Petition for Writ of Certiorari — Bjorson v. United States (No. 632)

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JAMES R. BROWNING, Cler

| Supreme Court of the United States

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No. 632 re

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DEAN EJNARD BJORSON, Petitioner, *

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_» UNITED STATES or AMERICA

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Petition for Writ of Certiorari to the

United States Court of Appeals. | |

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Haypen ©. COVINGTON

124 Cobunbia Pleights

Brooklyn 1, New York ? :

Counsel for Petitions

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b-tittem foe writ of certiorar)................-7:.° 2 8

(pinion shelow- Soe ee we Sitar Pee =

Jurisdiction oo. Pe ane Sree : Aes eres Par

“Que stions” prentated 55.5. Sn. ce ys’ nies, e

Statutes and regulations involved oo. 00.0000... —

Statement of the ease oo... 6... ee Neecicias i es S

Reasons for ranting the Writ 1 eae ne Pe

Conmelusion ....).....; Paap e's Aa eds ae "Pete yee Bd

Appendix A (opinion of Court of Agopeals) RNs 14

‘Appendix B (judgment of (Murtot Appeals Teerry sae

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Dedezv U nite States |

oe 1. BES, 342- Ta. 4s pote (i Mi) ee a Ma .

histe 3 eg ‘aited States . . ate

TUES. LIAL T5116 (18465) Race. meer cet fie

alla ogy States*—- ar ot ee

|e HH, 2D (UME) oo RET Soke oe See

Korte ve U a States Sth . j

No. 497, October Term, 158 peert, ide ne 3 jos b,

828 (opinion. below, J6Q F.2d 6335) (oth © ir asi p- 2

l nites Su ate ~V. —o 3

——_- — are Cal. Ran’ feels 1. Lad CE

po Srapered ake Ria

es —“Thpartment of the Army Special Regulations, ap:

proved: 10 April. 1953 tee

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SHGISASO-T, par Wd 00... elit een Neg Goin Ge ai

SRGISTSO-T, pars WT) 2020.8, Bratt eure eae

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SN. SRGI-180-1, par. 142.02... ieee ge "Tee eo ae? |

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Sarees, Np Recerarions Crrep continued

Meade ral Rules of ¢ Crinninak P rocedure, Rules (hoe),

GUESS. Sas ulieii dees UA RES Kerek che BA eS

Selective Servier “Regulations (32 « Up I. Sevtion

AGO ef seq) ye, . *

Mection ek Aerie PRR iF oer MT ee ee oe

Section 628.10

United States Code

Tithe ES, Section SN, a ins biccan ee Aa EEA

Title 2S, See tion POUR Dn sa 2s eae AF tS

ROD ek ee Se ee oe ee ee ee ee ee en Se ee

‘Title 50, Appendix, Sections 451-470 (0 niversal

Mikitary Training and Service Act)

SNoctign: 41(¢) Peete eee eT eT eer ee oree ns wee

Section 456()) 2... - i abe wahak ses aU Ae OPES

oy ee a | Ce ree Mieke

Section 462 (a) hoe Wee eats s ye eee iasaus |

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Supreme Court of the Anited States

4 ier — Oeronen Tra, 19

j ; DEAN*EJNARD BJORSON, Petitioner i

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c—- UNITED ST ATES OF DF ANH ee

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Sotee “d Statey’ Cinix of hingwale

. For the Ninth Circuit

To THe Scepiue Cover or tik UNeren Nrares:

‘Potifiornfer, prays that ao writlof éertiorari issue te,

i co a Atel judaine ntsof the United States Court of Appeals:

for thé Ninth Circuit affirming the judge ntoof the United:

States: Distriet Court’ for the Nertliern Distriet of Cait

fornia, Nouthern Division. convieting the ‘petitioner oof a

Violation of th® Universal Militiry Training and Service Net

> and sentencifi him to the custedy of the Attorney General,

_ ordered to dp civilian work, had failed to exhaust bis

- administrative - reinedies because he did not go “to the

i, is OPINION BELOW

The opinion of the € ‘our of Apped@s is not vet re ported, a

lt ix printed as Appendix’. A to this metition, of rd.,, pacer’

"14-25: ,

| JURISDICTION Deal eet es

The judgment of the ¢ Court of "Aegeale Was entered on,

November 18, 1959, (See Appendix: B- to this petition for-

7 of certiorari, infra, page 26.) “Phe time for filing

thif petition for writ of certiorari. wag extended by an | s

order of: Mr. Justice Doug! as dated December Oe” 1a,

to and-including January 9 1960. This petition for writ of

certiorari is, therefore, filed within time. The jurisdiction

of this Court is invoked under 28 UL SLC. S 125401). (See

‘also Rules 37(b)(2) and 45(a), Federal Rules ef Critninal,

Protedure.) Thee district cottrt had jurisdiction under

IST RC. SS: -;

. .

‘QUESTIONS PRESENTED -.

“ .

6 . Ne’ OL ' oe an

Oe Whether

the Re

Court of Appeals interpreted the Act and -—

ations (that petitioner, a conscientious objector

brink” by reporting to the Lox Angeles County Department

of Chiatities as erdered to do so by his local board). con:

~ trary tothe holding of thisCourt.in Dodez vo United States.

