Julita David Robertson v. United States
404 F.2d 1141
5th Cir.
1968
Check Treatment

*1 mi (1963)1 822, 9 L.Ed.2d 837 com- pel entered us to vacate order the cause court and to

district remand for further consid- to the district court Coleman, Judge, dissented. appellee securing after eration ap- transcript reporter’s the trial Court, pellant such the State proceedings as to the and further

other required. may appear district court (dissent- Judge

CHAMBERS, Circuit

ing) :

I dissent. enough

I think the district court inquiry the standards to meet

before Sain, required by Townsend

293, 83 S.Ct. 745. ROBERTSON, Appellant, David

Julita America,

UNITED STATES Appellee.

No. 25099. Appeals Court

United States Fifth Circuit.

Dec. 89-711, Nov. Pub.L. also as amended Stat. 1105. See 28 U.S.C.A. Sec. *2 Headquarters de of State

the advice minister. termining not a notwithstanding this, But, failed to it required procedures follow Regulations, ap Selective *3 legal plied improper standard an reaching Robert this determination. be rev conviction must son’s therefore ersed.2 Witness, was Robertson, Jehovah’s a objector. conscientious as classified contended, however, that

He this asserted and, after had he times, several his claim to to meet arranged him for Board Susman, Houston, Tex., Stephen D. Weeks, Selective a State with Colonel appellant. for Robertson went official. When Service Hauberg, Atty., E. Robert E. U. S. and his father with the Colonel to see Strange, Atty., Donald U. S. Jack- Asst. faith, Colonel of his members two other Miss., son, appellee. for could not be him that he told Weeks minister unless as a he COLEMAN, classified Before and WISDOM Regular his from Pioneer certificate Judges, RUBIN, District Apparently, con- Colonel Weeks Judge. church.3 essential, no such an affidavit sidered RUBIN, Judge: District ac- matter duties Robertson what regard tually performing to and without Appealing his conviction for fail- from relationship faith. of his members report work a con- ure to for civilian as objector pursuant an order scientious meeting, After this the local board Board,1 of his 2Julita Selective Service requesting clerk wrote Robertson that Robertson asserts that Board David perform types offer to one three grant improperly min- refused to him a days. approved civilian work within ten exemption. urges isterial He Instead, Robertson sent or delivered var- Board’s actions violate Selective stating ious letters to the local board Regulations, contends, Service and he sincerely preparing that he was himself additionally, procedural pro- including ministry, for full-time visions of the Selective Act Service letter Watchtower Bible and Regulations violate the Constitution. Society appointing Tract him a Vacation retroactively Pioneer considerately The for Board dealt last two with August. Robertson, weeks in apparently upon and it relied appointed 12(a) least 75 hours their In violation duties if of Section of the Uni- Military Training Act, for two weeks and at versal least hours a appointed App.U.S.C. month to their duties if for a § 462. longer. Pioneerships month or Vacation 2. Since we reverse on is, basis, this Society are used the Watchtower for unnecessary course, to consider the con- purposes. Originally, two were in- stitutional issues. encourage tended to Jehovah’s Witnesses Regular ministry. full Pioneers are time ministers to devote their vacations to the Today appointments primarily of ciety, appointed Tract the Watchtower Bible and So- serve provide periods applicants for indefinite terms. trial for who Regular They them at Their duties to devote wish to become Pioneers. many periods least 100 hours to ministerial often last for months. appoints Society activities. The church also Va- makes no distinction between periods. Regular cation Pioneers for limited These Vacation Pioneers and Pioneers appointments half must be for at appointees least in terms of duties and activities. a month and must devote at ” Thereafter, his local His classification Selec- board. the advice at given reopened, fur- official, no and he was the Board wrote tive Service subject. ther notification on the requesting meet with that he Robertson reach an “to it on October 2, the Board ordered On November type agreement upon of civilian work.” report work Robertson civilian did not indicate The letter days. obey thirteen He failed claim to consider Board would prosecution order and followed. However, exemption. ministerial comply I. did with The local board the meet- reflect Board’s minutes act- Selective Service ing “again file reviewed the the Board request. ing on Robertson’s registrant’s preaching concerning the judicial scope of Because They report that the activities.” *4 “nar the is action of local board review registrant he felt he was “asked the if 4 clas and a the law” known to rowest qualified clas- for a IV-D [ministerial] by can be a local board made sification sification under criteria of Selective 5 fact,” in “no basis if it has altered reg- Regulations,” that the imperative Serv that the Selective it is negative, only replied istrant “not in the faithfully pro system follow its own ice qualify stated he did not for a but cedures. required by full-time minister as Society.” Watchtower Bible and Tract is, Regulation The basic tenet 6 course, were, Robertson’s conclusions permanent.” The is “No classification based on he re- the information had they merely permit, do not ceived from Colonel Weeks. The Board registrant re- to each classified reopen then “declined to [Robertson’s] writing, port in within to the local board classify classification and him anew.” days occurs, “any fact ten after it writing Robertson was never notified in might being placed in in a result of this decision. as, not classification such but different any change occupation- to, in his limited On October Robertson notified * * * * * * ”7 Upon al status Board ap- that his Vacation Pioneer any registrant, request of the written pointment Sep- had been extended from may reopen local and con- board “[T]he through tember January 1965 sider anew” request such his classification “if appointment, 1966. Under this accompanied by written in- required to devote at least 100 hours presenting formation consid- facts not ministry. to the full time The registrant ered when the was classified appointing letter encouraged Robertson which, justify change true, if would in apply him Regular ap- Pioneer registrant’s pointment classification.” thirty days before his Vaca- appointment tion Pioneer expired. Registrants may change their status evidence many ways submitted they regis- Robertson time on October age they never reviewed ter at 18 until either serve Clay Cir., 1968, registrant’s United and consider anew the classi- 901, 915; Matyastik F.2d filed, v. United fication” is “and the local board is Cir., 1968, 657, 658; opinion 392 F.2d of the companying the information ac- Campbell Cir., 1965, request present fails such 221 F.2d any facts addition to those considered registrant or, when the classified States, 1947, Cox v. United presented, if even new facts are the lo- 59; Estep 92 L.Ed. v. Unit- facts, opinion cal board is of the that such States, 1946, U.S. S.Ct. justify true, change in if would not 423, 90 L.Ed. 567. * * * classification,” 32 C.F.R. 1625.1(a). 6. 32 C.F.R. § provides 1625.4 that the local board “shall reopen registrant’s classification.” 1625.1(b). 7. 32 C.F.R. § (Emphasis Supplied). 8. 32 C.F.R. 1625.2. request If, however, reopen a “written he eligible: the facts form the or cease to be forces

