# Amicus Curiae Brief — Mulloy v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0199%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1970 - **Citation:** 398 U.S. 410 ## Text at ee - OBJECTORS, AMICI CURIAE In THE a | Court, US, Supreme Court of the al ED Ocrosrr Term, 1969 Picks Se eae No: 655 _ APR/13 1970 ree —} — JOHN F, DAVIS, cue JosepH Tuomas MuLioy, | Petitioner, V— , Unirep States oF AMERICA, — oe ‘ ; Hake Respondent. PETITION FOR’ WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ? % BRIEF OF AMERICAN CIVIL LIBERTIES UNION AND CENTRAL COMMITTEE FOR CONSCIENTIOUS ¢ Marvin M. KarpatKiIn Micwaet N. Potter ~ 1345 Avenue of the Americas. New York, New ‘York 10019 Metvin L. WouLF > - ‘¢/o American Civil Liberties Union 156 Fifth Avenue New York, New York 10010 E. Curry First, III - . ¢/o Central Committee for’ . , Conscientious Objectors acs . 2016 Walnut Street | ; Philadelphia, Pennsylvania 19103 es | Attorneys for Amici Curiae Of Counsel: a ae : : ) Pau G. CHEvieny - @/o New York Civil Liberties Union ed - 156 Fifth Avenue ae New York, New York ; INDEX: ee ; » PAGE. Interest of Amici a | c ‘Questions Presented mad : 7 ag 38 Statement of the Case I. Since petitioner made out a prima ‘fais elaim _ for conscientious | objector status, he was en- titled to a reopening of his classification ccpteanen 5 Il. A de facto reopening of petitioner’s classifica- tion took place by reason of the scope. and. ii- tensity of the local board’s inquiry. The Court below erred in not finding that petitioner had therefore been illegally denied his rights of per- . ‘ sonal appearance and appeal ayetent to such reopening III. The Court below jruineaaty applied the “basis in fact” ‘test in determining whether petitioner _ was entitled toa reopening of his classification - ~ ConcLusIoNn ‘Taste or AUTHORITIES Cases: | Bailey v. Drexel Furniture Co., 259 U.S, 20 (1922) ... Barker v. Hershey, 2 SSLR 3390 (W.D. Wise. 1969) .... Bates v. Commanding = 413 F.2d wis ard Cir, 1969) ......... | Benway v. Barnhill, 300 F. ‘opp. 46 483 (D.B.I. 1969) .. 15 21 ih 2. - PAGE © Cinderella ea and Finishing Schools v. Federal. Trade Commission, 38 USLW 2517 (D.C. Cir. Mar.’ | 20, 1970) . 21 Crane v.. —. 284 F. Supp. 250 (N. D. Cal. 1968) - 22. Fleming v. United States, 344 F.2d 912 (10h Cir. ~—- 1965) .. Diab | 14 Davis v. United ‘Stati, 410 F.2d 89° (8th Cir. 1969) .....7, 18, Gatchell v.. United States, 378 F. 987 (9th Cir. 1967 ) 22 Gomillion v. Lightfoot, 270 F.2d, (5th Cir. 1959) .. 21 ’ -Howze v. United States, 409 F.2d,27 (9th Cir. 1969) .... 21 * Hunt v. Local Board, —— F.2d —~ ard Cir. No. 18076 - March 24, 1970) >... e Kessler v. United States, 406 F. 2d 151. (5th. Cir. 1969) - 14 a Lane v. Allen, 307 F. Supp. 881 enone Ohio 1969) .. ial = Miller - ‘Vv. United States, sel F. od 973 -(9th ‘Cir. 1967) . aeeee 7, 16,17 ' Mizrahi v. United States, 409 F.2d 1219 (9th Cir, 1969) 22 Murray v. Blatchford, 307 F. ‘Supp. 1038 (D.B.1. 1969) .. | Reats 9, 19, 22 Owens v. United States, 396 F.2d 540 (10th Cir. 1968) .7, 22 Petrie v. United States, 407 F.2d 267 (9th Cir. 1969) ..21, 22 Pitcher v. Laird, —— F.2d —, No. 28285 (5th Cir. Sa 1970) eu pees * . Se ae pe 7 PAGE Robertson v.‘United States, 404 F.2d 1141 (5th Cir. -1969) rev’d en hanc on other grounds 417 F.2d 440 ..7;18 §.E.C. v. Chenery Corp., 318 U.S. 80 (1943) .. ‘Townsend v. Zimmerman, 287 F.2d 376 (6th Cir. 1956) ae me United States v. Baker, SSLR 3017 (EDNY. 1968) 9,17, . 21-22 . United States v. ‘Bilditiaeie, 304 F. Supp. 822 (W.-D. 7 _* Tex. 1969) 22 =. United States v. Bornemann, — F.: 2a —, No. | ' 33716 (2nd Cir. Jan. 5, 1970) . 13 United States v. Bryant, 293 F. Supp. 922 (N.D. Ark. 1968) 7 10... United States v. Burlich, 257 F. Supp. 9 (8. D. 1966) ‘ A » 8, 21, 22 : - United States v. Clark, 105 F. Supp. ba (W. D. Pa. - 1952) ee United States v. Delfin, 419 F.2d 226 (2nd Cir. 1969) . Mate | ae United: States v. Freeman, 388. F.2d : (7th Cir. 1967) ‘ani cts 7, 9, 21 United States v. Gearey, 368 F. 2d 144 (2nd Cir, 1966) (Gearey I) ...... 