329 ULS. 338, 342-343, 345, 347 (19407. aS nd hae

e. v ‘= . ; ‘ 3

” Whethe ‘r the appeal! oard denied the I IF classifieation,

without basis in fact contrary to Seegion 1622.4 of the

Selective Services Regulations, resulting in the- 1-0 —

sification being arbitrary, capricious sind contrary té law

and making, the final order to do civilian work void. -

LE Zs :

Whether a waiver adthor zed by tan die retary of The

Army, éxpresstly Mnited: to Siiduetion® into. the Armed

‘Forces, may he eanstrued. to. he oa Waiver a> regards

eivihan employient in “te hiunicipal , ageney,

Mites

- STATU TES AND REGUL ATIONS INVOLV ED

"Section Ie) ‘of = Universal Military Tramuniz and

Ne rvfee ” Act (50 U. . App. “451 (e )}) provides:

0 The ¢ ‘ongress further declares that ina free soe ‘ety

the obligations and, privileges of. serving in. the ¢ arnied

~ forees.dnd the reserve components thereof, should Ve

shared generally, in accordance with a system of sélee-

- tion whieh is fair and Just, and whieh is ¢ onsiste nt with

_ the’ maintenance ‘of an effective national economy,

~—June 24, 1948. ch. 62h, title L. 2 AY G2 Stat. 604;

— June 1, 181. eh. 144, tithe E> tear)

Stat. Tee Ce ate, Fae

* Seetion 6¢) of the Universal Military ‘Training and

Service Net (62 Stat. G04, G12) 6222 GCF Stat. TE 86 (50

TLS.C. App. 4 j))) ix involved here, The pertinent —

ane reels as follows : . a

‘ “Nothing contained im? this title hall he ern

to require ‘whe person té*beosubject to combatant

training and service in the armied toree: ‘sof the United

States whe, by reason of. religious training’ and belief,

_ is conscientiously opposed, to participation in war in,

any form. Religions training amd belief in this connee-

tion means an indiv iduat’s. Iagieet In acrelation to.aSu-

preme Being involving deities superior to those arising

from any human relation, but does not’include essen-

tially. political, sociological, or philosophical views or |

a merely pe “rsonal moral code. Any person clainiing

we) Seniption from combatant training and service beeise

of such. conscientious obijections Whose cain Is .

—! ’

_ person cleduing exemption, from: combatant, training

+ tained by the local board shal; ak isp indueted “inte

the 3 armed forees under this sy Po eee hen,

combatant service as defined by the President, or shall.

if he is found to be éonscientious ly oppose dito parties.

prition in such noncombatant serviee, in Tiew of sucl

induction, be ordered Inv his loeal board, subject te

‘such reguiations as the President may -preserihe, ts

‘perfornt for a, period equal to the period prescribed

in section + (hb) such civilian work contributing ter the

maintenance of the national health, safety, or interest

as the local board may deem appropriate 2 * * | Any

and Service ‘hee “Use: of suc Ke conse lenti (RLS objections

shall, if such claim ix not sustained by the lobal bh: urd

he entitled to an appeal to the appropriate appeye

board. Upon4he filing of such appeal, thie appeal boar

shall refer any such claim tothe De ‘partnrent of Pustice

for inquiry and hearing. The Depirtment. of Jugtice,

after ‘appropriate inquiry, shytl hold a hearing witi

respect ta the Character and good faith of the objec-

— tions of the person concermed, and. such person stall

be, notified of the time and place of such hearing. The

Department of Justice shall, after such hearing, if the:

Objeétions are found to be sustained, reeominend, to the

appeal board that, (1) af the objector is inducted inte

‘the armed fordes under this tithe: he’ shall he assigned

to poncombatant service as defined By the President.

or (2) if the objector is found to be conscientious!

“opposed to participation in such noncembatant service,

he shall in lieu of such induction, becordered by li

local hoard, subject to such reguhitions ads the Pres

ident niay prescribe, to apawies for a period-equal te

the period) prescribed. it it section 4+ (b)- such eivitian

work contributing to ang Inaintenanee of the natienal

‘health, safety. or interest as the local board may deem

appropriate *** Tf atter such hearing the Departin: nt,

of Justice finds that his objections are not, sustain,

. .

—E

;

it shall recommend te the ap Hy “atl binrit that <uch ‘il

Jeetions he net stls stained, jVhe ‘ppert. beard shally in

making its decision, give consideration to. but shall

not be hound to een the. be wormendation of the De-

partinent of Justice t gether with the re “ ‘urd cm appert

‘from the ‘loc ul teeny safe '

Section’ Gam) of the Universal ‘Mititers “Fraining pind

Servier, Net 0) Us. C. App. 5 4560m), sas: amended )

prévidess <a A . : a Peis i

““No) person shall fie relieved) from training find

‘service under this fitle by reason of convietian of a

criminal offense, ¢ xew pt.where the offense of whieh he

has - been vonvicted™ ‘may be punishied hy dhe ath, or by

en for a terin exceeding * one year,

Section: 12 (a) ot the . hiversal Military Training and

Service Act (50 SC. ig ‘ At be ta) provides :

ashe Any, ** * person stil who * "2 refuses

fs servicer in the arned forees *-* “or avo in any

mainer shall knowingly fail or negkeet or refuse to

perform any duty required: of him: under or in the

execution-of this t) ithe, or rules, re ecultions, gr diree-

“tions: made pursuant to this ithe = shall upefi-eon-

Viction in-any distriet courtlof the United States of

» colnpetent jiirisdietion, be punished by iprisonment

fér nofimore than five vearscor a fine of not inere than |

» F10,000, or by hoth sueh tine ane i iniprisenniey nt, 7°89,"

‘Selective Service Regubition Wedd: Class Nee:

Physically, Mentally,or Morally Unfit.

“In Chass IV-F shall be pleed any rewistrant at)

Who is found to be physicall’ or mentally uptit for any

service in-the ee Ch) awhooander the proce.

dures and standards: prescribed by the Seererary of

Defense, is found to be morally unaceeptible for any -

service in the armed forces 266) who has been convicted

‘ ofa criminal offense Whieh yay be punished ‘by death?

t's

® Selective Serviee Regulation | 1628.104

Ix: ungned.

