Petition for Writ of Certiorari — Vasilj v. United States

FILE COPY MAY 28 1970

JOHN F. DAVIS, CLERE

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1970

No. j fat I 9

GEORGE M. VASILJ, Petitioner,

Vv.

UNITED STATES OF AMERICA, Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROLAND S. BARCUME

Suite 302, Irvine Tower

550 Newport Center Drive

Newport Beach, California

92660

Attorney for Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1970

No.

GEORGE M. VASILJ, Petitioner,

Vv.

UNITED STATES OF AMERICA, Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROLAND S. BARCUME

Suite 302, Irvine Tower

550 Newport Center Drive

Newport Beach, California

92660

Attorney for Petitioner

INDEX

Page

Opinion below ....ccccccccccccces 1

JUFLOGACCION cccceccvccesseceves 2

Questions presented .......222e. 2

Constitutional provisions, statutes

and regulations involved .... 2

Statement under Rule 33 (2) (b).. 3

Statement of the case .......... 3

Reasons for granting the writ:

1. The local board failed to

follow the regulations in

Classifying and ordering

petitioner to report for

UNGUCSEION. cccccvseccceccos 4

2. Petitioner was convicted of

violating an order to report

for induction, which was not

an order in form or content,

but was phrased in mere

permissive language of "you

MAY FOPOLt . cccccccccscece 7

3. The District Court ought to

have considered Petitioner's

evidence of physical dis-

qualification and the clear

invalidity of the local

board's claim with respect to

that condition... ccesccececs 8

4. Petitioner's attempt to

secure civil relief was fru-

strated and the denial of

civil relief was used as the

basis of vital aspects of the

criminal prosecution...... 9

5. Petitioner ought to have been

afforded civil review of his

classification and induction

GPRS sc ccctvecescicncesesss 38

i.

Page

CONCLUSION .cccccccccccccccccecs 1l

Appendix A (Opinion and Judgment

of Court of Appeals in Vasilj

v United States) ............

Appendix B (Opinion and Judgment

of Court of Appeals in Vasilj

v Local Board ) ..ccccccccvce

Appendix C (Applicable statutes

and regulations) ............

CITATIONS

Abbott Laboratories v Gardner,

387 US 136, 140, 18 L Ed 2a

Sei, BF & CE A507 sesecsvescse 40

Dombrowski v Pfister, 380 US 479,

485, 486, 487, 14 L Ed 2d 22,

Se © Ge SAME saccecveteoevsovess &86

Estep v United States, 327 US

114, 121, 90 L Ed 567, 66

S CE Bee sek evssesancs 4, 7, ii

Ex parte Young, 209 US 123, 146,

147, 52 L Ed 714, 28 S Ct

SEE saecntwexeccasevcevesessss i

Knox v United States (CA9),

ro ee ES ae |) ere 5

Ohio Valley Water Co. v Ben

Avon Borough, 253 US 287, 64

Lb me See, SO 8B CE S27 weve 10

Oklahoma Operating Co. v Love,

252 US 331, 337, 64 L Ed

SOG, 46 & CE JSG cccvsccese es ss

Petersen v Clark (DC Cal) 289

Re Gault, 387 US 1, 32, 33,

Le & BA 24a 527, 87 S Ct

BEES Caste wseesseuaneees sence «8

School of Magnetic Healing v

McAnnulty, 187 US 94, 108,

ST b&b Be 90, 23 8B Ct 33 wncoes 10

ii.

Service v Dulles, 354 US 363,

1 L Ed 2d 1403, 77 S Ct

1152 @eeeeeeeeeeeeceeeeee

Simmons v United States, 348 US

397, 406, 99 L Ed 453, 75

Ss St 397 aaa ace ee ee ie. ae

St. Joseph Stock Yards v United

States, 298 US 38, 84, 80 L

Ed 1033, 56 S Ct 720...

Townsend v Zimmerman (CA6)

F2da 376 e@eee5«e5eee#eee#eer#8eeee

United States v Robel, 389

237

US

258, 280, 19 L Ed 2d 508,

523, 88 S Ct 419 ......

United States v Stiles, (CA3)

169 F2d 455 eeeee0e8ee8ee#

United States v Thompson, D.C.,

Mass, 1S.S.L.R. 3059 ..

United States v Vincelli,

215 F2d 210, reh den 216

F2d 681 eeeeeeeeeeneeeee?

United States ex rel. Accardi

v Shaughnessy, 347 US 260,

98 L Ed 681, 74 S Ct 499 ....

Vitarelli v Seaton, 359 US

3 L Ed 2d 1012, 79 S Ct

960 eeee«ees8ee348e+ee*eee#ee#ee#e#e?e# eee

535,

Wolf v Selective Service (CA2)

372 F2d 817, 820, 822,

824 eeeee#ee#eer#ees eeeeoe0eeneeeeee@

Miscellaneous

71 Harv L Rev 401, 420, 769,

770- 786 eeee#eee#e#ee#2ee#e#€e#8e#e

Jaffe, Judicial Control of

Administrative Action 587 ...

