United States v. Thomas Stewart Atherton

effect an invidious discrimi- is create contention second Plaintiffs’ Hopkins, nation. Yick Secretary’s payment” rule Wo v. “local indigents in 6 S.Ct. protection to equal denies Dandridge Williams, su- not re cf. communities Massachusetts those pra U.S. at 485 n. under surplus ceiving commodities Secretary’s analysis Here the effect of the rule of Program. framework Our Dandridge in is to some extent Massachusetts arbi- recently in reiterated trary 471, 485, in that the 22 communities Williams, 397 U.S. (1970), surplus do receive commodities under L.Ed.2d Program needy apparently are stated: the Cоurt needy no more than those communities ‘rea- has some “If the classification However, which do not. this effect basis,’ does not offend it sonable result Massachusetts’ recent con- simply the classi- because Constitution funding version from local to state mathemati- not made with fication ‘is programs. simply welfare The state practice nicety in it re- or cal because ” funding pro- continued whatever welfare inequality.’ sults some grams engaged its communities were in this case is classification Since at the time of There conversion. is no which shoul- those communities between suggestion any cognizable whatever that those distribution costs der group substantially of citizens is under- not, our do communities which represented in those 22 communities re- pay- Secretary’s “local is whether ceiving Program. commodities under the basis”. has a “reasonable ment” rule situation, When confronted with First, Secretary does. We conclude had either to adhere to his above, Secretary’s payment” we have discussed “local rule or to abandon it money designed to rule is conserve the and assume all distribution costs in Mas- say fund so available the section 612c sachusetts. We cannot that he de- primary purpose equal protection fund for the nied circum- these —protection by adhering of the farm market —can be stances to his reasonable through rule, thereby meeting only part effectuated use of the means set based in the statute. forth The effectuation the welfare needs Massachusetts. primary purpose Developments Equal frus- Pro- Law— requirement tection, trated the Secre- 82 Harv.L.Rev. tary distributing the full bear cost surplus states commodities those Affirmed. where some of the communi- but not all already participating. ties In addi- are

tion, rule, encouraging par- state function,

ticipation in fore- welfare expansion

stalls the of the food manifold bureaucracy De- distribution within the America, UNITED STATES of Agriculture partment which would be Plaintiff-Appellee, assumption of lo- involved a national guarantee the needs cal costs ATHERTON, Thomas Stewart Defendant- Indeed, “local while such all are met. Appellant. payment” prerequisites appear in other No. 23406. (see n. federal statutes welfаre Appeals, United States Court of holding such aware of no decisions are Ninth Circuit. protec- equal requirement violative of Sept. tion. Secretary’s classifica Since basis”, it is con tion has a “reasonable protection equal unless

sistent with Cal., (argued), Angeles,

J. B. Tietz Los defendant-appellant. for (argued), T. E. Orliss Ronald S. Mor- row, Attys., Asst. U. S. ‍​‌​​​‌​​‌‌‌​​‌‌​​​​‌​​​‌​‌​​‌​​‌‌‌​​​​‌‌‌‌‌​​​​‌‍Wm. Matthew Byrne, Cal., Angeles, Atty., U. S. Los for plaintiff-appellee. HAMLEY, Before BROWNING

ELY, Judges. Circuit BROWNING, Judge. Circuit appeals Defendant from his convic- refusing tion for induction into armed App. forces. 50 U.S.C. § He contends that his conscientious ob- jector rejected claim was because of a misinterpretation App. of 50 U.S.C. 456§ (j), and that his I-A classification is without basis in fact. sug- The minutes of the local board

gest possible rejec- three bases tion of objec- defendant’s tor claim. First, have relied upon 1625.2, prohibits C.F.R. § reopening of a classifi- mailing cation after the of an order defendant’s to contradict the board

