Opposition Brief — Robley v. United States

Gu the Supreme Gourt of the Gnited States

OctoBER TERM, 1970

No. 261

SPENCER H. Rosey, JR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Following a non-jury trial, petitioner was convicted

in the United States District Court for the Central

District of California of refusing to submit to indue-

tion into the Armed Forces, in violation of 50 U.S.C.

App. 462 (1 R. 2+4, 30).’ On January i3, 1969, he was

sentenced to three years’ imprisonment (1 R. 31).

The court of appeals affirmed (Pet. App. Al—A2).

In March 1964, petitioner submitted to his local

Selective Service board a completed questionnaire in

which he stated that he was a conscientious objector

7“7 R.” and “2 R.” refer to the two-volume transcript of

record. “S.S.F.” refers to petitioner’s Selective Service file (a

government trial exhibit), a copy of which is on file in the

Clerk’s office.

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(1 R. 10; S.8.F. 7). The board promptly mailed him

an SSS Form 150 (Special Form for Conscientious

Objector) to fill out and submit in substantiation of

his claim. Petitioner did not complete and return the

form because after looking through it he doubted that

he qualified for CO status (1 R. 10; 2 R. 28-29, 33;

S.S.F. 11). A few months later the board mailed him

a second SSS Form 150 but this also was not returned.

Thereafter, petitioner was classified III-A (deferred

for dependency) (S.S.F. 11).

In October 1966, petitioner’s local board was notified

by his wife that petitioner had deserted her and their

infant daughter, that she did not know where he was

and that she had not seen or heard from him for

eleven months. The board then reclassified petitioner

I-A and the following month ordered him to report

for a pre-induction physical examination on December

5, 1966 (S.S.F. 11, 18). He failed to report as directed.

In April 1967, following unsuccessful efforts by the

board to ascertain petitioner’s whereabouts, the board

declared him delinquent for failing to report for the

scheduled physical examination (S8.S.F. 11, 26-38, 40).

On May 17, 1967, in a directive mailed to him at his

last known address, he was ordered to report for

induction, as a delinquent, on June 13, 1967. He did

not report (S8.S.F. 11, 41, 48).

In July 1967, the local board reported petitioner

to the United States Attorney for prosecution. Sub-

sequently he was located by the F.B.I. and, at the

F.B.I.’s suggestion, he communicated with the board

and informed it of his current address. Further prose-

3

cutive action was thereupon discontinued (8.S.F. 11,

53). At the local board’s request, petitioner submitted

a completed current information questionnaire in Feb-

ruary 1968 (S.S.F. 55-57). In March of that year, he

requested the board by letter to “include in [his] file”’

that he was then the sole support of his widowed

mother and of a younger brother and that he was con-

tributing _ the support of his daughter. He did not

ask to be reclassified or that his classification be re-

opened (S.S.F. 60).

On April 25, 1968, in a directive which referred

to the induction order of May 17, 1967, and which

reminded him of his. ‘‘continuing duty to report for

induction”? under 32 C.F.R. 1642.15,’ petitioner was

ordered to report for induction on April 30, 1968

(S.S.F. 65). He did not report. On June 17, 1968,

in a similar order, he was again directed to report

for induction, on June 25, 1968 (S.S.F. 72). On the

latter date he reported for but refused to submit to

induction (2 R. 37-38; S8.S8.F. 73-75).

In October 1968, three and a half months later,

petitioner for the first time filed with the local board

an executed SSS Form 150 (2 R. 29-32).

239 C.F.R. 1642.15 provides that “[rJegardless of the time

when or the circumstances under which a registrant fails or

has failed to report for induction pursuant to an Order to

Report for Induction (SSS Form 252) * * *, it shall there-

after be his continuing duty from day to day to report for

induction * * *.”

. *The accompanying “Delivery List” (SSS Form 261)

stated that petitioner was to be inducted as a “delinquent regis-

trant” (S.S.F. 66).

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1. Petitioner contends that he was denied due proc-

ess by the failure of the local board to “process his

claim’? to a hardship deferment, based on his March

1968 letter advising the board that he was the sole

support of his mother and a brother and that he

was contributing to the support of his daughter

(Pet. 14). This letter, however, was mailed after

petitioner had been ordered to report for induction.

It was not accompanied by any documentation or

supporting letters to substantiate petitioner’s asser-

tions. In these cireumstances, the board was precluded

from reopening under 32 C.F.R. 1625.2, since peti-

tioner’s letter was not alone sufficient to warrant a

finding that “there [had] been a change in the regis-

trant’s status resulting from circumstances over

which the registrant had no control” (32 CFR

1625.2). Moreover, as the court below observed, since

petitioner neither requested nor made any other

claim to III-A reclassification (Pet. App. A1), there

was no “‘claim’’ for the board to ‘‘process.’’ United

States v. Weldon, 422 F. 2d 800, 801 (C.A. 9) ; United

States v. Whitaker, 395 F. 2d 664, 665-666 (C.A. 4) ;

Taylor v. United States, 285 F. 2d 703, 704 (C.A. 9);

United States v. Simmons, 213 F. 2d 901, 910-911

(C.A. 7), reversed on other grounds, 348 U.S. 397.