13 LRA NS 932 eoseeee0nteeee8ee

114 U Pa L Rev 1014, 1023

iii.

5

‘tasane

5

10

RSS

gh? Rage y

PEP Naa TEE

SOO REET Ye ay

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1970

No.

GEORGE M. VASILJ, Petitioner,

Vv.

UNITED STATES OF AMERICA, Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Petitioner George M.

Vasilj respectfully prays that a

writ of certionary issue to review

the judgment and opinion of the

United States Court of Appeals of

the Ninth Circuit entered in this

proceeding on April 30, 1970.

OPINION BELOW

The opinion of the Court of

Appeals, not yet reported, appears

in the Appendix hereto. No opinion

was rendered by the District Court

for the Central District of

California.

2

JURISDICTION

The judgment cf the United

States Court of Appeals for the

Ninth Circuit was entered on April

30, 1970, affirming Petitioner's

conviction dated March 12, 1969.

No petition for rehearing was filed.

The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254 (1)

and Supreme Court Rule 22 (2).

QUESTIONS PRESENTED

1. Whether the acts of a

Selective Service local board which

are contrary to law are subject to

review.

2. Whether a local board may,

by letter cast in non-mandatory

terms, impose a duty to report for

induction after judicial stay of

induction on date previously

ordered by the local board, such

as to support a criminal conviction

for failure to report pursuant to

such letter.

CONSTITUTIONAL PROVISIONS,

STATUTES AND REGULATIONS INVOLVED

United States Constitution,

Fifth Amendment,

No person shall ... be

deprived of life, liberty or

property, without due process

of law....

United States Code, Title 50:

3

§§ 454, 455, 460 (b) (3),

and 462 (a)

Code of Federal Regulations,

Title 32, Chapter XV1, Parts

1600-1690

STATEMENT UNDER RULE 33 (2) (b)

No court of the United States

as defined by 22 U.S.C. § 451, has,

pursuant to 28 U.S.C. § 2403,

certified to the Attorney General

the fact that the constitutionality

of such Act of Congress has been

drawn in question.

STATEMENT OF THE CASE

On August 8, 1966, Petitioner

was reclassified by his local board

from II-S to I-S. He took a timely

appeal. A year passed and after

first being defectively ordered to

report for induction, his appeal

was considered on an incomplete

record and denied on September 21,

1967. He was again ordered to

report for induction. Petitioner

then sued in the District Court for

injunctive relief to prevent his

induction until his classification

was first processed in accordance

with the Universal Military Train-

ing and Service Act and regulations

promulgated thereunder, claiming a

series of denials of due process

and that he was industrially blind

and thus not properly classified

I-A.

The Circuit Court of Appeals

> LO

——T

4

issued its temporary restraining

order staying his induction the

day before that on which he was

ordered for the second time by

the local board to report for

induction. That order was dissolved

after the day of the ordered induc-

tion and the local board advised

Petitioner by letter that he "may"

report for induction on January 24,

1968. Petitioner failed to report

on January 24, 1968, and for that

was prosecuted and convicted.

The District Court held that

it lacked jurisdiction in the civil

suit, in light of 50 U.S.C. §460

(b) (3). The Circuit Court of

Appeals affirmed that determination

in Vasilj v. Local Board No. 134,

et al, No. 23,050, decided December

22, 1969.

The Circuit Court of Appeals

then affirmed Petitioner's con-

viction.

REASONS FOR GRANTING THE WRIT

Point l.

The local board did not follow

the procedure required by the

regulations and by due process.

Consequently, its action of

Classifying and ordering Petitioner's

induction is invalid. Estep v

United States, 327 us 114, ior, 90

L Ed 567, 66 S Ct 423; Jaffe,

Judicial Control of Administrative

—_

5

Action, 587; United States ex rel.

Accardi v Shaughnessy, 2347 US 260,

$8 L Ed 681, 74 S Ct 499; Service

v Dulles, 354 US 363, 1L Ed 2d

1403, 77 S Ct 1152; Vitarelli v

Seaton, 359 US 535, 3 L Ed 2d 1012,

79S Ct 960; 114 U Pa L Rev 1014,

1023; Knox v United States (CA9)

200 F2a 398, 401; United States v

Vincelli, 215 F2d 210, reh den

216 F2d 681; Townsend v Zimmerman

(CA6) 237 F2d 376; United States v

Stiles (CA3) 169 F2d 455; United

States v Thompson, D. C. Mass,

I S.S.L-R. 3059; Re Gault, 387

US 1, 32, 33, 18 L Ed 20 527, 87

S Ct 1428; Simmons v United States,

348 US 397, ’ LE ’

S Ct 397.