the armed students, justify reopening his did not submitted cease to or they become present and that he must change employment, classification may begin they or order to dependents. additional facts to the may acquire or lose reported change and be considered for in status obtain aWhen Although appears decide whether it it, must reclassification. board the local registrant’s classi- reopen 14th from the minutes October or meeting sub- of the evidence of the local board that a deci- basis fication reopen, reopen sion was made not to Robertson’s If it decides to mitted. case, no letter to him no- was ever sent next whether decide addition, tifying In event In him of this action.12 reclassified. should be reopened registrant’s there is no evidence that the Board re- changed, viewed the letters Robertson submitted is not thereafter but certifying appearance personal be- on October 18 that his Vaca- to a appeal appointment de and an tion Pioneer ex- been fore the through Appeal January requiring Board.10 tended novo a State him to a minimum devote of 100 hours not to decides board If the local per month to full ministerial func- time classification, reopen a tions. *5 board, Regulations provide, local “[T]he filing letter, person square “Men turn by advise shall the corners 13 request sub when deal the information with the that Government.” the reopening government dealing But the in warrant the not with its mitted does equal obligation registrant’s and citizens classification owes them an the of right angles. place copy scope its in the a of the Since the shall letter of 11 judicial registrant’s narrowly in- review so This serves to is file.” restricted reopen age or, not to a the at 26 if 9. This occurs either made un- previously registrant by der Section received a de- shall be followed the right appeal ferment, age same of inas at 35. the case of an original classification.” 10. Judicial review § 32 C.F.R. 1625.13. previously We have indicated in dicta normal course of not available the a opinion right that there is a to an ad- registrant although events, who still appeal ministrative from a refusal to re- improperly classified himself considers open registrant’s and consider anew a accept petition a and for induction can writ of habeas classification. Olvera v. United corpus or induction refuse Cir., 1955, 223 F.2d 880. The Ninth question as the classification and raise held, contrary. however, Circuit has to the prosecution. in a criminal defense his Cir., 1956, Stain v. United Upon F.2d 339. that the reconsideration think 11. we § 1625.4. C.F.R. interpretation Regulations of the important for the 12. notification Such by reached Certainly, Ninth Circuit is correct. ap right provide Regulations a not do right no there is Constitutional reopen peal and con not to a decision provide to have the statute an administra- registrant’s classification. a sider anew appeal. tive In United States ex rel. La. 1625.4, v. Klubnikin United United 32 C.F.R. Charity Commanding Officer, 2 Cir. 1955, States, Cir., 222 F.2d 1944, 382, dealing 381, 142 F.2d with a S.D.W.Va., Majher, similar situation under World IIWar distinguish F.Supp. This be should Regulations, pointed court out that if ap any registrant right of from the subject reopening a denial to an thirty pear within before his appeal registrant administrative postpone a could days a Notice of Classi he receives after indefinitely. his induction reopening of his clas fication and to seek J., Island, Arkansas, Board Rock If the Holmes and time. sification States, 1920, reopen, is a Louisiana Railroad v. United refuses to then 1624.2(e) provides, appeal U.S. S.Ct. 65 L. for C.F.R. to “Each such classification or determination Ed. By 1965, Robertson cases,14 November we said in Selective Service presented evidence States:15 Olvera working as a full 100 hours “ * * * the essence [I]t category church time albeit validity and of board orders also Pioneer. There was was Vacation pro- disobeying that all them crime Jehovah’s Witnesses evidence that strictly requirements be cedural consider some Vacation Pioneers * * * faithfully followed, regular ministers. This was sufficient showing them with follow of failure to reopening of his case.22 fidelity in- will strictness and such order of the board validate the registrant or not a Whether conviction based thereon.” reclassified, is-ultimately reopen to re the local board to or not Regulations provide While open separate de classification is “may” reopen clas independent procedural termination of receipt upon of new evid sification significance.23 the Ninth As ence,16 pointed we out Olvera17 pointed out in Miller v. United may its the local board not exercise 388 F.2d do reopen discretion not permit the Board to a re evaluate “arbitrary” in an and “unreason quest case for reclassification on its merits until Board must have a first determines able” manner.18 The whether information submitted deny in fact” re “basis order to requires reopening. The Board quest a classification.19 upon merits, consider “the situation its informa If the submits new * * * and then accord to its classi regis tion “not when the considered fication result the status of a denial which, (originally) classified, trant merely claimant’s motion to re true, justify change would if in the open.” ease, In this *6 the did not registrant’s e., classification,”20 (i. if reopen Robertson’s classification and de presents prima reclas facie ease for ny reclassification on the merits. In sification) duty the Board re to stead, it considered whether or not he open his case.21 should and, be reclassified, having de- 14. See “Fairness and Due Process Under to him unless it has at least a in basis System,” the Selective Service 114 U.Pa. fact for that refusal.” See also v. Stain 1014, L.Rev. 1028. States, 1956, Cir., 339; United 235 F.2d Estep States, 1946, 327 U.S. 1955, Cir., 880, 15. 