4,13 United States v. Gearey, 379 F.2d 915 (Qnd Cir. 1967) (Gearey IT) 7 4, 7, 8, 13, 21. - .United States v. Grier, 415 F.2d 1098 (4th Cir, 1969) mh a , ‘21 ‘United States v. Hawley, 2 SSLR 3113 (D. Minn. 1969) ‘= United States v. James, 417 F.2d 826 (4th Cir. 1969) .. ~ 10 - United States v. Levy, 419 F.2d 360 (8th Cir. 1969) - oa ae United States. v. Melrose, —— F. Supp. —, Cr. 68-1248 (D.S.D. December 4, — ’ 18 iv SER yee ; . “PAGE United States v. Pence, 410 F.2d 557 (8th Cir. 1969) ... 14 United States v. Powers, 413 F.2d 834 (1st Cir. 1969) 21: _ United States v. Ransom, 223 F.2d 15 (7th Cir. 1955) .. 22. United States v. Rempel, 220 F.2d 949 (10th Cir. 1955) 13 United States v. Seeger, 380 U.S. 163 (1965) sibdaiattiei 9,14 United States v. - Stoppelman, 406 F.2d 1ge (st Cir. * 1969) | United States v. Stout, 415 F.2d 1190 (4th Cir. 1969). 9- United States v.: ‘Turner, — F.2d —., No. 17685 (3rd Cir. Feb. 10, 1970) -... 7, 9,10, 11 United States v. Westphal, 304 F. Supp. 951 (D.S. oe 1969) . 18 - United States - White, jas FOS, No. a (5th Cir. Dec. 3, 1969) 14 oe United States. rel. Berman v. Craig, 207 Fd 888 (3rd_ Cir.’ 1953) 7, 10 United States ex rel. Brooks v. Clifford, 409 F.2d 700 (4th Cir. 1969) 14 United States ex rel. ‘Wilkerson v. Cémigninding Officer, as eae 286 F. Supp. 290 (S.D. ¥, 1968) ....... > Dies Vitarelli v. Seaton, 359 US. 535 (1959) a 29 Walsh v. Local Board No. 10, 305 F. Supp. 1274 (S.D.. N.Y. 1969) .... 2,7 Witmer v. United States, $48 U.S. 315 (1964) aks 20 , Ciimentitadionel Provisions: iol -Gtates Constitution... > Ca che a '. First Amendment .. . : et: Tee Fifth Amendment ............. aebial 1° * Other Authorities: Hershey, Legal Aspects of Selective Service, 35 (1969) 20 Hershey, Legal. Aspects of Selective Service, 36 (1969) Letter ‘of February 21, 1968 from General Counsel of — ‘the Selective Service System to the Massachusetts State Director of Selective Service, 1 SSLR Pee _ Selective Service System Local Board M emorandum 41 (as amended July 30, 1968), 1 SSLR 2174 ....... ; . 4 \ ¢ 7 = Pere fee PAGE Federal Regulations: : oe. 32- CFR. $1624 ess pn HS, 0 - 82 C.F.R. §1625.2 ......... eS 7,16 32 C.F.R.*§1625.11 - sen a aa 15 32 C.F.R. §1625.13 Jace -...15, 20 32 C.F.R. §1626 ........ ) ts 15, 20 . . Z Rte ee ee Beet es me enw 8, ‘ . ° : , “ - + f - e ~~ e . _* J ° : - ' ° e ; Fs ae - s . ’ s J ‘ Pr °f e . posits ‘ q ; 7 é 3 _ - bs : La BRIEF OF AMERICAN CIVIL LIBERTIES UNION AND- _ CENTRAL COMMITTEE FOR CONSCIENTIOUS — | OBJECTORS, AMICI CURIAE eee arte) : Interest of Amici* ‘ Interest of American Cwil Liberties Union 7 For half a century the American Civil Biberties Union - has defended the fundamental rights ‘afforded-by the Bill of Rights. In particular, it has represented those who have. ~ asserted the rights of conscience and religious liberty pro- tected by the First Amendment and the-right to due process . of law as gu&ranteed by the Fifth Amendment, against governmental | infringement. Indeed, the ACLU was ? - e writen consents by the attorneys for both parties have been - filed with the Clerk. SN nc MPD » ft founded i in ‘the crucible of the First World War to defend - the rights of conscientious objectors. In accord with our commitment to the protections of con- F a } seience and due process the ACLU is.now‘heavily engaged # — in the representation of young men charged with alleged — violations of the draft laws. As one Federal Court has _ recently stated, “Those entrusted with the awful power of _ conseripting the riation’s young men into the armed forces in time of war or other military venture owe a duty of the most searching examination of the faéts, scrupulous fair- ness, sensitive care, compassionate hearing, patient con- sideration, cautious action and deliberate and rational de- cision within the law. We afford no less to the worst crim- inal in our society.” Walsh v. Local Board No. 10, 305 F Supp. 1274, 1279 (S.D.N.Y. 1969). a pee We file this brief in order to present to the Court our | arguments of law which a enpport those principles. i Interest of the Central ihscnadttns for ic oreo Objectors ¢ . : The Central Committee for ‘Conscientious Objectors (CC€O) is.a non-profit service organization founds in - 1948 to assist persons who find themselves facing conflict : with the power of the State as a result. of conscientions objection to participation in war. In’ "1968, amicus coun- seled over 10,000 young mcn with problems relating to compulsory military service. The counseling services are national in scope; CCCO has, aside from its headquarters in Philadelphia, regional offices in San Francisco and Chi- cagé. In addition, CCCO has cooperating counselors and cooperating attorneys in every state and is widely recog- 8 — _ nized as one of the most expert and experienced draft coun- seling agencies. Of the registrants counseled by CCCO in . 