report unless induction awas claim. specifically there finds first after change status local board’s statement report ‍​‌​​​‌​​‌‌‌​​‌‌​​​​‌​​​‌​‌​​‌​​‌‌‌​​​​‌‌‌‌‌​​​​‌‍mailed.1 order claim on that defendant “bases his be read beliefs” own however, issued Here, statutory provision as a reference to report for to to defendant orders two excluding “merely upon claims based a by cancelled first was The induction. excep personal moral code.” But this his filed when defendant the board only registrant’s applies if claim Objec- Special for Conscientious Form upon not “a moral code which is rests 150). (SSS The second Form No. tors only personal is sole basis but which rests, order, prosecution upon fоr and is in no belief filing postdated Form of defendant’s Being.” way Supreme a Unit related to 150; and therefore Seeger, supra, ed at States U.S. v. properly C.F.R. § not have 186, added); (emphasis at 864 S.Ct. defendant’s claim. 1625.2 to Fleming see also and third bases The second 912, As 915-916 by rejection of defendant’s claim of de said, this is not true sug- related, and are are fendant’s claim. gested by statements board’s government contends any not a member of “Mr. Atherton is board classified defendant I-A religious sect,” particular “He and that independently ground sufficient that his рersonal own be- his claim on his bases sincerely avowed beliefs not held— were liefs.” pointing entry to min- an in the board’s stating utes defendant when asked 456(j) Exemption under section why rejected, his claim had “The predicated of the statute is not they Board told him that decide whether religious membership ad in a sect and they genuine feel he is a conscientious Supreme herence As the to its tenets. objector, they and that base their de- pointed Court out in United States gives cision on the them.” information he 850, 172, Seeger, 163, S.Ct. U.S. Deciding “Congress (1965), whеther is “a a L.Ed.2d genuine religious objector,” conscientious how- recognized that one be ever, deciding equivalent organized is not belonging without to an faith; good whether his claim is ”, made church and intended section entry and the indi- balance of the minute 456(j) to focus “individual belief referring cates that the board was membership in —rather than a church * * whether defendant’s claim fell within or sect statutory definition of a conscientious expressly his claimed that Defendant objector sincerity his to the objections any form were based inwar claim. upon religious an in- faith. “In such course, urges tensely area, Finally, government any claim of the that his belief event basis for the local religious part faith is essential board’s classification be is irrelevant weight.” given great must cause be defendant’s I-A classification was Seeger, supra, by at States reviewed and continued the state nothing peal There is board. S.Ct. pointed 1. The out that defendant admitted that beliefs his matured between objector claim filed his conscientious time and the time he received report being induc after induction notice. The defend- ordered to board told tion, be a he that he had not claimed to ant should have filed his SSS original clas in- in his Form No. 150 before he received his questionnaire, he had sification and that duction notice. ap- irrelevant, appellate requires re- state rule that 1626.26 32 C.F.R. § classify appealing “is peal classification cures local board errors boards Stepler, anew; it been held trants inflexible.” agencies presumed (3 official are A sur- since manner, vey operate defiсiencies rule in a lawful the cases indicates that applied only appears a local board classification where it from the deficiency reclassification rendered harmless nature of or from other Storey g., E. state board. circumstances the record that 258-259, reasonable assume that the defect France, proceedings Cramer v. was in fact cured by appellate Thus, see or- reclassification. dinarily also Bowles v. United claim of bias is cured reclassification board;2 appeаl an but not where suggests may record pres- This doctrine does not save have influenced the state board’s action.3 light prosecution, however, for ent Likewise, relating to errors board of the record under- and the rationale presentation registrant’s case of a lying doctrine, the cure it cannot be as- by appellate are corrected reclassifica- appeal applied sumed that board any significant deficiency tion where proper classification in this resulting the record from the errors was case. ;4 corrected before the board acted where record fails to exclude Despite sweeping occasional possibility un- the local board’s statements that board reclassifica prior proceedings an renders lawful action resulted 398, (9th, States, 549, 1952). 