*2 JAMES Before GIBBONS Judges, HUNTER, III, Circuit Judge. MUIR, District OPINION OP THE COURT Judge. III, HUNTER, Circuit JAMES Anthony Hunter Richard jury for failure has been convicted for DEPENDENCY OF “If pursuant to 50 AND GRAND- MOTHER appealing YOUR MOTHER, He is U.S.C.A.App. § you do is all must write district court denial from the asking for to our a hear- acquittal. letter judgment of his motion ing with the board members. presenting issues to us the same He is placed your “This letter would be presented court: to the district *3 you pre-induction ex- file until after 1) to the local board’s failure did you you are amination —if govern- arrange meeting with the a placed in I-Y Class or Class agent appel- appeal invalidate ment hearing necessary. No be 4-F. would order; lant’s induction deprive appel- 2) you you acceptable, did the local board “If are found process hearing it granted law lant of due of when with the be a would in failed to consider some statements BOARD GOV- MEMBERS questionnaire as claim for a hard- a ship deferment; a to APPEAL AGENT ERNMENT your in refer-
Discuss classification dependency. to ence of local board did failure to a consider case, sug- dependency “If presented appellant immediately. gest you the letter write report for was indicted for failure to not, kindly phone If me contact or- induction invalidate his induction ad- and I will or 597-7891 der. you accordingly.” vise necessary claims, To it is consider Appellant telephoned the board and appellant’s to set forth selective service copy it its made a notation on history in some detail. ap- appellant it to letter had sent May 7, Appellant 1. was born pellant forward would have his school registered on with his local board enrolled un- that he verification September of 1967 under name Appellant der name Hunter. indi- Estrada He Antonio Sanchez. request apparently further made no high a full time cated that personal appearance. for a graduate to school due June student Appellant returned May 4. 1968. 1969. information a current 2. November 1967. The board question he dependency form. To the high appellant’s to school wrote responded: his status. The school verification of replied appellant on its was not things I seem now “. [A]s The roll. board reclassified My yes. mother answer will have to informing letter 1-A and sent him a Board of Education works for the personal him he had a a sum- will out work she be government appeal appearance with a get of school out mer. IWhen agent give legal him coun- who get a vacation, I have to summer will matters. service sel selective job.” did Appellant responded 3. Having verification no received personal appearance. Instead awish school, the board from arranging ap- immediately reply. no to it received wrote pearance answered the board January, twice After 5. 1969. following : letter with having ordered “Dear Sir: board, physicals, pre-induction initiative, through learned your receipt its own letter as “We school you was enrolled request in which this date Anthony of Richard the name personal appearance under the Govern- Agent. Hunter. Appeal ment pro- February, in this case. The board burden failure 6. 1969. personal I-S(H) granted appellant appearance did classifica- vide 7,1969. May not taint order 1970. tion effective ignore appellant’s August, Appellant did The board 7. 1969. simple, request; him answered with a reclassified 1-A. straightforward As a result of letter. by ap- August, Appellant 8. 1970. letter, appellant initiated contact this physical peared pre-induction for a I-S(H), classification, received newa acceptable after and was classified granting him This a student deferment. having obey appear orders failed enough distinguish case alone is this previous on three occasions. by appellant since he from those cited November, 9. 1970. n received favorable classification. appear failed to for induction.' registrants bur- other cases were having December, After classifications. dened with unfavorable *4 months, indicted three been for over suggests ways Appellant two which a conscientious submitted prejudiced: he was objector form to the board. to he claims he was entitled accepted did the form board hardship per- a and that a deferment appellant’s act on claim. appearance shown sonal have proper procedures him the to follow FAILURE TO A PERSON- PROVIDE apply for one. AL APPEARANCE 2) he claims entitled to that he was A has a well-estab objector did a status right government appeal to see lished agent upon request. a apply he was un- one because 1604.71, 32 C.F.R. . that a could receive aware Catholic Local Board No. 82. Memorandum given personal one. If he had a been government appellant re