While Congress properly

empowered the President to prescribe

selective service regulations

detailing the standards and proce-

dures for classification and induc-

tion, neither Congress nor the

President in turn delegated any

authority to local boards to act in

any manner inconsistent with those

regulations and the Act, or to be a

law unto themselves.

The local board refused to

consider Petitioner's eye defect,

and instead insisted that his sole

ground of appeal of his classifi-

cation was that he was a sole-

surviving-son, and that since he

misinterpreted the law in this

regard and was not a sole-surviving

son, then his appeal was doomed and

6

no other ground raised by him would

be considered.

The local board refused to

send Petitioner's file to the

appeal board within the five days

required by the regulations [32

C.F.R. § 1626.14], but rather,

issued a void order to report for

induction while his appeal was

pending [32 C.F.R. § 1626.41],

reopened his classification while

the appeal was pending, transmitted

only part of the file to the

appeal board [32 C.F.R. §§ 1626.13

(a), 1626.14, 1626.23], and upon

the affirmation of the classifi-

cation by the appeal board on

an incomplete file transmitted to

them more than a year after it was

required to be transmitted, the

local board purported to issue an

order to report for induction signed

not by a member of the board as

is required [32 C.F.R. § 1606.51

(a)] but by an unauthorized employee

signing the name of a member of the

board. [32 C.F.R. § 1606.31]

The coordinator of the local

board threatened Petitioner's

counsel with criminal prosecution

for representing Petitioner in the

civil action. [Rptr Trans pp. 92,

93]

Any one of the acts of the

local board, taken alone, might

well not prejudice Petitioner.

Taken together, however, they

demonstrate an adamant refusal on

7

the part of this local board to

follow the requirements of the Act

and the related regulations, and to

consider, classify, and induct the

Petitioner in a manner consistent

with the due process requirement,

in a manner which honestly considers

the facts offered to them and which

are available to them.

Local boards may not act in

a manner which is arbitrary and

capricious. United States v Robel,

389 US 258, 280, 19 L Ed 2d 508,

523, 88 S Ct 419; Estep v United

States, 327 US 114, 90 L Ed 567,

66 S Ct 423.

Point 2.

On August 16, 1966, the local

board received a timely notice of

appeal of Petitioner's classifica-

tion as I-A. Without acting on the

appeal, on September 8, 1967, the

local board ordered Petitioner to

report for induction. [Govt. Exhibit

"A" p. 9] on September 12, 1967, the

local board wrote to Petitioner as

follows: "We are in receipt of

information which warrants recon-

sideration of your Selective Service

status by this local board; there-

fore, this is to advise that you are

not required to report for INDUCTION

on 27 September 1967." [Govt. Exh.

"A" p. 43] However, the local board

did not in fact reconsider Petition-

er's status as the letter repre-

sented they were doing. Instead,

a part of his file was transmitted

to the appeal board.

a

His appeal was denied, and

on November 29, 1967, a second

order to report was sent, the

Original of which was signed by

an employee rather than a board

member. No order on the required

form SSS 252, or on any other

Selective Service form was later

sent.

On December 1l, 1967, the

Court of Appeals stayed Petitioner's

induction. The communication which

formed the basis of the indictment

and conviction was a mere letter

[Govt. Exhibit "A" p. 52] which is

cast NOT in mandatory terms, but

states "You may report" and then

follows a date and address.

Point 3.

The District Court refused

Petitioner's evidence as to his

physical condition and disqua-

lification, refused to consider

whether his condition disqualified

him, refused evidence as to the

lack of fact or substance to the

determination of the local board

that Petitioner was physically

acceptable, refused evidence that

Petitioner's eyes were not examined

at all during the preinduction

physical examination; but admitted

into evidence Petitioner's selective

service file, without explanation,

which included the information upon

which the Court of Appeals rested

its determination that Petitioner's

_—

9

contended eye defect "... finds no

support in either the Selective

Service file or the record in the

district court." Vasilj v United

States, pp. 2 & 3, Appendix infra.

Point 4.

In Petitioner's civil attempt

to secure review of and relief from

the excesses of his local board the

Government urged that no civil

review of the determinations of a

local board may be had, in view of

50 U.S.C. § 460 (b) (3), and that to

hold otherwise would afford Petit-

ioner two bites of the cherry. The

District Court agreed and dismissed

on that ground.

Thereafter, Petitioner was

indicted for refusal to be inducted.

While that prosecution was pending,

the Government urged in the civil

appeal that Petitioner's indictment

made the civil case moot. Yet, in

urging to the Court of Appeals that

the conviction be affirmed, the

Government urged that the civil

determination of Vasilj v Local

Board was controling; and the Court

of Appeals so held. Effectively,

the Government has urged in the

Civil case that the criminal case

controlled, and in the criminal

case that the civil case controlled.

Petitioner has been denied civil

review of his classification. He

also was prohibited from introducing

evidence at his criminal trial that

tended to show that his local board

exceeded its jurisdiction with

10

respect to examination of his eyes

and consideration of that condition.