5 223 F.2d 882. 114, 42; 66 S.Ct. Dickinson v. United 16. 32 C.F.R. 1625.2. States, 1953, 389, 152, 346 U.S. 74 S.Ct. 98 L.Ed. 132. 17. Cir., 1955, v. Olvera United 880, 223 F.2d 883. 20. 32 C.F.R. 1625.2. 18. Vincelli, See also United v. States 21. Ransom, Cir., United States v. Cir., 1954, 215 F.2d 210. 223 F.2d Majher, United v. S.D.W.Va.1966, F.Supp. 106. 19. In Ransom, Cir., United States v. 15, 17, 223 F.2d the court stated: 22. Majher, In S.D.W.Va., United States requiring “We think that the rule a basis F.Supp. 106, case, a similar the in fact for the action of the board in mak- registrant presented court held that a ing original classification, the as announc- prima facie See case. Dickinson v. Unit- Estep equally ed in Dickinson and is States, 1953, applicable to the action of in the board changed 152. determining whether or not con- “reopened,” regis- If a case is not the justify regis- ditions preliminary stage trant is cut off at this trant’s classification and consideration of from all further channels of administra- claim his to a different classification. tive review. * * * prima If a makes right showing facie of to a new classifi- Miller v. Cir., United cation, give the board cannot refuse to it 388 F.2d be, employment. to refused secular The evidence Rob- not he should cided decision Board indicated This ertson submitted to reopen his classification. spent important that he least 100 hours Robertson in denied itself performing us- appeal duties that are within Selective avenues ually McCoy ministerial; considered system. spent portion a substantial of his time congruent entirely opinion with is Our distributing publications of the Watch- panel reached another the decision Society. tower Tract Rob- Bible and McCoy in United this Court eventually Regular ertson became Cir., In 403 F.2d 896. Nov. Pioneer; McCoy McCoy did not. In case, in re- effect Court found not did opened classification! qualify hierarchy within the own concerning evidence received religious sect a min- to be considered then decided not reclassification. It ister. rec- We cannot conclude from the reclassify him, was heard and his case ord case this was sit- appeal. matter was treated on Thus the respect uation with to Robertson. had been re- as if his classification require These differences opened. personal appearance Both a reclassify local board to Robertson as a appeal and an administrative de novo upon investiga- further granted registrant, were and the Board, tion the record as a whole procedure required by the may support a conclusion that he should was followed. denied reclassification. But the evi- respect With to substantive dence submitted to the local board was decisions, local we are reopen review of board sufficient Rob- agreement in full with rule there ertson’s classification. applied: look to see if “[w]e applied II. The Board an erroneous le- support ul basis fact gal determining standard in wheth- timate classification.” Evaluation of the er Robertson awas minister. respon evidence a local draft A decision sibility board, of the local courts expressly “final” unless made board is long should not invade that function so (in appealed, which case the as the local board’s action indeed does expressly “fin appeal made board However, have a basis fact. for the decision, al”).25 however Board’s guidance explana of local boards and subject judicial erroneous, re *7 prima tion our of conclusion that a facie conformity with if made in view for here, case was made while arbitrary Regulations,26 was so unless it properly denied in reclassification “contrary capricious to the and as be McCoy, point that, although we out both foreign spirit to our con of the Act and McCoy Robertson and called “Va were 27 justice,” cepts due of thus violative of Pioneers,” appre cation an finality process accord But of law.28 ciable difference in their ministerial fact; findings only to the Board’s ed of McCoy work. his local told board he interpretation law is of the the Board’s “approximately fifty worked hours each subject judicial review.29 month” and testified later at his trial Military averaged per Train Universal that he about hours 76 reg- ing provides having regular Act30 that month, and Service while the whole 1957, States, Cir., App.U.S.C. 243 29. Pate v. 5 United 460. § 25. 50 Cir., 99; Stepler, v. 3 F.2d States United 1946, Estep v. 26. United 1958, F.2d States v. 258 United 114, 122, S.Ct. 423. 66 1955, Hendersen, Cir., F.2d 421. 223 7 27. United Dickinson App.U.S.C. 456(g). 30. 158. U.S. Cir., Miller v. United 28. 973. F.2d could ruled The Second duly ministers be shall ordained ular or religious exemption sim service, a military not be denied and exempt and “reg- ply was “Cantor because title of the terms definitions forth sets Vaca Music Doubtless “duly Director.” some min- ordained and ular minister” States,32 to minis are entitled tion Pioneers United In Fitts v. ister.” deferments,35 terial but each must be used criteria