ijpncedes appearance he have learned could meeting quested a not re and did objec- requirements for conscientious one, argues but it that under the ceive tion. of circumstances this case prov appellant’s In It of view of actions at not harmed. has the burden time, ing prejudice appel it is to believe that that no resulted to difficult a was at all concerned with either consid- because did not receive such lant request meeting. month before his eration. One agent, a to see submitted the defendant establishes the “[O]nce indicating questionnaire to board right deprivation procedural a dependency neither nor conscientious magnitude consult set claims. The letter board’s Appeal Agent, upon an burden out had do if he want- what prove the absence Government to prejudice beyond hardship de- ed to submit a claim for a reasonable a ferment, phone indi- call doubt. Simmons v. 348 United stu- his with a cated that concern was 397, 397, L. S.Ct. 99 [75 (which ultimately re- dent deferment 453]; Ed. 240 Steele v. United per ceived). se to enact a Unless 142, (1st 1956).” 146 F.2d Cir. Unit person is de- of harm a rule prived whenever Fisher, 109, ed v. States 442 F.2d 115 appeal appearance of an (7th 1971). Accord, Cir. United government agent, we feel that the (D. Purcell, F.Supp. v. States 339 366 met its burden this case. Mass.1972). See v. Davis, (4th 1969); F.2d 413 148 Cir. HARDSHIP CLAIM Jacques, v. 463 653 (1st 1972). Cir. argues Appellant any An as a examination of the record failure to action board’s take government
shows that the
has met its
a statement he made
result of
large
appellate
questionnaire
decisions
A
number of
information
current
however,
held,
action on
May
have
that board
invalidates his
of 1968
a
a claim for
reclassification submitted
He claims that
the board had
order.
duty
from him after
has refused
sub
out information
to seek
Turner, 421 F.2d mit for induction cannot be a defense to
v.
under
States
United
charge
failing
(3d
induc
Cir.
Lathrop,
g.e. United
tion. See
may
board
have such
local
While
(3d
1972),
761,
de
cert.
460 F.2d
Cir.
circumstances,
duty
it did not
in certain
nied,
873,
204,
L.
S.Ct.
409 U.S.
stated,
it in this case.
have
(1972);
v.
Ed.2d 124
States
United
dependency question,
response
(3d
Neamand,
25, 27
Cir.
things
I
seem now
that:
“.
[A]s
Powell,
1971);
449 F.
States
United
yes. My Mother
to answer
will have
(3d
1971);
2d
Cir.
the Board of Education
works for
F.2d at 585:
only
Not
are we bound Noon-
cited.
an,
“Accordingly we hold that
policy
find the
reasons be-
but we
attempt for
cannot convert his belated
hind that decision and the decisions
reopening
of his classification—an
on this issue are
other circuit courts
attempt which he did not undertake
persuasive.
stated
the First
As
Circuit
legal
May
de-
until
1968—into a
supra,
Stoppelman,
in United States v.
fense to the crime he committed two
never made to the fact out his brief reference objection. fairly not deal board did ignorant with who was deci contends that our also procedures. Ziskowski, We think selective service sion in open- fair and that the board both it clear “makes regis- dealings in its post-in minded with must consider a Board that the appel- trant. It excused five failures .” order claim. duction post- physicals lant only the situa Ziskowski dealt poned There is his induction date once. applicant presented his tion in which an nothing in the record to indicate was to submit refused before any impropriety. guilty of addition, in Ziskowski In induction.5 judgment of the court district applicant claimed that his beliefs re will be affirmed. until he had had not matured after report for induction. notice to ceived his Appellant held his beliefs claims GIBBONS, Judge, dissent- Circuit notice
both and after before ing. finally, in Ziskowski And induction.6 presented In this criminal case we are reasons concerned with the the court was procedural with three defaults discretionary un action for the board’s process. Selective Service administrative regulation der 1625.2. That 32 C.F.R. § these, by Two of authorities, the Selective Service report for a failure to does excuse majority. excused assuming induction, even One, by registrant, so is enforced as had a to be reclassified possible de- to exact a forfeiture of a fense, application. had late submitted resulting conviction criminal Roberts, supra, F. approach sentence. therein. 