He was, however, permitted to show

a series of procedural defects in

his classification. He urged that

these stood not only for themselves,

but added additional probity to his

Claim that his eyes were defective

and that the local board did not

consider the defect and lacked

a factual basis for its classifi-

cation of Petitioner as I-A.

Point 5.

In cases where the order of

a local board affects those rights

safeguarded by the First Amendment

to the United States Constitution,

the federal courts have jurisdi-

ction to protect those rights.

Dombrowski v Pfister, 380 US 479,

485, 486, 487, 14 L Ed 2d 22, 85

S Ct 1116; Wolf v Selective Service

(CA2) 372 F2d 817, 820, 822, 824.

Effective judicial review of

the actions of selective service

local boards --- administrative

agencies with unique power over the

lives of men, and unique responsi-

bilities to aid in raising armies

--- is constitutionally required.

School of Magnetic Healing v

McAnnulty, 187 US 94, 108, 47 L Ed

90, 23 S Ct 33; Abbott Laboratories

v Gardner, 387 US 136, 140, 18 L Ed

2d 681, 87 S Ct 1507; St. Joseph

Stock Yards v United States, 298 US

38, 84, 80 L Ed 1033, 56 S Ct 720;

Ohio Valley Water Co. v Ben Avon

_

1l

Borough, 253 US 287, 64 L Ed 908,

40 S Ct 527; 71 Harv L Rev 401,

420, 769, 770-786; Estep v United

States, 327 US 114, 121 90 L Ed

567, 66 S Ct 423; Ex parte Young,

209 US 123, 146, 147, 52 L Ed 714,

28 S Ct 441, 13 LRA NS 932; Okla-

homa Operating Co. v Love, 252 US

331, 337, 64 L Ed 596, 40 S Ct 338;

Petersen v Clark (DC Cal) 289 F

Supp 949.

CONCLUSION

For these reasons, a writ of

certionari should issue to review

the judgment and opinion of the

Court of Appeals for the Ninth

Circuit.

Respectfully submitted,

ROLAND S. BARCUME

Suite 302, Irvine Tower

550 Newport Center Drive

Newport Beach, California

92660

Attorney for Petitioner

~

PPLE SII Sos eA NS

APPENDIX "A"

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Grorce M. Vasi., q

Appellant,

VS.

Unitep States oF .AMERIC.A,

-lppellee. ;

[April 30, 1970]

On Appeal from the United States District Court

for the Central District of California

Before: ELY and WRIGHT, Cireuit Judges, and

JAMESON,® District Judge

JAMESON, District Judge:

This is an appeal from a conviction for refusal to submit to

induction under the Universal Military Training Act, 50 U.S.C.

App. § 462.

Appellant properly registered with his local board and was

initially classified II-S. On August 8, 1966, he was classified I-A.

A timely appeal was taken. In a personal appearance before his

local board and in his statement to the appeal board, appellant

claimed that he was the “sole surviving male member of (his)

family”. This claim has now been abandoned.

The appeal was denied September 21, 1967.1 On November 29,

1967, appellant was ordered to report for induction on Decem-

*Honorable William J. Jameson, United States Senior District Judge,

Billings, Montana, sitting by designation.

1While appellant was again classified I-A following his personal ap-

pearance before the local board on September 8, 1966, his file was not

forwarded to the appeal board until September 14, 1967.

3 George M. Vasilj vs.

ber 12, 1967. A temporary restraining order was issued by this

court. By letter dated January 2, 1968, the local board ordered

appellant to report for induction on January 24, 1968, calling

his attention to his continuing duty to report for induction under

Selective Service Regulation 1642.2. Appellant failed to report

for induction, and this prosecution followed.

In the meantime, on December 7, 1967, appellant filed a suit

against his local board for damages and for an injunction to pre-

vent his induction. The district court held that it lacked juris.

diction in light of 50 U.S.C. App. § 460(b) (3).2 Appellant con.

tended on appeal in the civil action, as he does here, that § 460

(b)(3) is unconstitutional as violative of the duc process clause

of the Fifth Amendment. In affirming the district court in the

eivil action (Vasilj v. Local Board No. 134, et al., No. 23,050

decided December 22, 1969) we held that this issue is no longer

open, having been decided adversely to appellant’s contention in

Clark v. Gabriel, 1968, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d

418, reh. den. 393 U.S. 1112, 89 S.Ct. 853, 21 L.Ed.2d 812

(1969), and that appellant was not within the exception to seec-

tion 460(b)(3) carved by the companion case of Oestereich y.

Selective Serviee Board, 1968, 393 U.S. 233, 89 S.Ct. 429, 21

L.Ed.2d 394. This disposes of appcllunt’s primary contention on

this appeal.

Appellant complains of the failure of Selective Service and the

district court to consider evidence of his physical condition, con-

tending that he is “industrially blind” and thereby disqualified

from service in the Armed Forces. Appellant’s position finds no

support in either the Selective Service file or the record in the

court.