2. Petitioner also asserts here for the first time that

the original order directing him to report for induc-

tion (i.e., the order of May 17, 1967) was invalid be-

cause it was predicated on a declaration of delin-

5

quency (Pet. 15). He relies on this Court’s decision

in Gutknecht v. United States, 396 U.S. 295.4 How-

ever, Gutknecht is clearly distinguishable. In that

case, the registrant was declared delinquent for fail-

ure to maintain possession of his draft cards (396

U.S. at 298), and as a consequence of the declaration

of delinquency was ordered to report for induction

substantially sooner than he otherwise would have

been (396 U.S. at 299, 317-318). Here, however, the

declaration of delinquency was occasioned by peti-

tioner’s failure to report for a pre-induction physical

~ examination. Since normally such examination directly

precedes issuance of the order to report for induc-

tion and signifies that the scheduled induction is im-

minent, the contention here that issuance of the induc-

tion order was accelerated by the act for which peti-

tioner was declared delinquent is wholly unfounded.

In this connection, it is relevant to point out that the

directive of June 17, 1968, which petitioner was

charged with violating, though derivatively based on

the order of May 17, 1967, was issued more than a

year after that date.

3 Petitioner’s claim to classification as a conscien-

tious objector was allegedly rejected (Pet. 7) under 32

+ Gutknecht was decided January 19, 1970, at which time the

instant case was pending before the court of appeals. The

decision below in this case was rendered March 3, 1970. Al-

though petitioner petitioned the court of appeals for rehearing

(Pet. App. A2), he did not then raise the issue he now seeks

to litigate before this Court. (A copy of the petition is on file

in the Clerk’s office.)

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C.F.R. 1625.2, which provides that a local board shall not

reopen a registrant’s classification after an induction

notice has been sent, unless that board specifically finds

that there has been a change in status resulting from cir-

cumstances over which he has no control. This

provision has uniformly been interpreted as not allow-

ing reopening unless the registrant’s change in status

occurred after receipt of the induction notice. Cf.

United States v. Kanner, 416 F. 2d 522, 525 (C.A. 9) ;

Dugdale v. United States, 389 F. 2d 482, 484 (C.A. 9).

Here petitioner received from his local board not

one, but two conscientious objector forms prior to the

mailing of his induction notice and returned neither.

Moreover, he made no claim to CO status even after

receiving his orders to report. Indeed, it was not until

several months after refusing to submit to induction

that he first filed a completed SSS Form 150.

As we stated in our memorandum in Posner V.

United States, No. 151, this Term, pp. 5-6, “[d]e-

spite their disagreement on the late crystallization

issue, the various courts of appeals are in accord

that in this situation, when a timely claim is not

made, exemption may he denied on that basis alone.”’

Cf. Straight v. United States, 413 F, 2d 263, 264 (C.A.

9); Blades v. United States, 407 F. 2d 1397, 1399

(C.A. 9); United States v. Stoppelman, 406 F. 2d

127, 131-133 (C.A. 1), certiorari denied, 395 U.S.

981. We recognize, however, that there is presently

pending before this Court in Ehlert v. Umted States,

7

No. 120, this Term,® the issue whether the matura-

tion of conscientious objector beliefs after the receipt

of an induction notice constitutes a circumstance

beyond the control of the registrant entitling him to

reopening. While in our view, that issue is not presented

by this petition for the reason stated above, the Court

may wish to defer action here pending its decision in

Ehlert.

Respectfully submitted.

ERWIN N. GRISWOLD,

Solicitor General.

Aveust 1970.

* Petitioner’s contention that Congress, in creating the con-

scientious objector classification, “nowhere, even by implica-

tion, set a deadline for its presentation” (Pet. 4), is based on

a misreading of the dissent in Alert. The Zhlert dissent in fact

expressed concern that a claim be timely made. It recognized

1 fe 7Ke _ that-{&}the enforcement of orderly procedures may well require

—Wetmult to be imposed for failure of a registrant to claim in

timely fashion.” Moreover, it observed that in evaluating a con-

scientious objector claim the board must consider whether the

belief “[d]Jid * * * in fact crystallize after receiving notice of

induction and thus constitute a change in status.” (422 F. 2d at 339

and n. 3). See government’s memorandum in Posner v. United

States, supra, p. 6 n. 4, a copy of which has been furnished to

counsel for petitioner.

U.S. GOVERNMENT PRINTING OFFICE: 1970

COT A OO a ADP POETS