United States v. Roberto Alfredo Davila, 429 F.2d 481

United States v. Roberto Alfredo Davila

429 F.2d 481

5th Cir.

1970

Check Treatment

*2 аnd service in the armed of forces who, by the United States reason of religious training belief, and is consci- entiously opposed participation in Tex., Masters, Antonio, Frank San any war in form. court-appointed, appellаnt. for 456(j). 50 U.S.C. App. J Atty., Seagal Wheatley, Reese V. U. S. Registrant recited that he was Harrison, Jr., Atty., San L. Asst. U. S. baptized a member of the Jehovah’s Wit Antonio, Tex., appellee. for explication person sect. In nesses of his BROWN, Before JOHN R. Chief religious al views he stated: GODBOLD, Judge, AINSWORTH and According to 2 Tim. 2:3 I am a soldier Judges. Circuit of subjec- Christ. We are to be in authority tion to the of this land ac- GODBOLD, Judge: Circuit cording to Rom. This is rela- 13:1. a subjection, tive when the laws of this of Davila was denied the classification land come in conflict with laws God's objector by his local draft then states, we must do as Acts 5:29 Thereafter he board. refused to submit obey “we must God rather than man.” induction, to jury and convicted a was state, Davila went on to response in to a refusal, of such Form, on interpretation his 462(a). pre- We reverse because Davila prima of “the creed or official statements of sented a facie case for CO religious organization [his] sect or and the bоard acted without basis in fact participation relation to in war:” denying his claim. Because Jehovah’s Witnesses are November, 1965, Davila, In then awaiting Kingdom, a where Christ will high school, completed a Current Infor- reign King. as And his comment are Questionnaire, mation SSS Form any that [sic] we sould not be [sic] requested and copy be sent a of he part present system of things. might SSS Form 150 so that he claim We therefore chose to remain nutrul CO A form status. was sent. He any participation [sic] in war. high was deferred for his studies school gave until form December, also when he was names of Jesus (eligible Tamez, pastor, classified I-A tary service). his Blanco, for active mili- and Anita February 14, persons neighbor, On it who could attest to sincerity. was noted his papers pertain- Davila had No claimed to be other ing appear regis- CO claim but had not been in the sent copy a Form A trant’s was mailed to Selective Service file. The local him, completed and he and took no action to contact returned Tamez February investigate March On the local Blanco or Da- or otherwise request application. board considered and con- state- vila’s ments, I-A, entering true, depth tinued no Davila class demonstrated Registrant findings religious They was the file. indi- his beliefs. also duty sent notified of this action and was cated that Davila felt a to a Su- rights accompanying greater preme Being his notice of than that hе owed personal appearance laws, accepted and man’s his that he availability appeals agent to laws, church as arbiter of God’s took action and he assist him. He understood those laws forbid him repоrt military Though ordered to for On from induction. inartic- service. ulately drawn, he refused to June submit. these statements satis- (10th 1970); v. Cir. States requirements for con- 288 United statutory fied (4th 1969); Davis, 413 F.2d Cir. States status. scientious (5th Powers, Powers v. F.2d 438 James, 1968); States, 384 Wills v. United makes Once 1967); Wolff v. оb ease of conscientious facie *3 16, (2d 1967); Bd. No. 372 F.2d 817 Cir. deny may not jection, the local ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍board States, Donato v. United 302 F.2d 468 unless there (9th 1962); States, Glover v. United justifying the appears evidence of record 1961); 286 84 United is such evidence Denial without deniаl. Harris, (D. F.Supp. v. States 302 1194 United in fact. without basis action Or.1968); Seeley, States v. United 301 Wingerter, F.2d 1015 [5th 423 States v. F.Supp. (D.R.I.1969); 811 1970]; Cir., 17, Kessler United v. Feb. Branigan, F.Supp. (S.D.N.Y. v. 299 225 States, 151 406 F.2d 1969); Carson, United States v. 282 registrant’s appears in this evidence No F.Supp. (E.D.Ark.1968). 261 McKart the to the attention оf which came file held as follows: completion the of the Form board before justify denial. The 150 which would cases, In Selective Service the ex- did not seek interview with board haustion doctrine must be tailored to Davila, did the nor it communicate with peculiarities fit the of the administra- per he or system references listed with other Congress tive has created. being evidence, There no other sons. Supra 195, at 89 1663, at S.Ct. 23 L.Ed. is it must do the denial to stand so 2d at 204. appearing in еvidence the 150. Nothing provided Supreme that form In McKart points basis the Regis in fact for the purposes judicially board’s action. the of the requirement trant’s statement that he in use created believed exhaustion are to “[o]nly point development force to the where allow the of a full factual endenger my record, permit life” evidences [sic] the exercise of adminis willingness absolutely to use application force if trative discretion оr of ad necessary in expertise, self defense. Such a be promote ministrative ef ficiency lief not is inconsistent with agency in both the and the against scruples courts, service in avoiding war. Sicurel premature all ju States, 389, 385, la consideration, U.S. dicial 348 recognize and to 403, (1955). 