“a . . .

f ‘ . . Ye

or by imprisonine nt.for aterm exeeedine one Year ite

who is notpeligible for classitic ation inte a elass aval

able for servicers or Cd) whe has heen se paurated Pret

tHe: amined forces by dise hare « othe +r than an honeraall

line tharge ora dise ‘harge unde honorable: condition.

oan equivalent type of release from: serviee, tnd ter

whom the loeal board has’ net received a staterien'

from thegarmed forces that the registrant ds ineral

- acceptable notwithstanding such discharge or sepia.

tron. ; es

“hve ry registrant. *@before he is offered to reper

for induetion, or ordered to pogiote civilian work eo

tributing te the maintenance ef the mational dealt),

safety, Or interest, shall be given an armed: fore

physiedl examination under the provisions of this pa’.

except that a registrant who is va delinquent sands

registrant who has vellinteered for gndye Min risy by

ordered te report tor induction withPut Wreirnse cepween cin

— forces een al examination. é;

1) April 1a, SNeLS- 1s + pars bs wationo at

Sti tions. -

“PHe prifary functions of seduction stations ur

tot. coe

“a, Determine Imemaggitinination which registrants

meet the physical, mental and moral standards for

—e in Ye Arqed Forees.'

a Department of the Army Special Regulations, approves

1) &\ pail 158, SRELS-TSO-1, par.

tuts” Moral Standard. @&

fexvept as provideel in par. 27e.). - Dp

“Tnformation | concerning court convietions oof

rewist ri int and whether he isin ciantall of the law will

‘he indicated on DD For 47, under item: 14a and b.

More speeitie information con erning such an entry,

especially with respeet- to personal backgrotnd, the

cireumstanees of the incident or ingidents, and tinal dis-

position of charges Will be obtaimed from theeregistrant

at the induetion station during the preinduction inter:

view. [fia waiver is granted under (1)or (2) below, a

copy of the report@f investigation om whieh waiver ts’

predicate will be attached to the original copy of thie

induction record (DD F orm 47).

1) prirtane nt of the Army Special IRewul itions, approved —

1) April 1953, SROLS- TSO, paar, 10d 1).

“A registrant: who @has heen convicted by a eivil

court, Or who has a.record of adjudication adverse to

him bya juvenile court, for any offense punishable by —

death or Gnprisonment fora tern exeeeding TL vear is —

tnerally ynaceeptable fer service in the Armed -Forees

unless sucti sie ae at len is Wauved by the respective

department . . :

| hartinent of the Ari Spec al Re wthaten. approved |

IW April 1953. SROTOTSO-T. pars Tle: Indiv iduals inte Tiscittle

for induetion. (i ie ;

“Individuals. listed below are. ineligible fior ii

duction.” fa a

Ti lninistrative Disqualitieations.

Se | («) Registrants Who fail te peer the preseribe ad

moral <tandards indicated in AMbove. ose

| Departine ntofthe Aris Spec ‘ial Re culations, approved

1) April 1953, SRGIS-1S01, pars I: Preparation and pree,

essing of records.

“bh. DD. Form 47.0 01) P@rpose. DD Form: 47 is

the official form for recording the resultssof the adimin-

Jstrative records examination during the registrantés

preinduction | ‘and induction procgssine. It is a baie

personnel document inethe tiles of the Arined Forees

and Heteet ‘tis Service S¥stem.

STATEMENT OF THE CASE

Petitioner was charged by an indictment alleging that on

or about October 21, 1957, he knowingly refused and failed

to comply with the order of his Selective Service Local

Board to report to said beard “te be given instructions to

proceed to a place of employment designated by said: Local.

Board No, 30 for the purpose of doing civilian work. con-

tributing to the maintenanee |! the national health, safety

and interest,” as provided in the Universal Military Train-

ing and Service Act and the rules and regulations made

pursuant thereto. (TR 3-4)'

After pleading not guilty and waiving trial by. jury,

appellant was tried by the court on August 7 1958.”

(TR 6-8) His entire Selective Service file was received in_

evidence as ‘Plaintiff's Exhibit 1. (TR 19) It was stipulates!

that petitioner failed to report to his local beard on October

21, 1957, as ordered. (TR 18). Petitioner was found guilty

-as charged on August 7, 1958 (TR 49), and was sentenced to .

imprisonment for one year on October 21, 195s. (TR 54). °

os Petitioner became eighteen years ef age on May 2, 1956,

and registered with his local boatehir Riehmond, California: -

the same. day. (F 1, 2)* On May 11, a he completed his

classification questionnairé in which hegndicated, iter alia,

that’ he had been an ordained ininister.of Jehovah's Wit-

nesses since 1946, was then attending the Albany Theoeratic

Ministry School in ‘Albany, California, that’ he had no

husiness-or employment “aside from Ministry,” and certi-

ficd that he was a conscientious objector. (F 6-11) His

special form for conscientious objector was filed May 4

1951. (F 12,°23-27) He was classified I-A hy his loéal board

on May 28, 1951. (F 12) In spite: of a recommendation by

the hearing officer that petitioner be granted conscientious

é gh | aus

‘s 1 Numbers preceded by “TR” denote the applicable pages ot the

Transcript of Record filed inthe court below. — F

2Numbers, preeceded.by “F" appearing in parentheses, herein reter-

to the jiages of the Selective Service file (Plaintiff's Exhibit 1). Sach

page numbers, written. in longhand, generally appear at the bottom

of each page in the file. é %

orm *

objector status (F 37), the appeal manne continued his 1-A

classification on July 23,.1952. (F 12,42)”

4 Petitioner was subsequently classified IV-F for physic: il

reasons from August, 1952, to July, 1953, at which time he

Was again classified | I-A. (F 12, 44, 65-66) He ‘refused to

submit to ‘induction asx ordered in August, 1958 (F 12, 80,

82), and was subsequently tried and convicted of a felony

- based upon such refusil on February 19, 1954.° The. late

istrict Judge Edward P. Murphy sentenced petitioner to

fine of $2,000.00 and a two-year -suspended. sentence.