2. Falbo v. United 401-402 Cir. also 320 U.S. 555, 346, (1944) States, 328, 64 S.Ct. Niznik 88 L.Ed. 1089 v. United 173 F.2d (concurring opinion Rutledge) ; (6th 1949). 336 Cir. Olay 901, States, v. United F.2d 397 The rationale of these decisions—that (5th 1968) ; 912-913 Cir. Reed v. United registrant a is entitled to a full and 216, (9th States, 205 F.2d 218 Cir. every fair consideration claim at 1953) ; France, 801, Cramer v. 148 F.2d process— level of the Selective Service (9th 1945). 805 But see Niznik Cir. v. present well extend to cases like the States, (6th 328, United 173 F.2d 336 the local board’s consideration 1949). Cir. the merits con- Peebles, objector 114, 3. United States v. 220 F.2d scientious claim was marred (7th 1955). 119-20 Cir. that board’s misconstruction of the stat- ute. Storey States, 255, 4. United 370 F.2d v. (9th 1966); Military 258-259 Cir. The United States Selective Service Act of Moore, 428, (7th Department v. F.2d 431-432 217 1967 eliminated the Justice Tyrrell 1954); investigation States, hearing Cir. v. United 200 and 8, (9th 1952) ; eases, 11 v. F.2d Cir. Niznik and thus left States, 328, only agency United 173 F.2d 334-335 as the in the Selective (6th System 1949). opportunity Cir. Service which has an A number of courts have held that to observe the demeanor. registrant local board failure to afford a Since “the attitude and demeanor person hearing reg- likely give a full and fair invalidates a though degree best clue istrant’s classification even as to the of [his] con- registrant ap- sincerity, scientiousness reclassified an and and peal quality beliefs,” board on a full the extent and what ‍​‌​​​‌​​‌‌‌​​‌‌​​​​‌​​​‌​‌​​‌​​‌‌‌​​​​‌‌‌‌‌​​​​‌‍of his transpired States, 782, White below. v. Franks United United 215 F.2d (9th States, 1954) ; 1954), 266, (9th especially 216 785 portant Cir. F.2d 270 Cir. it is im- Craig, United States ex rel. Berman v. local boards consider con- (3d ; 1953) objection F.2d 891 Cir. Mintz scientious legal claims unaffected (2d Howlett, misconceptions. F.2d Cir. States, Knox v. United 200 F.2d apply the board did presentation inadequate board,6 but appeal board.5 same standard as the local claim before where, reaching opposite inas result dealing board utiliza- with local Cases case, regarding silent record is classifying illegal standard tion of an applied standard distinction— a similar a draw nothing support infer and there is holding appellate reclassification eneе that from that differed harmless the local board error renders by the local board.7 supports the the record conclusion Shepherd Fry, United States v. Stiles, (2d 1953) ; Cir. United States v. Balogh holding implicit (3d This is the Cain, Supreme recog (3d Zeiber, as the Court and States v. supra, Sicurella, 348 U.S. nized 403; is also 75 S.Ct. the im Bowles v. United plicit ruling in Niznik. (1943): Stepler the local board stated its Morico, denying reasons 1969) ; De Remer v. United exemption one ministerial of these ; 1965) reflected misconstruction of the statute. Hook, United States Van reg- board continued the other rev’d on 489 grounds istrant’s classification without comment. pointed The court out that the local board (1961) ; L.Ed.2d reflecting statement stand- Chodorski, 590 Cir. 240 F.2d appeal board, was before the and ard 1956); 216 Tomlinson v. United nothing was to indicate that the there 12, 16 Cir. F.2d appeal regarded board the statement as ground upon the which In Bowles the “From The court incorrect. concluded: registrant’s appeal was to the President the this we cannot tell whether expressly U.S. was stated. 319 decided accepted appeal [unlawful] board given by the In illorieo the 63 912. at S.Ct. board. Since reasons the local testified state board chairmen and unclear, say the record is so we cannot applied. the standards had the was the error of In Van Hook F.2d at 143-144. 