75 S.Ct. 436, autonomy 99 439 L.Ed. of the administrators with government points nothing to expertise. else their field of Id. 194- at in the form 195, which would constitute 1663, S.Ct. at 23 L.Ed.2d at 203- refusing reclassify basis fact for 204. And the court discusses counter Davilа. vailing to all common considerations of notice to the draft cases—the lack government’s position is appeal failure to will this court cannot reach the issue of basis raising bar his local board errors in fact because appeal Davila failed to court; any currently the lack avail to his Selective Service remedy prosecution able at the time of from the local board’s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍determination and petition corpus; or fоr habeas the sever thereby failed to exhaust his adminis ity sanction, opposed of criminal as trative remedies.1 The re exhaustion consequences or usual of mere dismissal quirement longer recognized is no as delay for failure to exhaust administra judicial absolute Mc bar review. remedies; ability tive of the 185, States, Kart v. United 1657, System (1969); Selective Service to correct er S.Ct. 23 L.Ed.2d 194 Williams, 196-198, United States v. rors on its own Id. at motion. Appellant explanation 1. And, inferentially, offеrs no factual of counsel the absence appeal. protect registrant. rights for his failure to of the other appeal board, 23 L.Ed.2d at which S.Ct. considers 204-205, at 206 n. 17. anew. situation, add- Id. the court at In the McKart 23 L.Ed.2d factors, tipped the n. which It ed two more remains for us to con- require- against sider whether under the McKart scales exhaustion bal- ancing approach McKart ment a bar court review. exhaustion doctrine surviving exemp- applied son” should be claimed the bar this “sole 456(o). tion, defense of local His basis fact for his clas- qualify, sification.4 board held that did since he longer “family part he unit.” was no Disposition claim, of Davila’s exist- Court held that Supreme McKart’s, required like family required ence of a was not a unit *4 legal of undisputed a standard to an set exemption element an claim. As to of of facts. Where the file reveals no facts exhaustion, first noted the issue refuting registrant’s a claim of consci of prove what elements McKart must objection, only entious question the re question statutory a of construction maining legal is the issue of whether or to appeal which an administrative board registrant not the prima has made out a bring special expertise could no no and exemption. facie case for helpful exercise of discretion. at Id. supra. v. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Wingerter, appeal 197, 198, 199, 1664, 89 at 1665, S.Ct. 23 bring special can expertise to bear on Second, L.Ed.2d at 205-206. it found question, this and the Selective Service registrant presented had sufficient System’s explicitly discretion is limited facts to enable the local board to make by legal the given standard that a mini decision, a and that “no further factual showing mal requires exemption. Wit inquiry at all useful.” have been States, mer v. United 375, 348 U.S. 75 1665, 198, L.Ed.2d 23 at S.Ct. at 89 Id. 392, (1955). 99 L.Ed. 428 15.3 206 n. appeal An in this case could not that, in Supreme noted Court developed significant have further facts. case, objector the normal prоvision The former for referral of System the Service the Selective CO claims to Department the Justice for stronger in may investigation interest have a appeal, courts on first having the 456(j) decided in (1964), the was stricken from the by then by local board and the instance statute amendment in 1967.5 The McKart, Supreme one open least lower 4. possi- Even before Court left the recognized bility of wrongful court had that a defense of failure inap- might requirement grant be objеctor the exhaustion status board, propriate might because where the local not be for barred failure to exhaust law, on appropriate the case, though of an view of in erroneous even the facts, undisputed acted with-' set of had category claim in is which denying by requires in a classifica- by fact basis the of exercise discretion the registrant System. has made out tion for which Selective Service On the same prima day McKart, facie case. United States v. Car- it decided it vacated the F.Supp. son, (E.D.Ark.1968). judgment 282 261 McNeil, in United States v. 401 1968) F.2d 527 and remanded lay in the local board’s error Where to the District Court for further consider- registrant delinquent declaring (and the light McKart, ation the of subjеct induction) priority therefore 463, 89 S.Ct. 23 L.Ed.2d 446 protected by because activities (1969). Appeals The Court of had held Amendment, applied First the courts have that McNeil was exhaustion-barred from reasoning, holding that similar the ex- questioning in the trial court the denial requirement haustion was no bar of his claims for conscientious See, g., States, view. e. Wills exemptions. and ministerial 1967) ; F.2d Wolff v. Local Board No. In States, Lockhart v. United (2d Cir., (en banc), [9th Dec. 1969] the record ON PETITION FOR REHEARING supplementing for сonditions this AND FOR REHEAR- not met PETITION were 1626.12, 1626.24. ING EN BANC See 32 C.F.R. case. §§ PER of establish- CURIAM: burden Davila carried his ing to conscientious facie right Rehearing The Petition for is denied the doctrine under Judge panel nor and no member which Witmer. Both considerations regular on the Court active service Supreme ex- prompted find Court having polled requested that be McKart unnecessary are haustion rehearing banc, (Rule Federal en present in this case also. Procedure; Appellate Rules 12) Petition for Fifth Circuit Rule judicial Exercising review this case Rehearing En Banc is denied. encourage significantly circum- will venting process administrative As McKart itself resort courts.