we set out eligibility properly can be determined member of a whether to determine Society his individual after an evaluation of Tract Bible Watchtower activities.36 In case each these definitions. meets be on based Board’s in- our rest of citizens The destinies arbitrary presented, facts creasingly in hands of administra- application of labels. agencies. Recognizing the diffi- tive solely dealing Board looked Here the culties citizen confronts government Robertson had. kind of certificate to the officers who determine with Robert process It did not and evaluate review un- his future a be him, A son’s duties and activities. known or indeed unknowable Congress min classified as a required promulgation is not entitled to be merely church him governing ister because calls agency procedures, of rules But a who meets publication one.33 and their form that statutory requirements does not lose de- makes them to the available least simply grateful ministerial because his status A citizen termined.37 should be him Pioneer” courtesy church calls a “Vacation when he meets with “Regular good Pio minister rather than a displayed by intentions Robert- neer.” son’s local board. But he is entitled to congressional more. The mandate can Application Kanas,34 In obeyed only by proper interpretation presented Jewish Cantor evidence statutory And, having performing standards. ministerial functions. recognized group “duly as leader of 31. The the term or- lesser statute defines religion” person members of his faith. One as of the basic dained minister of who has been both ordained purposes exemption guard of the is to accordance against being religious shep- a flock left without of his church its with the doctrine preaches princi- herd.” who and teaches and ples religion regular cus- as his example, See, 33. discussion Unit- tomary It the term vocation. defines . Stidham, W.D.Mo., who, religion” “regular minister of as one F.Supp. formally having without ordained as been Cir., 34. 2 F.2d recognized by his church as regular Section Title minister. See however, Pioneers, Vacation are Some I, Military Act Selective Service entitled to ministerial deferments. For 466(g). 1967, App.U.S.C. Thus example, Dillon, see United States v. D.C. church, formal ordination either Or., 1968, F.Supp. 38, where the recognition requisite by it or classi- defendant, court held that the a Vacation addition, as a minister. In how- fication Pioneer who had devoted 130 hours *8 requires per- ever, the statute month to ministerial duties and 25 hours seeking aas son minister employment month to secular for the engaged duties in ministerial as be past months, was entitled to a minis customary regular and vocation. terial deferment. stated: 334 F.2d 416. We Resor, D.C.N.J., 1968, 36. In Striker “First, have the min- must F.Supp. 923, court held that draft * * istry Second, *. re- as vocation unlawfully applying board an acted occupy ligious affairs must substantial separated across the board rule that no man part registrant’s time and of the eligible deferment, for a III-A in * * * regularity. must be Finally, on with carried judging stead individual facts important, in order to and most each case. exemption must obtain an 37. 32 §§. C.F.R. 1600-1690.23. in the of a minister to stand relation equivalent congregation in an relation or agen- duties, an interpreted properly its procedures

