Brede v. United States
| Decision Date | 16 September 1968 |
| Docket Number | No. 21928.,21928. |
| Citation | 400 F.2d 599 |
| Parties | Ernest Douglas BREDE, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before MERRILL and DUNIWAY, Circuit Judges, and TAYLOR, District Judge.
Petitioning for rehearing, the United States specifically disputes two statements made in our opinion:
1. "* * * section 1660.20(d) requires the local board, after receiving such authorization, to meet and order the appellant to report for such civilian work."
The United States contends that § 1660.20(d) does not require that a meeting be held after receipt of authorization; that an order to report could be entered prior to authorization but subject to subsequent authorization and notice.
We agree. In this respect our opinion is modified by striking "after receiving such authorization."
2. "At the board meeting of March 14, 1966 no agreement as to a type of work in lieu of induction was reached by the board and appellant."
The United States contends that under universal administrative construction of § 1660.20(d), and universal administrative practice, a determination that certain work is appropriate constitutes an implied order to report for such work, subject to authorization of the National Director and notice. Consequently at the meeting of March 14, 1966, an agreement as to work was reached and an implied conditional order to report was entered and the action of the clerk of the board was no more than ministerial implementation of the order.
The Government's contention may have merit in an appropriate case. Here, however, the record is silent as to administrative construction and practice, or as to any understanding of the board in such respects from which it might be found that the critical exercise of administrative judgment had been made.
In this respect our opinion should be read as qualified by the state of the record.
With such modification and clarification of our opinion rehearing is denied.
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United States v. Kelly, 70-C-567.
...conviction but before sentence, the Ninth Circuit decided Brede v. United States, 396 F.2d 155, modified on petition for rehearing, 400 F.2d 599 (1968). Those decisions changed the interpretation of the regulation at issue in Cupit. The defendants, however, did not appeal and, after sentenc......
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United States v. Machado
...F.2d 370 (9th Cir. 1968) (failure to give a pre-induction physical); Brede v. United States, 396 F.2d 155, modified on rehearing 400 F.2d 599 (9th Cir. 1968) (failure to be ordered for alternative service by a meeting of the local board); Boswell v. United States, 390 F.2d 181 (9th Cir. 196......
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United States v. Chaudron, 19759.
...of the order to report for civilian work. Reliance is placed on Brede v. United States, 396 F. 2d 155, modified on rehearing, 400 F.2d 599 (9th Cir. 1968). Significantly, that part of Brede relied upon was expressly overruled by the Ninth Circuit in its en banc decision of United States v. ......
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United States v. Mendoza
...at 157. In denying the Government's request for a rehearing, however, the Ninth Circuit modified its opinion. Brede v. United States, 400 F.2d 599 (9th Cir. 1968) (Brede II). It held that § 1660.20(d) does not require that a local board meeting be held after receipt of the Director's author......