1968, the majority were considering or seeking conscientious objector status or student, medical, hansehip or other de- ferments. \ CCCO. diarieie no fees for its services: to reginttasihé, at- torneys, or any other persons. Its views on various ques- tions relevant to its expertise have, from time to time been solicited by officials of the Selective Service System and by members of Congress. | Because the procedures relating to the ‘pilates of re-. opening a Selective Seryice classification are involved and - complex, CCCO deVotes a substantial amount of time— . preparation of memoranda, responding to telephone and mail inquiries, and direct counseling—to these activities. CCCO has counseled and continues to counsel numerous ~ eonscientious objectors. CCCO, thus has a direct interést in preserving the rights of Niteer eo objectors. Questions Presented 1. Whether the Courts below erred in holding that peti- tioner was not entitled toa reopenthg of his classification? 2. Whether the Courts below erred jn holding that a de facto reopening of petitioner’ 8 classification did not take place? on ig tet mh & : @ 3. Whether the Court of ints applied an improper —. standard of judicial review in deterthining if> petitioner was entitled to a reopening of his classification 1 - | - hcenaiiice of the Case 2 4 On October 17, i967, petitioner, then twenty-three years _ old, wrote a letter to his Selective Service Local Board No. "47, Louisville, Kentucky, which read in pertinent part, ~~ “after much, much thinking, seeking and questioning of “my own religious upbringing and political experience I ’ have concluded that I. am a conscientious objector and I am therefore opposed to war in any form” (A. 41).° - In response to this letter, the local board sent him a Special Form for Conscientious Objectors (SSS Form 150), whicli‘he completed and returned on October 26, 1967. He gave detailed answers to the questions on the form, stat- ing among other things that he believed in a Supreme Being. and that to be a member of the Armed Forces of any country would oblige him to kill or indirectly: assist in. kill- - ing (A. 19). Additionally, various letters, including one from a Catholic priest, were submitted to the board in sup- . - port of petitioner’s request for deferment as a@ conscien- tious. objector. This case does not involve the special ee inherent in a post-induction order application for conscientious objector classification. See United States v. Gearey, 368 ~ F.2d 144 (2nd Cir. 1966) (Gearey I ) and United States v. - Gearey, 379 F. 2d 915 (2nd Cir. 1967) ( Gearey II). Both at ‘the time that petitioner advised his Jocal board that he was a conscientious objector, and ‘at the time that. he filed his -§SS Form 150, petitioner had not been ordered to report for induction. * All references (A. —) are to petitioner's Appendix. > In response to petitioner’s request for an appearance before the board, a “courtesy interview” was held on No- vember 9, 1967.’ The meeting lasted between ten and fifteen. minutes (A. 77). The Chairman of -the board stated “at ia that time the Board came to the conclusion that there was ~ no merit to his contention that he was entitled to con- scientious objector status.” An entry was made on his Classification Questionnaire on November 9th,. stating “Classification was not reopened” (A. 14). The board, how- ever, did-not take a vote at the meeting of November 9th. On' November 12, 1967, petitioner wrote a letter to the board setting forth his views more fully (A. 58).. It was ' this letter which, according to the Court of Appeals, “in ‘ dicated rather clearly that his objection to serving in the i Armed Forces was based on essentially political, sociologi- eal or philosophical views and his conscience rather than on