Bishop v. United States

• Decision Date: 19 June 1969
• Docket Number: No. 22795.,22795.
• Citation: Bishop v. United States, 412 F.2d 1064 (9th Cir. 1969)
• Parties: Wayne Myron BISHOP, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

412 F.2d 1064 (1969)

Wayne Myron BISHOP, Appellant, v.UNITED STATES of America, Appellee.

No. 22795.

United States Court of Appeals Ninth Circuit.

June 19, 1969.

Robert C. Mussehl(argued), Seattle, Wash., for appellant.

William H. Rubidge, Asst. U. S. Atty., (argued), Eugene G. Cushing, U. S. Atty., Seattle, Wash., for appellee.

Before MADDEN, Judge of the United States Court of Claims, and HAMLEY and ELY, Circuit Judges.

ELY, Circuit Judge:

Bishop appeals his conviction for having refused to submit to induction under the Universal Military Training and Service Act, 50 U.S.C. App. § 462.He asserts that the Selective Service System applied erroneous standards and that, accordingly, the denial of his conscientious objector claim for exemption was without a "basis in fact."The District Court specifically rejected these contentions, and so do we.

The events surrounding Bishop's conviction are not in dispute.He registered with Local BoardNo. 29 at Port Angeles, Washington, on November 8, 1963.After reviewing his initial Classification Questionnaire (SSS FormNo. 100), the local board placed him in class I-S until the expected date of his high school graduation.Following that graduation, in June 1964, the local board classified Bishop as available for military service (class I-A).Thereafter, in April 1965, Bishop requested and received a Special Form for Conscientious Objectors(SSS FormNo. 150) which he promptly completed and returned.After reviewing the information supplied in that form, the local board again classified Bishop I-A and granted his subsequent request for a personal appearance to contest this classification.Bishop appeared before his local board on June 23, 1965, but failed to convince any of its members that his claim was meritorious.

When the appellant sought review of this final rejection by Local BoardNo. 29, his entire file was transferred to the Selective Service Appeal Board for the Western District of Washington.On July 26, 1965, the appeal board reviewed the registrant's file and tentatively decided that he should be denied his claimed exemption.Before making a final determination, however, the appeal board asked the Department of Justice to investigate Bishop's claim and render an advisory opinion pursuant to Selective Service Regulations.

Acting on this request, the Department of Justice authorized one of its Hearing Officers, Mr. Arnold Robbins, to conduct an investigation.After reviewing all the information in the Selective Service file and conducting extensive interviews with the registrant and at least nine members of the small community in which Bishop resided, Robbins submitted his final report.This report, recommending denial of the claimed exemption, was referred to T. Oscar Smith, Chief of the Department of Justice's Conscientious ObjectorSection.Smith agreed with the Robbins recommendation and, on November 4, 1966, notified the registrant's appeal board that the Department of Justice advised against granting Bishop military exemption as a conscientious objector.The appeal board immediately sent Bishop a copy of the Department of Justice recommendation to provide him with the opportunity to respond to findings which he might consider unwarranted.When Bishop failed to respond, the appeal board affirmed its initial decision, and Bishop was notified that his appeal had been unsuccessful.Thereafter, when the local board issued an Induction Notice, Bishop refused to submit and the judicial proceedings leading to the instant appeal commenced.

The foregoing summary discloses that Bishop was afforded every opportunity within existing Selective Service Regulations to prove the merit of his conscientious objector claim.Having failed at each successive stage of these proceedings, he now seeks to overturn their results by insisting that erroneous legal standards were adopted and applied by his local board, his appeal board, and the Department of Justice.

Initially, we must reject Bishop's assumption that were we to decide that incorrect standards were applied by his local board, reversal is required.That question was settled in Tomlinson v. United States, 216 F.2d 12(9th Cir.1954), cert. denied,348 U.S. 970, 75 S.Ct. 528, 99 L.Ed. 755(1955), wherein we explained that it is the very purpose of the appeal board to correct any local board errors by making its separate investigation of the registrant's file and an independent classification decision.See alsoStorey v. United States, 370 F.2d 255(9th Cir.1966);DeRemer v. United States, 340 F.2d 712(8th Cir.1965).Accordingly, we limit our scrutiny to the standards applied by Bishop's appeal board.