(F 13,99) On March 9, 1954, he-was sentenced to two years’

imprisonment for failure té pay said -fine. (F103)

Petitioner was classified IV-F by his local board on

April 13, 1954, by reason of his conviction. (F 13) After

serving ten and one-half months’ imprisonment he was ”

released on parole on February 27, 1955; his parole ter-—

ihinated April 7, 1956. (F104, 149) '

On June 27, 1956 ( presumably at the request of the

local board, ‘although the. file does not so indicate), the

United States Army Recruiting Main Station in San Fran; .

_ciseo, wrote to the Commanding General, Sixth Army, a.

“Request for Determination of Eligibility for Indiction™

, concerning the petitioner herein. (F 138-140) Item 14 of

said request contains a statement by the investigating officer

that petitioner was “Considered Acceptable for ‘Military

Service.” (F 140) in ; ° ;

The Commanding Géneral, Sixth Army, by his: Agting

Assistant Adjutant General, reveinareied approval of said

request in his first indorsement to the Adjutant General,

Department of the Army in W ashingt on, D.C. on June 28, |

1956. (F* 141) Se ee

The next persons to consider petitione I's vligibility for

induction were those comprising the “Joint Induction -

~Sereening Group,” as representatives of the Army, Air

Force, Navy, and Marine Corps. All @f said representatives

8 United States ¥. Bjorson, United States District Court, Northern

District of California, Southern Division, Criminal No.°33757. :

‘In this instance, as in all ‘others in this petition, emphasis is supplied.

: oneweeed phe aforesaid request ap July 12, 1956. ¢F 156)

The Secretary of the Army formally approved The ree

quest for waiver of petitioner's previous conviction on J ‘uly

13, 1956, in a second indorsement addressed to the Com.

manding General, Sixth Anny. Said approval was couched

in the following words: :

‘ =)

"1. Request for waiver of civil recordeis approved

and induction into the Armed Forces (Army, Air

Foree, Navy or Marine C orps) is authorized provided

otherwise qualified. This is not to be Sonstrued as

authorization for induction into any armed service not

currently accepting personnel for induction.” (F184)

~The Commanding General, Sixth Army, forwarded this

letter and the action of the Joint Induction Sereening Giroup -

to the Army Reeruiting District on July 19, 1956. (F 134)

On July 20 the original investigating officer signed a cer-.

tificate of acceptability, noting that petitioner had been

“Found fully acceptable for induction into the Armed

; Forces.” (F 167)

By August 21, 1956, petitioner was again classified 1-\

by his local beard. (F43) On Augast 28, 1956, he sent a

letter requesting a personal appearance before the board. .

“(F 170) Out of an abundance of caution he also wrote a

-separate letter: requesting an appeal front said I-A classi-

fication on the same’ date. €F 169) The local board records

note the receipt of both of these letters: (F 13) Following

his personal appearance on September 11, 1956, at whic

time he. presented a great deal-of documentary evidence

concerning: his ministerial activities, freon was reclas-

‘sified I-O by the local board, (F 13, 173-188)

On September 19, 1956, petitioner aan wd a letter te

his local board appealing his 1-Ove ‘lassification: (F198) The

appeal board confirmed his 1-O classification on July 1s.

- 1957. (BP 138, 213)

The local’ board forwarded SSS Form No. 152, go

report for Class I-O registrants, to petitioner on July 20,

1957 (CF 13, 213), 0 more than one year after the Secretary

Sa..

of the Army had considered and approved the request for

determination of petitioner's eligibility. for induction into

the Armed Forces. Paragraph two of ‘said special report

mentions, for the first time since petitioner's regtat ration

in May of 1950, any requirement for civilian work in lien of

induction. (F 21 3) P etitioner returned this report, uncom-

pleted, on August 5, 1957. (F 216)

* On August 10, 1957, petitioner was given three choices

of civilian work which he might perform. (F 219) He re-

fused all of them on religious grounds. (F 220) At a sub-

sequent meeting with members of the local board and the

representative of the State Director, on Septémber t6, 1958,

the pion rar hix position, (F 227-228) The newt

day val board determined that employment as an in-.

stitutional helper at the Los Angeles County Department of

Charities would be appropriate for petitioner, and ° re-

quested authority to order him to work there. (F 229) T he

‘Director of the Se lective Service System approved this re-

quest on October 3; 1957. (F 234) The letter of transmittal —

of this authorization from-that State Director-te, the loral ~

board reads in parf as: follows:

“A copy of the letter of instructions: to the: Fegis-

trant ‘should be mailed fo the agency selected at least

four days in advance of the date set.for the registrant

to report to the office.” (F 2 3)

The local board's order. to report for civilian work, dated

October 9, 1957, notified pétitioner that he had been

“assigned” to the .Los Angeles County Department, and

specified that he was to report to receive instrietions on

October 21. (F287) As. previously. mentioned, it was

stipulated that the petitioner did not.so report.

In the entire Selective Service file, there. is only one

document: that indicated any action by. the Los Angeles

County Department, of Charities. This ix.the statement of

. employer found-on-the’ bottom of the aforesaid order to

_Teport for civilian work. The only notation on this undated

statement is the typewritten phrase’ + euaahcs, sal (F239)

/ ~* . *

REASONS FOR GRANTING THE WRIT

a: L

The opinion of the court below is out of harmony with

and in direct cuntliet with the holding of this Court in Dod:

v. United States, 829 US. 338, 342-348, 345, 347 (1946). The

court below held that petitioner failed to go to the “brink.”

The court erroneously simulated the facts in this case mm

Falbo ve United States, 320 U.S. 549 (144), whereas the

_ facets are identical to the tacts in Dodez v. United: States,

20 US. 338 ¢ 19469. The Regulations involved in this case

and the Rrpeiations involved in Dodez v. Mnited States.