religious training and belief. ” 412 F.2d at 425. On January 11, 1968, the board formally considered peti- . tioner’s claim for classification, and by a vote of 4-0 took © the following aétion as noted in the Classification Question- naire: “All information im file was considered including claim of Conscientious Objector. All Members present felt this information did not warrant re-opening of 1A clas#®... (A..14). On January 21, petitioner wrote to the board, ap- - pealing from the board’s failure to reclassify him in ‘Class 1-0 stating that he considered his case to haye been re- opened. The board wrote in reply two days later that it did not consider his case to have been reopened and that . he had no right to appeal (A. 64, 65). On the same date he received an order to report for induction on February 23, 1968. . ~W ~~ 6 On February 8, 1968, petitiorier filed a civil action in the United States District Court for the Western District of Kentucky, seeking to enjoin his induction into the Armed Forces on the ground | that the order’ to report for induction was void, as having been issued in violation of applicable Selective Service Regulations and in such circumstances as to violate due process of law. On February 16, 1968, - the Court dismissed his complaint and denied relief. N otice * of Appeal to the United States Court of Appeals for the Sixth Circuit was filed on February 16, 1968, together with a. motion for an interlocutory injunction pending appeal. The latter motion was denied on February 22, 1968. .On - February 23, 1968, the petitioner reported to the induction. station but refused to submit to. induction. into the armed- - forces. The appeal in i the civil case was dismissed as moot “ ~_ by the Court of Appeals on May 2, 1968. The petitioner - = thereafter indicted, tried and convicted. : T ’ ARGUMENT » : 1. | ¢ Since petitioner made out a prima ‘facie claim for con- scientious objector status, he was entitled to a reopen- ing of his classification. The Court of Appeals in every judicial circuit in the United States, including the Sixth, has held that: where — a registrant presents new facts to his local board not. previously considered and those facts, if true, would en- title: him to reclassification, then the local hoard is com- — pelled to reopen his classification." See 32 C.F.R. 1625.2. While the several Courts of Appeals have varied some- what in defining the prima facie case for a requested classification which will trigger the .reopening process, « See United States v. Stoppelman, 406 F.2d 127 (1st Cir. 1969) ; United States v. Gearey, 379 F.2d 915, fn. 11 (2nd Cir. 1967) adopting the standard enunciated in United States v. Burlich, 257 F. Supp. 906, 911 (S.D.N.Y. 1966) ; United States v. Turner, —— * F.2d ——, No.°17685 (3rd Cir. Feb. 10, 1970) following United States ex rel. Berman v. Craig, 207 F.2d 888 (38rd Cir. 1953) ; United States v. Grier, 415 F.2d 1098 (4th Cir. 1969) ; Robertson v. United States; 404 F.2d 1141 (5th Cir. 1969) rev’d en banc on other grounds 417 F.2d 440; Townsend v. Zimmerman, 237 F.2d 876 (6th Cir. 1956); United States v. Freeman, 388 F.2d 246 (7th Cir. 1967); Davis v. United States, 410 F.2d 89 (8th. Cir. 1969) ; Miller v. United States, 388 F.2d 973 (9th Cir. 1967); Owens v. United States, 396 F.2d 540 (10th Cir. 1968)... ' Indeed some courts have found the right to a reopening of one’s classification upon the presentation of new facts not. previously considered so strong that the action of a local board in refusing to reo _ so “basically lawless” as to warrant pre-induction judicial review. See Hunt v. Local Board, —— F.2d —— (3rd Cir. No. \18076 March 24, 1970); Barker v. Hershey, 2 SSLR 8390 (W.D. Wisc. 1969); Walsh v. Local Board No. 10, 305 F. Supp. 1274 (S.D.N.Y. 1969). ee eins \ \ \ \ amici believe the test carefully enunciated by Judge. Wein- feld in United States v. Burlich, 257 F. Supp. 906 (S.D:N.Y. 1966) and adopted by the Second Circuit in Gearey II,? supra, properly, states the. — of a prima. facie case for reopening: “A prima facie ease is mails ‘out if a resiaieasi has presented facts which, if true and uncontradicted by other information contained in his file, would be suffi- Gent under the regulations to warrant granting his reclassification.” 