The Selective Service file discloses that on his Classification

Questionnaire, received by the local board on November 8, 1965,

appellant indicated that he suffered from “a vision defect” which

would “disqualify (him) for service in the Armed Forces”. A

250 U.S.C. App. § 460(b)(3) provides in relevant part:

‘*No judicial review shall be made of the classification or process-

ing of any registrant by local boards, appeal boards, or the Presi-

dent, except as a defense to a criminal prosecution instituted under

Section 12 of this title, * * * after the registrant has responded

either affirmatively or negatively to an order to report for indue-

tion *~*e 0.9

United Status of America 3

current questionnaire received August 22, 1966, contained the

notation “sight impediment—very slight ease of hay fever”. A

third questionnaire received October 17, 1966, contained the state-

ment “have an eye condition causing the eyes to cross”.3

On December 22, 1966, appellant reported for a preinduction

examination and was found “acceptable” for military service. The

report on the eye examination shows distant vision as 20/400,

corrected to 20/30, in each eve. The summary of defects reads:

“Esophoria and myopia* (see letter) (w/in acceptable limits)”.

Two letters from appellant's own eye specialist, Dr. B. E. Rea-

soncr, dated September 21, 1966, and December 13, 1966, were

“reviewed and considered”.5

A statement of acceptability was mailed to appellant on Jan-

uary 3, 1967. By letter dated January 10, 1967, appellant’s coun-

sel requested a “second examination”. In reply the local board

stated that “the acceptability of a registrant * * * is determined

by the Armed Forces Examining and Induction Station”; and

that, “Doctor's letters submitted by this registrant were consid-

ered at the time of physical examination and he was found wholly

acceptable”. The letter concluded: “Any further medical letters

he wishes to submit will be included with his papers when he

is ordered to report for induction.”

’Both appellant and the local board prepared summaries of appel-

lant’s appearance before the board on September 8, 1966. Both sum-

maries refer to appellant’s claim that he was a sole surviving son and

his possible claim for a student defe:inert. Neither made any reference

to the claimed vision defect; no: did appellant’s statement to the

appeal board.

**Esophoria’’ is defined as ‘inward deviation of an eye only when

it is covered and fusion is prevented’’, and ‘‘myopia’’ as ‘‘near-

sightedness’’.

5Dr. Reasoner’s letter of December 13, 1966, reads in part:

‘*In conclusion it may be said that this patient has a moderate

degree of myopia and also has a marked esophoria with prisms

included in bf lens to reduce the extent of the esophoria that

he has. This is not a cure as far as the disease is concerned, but

it does give hinn relief from the symptoms.

**So far as further treatment is concerned an increase in the

prisms or perlaps eye wusele surgery may be necessary later.’’

a OLE Ses 5, CGO! OLE GS RII O ERTL BY ae

George M. Vasilj vs.

Had appellant reported for induction he would have received g

final physical examination.’ 32 C.F.R. §§ 1632.5, 1632.14, 1632.16,

1632.30. The local board was not required to hear further eyi.

dence with respect to appellant’s alleged physical impairment;

nor was the district court. There was clearly a “basis in fact”

for the classification given appellant within the rule of Estep y,

United States, 1945, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567.

The letter of January 2, 1968, was an order to report on Jan.

uary 24, 1968.7 There is no evidence that it was otherwise con.

strued by appellant. The postponement of induction did not

render invalid the Order To Report For Induction (SSS Form

252). 32 C.F.R. § 1632.2(d). It was not necessary to issue an.

other formal order. Beierle v. United States, 9 Cir. 1968, 409

F.2d 128, 132.

Nor is there merit in appellant’s contention that the orders

were not properly signed by an authorized officer. The person

who signed the name of the chairman to each order was author.

ized by board resolution to do so, pursuant to 32 C.F.R. § 1604.59,

In any event no prejudice was shown. United States v. Cralle,

9 Cir. 1969, 415 F.2d 1065, 1067.

Affirmed.

®Appellant was so advised by the order to report for induction, which

reads in part:

“If you wear glasses bring them. * * * If you have any physical

or mental condition which, in your opinion, may disqualify you

for service in the Armed Forees, bring a physician’s certificate

describing that condition, if not already furnished to your local

board. * * * You may be found not qualified for induction. Keep

this in mind in arranging your affairs, to prevent any undue hard-

ship if you are not inducted’’.

‘Appellant was first ordered to report on September 27, 1967. This

order was cancelled by letter dated September 12, 1967, pursuant to

32 C.F.R. § 1626.41, by reason of the pending appeal. The letter did

not reopen appellant’s classification. A second Order To Report For

Induction was issued on November 29, 1967.