notes, opportunity one is registrants knowingly

that few will fore- go, the risk ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍incident to de- because of

termining issue of classification in in fact test

court under strict basis *5 pоssibility of criminal convic- with KING, Petitioner-Appellant, Harrell 199-200, tion. Also, 1665, 1666, 23 L.Ed. at 206-207. George BETO, Director, comply Dr. with the in- J. local new Texas De boards partment Corrections, Respondent- requirements terview amended Local Appellee. Board Memorandum see footnote No. No. 29297 5, supra, there few cases in the will be Summary Calendar. posture one, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍with facie objection case of conscientious made out Appeals, United States Court of by fur- 150 or othеr evidence Fifth Circuit. registrant supporting his nished July 22, 1970. claim, countervailing and with no evi- Thus, only dence in the file. does general impair obli-

our decision not

gation exhaust which was left viable

by McKart, also, pro- under amended but effect, does not im- now

cedures par-

pair doctrine in its the exhaustion requests for con-

ticular

scientious status.

Reversed. review, opportunity orally present

holding a bar to views at failure to exhaust his сomplete process point, be- the National Director of Se- classification some Service, subsequent The earlier amendments. lective to the 1967 fore the 1967 supple- significantly apply procedure have amendments but too late appeal. claim, It entailed boards Davila’s the local mented the record directed including any registrant investigation, an inter- to hold an interview an FBI with deny registrant himself, they tentatively with the to whom decide view ports to the submitted See of which were status. along amended file transmit- No. with the Board Memorandum Recognizing July 30, the local board. ted practical value to