United States v. Christian Winslow Hayden

JERTBERG, Circuit Judge

(dissenting) :

I respectfully dissent from the Order of the majority in denying appellee’s petition for rehearing and rejecting the suggestion for rehearing en banc.

Appellee does not seek rehearing with respect to the reversal by this Court of appellant’s judgment of conviction for failure to report for induction. I joined the majority in such order of reversal.

Appellee’s petition seeks rehearing only in .respect to the order of this Court reversing appellant’s conviction for failure to report for physical examination. I filed a dissenting opinion stating that in my opinion the judgment of conviction should be affirmed because of appellant’s failure to exhaust his administrative remedies. I adhere to the views expressed therein and will not repeat them here.

The petition for rehearing should be granted and such rehearing should be en banc.

I also dissent from the views expressed in the Supplemental Opinion of the majority filed with its Order denying the petition for rehearing.

In its original opinion the majority reversed the judgment convicting appellant for failure to report for preinduction physical examination because, under a prior indictment charging only that appellant failed to report for induction, Judge Ferguson, after trial, acquitted appellant of such charge and stated that in his opinion appellant was a conscientious objector. From such premise the majority concluded that the board’s denial of appellant’s C-0 claim was without basis in fact, that appellant should have been classified C-0 by the local board, and that if it had done so, appellant would not have been required to submit to a preinduction physical examination. In this connection the majority, in its original opinion- stated:

“If Hayden was entitled to a 1-0 classification, he was also entitled to all the attendant rights and attributes of that classification, including exemption from the duty to take an armed forces physical examination.” [Emphasis added.]

In its Supplemental Opinion the majority, after attempting to distinguish the facts in the instant case from the facts appearing in the opinion of the Supreme Court in McGee v. United States, 402 U.S. 479 , 91 S.Ct. 1565 (1971), stated:

“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, unanimouly 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.

*1381 “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.”

The foregoing quotation does not present a fair and complete statement of the record before the local board when on December 3, 1968, the board denied appellant’s C-0 claim and reclassified appellant as I-A.

Following notice to the board that Judge Ferguson had acquitted appellant on the charge of failing to report for induction, the local board requested Hayden’s presence for an interview, informing him that: “The primary purpose of the interview will be 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 interview was necessary, and declined the invitation.

On December 3, 1968, the local board reclassified him I-A stating:

“We the members of Local Board No. 95, reviewed the registrant’s file and his letter of Dec. 2, 1968. It is our decision to reopen and reclassify in Class I-A, since we are unable to determine the sincerety (sic) of his beliefs solely on the basis of the material in the file, and since we had no opportunity to observe the demeanor of the registrant and to question him concerning the sincerety (sic) of his claimed beliefs.

“The Board was of the opinion that the registrant’s failure to appear before the Local Board in person to answer questions and to permit the Board to observe him and his demeanor, was an adverse fact showing that the registrant was not sufficiently sincere about his beliefs to appear before the board.”

On December 13, 1968, appellant was mailed notification of his new I-A classification, and was informed of his right to a personal appearance and an appeal relative to the denial of his 1-0 claim. Appellant did not seek a personal appearance before the board, and he filed no appeal from his I-A classification.

In the above quotation from the Supplemental Opinion it is stated that:

“He [appellant] not only submitted a Form 150, he appealed his local board’s denial of the claim therein made.”

The record does not support the statement that appellant appealed his local board’s denial of his claim. The record discloses that after appellant filed his Form 150, 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 an appearance had been scheduled for October 17. Appellant failed to appear as scheduled. Because the board erroneously treated his request for a personal appearance as a request for 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.

Also in the Supplemental Opinion appears the statement:

“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.”

In my view the record is to the contrary.

The record discloses that appellant, after filing his C-0 claim (Form 150), chose thereafter to ignore the Selective Service System. He requested a personal appearance, which request was granted and a date 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.

*1382 Such matters were before the local board on December 3, 1968, when it denied his C-0 claim and reclassified appellant as I-A. Appellant deliberately refused throughout the proceedings to appear personally before the board in order to assist it in determining the sincerity of his C-0 claim.

In my view the petition for rehearing should be granted in light of the teachings set forth in McGee v. United States, supra; McKart v. United States, 395 U.S. 185 , 89 S.Ct. 1657 , 23 L.Ed.2d 194 (1969) ; 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) ; and Lockhart v. United States, 420 F.2d 1143 (9th Cir. 1969) en banc.