320-8. B38 (1946), are substantially the same. They are’

identiéal insofar as the provision foir_no physical examina-

tion upon reporting for civilian work is concerned. The

~ Regulations at the tune of both eases ‘contemplated a com

plete and tinaT physical examination long prior to ‘the is

- suanceé of the order to report for civilian work, No remedies

of any: kind or character remained, therefore, to be ex--

hausted. , er ie .

This case ” entirely different from Ratho v. United

States, 320 ULS. 549, 552-554 (1944), and is identical to

‘Pode: v. Uniied States, B9-UOS. 358, 342-345, 345, 347-

(1946), _Wwhie h ‘applied the dortrine of Estep ve United

States, 827 U.S. 114, 115-116 (1946), but which Shogeuet he.

Jow: rotend to follow.

The: question presented here, whether the Court of Ap

peals erroneously interpreted the Regulations so as to re-

quire an illegal and vain act that would accomplish nothing

oto way of exhausting administrative remedies, is .of

veat public importance. There are hundreds of prosecu-

tions under the criminal sanctions clause of the Act

throughout the Unitech States involving registrants who

have refused to do civilian work and have also refused to

‘report to their local boards or to the hospitals. or other

civilian work agencies. The law of the land that has been

laid down by this Court in Dodez v. United States, 329 U.S.-

BOS, 342°343, 345, 347 (1946), which authorizes defenses to

ances identical to the facts. of. this case has been defied

/ by the court below in its holding appearing in those ‘parts of -

(the opinion entitled “4. THE APPELLANT HAS FAILED -

TO EXHAUST: HIS ADMINISTRATIVE REMEDY:

HE MUST GO TO THE ‘BRINK. “and “CONCLUSION,”

where the. court says “The appellant has failed to exhaust *

- his administrative remedy,” - ’ ; a

In order to remove tlie discord (ven law created

the holding of the court below. in defiane wt Dr v..United -

States: 329 U.S. 338; 342-343, 345, 347 (1946), this Court

should gfant the petition for writ of certiorari.

< Seer A

The ‘other questions presented are of national impor-

tance. Thes.involve substantidliy the same questions pre-

semed to this Court in Norte v. United states, No. 497,

October Term, 1958, cert. denied 358 U.S. 92s (opinion be-

low, 260 F. 2d 633 (9th Cir, 1958), affirming conviction by

'. Northern District of Caliturnia, Southern Division). In

order to avoid a ‘repetition of -the argument made in the

petition for writ of certiorari filed in the Korte case, the

Court is respectfully referred to pages 9-14 of suc ‘h peti-

tion (No. 497, October Term, 1958). °

CONCLUSION

W HEREFORE, for the reasons above stated, the petition

for writ of certiorari shoulél be granted.

Respectfully submitted,

ere Haypex C. Covinecton “©

: Counsel for Petitioner

January, 1960.

APPENDIX A

Opinion of Court of Appeals

UNITED STATES COURT OF APPEALS

~ FOR THE NINTH CIRCUIT

Dean Esxarp Baorson,

Appellant,

eee Fe” To No. 6275

vw“ *} Pa

| “ : Jov. 18, 1959

United States or AMERICA, Hor. l . 10

. Appellee.

Appeal from the United States District Court

for the Northern District of California,.

Southern Division.

Before: BONE and H AME KY, Ci ireuit it Judges, and ROSS,

District Judge.

ROSS, District J judge;

3 STATEMENT OF THE CASE.

'. The appellant was indicted on May 1, 1958, for v Felation

of Section 12(a) of the Universal Military Training and

Service Act, 50 USCA App. 462(a), in that: he knowingly

refused to report to his Local Board to be. given instruc-

tions to proceed ‘to a place of employment for the purpose

-of doing civilian work contributing to the national health, ..

‘safety, and interest. He pleaded not guilty, waived a juiy

‘trial, was, found guilty by Judge Roche on August 7 7, 1958,

and was sentenced to one year’s imprisonment ‘on Oetober

15, 1958. It was stipulated ‘that the appellant failed to re-

, a

e159,

__port to his Local Board on October 21, 1957, as ordered.

This appeal is from that judgment of conviction.

7 STATEMENT. OF FACTS.

The appellant hecame eighteen, years of age on May 2 2,

1950,: and registered with his Local Board in Richmond,

California, the same day. On May 11, 1951, he completed his

classification questionnaire in which he indicated, inter alia,

that he had/ been an ordained minister of Jehovah's Wit-:

nesses since 1946; that he was then attending the Albany

(California) Theocratie Ministry School; that he had no

business or employment, “aside from Ministry”, and that

‘he was conscientiously opposed to participation in war in

any form, He was classified I-A by his Local Board, and

also by the. Appeal Board, after his case fad been referred

to the Department of Justice for inquiry and hearing with |

respect to his conscientious- -objector claim.

The appellant was subsequently classified 4-F for phys-

~jeal reasons, from August, 1952,.to July, 1953,

The Local Board reecived a second medieal Certificate of

Acceptability in July, 1953, indicating that he was found

fully acceptable for induction into the Armed Forces, and he

‘was classified 1-A again, He refused to submit to induction

as ordered, was indicted, tried, convicted, sentenced to, pay

a $2,000 fine, and given a two year suspended sentence. On

March 9,/1954, he was sentenced to two = imprison-.

‘ment on the basis of his refusal to pay the $2,000 fine.

The Local Board.on April ‘13, 1954, classified the ap-

pellant as 4:F by reason of his conviction, After serving

ten and one-half months imprisonment, he was released on

parole on February 27, 1955. His parole terminated on

Aprit 7, 1956,

On May 24, 1956, the Local Board received a. Bependine: v

7 Questionnaire from the. appellant, indicating that he had

_been employed by the American Supply Companyy Berke-

ley, and. was earning $80.00 a week,

On June 27, 1956, presumably at the rgauest of the Lical

16 2 P ce

Board—though’ the file does not so indicate—the United

States Army Reeruiting Main Station in San Francisto

sent to the Commanding General. of the Sixth Army.