257 F. Supp. at 911. 7 See also’ United States ex rel. Wilkerson v. Command- ing ,OWficer, 286 F. Supp. 290 (S.D.N.Y. 1968); and se¢ Hershey, Legal Aspects of Selective: Service, 36 (1969). Only one month after,petitioner’ 8 local board refused | _ to reopen his classification, the General Counsel of the Selective Service System stated an unequivocal reopening policy that is considerably broader than the prime -facie [7 standard of Burlich and Gearey II. | a “In every case in which a claim of conscientious ‘a * jection is filed by a registrant prior to -the issuance of an induction order, it has been the consistent policy of the Director to’require reopening of such regis- _ trant’s classification. | 1 SSLR 22 ina 25, rinorting a letter of Feb. 21, 1968 to the » Massachusetts iat Director aa Selective Service. See * Unlike Seiben, eens this case does not involve the issue of a local board’s refusal to reopen a registrant’s classification after a — has — mailed an order to eepret for induction. 9 also. Selective Service Local Board Memorandum 41 as amended July 30, 1968, reported at 1 SSLRB 2174. Thus the essential question is whether the ' record re- veals that petitioner met the basic Teneenee of a con- _ Scientious objector claim. _ - : ahs While petitioner, as any registrant, must do more than . state baldly that for conscientious reasons he is opposed to participation in war in any form, but cf. United States v. Freeman, supra, he is entitled to the presumptions in his favor implied by the term prima facie. He need not . prove his case to the hilt as he would ners to do if the case were already reopened. “In determining whether a prima facie case for re- opening has been made out, the Court, in accordance with generally applicable legal practice, must con- strue the facts in a way most favorable to. the regis- trant . .. the Board is required to reopen if a prima facie case is made out.” Weinstein, J., United States . v. Baker, 1 SSLR 3017; 3018 (E.D.N.Y. 1968). - (D.B.I. 1969); ‘United States v. Turact, supra; United Accord: \ Murray v. Blatchford, 307 F: Supp. 1038, 1055 States Je reeman, Supra. Potltinaie demonstrated a: strong religious background. He wrote a reasoned, detailed statement. of his beliefs, which on its face were those of a classic conscientious — objector, cf. United States v. Seeger, 380 U:S. 168 (1965); “and were obviously rooted in his religious background. 2In United States v. Stout, 415 F.2d 1190 (4th Cir.-1969), the Court held that administrative policy statements of the Selective — — had the force of law. : 10 He documented the substance of his beliefs as. best he could by letters attesting to his sincerity. Surely no more _ can be’ required for a prima facie case, - ~' Tf the standard for reopening is not to. be equivalent to the standard of ultimate success in & conscientious : objector. application, petitioner’ 8 prima facie application must be held sufficient. In United- States v. Bryant, 293 - F. Supp. 922, 932 (N.D. Ark. 1968), the Court held:- © “A prima facie case. was ‘established when the defen- dant formally attested that he was conscientiously ‘opposed to participation in war in any form, and persons knowing the defendant attested to his sincer- . ity. No statement made by the defendant is in‘ any ) way inconsistent with his professed. belief.” ~ See also United States v. James, 417 F. 2d 826, 829 (4th Cir. re Bi | . it is perfeetly clear ‘that deferidant’s timely asser- diets to his local board, if believed, demonstrate that. he was) brought up in, and had embraced, the religious tradition of one of his parents, . who belonged to a: denomination, the members of which have consistently ° . opposed participation in war. Defendant asserted his © personal objections, in light of- this tradition, to participation in war in any form. He thus presented:a prima facie case for exemption.” (Citations omitted.) The Third Circuit recently reaffirmed its prior holding in United States ex rel. Berman v. Craig, 207 F.2d 888 (1953). in United States v. Turner, supra, the Court held. that “the rule is wel] established that where one who has — . originally made no claim to conscientious onjemor A a: 3 . status and has been classified 1-A later seeks a con- scientious objector status because of changed circum- . stances the board is. required to reopen his classifica- “tion if the claim which he has presented is adequate on its face, and only then may- ‘the board Goeearatan the merits of the claim. % There is a substantial reason which undétlies the judicial doctrine.. For if the request to reopen is granted the Voard must classify the registrant de novo ~and-mail notice of the new classification tehim, which -then forms the basis for the registrant’s right to appeal - and appear personally before the board. On the other ~ hand, when the board refuses to reopen a classification, there is no right of appeal. .It would therefore be a denial of procedural due process if: local- boards prevented administrative appeal from a refusal to reclassify by casting it in the form of a refusal to reopen.” Turner, supra, p. 2 (slipsheet Seana: Judge it ahodei: in his concurring ee staied the rule even more bluntly : “When a claim, in writing, for change in classification. is presented by a draft registrant on grounds, which, if established by substantial proof, would entitle him to the change sought, a draft board is required . to reopen and consider the existing classification so as to afford the registrant the due process right of appeal if his claim is denied. ” Turne?, suprs, P. 10 (slipsheet Sli ceramic go ta keaty C laera Ey _ The Court below disregarded all of these considetations and held that it is completely within the discretion of the : . ~ ee = ° ; 2°. - local board to make such investigntion as it wishes At ° whether the new facts are true or false and then to decide , to reopen or not to reopen based on its own unstated- ‘and undisclosed investigation and findings, if any. United ' Statés v. Mulloy, 412 F.2d 421, 423 (6th.Cir. 1969). What ‘the Court overlooks is the first.principle of due process of law—that-the most reliable way of: searching for the truth where a citizen is before a government agency is through the hearing process—and that the most dangerous and least reliable way is by allowing the government agency to do it , in secret and then announce its unappealable conclusion. As the Second Cireuit recognized in United States. v. " Delfin, 419 F.2d 226, 228 (2nd Cir. 1969) : é itp ect for classification as a conscientious ob- jector present subtle questions difficult to resolve ex- cept upon thé fullest consideration, and, as Congress recognized, fairness to the applicant requires that they not be disposed of in a summary manner.” ‘The Board members plainly did not- -question potitiones’s sincerity (A. 71, 72, 84, 86). The Court below does not-cite. a single instance in the record where the Board expressly or by implication questioned the sincerity of the claim. The basis for the holding below appears to be rather the Court’s own doubts of petitioner’s sincerity,‘ coupled with .* The opinion below states that “the Board had the sight to - consider inconsistent statements made by the registrant as well as any fact which cast doubt on his veracity,” - -412 F.2d at 425, but the only reference to the trial record is the Board Chairman’s - testimony that Mulloy “did not make out a case for conscientious objection.” Ibid. This is plainly no evidence of a Board find- ing of inconsistency or of ‘a Board doubt of veracity. Then the opinion | below mentions . eS. tween a Such ‘a finding on the ‘merits was characterized by the board as not amounting to a reopening, thereby cutting off petitioner’s rights of personal appearance and appeal. The Court below compounded this error ‘by ratifying the local board’s action and apparently approving of the legal fiction gf ( that a reopening in fact is not a reopening as a matter of law. — , = The Selective Service System itself has stated, “Where a local board complied with the essential re- ' quirements there was a reopening ....” Hershey, Legal ° _ Aspects of Selective Service, 35 (1969). 