PERNAU-WALSH PRINTING CO.,SAN FRANCISCO 5-5-70—325

RECEIVED

AY 8 1970

AP

PE

NDIX "

B"

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Scoieaenenmnaennninnemeedt

Grorce Mark VAsiL,

Appellant,

ne No. 23,050

LocaL Boarp No. 134, et al.,

Appellees.

[December 22, 1969]

Appeal from United States District Court

for the Central District of California

Before: DUNIWAY and HUFSTEDLER, Circuit Judges, and

PENCE,® District Judge.

PER CURIAM:

Appellant registered with Local Board No. 134 and was initi-

ally classified II-S. Subsequently the board classified him I-A,

and ordered him to report for induction, from which a timely

appeal was taken. The appeal board upheld the I-A classifica-

tion and ordered appellant to report forthwith. Appellant then

filed suit in the district court for damages and for an injunction

to prevent his immediate induction into the armed forces. The

district court held that it lacked jurisdiction in light of 50

USL. App. 460(b)(3),1 and this appeal followed.

*Honorable Martin Pence, United States District Judge, District of

Hawaii, sitting by designation.

1Military Service Act of 1967, 50 U.S.C. App. 460(b) (3) provides, in

relevant part:

‘*No judicial review shall be made of the classification or processing

of any registrant by local boards, appeal boards, or the President,

except as a defense to a criminal prosecution instituted under Sec-

tion 12 of this title, after the registrant has responded either affirm-

atively or negatively to an order to report for induction... .’’

= HP WENT TIGL ikl OTe PIER AES A ONE IAS TE ath Ae OE EGE

George Mark Vasilj vs.

Plaintiff-appellant urges that section 460(b)(3) of 50 U

App. is unconstitutional, as violative of the due process

of the Fifth Amendment. This issue is no longer open, h;

been decided adversely to this plaintiff by the case of Jars

Gabriel, 1968, 393 U.S. 256.

Further, plaintiff-appellant is found not to be within

coverage of the exception to section 460(b)(3) carved by

companion case of Oestereich v. Selective Service Board, |

393 U.S. 233.

For the foregoing reasons, the decision of the district

must be AFFIRMED.

PERNAU-WALSH PRINTING CO., SAN FRANCISCO = 12-24)-69)— 325

ELI OND ILE IES EI EN LIE ONS SI EG

APPENDIX "Cc"

APPENDIX C

Except as otherwise provided

in this title [sections 45l,

453, 454, 455, 456, and 458-471

of this Appendix], every male

citizen of the United States eve

shall be liable for training

and service in the Armed Forces

of the United States: Provided,

That each registrant shall be

immediately liable for Classifica-

tion and examination, and shall,

as soon as practicable following

his registration, be so Classified

and examined, both physically

and mentally, in order to determine

his availability for induction

for training and service in the

Armed Forces: Provided further,

That, notwithstanding any other

provision of law, any registrant

who has failed or refused to

report for induction shall continue

to remain liable for induction

and when available shall be immedi-

ately inducted: ... The President

is authorized, from time to time,

whether or not a state of war

exists, to select and induct

fortraining in the National Security

Training Corps as hereinafter pro-

vided such number of persons as

may be required to further the

purposes of this title [sections

451, 453, 454, 455, 456 and 458-

471 of this Appendix].

No person shall be inducted

into the Armed Forces for trainin

and service or shall be inducted

for training in the National Secur-

ity Training Corps under this title

resinous _—

ii

[sections 451, 453, 454, 455, 456

and 458-571 of this Appensix] until

his acceptability in all respects,

including his physical and mental

fitness, has been satisfactorily

determined under standards pre-

scribed by the Secretary of

Defense:.... [50 U.S.C. 454 (a) ]

The selection of persons for

training and service under section

4 [section 454 of this Appendix]

shall be made in an impartial

manner, under such rules and reg-

ulations as the President pay

prescribe, from the persons who

are liable for such training and

service and who at the time of

selection are registered and classi-

fied, but not deferred or exempted:

eooe (50 U.B.C. § 455)

The President is authorized ---

(1) to prescribe the necessary

rules and regulations to carry out

the provisions of this title [sec-

tions 451, 453, 454, 455, 456 and

458-471 of this Appendix];

.

(3) to create and establish

within the Selective Service System

Civilian local boards, civilian

appeal boards, and such other civil-

ian agancies, including agencies of

appeal, as may be necessary to

Carry out its functions with respect

NIE RELL SELL IET. OMNES LN RAPA er PN Ne RE ee VIC eS Rd

_

iii

to registration, examination, class-

ification, selection, assignment,

delivery for induction, and maint-

enance of records of persons regis-

tered under this title [sections

451, 453, 454, 455, 456 and 458-

471 of this Appendix], together with

such other duties as may be assi-

gned under this title [said

sections]: ...

