United States v. Musser, 72-1276.

• Decision Date: 02 May 1973
• Docket Number: No. 72-1276.,72-1276.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher Joseph MUSSER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

478 F.2d 1068 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Christopher Joseph MUSSER, Defendant-Appellant.

No. 72-1276.

United States Court of Appeals, Ninth Circuit.

May 2, 1973.

Francis A. Watson Jr. (argued), Ronald A. Rubenstein, Watson, Hoffe & Fannin, Richmond, Cal., for defendant-appellant.

Robert E. Carey, Jr., Asst. U. S. Atty. (argued), James L. Browning, U. S. Atty., F. Steele Langford, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Before HUFSTEDLER and CHOY, Circuit Judges, and SMITH,^* District Judge.

PER CURIAM:

Defendant appeals his conviction of refusing to submit to induction (50 U.S.C. App. § 462(a)). An induction order issued September 15, 1970, ordered defendant to report on October 14, 1970. On September 21, 1970, defendant requested and received the special form for conscientious objectors which he returned to the local board on September 28, 1970. The board reviewed the claim, determined that it lacked sincerity, refused to reclassify defendant,¹ and advised defendant that he must report for induction.

It is now claimed that the board did in fact consider the claim on the merits and in fact reopened the classification, and that having done so the board could not label its action as a refusal to reopen and thus cut off defendant's rights to appear, be heard, and appeal. Defendant relies upon Miller v. United States, 388 F.2d 973 (9th Cir. 1967).

32 C.F.R. § 1625.2 provides that a classification "shall not be reopened" after the induction order is mailed unless the board "first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control." The language is mandatory. The board lacks power to reopen in the absence of the required finding. United States v. Stupke, 451 F.2d 997 (9th Cir. 1971); United States v. Hand, 443 F.2d 826 (9th Cir. 1971). A local draft board lacking power to formally reopen cannot accomplish a de facto reopening. United States v. Nix, 437 F.2d 746 (9th Cir. 1971). Miller v. United States, supra, is not contrary. In that case the State Director, acting within his authority, had ordered the local board to reconsider.

Had Musser been inducted and had he made an in-service claim to conscientious objector status no presumption that the local board evaluated and denied that claim could have been drawn. The board was powerless to reopen the classification. Anything the board recorded in its minutes or did on the merits of Musser's conscientious objection had no validity, force, or effect.

Affirmed.

HUFSTEDLER, Circuit Judge (dissenting):

I recognize that a conflict in the circuits now exists on this question and that authorities in some of the circuits support the majority's view.¹ This conflict has been engendered by differing interpretations of the Supreme Court's decision in Ehlert v. United States (1971) 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625. I read Ehlert, as do the First and Third Circuits, as requiring that every conscientious objector applicant has meaningful opportunity for at least one full and fair administrative determination of his conscientious objector claim and that the registrant cannot be relegated to a "`no man's land'" where his claim will never be administratively reviewed.² See United States v. Alioto (1st Cir. 1972) 469 F.2d 722; United States v. Ziskowski (3rd Cir. 1972) 465 F.2d 480; United States v. Shomock (3rd Cir. 1972) 462 F.2d 338; see also United States v. Usdin (E.D.N.Y. Dec. 21, 1972) 6 SSLR 3039; United States v. Cotton (S.D.N.Y.1972) 346 F.Supp. 691; United States v. Takala (E.D.Mich. Sept. 11, 1972) 5 SSLR 3773.

Judge Coffin's opinion in Alioto eloquently expresses my own views on the correct interpretation of Ehlert. That reading would compel a reversal of this conviction for the Ehlert "`no man's land'" script exactly fits Musser.³ Under the pertinent Selective Service regulations and case law, the local board could not simultaneously make an evaluative determination that his claim lacked sincerity and not reopen his classification.⁴ I am also convinced that the local board's contradictory and ambiguous characterizations of its actions could have foreclosed appellant from an in-service forum for his conscientious objector claim. See United States v. Usdin, supra. Finally, were I to search the record to find a basis-in-fact for the local board's finding of appellant's insincerity, I would be compelled to conclude that the board's determination is wholly insupportable.⁵

* The Honorable Russell E. Smith, Chief Judge of the United States District Court for the District of Montana, sitting by designation.

1 The local board's minutes stated: "C.O. claim reviewed under section 1625.2 SSR and classification not reopened." And the form letter notice to Musser said that his classification was not reopened because there had not been a change in status resulting from circumstances over which he had no control.

1 See United States v. Waldron (7th Cir. 1973) 474 F.2d 90; cf. Swift v. Director of Selective Service (D.C.Cir.1971) 145 U.S.App.D.C. 224, 448 F.2d 1147; Wright v. Ingold (7th Cir. 1971) 445 F.2d 109.

2 "That those whose views are late in crystallizing can be required to wait to present their claims after induction, however, does not mean that they can be deprived of a full and fair opportunity to present the merits of their conscientious objector claims for consideration under the same substantive criteria that must guide the Selective Service System. See Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 . . . It would be wholly arbitrary to deny the late crystallizer a full opportunity to obtain a determination on the merits of his claim to exemption from combatant training and service just because his conscientious scruples took shape during a brief period in legal limbo.7

"7. Since such a `no man's land' would be intolerable our decision today simply involves settling in which forum late crystallizers must have an opportunity for a ruling on the merits. Whether they may have such an opportunity at all cannot be open to question. . . ." 402 U.S. at 103-104, 91 S.Ct. at 1323.

3 Following a I-A classification by his local board on February 25, 1970, appellant was ordered on September 15, 1970, to report for induction into the armed forces on October 14, 1970. On September 21, 1970, he requested and received an SSS Form 150 for conscientious objectors. The board members reviewed his claim on September 29, 1970. A summary of that meeting by the board's executive secretary indicates that:

"The local board reviewed registrant's complete claim. It was their determination that the claim lacks sincerity. Registrant must report for induction."

The local board minutes for that date bear the following handwritten entry: "Complete claim reviewed. Claim lacks sincerity." In addition, a barely legible stamped entry states that the "c. o. claim reviewed under section 1625.2 SSR and classification not reopened." On the same day of its meeting, the local board notified appellant by form letter that it had not reopened his classification:

"This will acknowledge receipt of your communication relative to your selective service status. The information contained therein has been considered by this board and you are hereby advised it did not specifically find there has been a change in status resulting from circumstances over which you had no control. In its opinion, the reopening or reclassification of your case is therefore not warranted."

4 Under certain circumstances a local board's handling of a registrant's request for a reopening and reclassification can constitute a constructive or de facto reopening of his classification, despite the board's characterization of its action as a denial of the reopening request. E. g., United States v. Foster (9th Cir. 1971) 439 F.2d 29; Miller v. United States (9th Cir. 1967) 388 F.2d 973. Since Musser presented a prima facie case for conscientious objector status (see note 5 infra), any determination whether he was actually a conscientious objector could be evaluatively decided only through the normal processes and provisions of the regulations for considering and ascertaining classifications. The board's own records clearly demonstrate that appellant's claim was thoroughly reviewed. Only after this complete investigation did the board conclude the claim lacked sincerity. If the board did reopen and reconsider Musser's request, he was denied the important procedural rights of a personal appearance and appeal conferred by 32 C.F.R. § 1625.13. Mulloy v. United States (1970) 398 U.S. 410, 417-418, 90 S.Ct. 1766, 26 L.Ed.2d 362. The order to report for induction was accordingly invalid, and Musser's conviction for refusing to submit should be reversed.

5 As the...