2d cases cited at 1011 System administrative Selective Service supra, Cf. F.2d at 585. process puts courts in which the federal enforcing position of such anomalous As the court Blades decidedly me uncomforta- results makes My *7 in discomfort be avoided ble. could 1969), stated: , case, au- there is however this thority, because “ follow, justify- must end to the time ‘There be some which we should registrants ing can a claim of 'when raise reversal of the conviction. “ 4. . at al- When was asked in noted that The court Ziskowski objector why induction, though appellant’s trial he did not submit conscientious he that on the testified basis the con- form was submitted after the reading original passed, siderable about the war in Viet- that induction date liad postponed nam which he had done after he left date was several times. school, the he reached that he conclusion part situation, could not take felt was what he In this where illegal ample notify an war which and the Geneva of his had time to the board Nuremberg being question concerning vio- Conventions were the re- or to it claim quirements However, time, objection, lated. at that he did not he for conscientious feelings enough strong feel that his were is entitled to have his classification not type qualify Kroll, reopened. or of the him as a Con- Objector, (p. (3d scientious for of brief appellant Noonan).” court, Judge
In the district tice of induction Weiner also in- after his then, excused the issue, fact that the local board had dictment. The is whether compelling governmental not considered the for defendant’s some claim interest objector ap- conscientious status. He rea- would be were interfered with towe ply soned : the Ziskowski-Shomockrule to a case post where the claim is both and notice “Finally, disputed not it is post indictment. apply defendant did for consci raise, objector’s entious until status claims that did not objector had received his notice of induction. his conscientious sooner claim although because, beliefs, Since Ehlert v. United 402 U. he held such impression 625] [91 was under the erroneous (1971) required a local qualify board is to that Roman Catholics could not Objector consider Conscientious claims a I-O classification. The reasons imposing requirement first after an made induction order is of exhaustion issued. To avoid the Ehlert rule remedies before the administrative defendant asserts he had formed defense of erroneous classification will prior to beliefs the time that he re be considered in Service Act a Selective prosecution First, ceived his notice He of induction. criminal are twofold. argues applies solely agen that Ehlert to it is considered desirable cy expertise situations where develop apply the belief arose be its then mailing reaching tween the of a notice of in to a factual record in a discre duction and the tionary scheduled induction result. Conscientious particularly appropriate date and therefore does not rule out claims are the gree. expert agency contention-. opinion defendant’s We disa consideration. Sec ond, It our that a consci is the or doctrine contributes to lodged objector’s derly working entious with'a of the administrative receipt process. local board after of a notice of McGee v. United 479, 484-486, induction comes the Ehlert de L. within 91 S.Ct. U.S. (1971); cision legation fact al and the there McKart v. United Ed.2d 47 States, 185, 193-194, solidified belief was prior mailing (1969). of the notice will Neither against apply not furnish a base for distinction.” militate of these reasons ing rule to this the Ziskowski-Shomock Ziskowski, In United finds that case. If the district court (3d 1972), 484-485 genuinely mistaken as Shomock, eligibility it classification a I-O con to the local board can return the case Judge adopted struction of Ehlert develop ex facts and allow AR Weiner because under expertise. more is no There its ercise 3(b)(1) post adminis ¶ post than indictment reason procedure of a trative for consideration preindietment post notice the why .situation upon objector claim, which approach be done. this cannot approving opinion the Ehlert relies in bypass any wholesale not lead Sys rejection by the Selective Service process, ing be the administrative tem of late claims for conscientious objector classification, court returned a district cause before actually *8 it would have a local board case to in Ziskowski and unavailable. Both genuine mis been find there had reversed, the convictions were Shomock eligibility understanding as to under reprocessing by prejudice without the classification. law for System. only The dis Service Selective on in United approach this the one taken tinction case between This (1st Fargnoli, Ziskowski and Shomock hand and 458 out, points majority 1972). here the filed other is that theAs Cir. receipt only Fargnoli of a of a no- factor claim not his additional
631
change
(E.D.Wis.1970), appeal
the law announced Welsh v.
dismissed
jurisdiction,
(7th
90
lack of
398 U.S.
S.Ct.