“Request for Determination of@Eligibility for “Induction”

concerning the appellant. The request contained a state-

nient by the investigating officer t the appellant was

“Considered Acceptable for Military Service.” The Com-

manding General recommended to the Adjutant General,

Department of the Army, Washington, D: C., approval of

the request on June 28, 1956. pies

On July 12, 1956, the Joint Induction Screening Group

of the Department of the ‘Army at Washington approved

the request for a “moral waiver”, and on the following day

the Secretary of the Army fornially approved the request

for waiver of the appellant’ s prior < conv iction, in the follow-

ing language :

“1. Request for waiver of civil record is approved

and induction -into the Armed Forees (Army, Air

Foree, Navy or Marine Corps) is authorized provided

otherwise qualified. This is not té be construed as

authorization for induction into any armed service not

currently accepting personnel for induction.”

The Commariding General of the Sixth Army forwarded °

* this letter and the action of the Joint Induction Sereening

Group to’ the Army Recruiting District on July 19, 1956.

. On July 20, 1956, the original investiy ating officer signed

a certificate of acceptability, noting .that the. appellant has

been “Found fully acceptable for induction into.the Armed

/Forees.”. e .

On August 2, 1956, the appellant was agairi classified

I-A ‘by his Local Board. According to the appellee, he ‘took |

no appeal froni this classification. On August 28, 1956, he

sent a letter requesting a personal appearance before the

Board; and-on the same date he wrote a letter requesting

ain appeal from the 1-A classification. Following his per-

sonal appearafiee on September 11, 1956, at which time he *

"presented a great deal of. documentary ev idence: concern-

ing his ministerial activities, the appellant was reclassified

~ 1-0 by the. Local Board.

On September 10, 1956, the Local Board received a re-

‘port from the appellants’ employer stating that the appel-

lant worked an average of forty hours.a week for the Supply

Company, supra. An Occupational Questionnaire - dated

- September 11, 1956, received by the Local Board, indicated

that the appellant, according to. his own statement at that

time, Was working forty hours a week for the Suppl¢ Com-

pany. Pie

On September 21, 1956, the appellant appealed. the clas-

sifieation 1-O, claiming to be a minister of religion. The

appellant’ s case was for a second time referred to the De-

partment of Justice for inquiry and hearing respecting the

character and _ faith of his conscientious objector claim,

On March 22, 1957, the Department of Justice recom-

mended ina letter to the Appeal Board that the appellant

be classified 1-0, which was done on July 18, 1957.

The Local Board forwarded SSS Form No. 152, special

report for Class 1-O_registrants, to the appellant on July

“25, 1957, which the appellant stresses was “more than one

year after the Secretary of the Army had considered and

approved the request for determination of the appellant's

eligibilif"for induction into the Armed Forces. Paragraph nah

two of said special report mentions, for the first- time since

the appellant's registration in May of 1950, any require-

ment for civilian work in lieu of induction.” The appellant

"returned this ,report* uncompleted, on August 5, 1957.

On August 10,°1957, the appellant was given~ three

choices of civilian work that he was to perform. He refused

all of thefn on “religious” grounds. At a subsequent meet-

ing with members ofthe Local Beard and the representative

of the State Director of the Selective Service, on Septem-> ’

ber 16, 1958, the appellant reaffirmed his position. .The

“next day, the Local Board determined that employment as

an institutional helper at the Los Amgeles County Depart-

ment ef Charities would: be appropriate for the appellant,

and requested. authority to order him to work.there. The?

Director of the Selective Service System approved this re-

quest on October 3, 1997, The letter of transmittal of this

authorization from the State Director to the Local Board

reads in part as follows: | ee

“A copy of the letter of instructions to the registrant

should’ be mailed to the agency selected at least. four

days in advance of the date set for the registrant to

report to the office.” | .

The appellant's file contains the report of an interview

with the appellant on September ‘16, 1957, atthe Local

Board, at which time the appellant stated that he could not.

accept any job affered by Selective Sérvice in lieu of indue-

tion,’ although he did admit that he was not a pioneer min-

ister, and worked forty’ hours a wéek ‘in secular employ-

ment. » “# y ,

On October 9, 1957; the appellant was-ordered to report

for civilian work to his Local Board, on October 21, 1957.

to be given instructions.to proceed to the: Los Angeles

County Department .of Charities. As has.already. been

stated, it was stipulated that thesappellant did nokso report.

The appellant seems to attach some jmportance to the

concluding ‘paragraph of his “Statement of the Case”:

“In“the entire Selective Service file, there is only one

document that indicated any action by the Los Angeles _

-— County Department of Charities. This is. the statement

* of employer found on the-bottoM of the aforesaid order -

to report-for civilian work. Th¢ only notation on this un-

dated statement isthe typewpitten phrase ‘DID NOT

REPORT.” 1 shee

The Court is at a loss as to why counsel regards the

_ Ina letter to the Local Board on August 25, 1957, the appellant said

that ‘if he Were to accept work prescribed by Selective Service, he would

be serving two masters, and therefore could not accept any types of

work offered. keiths OQ

4 « {i9

‘ & ‘ ;

above paragraph as worthy not-only of bare incl@sion, but

of empliatie inclusion in a “Statement of the Case.” It is in-

corporated in the Coiftt’s present statement for whatever

comfort the appellgnt may derive f rom. it.

2. THE |APPELL ANT'S “ARGU MENT.

Section 6(m) of the Universal Military Training and

Service Act does not provide for discretionary waivers of

prior felony —oe by the Armed Forces or civilian

age >

wr... by the’ Secretary of the Army, expressly

Jimited to induction into the Armed Forces, does not encon-

pass civilian employment in a municipal agency.