415 appeal.” cured on F.2d at 317. appeal it was “en- board stated that the Mintz In court that continua- the held ignoring tirely local board's all of the tion of classification * * at 284 F.2d conclusions Appeal the National Board had not cured 491. arising a defect from the local and state the filed In Tomlinson statute, boards’ misconstruction of the remarking calling er- board’s statement had the National Board appeal legal to the roneous standard no reasons” for its action. “stated stating attention, and docu- and board’s Judge Friendly recognized In Corliss menting proper legal ref- the standard applied board the doctrine that and prejudice materials. erence official upset appeal will not an board’s Chodorski, This was also true in at 12. reclassification, noted, “Cases Moreover, F.2d at in Chodor- applied Local had an erroneоus the Board Remer, appeal De board set ski and the impossible test and it to tell whether I-A classification aside the local board's Appeal the Board relied this are placed regist'ant I—A-O. the Class and distinguishable Stepler, Niznik, [citing Mintz and the in Chodorski].’’ discussion Stepler, States v. United F.2d at 816-817. (3d Howlett, v. Mintz Cir. Seeger, Sicurella, (2d Shepherd, Niznik v. and In F.2d 758 Department applied il the legal an United determining Balogh, 1950) ; clas standard United (2d 1946) ; States it would recommend sification peal board, (2d appeal placed Levy Cain, and the board ex rel. Corliss, 1945) ; in the clas recommended 1980) indicating (2d the basis sification without (dictum). It held also United States for its decision. was 167-168, 187, Seeger, classification decision board’s not be deter L.Ed .2d 733 vitiated because termined whether Sicurella classify- ; (1955) improper ground relied rehearing be suggested gestión will recently in banc Judge Moore As 2, Fed.R.App.P.10 Morico, Rule entertained. United States be result Reversed. by the Constitution: mandated Judge (dissenting): ELY, directly Circuit system the draft “Because liberty, appellant affects respectfully I dissent. This right history, his classifica- have a must I long аnd troubled had a point. judicially some reviewed opinion to be issued now file the sixth * * * right to have a Indeed, While the vacillation of the case. of the board striving pala- court review the action * majority to enunciate a * * restricted, be review must reinforces table result rationale meaningful in the sense my judgment should conviction encompass a record from which it must affirmed. whether there a court can determine majority opinion on filed its first decision, what was a in fact for basis 1969, reversing Atherton’s October whether basis conviction because legal the correct standard.” specifically finding that failed to recite a omitted; (Citations emphasis add- protestations of con Atherton’s belated ed.)8 were insincere. scientious beliefs from that also. dissented any event, general presumption Government, Thereafter “with lawfully act does boards approval of General of Solicitor alone suffice to cure a local board’s use States,” filed a Re Petition for illegal standard.9 classification hearing Banc, vigorously urging En nothing present And since there is majority’s original opinion conflicted record which would lend direct or infer including precedents, with numerous support ential to a conclusion that prior opinions of our own court. The appeal board's was not bas classification original majority opin then withdrew its upon illegal applied by ed the standards issued, April ion and on a sub board, defendant’s classification equally unacceptable. that I stitute found cannot stand. opinion, That second it, as I saw substi judgment forthwith, The majority’s judgment will issue tuted the for thаt sug- petition rehearing and no or of the Selective on Service authorities registrant. ing Although distinguish- study suggests 9. A recent the as persuasive. able, Appeal sumption reclassify the cases are boards by Depart- are boards no more bound without reference to the local board’s prior “ignores approach than ment recommendations action the actual they classifications, reviewing are local board boards take to their they just prone rely upon “Appeal and are function.” board chairmen in they rely panels gave local board decision as are to terviewed admitted their con Department’s judgment. See sideration and credence to classifications boards, particularly note 9. made States, Bishop Comment, decision in Our close cases.” The Selective (9th 1969), System: is not Service