20. Sée also this Court’s discussion in Witmer v. United States, - 348 U.S. 375 at 383-384 (1954) of what appeared to have -been a “de facto” reopening of Witmer’s classification with regard to his claim for a ministerial exemption. ‘While the board characterized its finding as a refusal to. reopen petitioner’s classification, the determination was in truth and fact a decision regarding the issue of classifica- tion itself; and thus a decision on the merits took place. ‘The action was erroneously approved of by the court be- low. This “de facto” reopening should have invested peti- _ tioner with rights of personal appearance and appeal. 32 C.F.R. $1625.13, §1624, §1626. These rights having been withheld from petitioner after a “de facto” reopening of his classification, a Violation of procedural due process - oceurred. Legal fictions may have their utility, but it i is a erenl and cynical doctrine which exalts form over. substance and | allows a man to be deprived of his liberty because an | administrative agency arbitrarily chooses to use a label which will cut off his valuable procedural rights. A -ereature which looks like a cat, walks like a-cat, eats like a cat, and purrs like a cat, is indeed a cat, even if some -administrative agency calls it a dog. Amici respectfully urge that the court below did not heed the admonition of ee eee 21 Chief Justice Taft that courts should not be so blind that they refuse to recognize what all others can see. See Bailey . v. Drexel Furniture Co., 259 U.S. 20, 37 (1922); Gomilion — v. Lightfoot, 270 F.2d 594, 608 (5th Cir. 1959) (dissenting opinion by Circuit Judge Brown). It i is, We: ‘submit, the duty - of courts reviewing administrative action, to make certain “that the i image of the administrative process is not trans- formed from a Rubens to.a Modigliani.” Cinderella Career and Finishing Schools v. Federal Trade Commission, 38 USLW 2517, 2518 (D.C. Cir. Mar. 20,1970, Tamm, J .). hae I. The Court below erroneously applied: the “basis in fact” test in determining whether petitioner was entitled toa fonigeninig of his ctassiontion. As. stated at page 8, supra, amici believe the soil test of whether or not.a registrant is entitled to a reopen- ing of his classification is. whether a. registrant presents’ new facts. which, “if true dnd uncontradicted“by other information contained in his file, would be -sufficient under the regulations to warrant granting his reclassification. s United States v. Burlich, supra, at 911. Accord: United States v: Grier, 415 F.2d 1098 (4th Cir. 1969); Umted States v. Powers, 413 F.2d 834, 838: (1st Cir. 1969) ; Howze v. United States, 409 F.2d 27 (9th Cir. 1969) ; Petrie v. United States, 407 F.2d- 267. (9th Cir. 1969), en banc; United States v. Gearey, 379 F.2d 915, 922 fn, 11. Addi-. tionally, a.registrant is entitled to’ the presumptions in his favor iniplied by the term prima facie. United States v. ‘Freeman, 388 F'2d 246 (7th Cir. 1967); Umited States v. - 2 aha SSLR 3017 (epwy. 1968); Murray v. Blatch- ford, 307 F. Supp. 1038 (D.R.1. 1969). f —) In applying the “basis in fact” test, tether than the test enunciated in Burlich, supra, the Court erroneously made the standard for reopening equivalent to the. stand- ard of ultimate success on the merits. Additionally, the power of the courts to determine violationg of procedural due process. would be no greater than their power to de- termine the substantive validity of a classification. Cf. Petrie v. United States, 407 F. 2d 267, 245 (9th Cir. 1969) ;, United States v. Ransom, 223 F.2d 15 (7th Cir. 1955). See also Mizrahi v. United ai 409 F.2d 1219 (9th Cir. 1969). Finally, the Court below i in finding that a “basis in fact” 7 _ existed-on a ground other than that which the board found, : violated the rule that the action of the board must _be supported on the same grounds that it gave for such ac- -° tion. Gatchell. v. United States, 378- F.2d°287 (9th Cir. 1967) ; Owens v. United States, 396 F.2d 540, 543 (10th Cir. 1968) ; United States'v. Hawley, 2 SSLR 3113-.(D. Minn. 1969) ; Benway.v. Barnhill, 300 F. Supp. 483 (D.R.I. 1969); United States v- Balderrama, 304 F. Supp. 822 = sige Tex. 1969). See_also Vitarelli v. Seaton, 359 U.S. 535 (1959); S-E.C. v. Chenery Corp., 318 U.S. 80 (1943) ; ‘Crane v. Hendrick, 284 F. Supp. 250 (N.D. Cal. 1968). ° va . ee . ‘CONCLUSION é the fore@ging reasons, amici reapocttally urge that the judgment below should be reversed. J . Respectfully submitted,