4 waiver of a prior felony conviction limited by its

ns to induction into the Armed Forces cannot. operate

as a waiver for civilian employment in lieu of induetion.. .

The appellant's 1-A classification on August 21, 1956, did

not eliminate thé necessity for a waiv er r applicable to serv-

ice'in lieu of induction; “ ‘

+ The evidence produced at the trial was | gally , inkufi

cient to suppprt the judgment of guilty.

3. THE APPELLE rs "ARGUMENT.

The appellant has failed to exhaust*his’ administrative

remedy. The registrant must go to the “brink” of induction

before hé can raise any infirmity in his classification. In.

. Board on October 21, 1957, to be given instructions to’ pro-

ceed to the Los Angeles County De ‘partment of Charities.

The appellant did not ‘appear at the Local Board, ‘and,

therefore, is in the same position as a Pegiatrant who does

not appear‘at the Induction Station.-

The appellant's proper élassification on his ‘annie from

_ imprisonment was 4-F. On August 21, 1956, however, the

appellant was classified 1-A by his Local Board. If there

- Was any error in stripping the appellant of his 4-F elassifi-

cation, it occurred -when he’ ‘was: classified 1: LAs and* was °

waived by his failire to appeal. In addition, the appellant

. further made ‘clear this waiver by appealing his 1-O ¢lytssi-

‘fication’on the sole ‘ground that he was a minister of reli-

gion. The orderly administration of the Sélective Service

‘laws prevents a registrant from bringing any flaw im his

classification to the’ notice of the court trying him, where

no hint of such infirmity was presented to the Local Boards.

The 4-F Classification on conviction is not created for the

benefit of the felon. This Court has held that-where there

has been a conviction of a felony, the exemption is permis-

sible but not required, The 4-F classification perinissible for

a registrant is not created for his benefit, it is er reated for

the henefit of the armed forces. ™

‘The whole strain of the ayipellant’s argument that he was

' wrongly ordered togyppear for service-is a classic example

of a man, seeking to profit by his own wrong.

-This Court has decided that. the military authoritées are

- entrusted with the task of Selecting “personnel to defend the

‘United States, and if they believe that a registrant would

‘not be suitable because of his prior felony convictiog, they

are not required to take him. They may, however, waive

the disability and in such instances he may be inducted into

the armed forces or assigned to work of national impor-

tance.

No further waiver, by the Lee Angeles County Director

of Charities, was necessary in — case.

4; THE APPEL LANT HAS FAILED TO EX-

HAUST HIS ADMINISTR. ATIVE REMEDY:

Hk tab ST GO TO THE “BRINK.”

We hav e seen that the appellant was ordered to re port

- for civilian work to his ‘Local Board on Oetober 2t, 1957,"

to be given instructions to proceed to’ the Los Angeles

County Department of Charities. It has been stipulated that

he did not so report.

In, other words, the appellant failed to exhaust his ad-

iinistrative remedies: He failed to go to the “brink.”

Ne -

"¢ P ‘ : ; 21

In the ieadine case of Palbo' v. U nited § States, 1944, 320-

1. S..549, 552-554, the Court said:

“The registrant may contest his classification’ be a

personal appearance before the local board, and if

that board refuses to alter the classification, by carry-

. ing his case to.a board ‘of appeal, and thence, in cer-

“tain circumstances, to the President. Only after he has

exhausted: this procedure is a protesting registrant

ordered?to report for service. If he has been classified

for military service, his local board orders him’ to

report for induction into the armed forces. If he has

been classified a conscientious objector opposed to non-

combatant military service, as Wag petifioner, he ulti-

mately-is ordered by the local poe Som for work °

of national importance. /n each case the registrant is

under the same obligation to obey tite order. But in

neither case is the order to report the equivalent of

acceptance for service. Completion. of the functions of

the local board and appellate agencies, important as .

are those functions, is not the end of the selective serv-

ice progess. The selectee may still be rejected at the -

induction center and. the é¢onscientious objector who is

‘opposed to noncombatant duty may be rejected at the

civilian public ‘service camp. The connected series of

steps into’ the national service whic h begins with regis-

tration with the local board does not end until the regis-

trant is accepted by the army, navy, or civilian public

service camp. Thus a board order to report is no.more

than a necessary INTERME DIATE step an a united

and. continuous process designed to raise an army”

speedily and efficiently. .

“In this process the local board is charged in the

‘first instance with the duty to make the classification

of registrants which Congress in its complete discre-

tion saw fit to authorize. Even if there were, as’ the

- petitioner ‘argues,. a constitutional requirement. that

judicial review must be available to test the ‘validity

»)

-_——

of the decision of the local hoard, it is certain that

Congress was not required to provide for judicial |

intervention be ‘fore final acceptance of an individual

for national service. The narrow question therefore /

presented by this case is: w hether C ongress has au.’

thorized judicial review of the propriety ofa board's

classifieation in a criminal -prosecution for willful vio-

lation of an order directing a registrant to report FOR

THE LAST STEP in the xe lective process. —

“We think it has not.” oe :

(Emphasis supplied) -

In- Estep v. United States, 1946, 527 U.S. 114, 115- 116, |]

the Supreme Court put, its own gloss upon the Falbo case,

supra, pointing out that i in the earlier case “we held that in |

a criminal prosecution . .. a registrant could nét defend

on the ground that he was wrongfully classified and was °

entitled to a statutory exemption, where the offense was a

failure to report for induction into the armed forces or

for work of national importance.” . .

“We found,” the Supreme Court continued, “no provi-

sion for judicial review of a registrant's classifieation prior

to the time when he had taken all the-steps in the selective

process and had _ beén finally accepted by the, armed:

services.” ier |.