Such local boards, or separate

panels thereof each consisting of

three or more members, shall under

rules and regulations prescribed

by the President, have the power

within the respective jurisdictions

of such local boards to hear and

determine, subject to the right of

appeal to the appeal boards herein

authorized, all questions or claims

with respect to inclusion for, or

exemption or deferment from, train-

ing and service under this title

[said sections], of all individuals

within the jurisdiction of such

local boards. The decisions of

such local board shall be final,

except where an appeal is authorized

and is taken in accordance with

such rules and regulations as the

President may prescribe. There

shall be not less than one appeal

board located within the area of

each Federal judicial district in

the United States and within each

Territory and possession of the

United States, and such additional

separate panels thereof, as may be

prescribed by the President.

Appeal boards within the Selective

Service System shall be composed

of civilians who are citizens of

the United States and who are not

m —

iv

members of the armed forces. The

decisions of such appeal boards

shall be final in cases before

them on appeal unless modified or

changed by the President, ...

No judicial review shall

be made of the classification or

processing of any registrant by

local boards, appeal boards or

the President, except as a defense

to a criminal prosecution insti-

tuted under section 12 of this

title [section 462 of this

Appendix], after the registrant has

responded either affirmatively or

negatively to an order to report

for induction, or for civilian work

in the case of a registrant deter-

mined to be opposed to participation

in war in any form: Provided, That

such review shall go the question

of the jurisdiction herein

reserved to local boards, appeal

boards, and the President onl

when there is no basis in fact

for the classification assigned

to such registrant. [50 U.S.C.

§ 460 (b)]

Any member of the Selective

Service System or any other person

charged as herein provided with

the duty of carrying out any

of the provisions of this title

[§ 451, 453, 454, 455, 456 and

458, 471 of this Appendix], or

the rules or regulations made

or directions given thereunder,

who shall knowingly fail or neglect

to perform such duty, and any

person charged with such duty,

Vv

or having and exercising any

authority under said title [said

sections], rules, regulations,

or directions who shall knowingly

made, or be a party to the making,

of any false, improper, or incor-

rect registration, classification,

physical or mental examination,

deferment, induction, enrollment,

or muster, and any person who

shall knowingly made, or be a

party to the making, of any false

statement or certificate regarding

or bearing upon a classification

or in support of any request

for a particular classification,

for service under the provisions

of this title [said sections],

or rules, regulations, or direc-

tions made pursuant thereto,

or who otherwise evades or refuses

registration or service in the

armed forces or any of the require-

ments of this title [said sections],

or who knowingly counsels, aids,

or abets another to refuse or

evade registration or service

in the armed forces or any of |

the requirements of this title |

{said sections], or of said rules,

regulations, or directions, or

who in any manner shall knowingly

fail or neglect or refuse to

perform any duty required of

him under or in the execution

of this title [said sections],

or rules, regulations, or direc-

tions made pursuant to this title

[said sections], or any person

or persons who shall knowingly

hinder or interfere or attempt

vi

to do so in any way, by force

or violence or otherwise, with

the administration of this title

{said section] or the rules or

regulations made pursuant thereto,

or who conspires to commit any

one or more of such offenses,

shall, upon conviction in any

district court of the United

States of competent jurisdiction,

be punished by imprisonment for

not more than five years or a

fine of not more than $10,000,

or by both such fine and imprison-

ment, or if subject to military

or naval law may be tried by

court martial, and, on conviction,

shall suffer such punishment

as a court martial may direct.

No person “shall be tried by court

martial in any case arising under

this title [said sections] unless

such person has been actually

inducted for the training and

service prescribed under this

title [said sections] or unless

he is subject to trial by court

martial under laws in force prior

to the enactment of this title

(June 24, 1948]. Precedence

shall be given by courts to the

trial of cases arising under

this title, and such cases shall

be advanced on the docket for

immediate hearing, and an appeal

from the decision or decree of

any United States district court

or United States court of appeals

shall take precedence over all

other cases pending before the

—

vii

court to which the case has been

referred. [50 U.S.C. 462 (a)]

-+» the classification of a

registrant shall not be reopened

after the local board has mailed to

such registrant an Order to Report

for Induction (SSS Form No. 252)

«++ [32 C.F.R. 1625.2]

When the local board reopens the

registrant's classification, it

- shall consider the new information

which it has received and shall

again classify the registrant in

the same manner as if he had never

before been classified. Such

Classification shall be and have

the effect of a new and original

Classification even though the

registrant is again placed in the

class that he was in before his

Classification was reopened."

(32 C.F.R. § 1625.11]

Each such classification shall be

followed by the same right of

appearance before the local board

and the same right of appeal as

in the case of an original

Classification. [32 C.F.R. § 1625.13]

The reopening of the classification

of a registrant by the local board

shall cancel any Order to Report

for Induction (SSS Form No. 252)

+++ Which may have been issued to

the registrant.... [32 C.F.R.

