appellant as though he had been classified as a Conscientious Objector because, in the opinion of the majority, appellant was entitled to that status, notwithstanding the fact that throughout the history of this litigation appellant’s classification remained that of I-A.

SUPPLEMENTAL OPINION AND ORDER ON PETITION FOR REHEARING

“16. Conscientious objector claims, Military Selective Service Act of 1967, § 6(j), 81 Stat. 104 , 50 U.S.C.App. § 456(j) (1964 ed., Supp. Ill), or deferments for those engaged in activities deemed ‘necessary to the maintenance of the national health, safety, or interest,’ id., § 6(h) (2), 81 Stat. 102 , 50 U.S.C.App. § 456(h) (2) (1964 ed., Supp. Ill), would appear to be examples of questions requiring the application of expertise or the exercise of discretion. In such eases, the Selective Service System and the courts may have a stronger interest in having the question decided in the first instance by the local board and then by the appeal board, which considers the question anew. 32 CFR § 1626.26 . The Selective Service System is empowered by Congress to make such discretionary determinations and only the local and appeal boards have the necessary expertise. See Thompson v. United States, 380 F.2d 86 (C.A. 10th Cir. 1967).”

. McKart is summarized in footnote 5 of the majority opinion.

. A résumé of this case appears in the body of the majority opinion.