In Wilhams v. Thited States, 9 Cir., 1953, 203 F.2d so,

88, certiorari denied, 1953, 345 U.S. 1003, we said:

“Rurthermore, as the Supreme Court pointed. out

in Estep v. United States, supra, the Selective Service

Act requires a selectee to come to the brink of indue-

tion before he may obtain a Judie ‘ial review of his el: is

sification. Congress, in setting up the selective process, -

sought to avoid delays from premature litigious inter-

ruption. See Falbo v. United States, supra. Prior to

the time when a selectee is found acceptable any injury

resulting from the action of his Board hag not mate-

‘rialized, since he might be rejected: But whan the me-

ment arrives to take the oath; administrative relief

from injury. to his constitutional rights is not avail-

able. He must then take the. symbolic ‘one step ‘Yor-

ward’ which signifies that he has complied with all

the steps i in the selective process. Only then vill judicial

review of an alleged violation of a selectee’s constitu-

tional rights by his Local Board be available. (The

Falbo. case cited.): Appellant did. not comply with all

th steps in the selective process, Therefore, he may

not attack his claksification or the Board's dca dure.

(Emphasis supplied.) *

D. THE 4-F OC LASSIFI¢ ‘ATIOMON CONVICTION

‘OF A FELONY IS NOT CREATED FOR THE

BENEFIT OF THE REGISTANT-FELON, BUT

FOR THE BENEFIT OF THE ARM EDFORCES. *

.* the instant case, a convicted felon seems to be strivi ing

to profit from his own wrong. Perhaps he is laboring under

the delusion that'the Classification “4-F”, in cases of this

kind, is granted for the benefit of the criminal. The Court

has already exploded such a fallacy.

In the recent case of Korte v. ’ United tien 9 Cir.,

1998, 260 F.2d 633, 637, ce wtioeari denied, 1959, 358 U.S.

928, we used the following language: '

“We conclude that Section 6(m) of the Act (50 USC A

‘Mewendie. Section 456(m)) is not a-direction on the

‘part of Congress to exempt oh training and service

those persons convicted of felonies, but on the contrar -

is an injunction not to defer fron \ training and service

those persons who have been |convicted of misde-

meanors. Where there has been & convivtion of a fel-

ony, the exemption is PERMISSIBLE but isnot RE-

QUIRED. The IV-F classification permissible for a

registrant is not created for his be nefit, itis created

for the benefit of the armed forces. The military agen-

* See also United States v. Sutter, DC Cal., 1954, 127 F. Supp. 109, 117.

cies are entrusted with the task of -selectinig personne!

toalefend the United States, and if they believe a regis.

trant would not be suitable because of his prior felony

conviction, they are not, required to take him. They

may, however, waive the disability and in such instance

he may be inducted into the armed forces or assigned

to work of national impertance.” (Emphasis supplied)

6. THE EVIDENCE SUPPORTED THE JUDG-

MENT OF CONVICTION.

Finally, the appellant insists that “The evidence pro-

duced at the trial was legally insufficient to support. the

judgment.” Despite this insistence, however, in his discus:

sion of this point the appellant merely harks back to the

claim-of the lack of “any proper waiver by the Los Angeles

Count¥ Department of Charities.” We have fully dise ‘ussed

this subject of waiver, and need not repeat our comments

here.

Nor is it necessary to dwell further on the sutliciency of

the evidence. What we said in Shaw v. United States, 9 Cir.

1959, 264 F.2d_118, 120, is ped duliarly applicable here :

“In cases arising! tinder the Universal: Military Train-

ing and Service Act, as elsewhere in the law, an appel.

‘late court ix not required to search the record with a

microscope, in an yffort to find minute but harmless

flaws.in the work-of administrative bodies or of the

lower courts.-In the instant case, that is precisely what

the appellant-would have us do. In Witmer v. United

States, 348 U.S. 375, at pages 380-381, 75 S.Ct. 392, 90

L Ed, 428, the Supreme Court has admonished us that

‘It is well to reniember that it is not for the courts to

sit as super draft boards, substituting their judgments

on the weight of the evidence for those of thédesiz-

nated agencies. Nor should they look for substantial ev1-

dence’to support such determination, (Case cited.) The

classification can be overturned only if it. has no basis

in, fact.” ” :

7. CONCLUSION. co

The appellant has failed to exhaust his administrative

yemedy, He did not report to his local board, to be given in-

structions to proceed to the Los. Angeles County Depart-

ment of Charities. He neglected to go to the “brink.” “He did

‘not take “the last step.”

The 4-F classification for conviction of a felony _is-not-

a loophole for the registrant-felon, but_te—keep ‘p convicted

criminals out of the Armed Forces, T his barrier, however,

may be waived by the Armed Forces, but not by the ex-

convict. In the instant case, the approval of :the Secretary

of the Army of the request “for waiver of civil record” in

the appellant's case, was suffi¢ient. No. waiver by the Los

Angeles County De ‘partment of Charities was necessary.

The evidence ‘amply supports the judgment of conviction.

6 . $ c

Accordingly, the judgment of the Court below is affirmed.

e APPENDIX B oe

were ete ana : >

UNITED STATES COURT OF APPEALS

— FOR THE NINTH CIRCUIT

Deas Ea xagp Bsorsox, — a

| | Appellant,

Bn ane No, 16275

Uxivep Srares oF AMERICA, :

7 Appellee.

Judgment, filed and entered: November 1, 1959.

- Appeal from. the United States District Court fof the”

Northern District of California, Southern Division.

“This cause eame-on to-be heard on the ‘Transcript of —

the Record from the United States, District Court for the

Northern District of California, Southern Division, and was’

duly submitted. - .

‘ge consideration whereof, it is now here.ordered a

ddjudged by this Court, that the Judgment of the said Dis-

~ triet Court in this cause be, and hereby is affirmed.

{2 o

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‘ .

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moral?

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—

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