United States v. Christian Winslow Hayden

ELY, Circuit Judge:

The points made in the Petition for Rehearing, with one exception, are frivolous. Indeed, the merits of the majority opinion are barely discussed. The *1379 exception relates to Hayden’s alleged failure to exhaust his administrative remedies and requires us to consider the effect of McGee v. United States, 402 U.S. 479 , 91 S.Ct. 1565 , 29 L.Ed.2d 47 (1971), decided after the issuance of our opinion. It must be concluded that our opinion and McGee are easily reconcilable.

McGee was a registrant whose 1-0 claim was rejected by his local board but who did nothing further about it. He neither requested a personal appearance nor an appeal. Thus, when he urged mis-classification as a defense to a charge following his subsequent failure to report for induction, he was asking the Court to assume a heavy burden. If he had prevailed, any registrant could then submit a carefully drawn Form 150, deliberately fail to pursue the claim through available administrative avenues, and yet nevertheless force the court to interpret a record empty of facts save for the registrant’s own self-serving declarations.

Echoing McKart, however, McGee warns that the ordinary exhaustion requirement “is not to be applied inflexibly in all situations.” 402 U.S. at 483 , 91 S.Ct. at 1568 , 29 L.Ed.2d at 52 .

“After McKart the task for the courts, in deciding the applicability of the exhaustion doctrine to the circumstances of a particular case, is to ask ‘whether allowing all similarly situated registrants to bypass [the administrative avenue in question] would seriously impair the Selective Service System’s ability to perform its functions.’ ”

Id. at 484 , 91 S.Ct. at 1568-69 , 29 L.Ed. 2d at 53 . In McGee , the court was forced to answer “yes” to the question, for every registrant who submits a carefully drawn Form 150 to his board would be “similarly situated” to McGee. In our case, however, Hayden is in a far different, extremely unique position. He not only submitted a Form 150, he appealed his local board’s denial of the claim therein made. Furthermore, his Appeals Board, satisfied with the fullness of the factual record before it, unanimously affirmed the decision of the Local Board. At this point, Hayden had clearly exhausted his remedies and had given the system every opportunity to correct its error, and to amplify the factual record. The full panoply of the administrative process having been brought to bear on Hayden’s claim, the denial of his 1-0 claim was held, by a federal court, to have been without basis in fact.

It is this circumstance, the prior judicial resolution of Hayden’s claim, based on a fully developed administrative record, which distinguishes his case from that of McGee. Essential to the determination that no basis in fact existed for the denial of Hayden’s 1-0 claim were findings that Hayden had made out a prima facie case, that he was sincere, and that nothing in the record was inconsistent with his claim. His acquittal vindicated his 1-0 claim and occurred in the process of judicial review that is the narrowest known to the law. As our majority opinion demonstrates, nothing occurred after the definitive judicial decision which cast any doubt upon its continuing vitality. The blatant disregard of the court’s decision, evidenced by a letter from the State Director to the Local Board attempting, in essence, to refute the Court’s interpretation of the record, and evidenced by the Board’s attempt to cast Hayden’s good-faith reliance upon the decision as evidence of his insincerity, places this case in a unique posture.

Here, we do not deal with a registrant who, having made out a prima facie case, refuses to allow to the Board an inquiry into his sincerity. Hayden is a registrant whose sincerity has been attested by a federal District Court, after a trial in which the very issues being litigated herein were resolved in Hayden’s favor. In the light of that trial, the subsequent approach taken by Hayden’s Board is, at *1380 its best, inexplicable. 1 McGee attempted to take advantage of his Board and to burden the courts. Here, Hayden’s Board sought to take advantage of him, ' and to ignore the courts.

The Petition for Rehearing is Denied. The suggestion for en bane rehearing is rejected. The full court has been advised of the suggestion for en banc reconsideration, has considered this supplemental opinion of the majority, as well as the dissenting opinion thereto, and no judge of the court has requested that a vote be taken on the suggestion for en banc rehearing. Fed.R.App.P. 35(b).

. Another panel of our court has recently characterized it as “punitive”. United States v. De La Parra, 445 F.2d 1405 (9th Cir., June 3, 1971). This motivation has been held, in another context, to be intolerable. Gutknecht v. United States, 396 U.S. 295 , 90 S.Ct. 506 , 24 L.Ed.2d 532 (1970).