An Administrative Ob contrary Course, rule stated the text. stacle 54 Calif.L.Rev. n Bishop reject (1966). did no more than defend- ant’s contention “that were we to decide majority dissenting opinions 10. The and applied incorrect standards were judges were submitted to the active board, is [defendant’s] reversal ques the court and vote taken on the required.” (emphasis added). Id. at 1065 majori tion of in banc A consideration. Ypparila States, ty against 8. See also v. United of the court voted such consid (10th Judges Barnes, Chambers, Ely, eration. Carter, Kilkenny, and Trask would have heard the case in banc. Richmond, sincerity of Atherton United States question of Shep alleged F.Supp. (C.D.Cal.1967); profession conscien his cf. (9th States, from herd United F.2d 942 dissented tious beliefs. I setting out, opinion, in fine v. United Wells thе second denied, 1946), detail, “objective cert. before facts east Appeal L.Ed. [which] Board sincerity Fratick, 140 [Atherton’s] doubt claim.” Witmer v. 392, 396, L. conviction, reversing major- Ed. 428 holds, effect, reg- ity that because the istrant’s filed a second then The Government expressed Banc, and Rehearing his at- Ehi Petition for decision, pre- no reasons for we must ma- its tempting to demonstrate wrong sume that the later classification was in- jority’s disposition was also second validly Since, indubitably, there made. “basis was indeed a and there challenged “basis in fаct” for the challenged classification. fact” for the classification, agrees I must assume that the ma- majority Apparently, now jority uphold the position would District Court my and with the Government’s simply noted, had the “The also, respect for it now withdraws facts before us east opinion doubt substitutes its second and sincerity, his claim interpret and to ex- this third. If I third emption now, is majority therefore denied.” I correctly, in es- cannot adopt technicality.1 sence, position Our limited reverted to that which scope of vigorously review “the narrоwest was so the Gov- known assailed to the law.” Blalock v. United Rehear- ernment in Petition for its first ing. majority injects requirement a new my issue on which Brothers processing mere formalism into the company despite part whether, I registrants of Selective Service which fact,’-’ presence this rec of a “basis presumption validity seeks presents sufficient facts to overcome ord presumption avoid. The validity presumption that Atherton’s processing obliged which we are informa considered the relevant apply designed, me, it seems to file and his Selective Service just avoid that kind of formalism. upon those facts based its classification sincerity. Furthermore, simply cast doubt on cannot reconcile generally majority’s reasoning Bishop Oestereich v. Selective Service with Board, United States, (9th 89 412 393 U.S. S.Ct. F.2d 1064 ‍​‌​​​‌​​‌‌‌​​‌‌​​​​‌​​​‌​‌​​‌​​‌‌‌​​​​‌‌‌‌‌​​​​‌‍Cir. 1969), (Harlan, J., (1969) precedent con and the 21 L.Ed.2d 402 wealth of on ; Storey States, curring) which that decision 370 United based. The ma- jority (9th 1966); Bishop present cites opinion F.2d 255 Cir. DeRemer v. in its States, (8th but buries United Cir. the citation in 340 F.2d 712 its 7 footnote 1965); States, and does explain Tomlinson 216 not v. United undertake to its con- denied, (9th 1954), Bishop distinguishable. F.2d clusion that 12 Cir. cert. Since I 348 L.Ed. 755 was the U.S. 99 author of our court’s opinion States, Bishop, also Keene v. United I am confident (10th 1959); understanding 266 fair F.2d 378 Koch Cir. of its States, (4th thrust.2 F.2d 150 762 Cir. Surely, expect my joined Hamley we should not Since Brother all lay opinion Bishop, those who serve as issuance of members of Selec our I at- equipped present pre my disagreement tive Service bodies are to tribute his and pare findings perfec imprecision my Bishop writing. with the to technical specificity required judges Leavy, of But see United States v. nonjury judicial proceedings. (9th 1155 Cir. 748 argued direct au- read Bishop, appellant can be as new holding. thority present In Unit- applied er- for its length board his local (3rd Stepler, his it ed when denied standards roneous Indeed, de- been 1958), claim. had Cir. exemption Bishop’s his local local nied ministerial evidence there was basis; improper board. The Director reviewed State board acted requested re-