cy must follow in- is to less To set

itself forth. hoc determinations unlimited ad

vite orderly processes disregard of law. reasons, the conviction

For these prejudice without reversed classify Rob- present status. according ertson Judge (dissent-

COLEMAN, Circuit

ing). my respectfully It view

I dissent. majority in this directly this with what conflict

case is McCoy held in Court

America, 1968] November [decided Moreover, if the conflict

403 F.2d 896. exist, I hold that would

did in fact a substantial basis exemption to this of ministerial denial by given appellant. I think the advice correct, has several Weeks was

Colonel specifically approved times been very

Court, re- and meets the standards

quested Witnesses. Jehovah’s judgment of con-

I affirm the would

viction.

Joseph LYNCH, Bankruptcy F. Trustee Joseph Tilley of the Estate of F. Nancy Tilley, Appellant, M. COMPANY,

The COUNTY TRUST Appellee.

Nos. Dockets Appeals United States Court of Y., Binghamton, Second Circuit. Joseph Lynch, N. F. pro appellant se. Argued 7, 1968. Nov. Seymour Yonkers, Y. Geller, N. A. Decided Dec. Y., Yonkers, (Dulman Geller, N. & *9 brief), appellee. , Judge, and Chief

Before LUMBARD WATERMAN, Circuit MEDINA and Judges.