§ 1625.14]

viii

The registrant... may take an

appeal ... at any time ... within

30 days after the date the local

board mails to the registrant a

Notice of Classification (SSS Form

No. 110). [32 C.FP.R. § 1626.2 (c)]

The person appealing may attach to

his appeal a statement specifying

the matters in which he believes

the local board erred, may direct

attention to any information in

the registrant's file which he

believes the local board has

failed to consider or to give

sufficient weight, and may set out

in full any information which was

offered to the local board and

which the local board failed or

refused to include in the regist-

rant's file. [emphasis added]

(32 C.F.R. § 1626.12]

Immediately upon an appeal being

taken to the appeal board by a

person entitled to appeal, the

local board shall ... carefully

check the registrant's file to

make certain that all steps

required by the regulations in

this chapter have been taken and

that the record is complete. If

any information considered by the

local board does not appear in

the written information in the file,

other than information presented

Orally by the registrant or in his

behalf at a personal appearance

under the provisions of § 1624.2 of

this chapter, the local board shall

—

ix

prepare and place in the file a

written summary of such information.

[32 C.F.R. § 1626.13 (a)]

The registrant's file shall be

forwarded to the appeal board, or

appropriate panel thereof, immed-

iately after the period provided in

paragraph (c) of & 1626.2 for

taking an appeal has elapsed and the

local board has complied with the

provisions of § 1626.13, but in

no event shall the file be for-

warde ater than five days after

the period for takin an appeal has

@lapsed. The local boerd shall

enter the Classification Record

(SSS Form No. 102) the date it

transmits the registrant's file to

the appeal board or appropriate

panel thereof. [32 C.F.R. §

1626.14]

The appeal board will carefully

check each file to determine

whether all steps required by the

regulations have been taken,

whether the record is complete, and

whether the information in the file

is sufficient to enable it to

determine the registrant's class-

ification. If any steps have been

omitted by the local board, if the

record is incomplete, or if the

information is not sufficient to

enable the appeal board to deter-

mine the classification of the

registrant, the appeal board

shall return the file to the local

board with a request for addition-

al information or action. If the

x

appeal board return the file to

the local board for additional

information or action, it shall

enter the date of return in

Column 8 of the Docket Book of

Appeal Board (SSS Form No. 121).

When the file is returned to the

appeal board the appeal shall be

re-entered on the Docket Book of

Appeal Board (SSS Form No. 121) in

the manner prescribed in section

1626.21. [32 C.F.R. § 1626.23]

The appeal board shall classify the

registrant, giving consideration to

the various classes in the same

manner in which the local board

gives consideration thereto when

it classifies a registrant.

[32 C.F.R. & 1626.26 (a)]

Such classification of the regis-

trant shall be final except where

an appeal to the President is

taken ... [32 C.F.R. § 1626.26

(d)] [Note that an appeal to the

president was unavailable to

Appellant here, as there is a

precondition to that right that

first at least one member of the

appeal board must dissent from

‘tthe appeal board classification,

which did not happen here.]

The local board shall not issue an

order for a registrant to report for

induction either during the period

afforded the registrant to take an

appeal to the appeal board or

during the period such an appeal is

pending. Any order to report for

xi

induction which has been issued

during either of such periods shall

be ineffective and shall be can-

celled by the local board. When-

ever an appeal to the appeal board

has been taken by a person entitled

to do so, an order to report for

induction which has previously been

issued to the registrant shall be

ineffective and shall be cancelled

by the local board. [32 C.F.R.

§ 1626.41]

Immediately upon determining which

men are to report for induction,

the local board shall prepare for

each man an Order to Report for

Induction (SSS Form No. 252)

in duplicat . ... The local board

shall mail the original of the

Order to Report for Induction

(SSS Form No. 252) to the regis-

trant and shall file the copy in

his Cover Sheet (SSS Form No. 101).

[32 C.F.R § 1632.1]

All forms and revisions thereof

referred to in these or any new or

additional regulations, or in any

amendment to these or such new or

additional regulations, and all

forms and revisions thereof pre-

scribed by the Director of Selective

Service shall be and become a part

of these regulations in the same

manner as if each form, each

provision therein, and each

revision thereof were set forth in

full. Whenever in any form or in

the instructions printed thereon,

any person shall be instructed or

BEES SNE MOF MLE IT RAE ROM OE LAY ENR LE TES LIE NII CHAS OE SY ELT I tre

xii

required to perform any act in

connction therewith, such person is

hereby charged with the duty of

promptly and completely complying

with such instruction or requirement.

[32 C.F.R. § 1606.51 (a)]

Official papers issued by a local

board may be signed by the clerk of

the local board if he is authorized

to do so by resolution duly adopted

by and entered in the minutes of the

meetings of the local board, pro-

vided that the chairman or a member

of the local board must sign a

particular paper when specifically

required to do so by the Director

of Selective Service. [32 C.F.R.

§ 1604.59]

Signatures affixed to official

papers of the Selective Service

System must be written in pen and

ink by the person signing. Rubber

stamp facsimiles will not be used.

[32 C.F.R. § 1606.31]