nevertheless, the local file board declared: we open and anew consider Bishop’s reject “Initially, must we so, thus claim. The board refused to do decide assumption we that were violating requirement of section were incorrect Regu- 1625.3(a) of the Selective Service board, required. reversal his held lations. The court the failure Tom question settled That reopen constituted a denial of due States, linson v. process appeal and that silent board ac- denied, (9th 1954), cert. pro- tion could not cure a fundamental (1955), 528, 99 L.Ed. S.Ct. cedural error that denied the very explained that it we is the wherein hearing. ip Similarly, а fair Niznik v. purpose board correct States, (6th F.2d by making any board errors 1950), the evidence before trial court regis separate investigation revealed that the members independent classi file and an against strong ‍​‌​​​‌​​‌‌‌​​‌‌​​​​‌​​​‌​‌​​‌​​‌‌‌​​​​‌‌‌‌‌​​​​‌‍prejudices board had Je- Accordingly, we decision. fication Again, reg- hovah’s Witnesses. since ap scrutiny limit our to the standards hearing by istrant been denied a fair plied Bishop’s appeal board.” discriminatory practices of the local There, (citations omitted). Id. at 1066 board, pre- case, Bishop’s thе instant sumed to have had before it sufficient expressed rejecting no reasons information which to base a valid (cid:127) appeal; nevertheless, applying his independent Moreover, determination. presumption af validity, usual appear does regis firmed our when review presumption regularity trant’s file revealed a “basis in fact” was raised either there or in Niznik’s approach denial his claim. This previous appeal from a former convic- long been when followed courts tion for the same offense. Niznik v. reviеwing Selective Service classifica States, (6th 173 F.2d 328 registrants’ tions in cases wherein the assertedly applied local boards See, g., Storey standards. e. v. United Likewise, Howlett, Mintz v. F.2d States, supra; DeRemer v. United point. raises the same States, supra; United States v. Chodor There, regis the court decided that ski, Reed trant had entitled to a v. United pearance hearing and a on a critical issue Davis v. United of fact. opportu Since he never had an (9th Cir.), denied, cert. nity present arguments, it was held 97 L.Ed. 1403 board could not have had Tyrrell v. United befоre it a on which it could have France, Cramer v. made a valid classification. Further Hence, very 1945). it is more, majority forthrightly as the rec clear, that, me, heretofore, at least to the ognizes, question the presumptive of improper fact that standards were regularity was not raised in United plied by a local board is not of suf itself Balogh, (2d States v. ficient presumption to overcome the that 1946), or in Levy ex rel. the correctly. board acted Cain, (2d persuaded majority Nor I am that col- The the cases cites United Cor Stаtes v. majority’s lected in footnote of the liss, 280 F.2d It sincerity be disre- the quotation that case from its notes policy Similarly, garded. the executive dictum, should I think we objectors’ admit- toward in which Corliss sentence the overlook fight ting willingness “theocratic majority’s to immediately precedes the deciding Yppari- factor in was the wars” quotation: There, the question was whether the la. no there is “It is settled Appeal Board National Selective Service Appeal Board the evidence it took when standards erroneous by misled, mem- unfair conduct overturning highly course of the unusual upset Board will not bers of the Local exemption partial which a a classification.” granted Ap- (citing of Id. at 816 several Courts imposing classification. own I-A its out, pointed peal decisions). As I have Owing extraor- likelihood to the by court relied the eases Corliss appli- by dinary prompted action was support read of dictum cannot be policy fol- then of cation the erroneous broadly. so Government, by court in- lowed Supreme interpret I cannot Court’s appellant’s And conviction. validated the holdings Ypparila, Siourella, and See- Seeger, Supreme case another Court ger proposition as inconsistent with the petition- majority, mentioned application that mere of stand- after was overturned er’s conviction is not ards sufficient Supreme had assured itself Court regu- presumption overcome the classification larity part of the board. sincerity upon the consideration of based First, Siourella, petitioner, a mem- appropriate standard —but —the Witnesses, ber Jehovah’s had been de- interpretation of the law. an erroneous nied classification as a conscientious ob- then, simply conclusion, I cannot jector Justice, Department when the agree applies in- that when a local board although admitting sincerity of the petitioner’s beliefs, categorically correct stated support its subse- states no reasons that his claim should be because denied willingness engage that, facto, quent ipso pre- “theo- denial Supreme cratic wars.” The Court re- erased, sumption validity especially strong probability versed because of the where, here, apparently we are now appeal board, comprised that an of non- agreement the record reveals lawyers, greatly would be influenced “basis fact” board’s de- interpretation existing law which exemption.3 nial of the claimed supplied Department to it specifically and which I directed would affirm.4 Haughton, protest I note United I do not the decision that the Gov- permitted which the ma ernment shall not be tо attack jority majority’s opinion by petition does not cite. To the extent latest rehearing. which the in that ease Our court should now Bishop rationale, disposition particular read conflict with the make its final of this it, too, represents controversy. remains, however, I think an undesirable There departure salutary principles any, extent, from unanswered if long guided application the courts in their re of the retroactive of the ma- jority’s opinion; hence, expect view of Selective Service classifications. required generally shall soon be to review problem again.

Case Details

Case Name: United States v. Thomas Stewart Atherton

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 10, 1970

Citation: 430 F.2d 741

Docket Number: 23406_1

Court Abbreviation: 9th Cir.