Bishop attacks the appeal board's determination in an indirect fashion.He insists that the Justice Department's unfavorable recommendation rests upon illegal grounds which invalidate the board's ultimate decision under the teachings of Sicurella v. United States, 348 U.S. 385, 75 S.Ct. 403, 99 L.Ed. 436(1955)andShepherd v. United States, 217 F.2d 942(9th Cir.1954).

In Sicurellathe petitioner, a member of Jehovah's Witnesses, had been denied classification as a conscientious objector when the Department of Justice, although admitting the sincerity of the petitioner's beliefs, recommended denial of his claim because of his admitted willingness to fight in defense of "his ministry, Kingdom Interests and * * * his fellow brethern."The Supreme Court held that the petitioner's expressed willingness to fight "theocratic wars" did not, per se, invalidate his claim and that since the appeal board likely relied upon an erroneous opinion to the contrary, the conviction should be reversed.

"The Department of Justice * * * clearly bases its recommendation on petitioner\'s willingness to `fight under some circumstances, namely in defense of his ministry, Kingdom Interests, and in defense of his fellow brethren,\' and we feel that this error of law by the Department, to which the Appeal Board might naturally look for guidance on such questions, must vitiate the entire proceedings at least where it is not clear that the Board relied on some legitimate ground.Here, where it is impossible to determine on exactly which grounds the Appeal Board decided, the integrity of the Selective Service System demands, at least, that the Government not recommend illegal grounds."

348 U.S. at 392, 75 S.Ct. at 406.

Similar logic was employed by our court several months before the Sicurella decision.Shepherd v. United States, supra.See alsoBatelaan v. United States, 217 F.2d 946(9th Cir.1954).In Shepherd, the Department of Justice recommended against the registrant's exemption and advised the appeal board that notwithstanding his sincerity, Shepherd's claim could be denied simply because he would willingly engage in theocratic wars.Noting that the appeal board was not bound by the Department's recommendations, 32 C.F.R. § 1626.25 (c), our court recognized that the board's classification may have properly rested on the belief that Shepherd was insincere.Nevertheless, we concluded that it was equally probable, if not more probable, that the appeal board was greatly influenced by the Department's categorical statement "that even if the registrant was sincere he could not be exempted because of his expressed beliefs relating to self defense and theocratic wars."217 F.2d at 945.Hence, since under such circumstances we believed it impossible to presume that the board acted permissibly, Shepherd's conviction was reversed.

The ultimate question in a conscientious objector case is, of course, the sincerity of the registrant's objection to participation in war.Witmer v. United States, 348 U.S. 375, 381, 75 S.Ct. 392, 99 L.Ed. 428(1955).In the instant controversy, a portion of the Department's recommendation recites "that in view of the registrant's apparent intellectual capacities it may be doubtful whether he is capable of formulating or adhering to a set of beliefs."By taking this language from its context, Bishop insists that the Department of Justice equated the term "belief" as found in the exempting statute with "knowledge" and thereby adopted a standard other than sincerity by which to judge his claim to exemption.We do not agree.

Bishop did not claim to have been a conscientious objector from his early childhood; rather, in his FormNo. 150, he explained that his views had materialized from bible study with Jehovah's Witnesses.Therefore, since Bishop claims to have derived his beliefs through exercise of his intellect, his inherent ability to formulate such thoughts are relevant to the honesty and sincerity of the asserted beliefs.In these circumstances, Bishop's "intellectual capacity" is one of the "objective facts" from which inferences as to his sincerity or insincerity can be fairly drawn.SeeWitmer v. United States, supra at 381-382, 75 S.Ct. 392.Moreover, when the Department's reference to Bishop's "intellectual capacity" is examined in the complete context of the Department's recommendation, it is clear that this was the limited manner in which it was considered.

There is another significant distinction between the Justice Department's recommendation here and those analyzed by the Sicurella and Shepherd courts.In each of the latter cases, the Department's report specifically announced that regardless the registrants' sincerity, their belief in self defense and theocratic warfare negated their claims for conscientious objector exemptions.SeeSicurella v. United States, supra at 392, 75 S.Ct. 403;Shepherd v. United States, supra at 944.Here, the Justice Department made no such explicit finding with respect to any lack of intellectual capability on Bishop's part, but, as already emphasized, merely reported this capability as one of the factors weighed in the evaluation of Bishop's sincerity.Hence, Bishop's reliance upon Sicurella and Shepherd is misplaced.See generallyBradley v. United States,...