Cale v. Volatile, 71-1500.

• Decision Date: 07 September 1972
• Docket Number: No. 71-1500.,71-1500.
• Citation: 465 F.2d 1110
• Parties: William G. CALE, Jr., Appellant, v. Thomas M. VOLATILE, Commanding Officer Afees and Secretary of Defense.
• Court: U.S. Court of Appeals — Third Circuit

465 F.2d 1110 (1972)

William G. CALE, Jr., Appellant, v. Thomas M. VOLATILE, Commanding Officer Afees and Secretary of Defense.

No. 71-1500.

United States Court of Appeals, Third Circuit.

Argued April 11, 1972.

Resubmitted August 18, 1972.

Decided September 7, 1972.

John David Egnal, Egnal & Egnal, Philadelphia, Pa., for appellant.

Malcolm L. Lazin, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before HASTIE, VAN DUSEN and ALDISERT, Circuit Judges.

Resubmitted Under Third Circuit Rule 12(6), August 18, 1972.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This challenge to appellant's induction into the Army is an appeal from a denial of habeas corpus, D.C., 325 F.Supp. 1310, and requires us to decide whether the processing by the Selective Service System was defective because the local board failed to set forth reasons for a denial of a requested occupational deferment. The resolution of this question calls for the following analysis:

1. Whether the statement of reasons requirement of Scott v. Commanding Officer, 431 F.2d 1132 (3d Cir. 1970), should be extended to classification requests based on occupational deferments;

2. If so, whether presentation of a prima facie case still continues to be a prerequisite to this requirement;

3. Whether the appropriate standards were met in this case.

I.

Although addressing itself to a conscientious objector case in Fein v. Selective Service System, 405 U.S. 365, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972), the Supreme Court discussed the recent regulations of the Selective Service System, recounting that at least in appeal board cases, the new regulation, 1624.4(1) requires that if "the appeal board classifies the registrant in a class other than the one he requested, it shall record its reasons therefor in his file. The local board shall inform the registrant of such reasons in writing at the time it mails his notice of classification." 405 U.S. at 379, 92 S.Ct. at 1071. It is noteworthy that the regulation goes further than the new statutory mandate of the Military Selective Service Act of 1971, 50 U.S. C.A. App. § 471a, Procedural Rights § 22 (b) (4):

In the event of a decision adverse to the claim of a registrant, the local or appeal board making such decision shall, upon request, furnish to such registrant a brief written statement of the reasons for its decision.¹

We recognize that the new statute and regulations are not applicable to this case; nevertheless, they reflect a congressional and administrative attitude to extend the statement of reasons requirement beyond conscientious objector cases.

In reviewing cases arising under the former selective service law, this court, too, has determined not to limit the doctrine of Scott v. Commanding Officer, supra, to conscientious objector cases. Emphasizing the necessity for local board findings in order to ensure meaningful judicial review of administrative action, we have required it in cases where the requested deferment was predicated on family hardship considerations. United States ex rel. Bent v. Laird, 453 F.2d 625 (3d Cir. 1971). We perceive no considerations inherent in the processing of a hardship deferment request which are not equally present where the request for deferment is based on an occupation. Accordingly, we hold that the reasons set forth in Bent, 432 F.2d at 632-634, are equally applicable here.

Moreover, if "the purpose of our holding in Scott, as stated in that opinion, is to ensure meaningful judicial review of administrative action by requiring that the court have some idea of the basis for the decision of a local or appeal board," United States v. Crownfield, 439 F.2d 839, 842 (3d Cir. 1971), United States v. Neamand, 452 F.2d 25, 28 (3d Cir. 1971), there appears to be no convincing reason why we should limit the rule to those cases where the registrant has requested the reasons, United States ex rel. Bent v. Laird, supra. Providing a court with the necessary fundamentals to discharge review functions meaningfully should not be dependent on whether specific requests for findings have been made. See, United States v. Livingston, 459 F.2d 797 (3d Cir. en banc).

II.

Scott required a statement of reasons where the denial of a prima facie claim is present. Thereafter there were some suggestions that the prima facie requirement be relaxed and that the Scott rule be made applicable to all conscientious objector requests, United States v. Stephens, 445 F.2d 192 (3d Cir. 1971) (Concurring Opinion), or at least should not be considered the sine qua non of the requirement that a local board make findings. See United States v. Neamand, supra. Whatever uncertainty as to the necessity of this requirement existed prior to March 21, 1972, the Supreme Court in Fein appeared to emphasize the prima facie requirement in its obiter dicta statement describing future courses of action available to Dr. Fein. The Court referred to the line of authority "exemplified by United States v. Haughton, 413 F.2d 736 (CA9 1969) to the effect that the failure of a local board to articulate in writing the reason for its denial of a conscientious objector classification is a fatal procedural flaw when the registrant has made a prima facie case for such status. . . . The rationale is that some statement of reasons is necessary for `meaningful' review of the administrative decision when the registrant's claim has met the statutory criteria or has placed him prima facie within the statutory exemption, and his veracity is the principal issue." 405 U.S. at 380, 92 S.Ct. at 1072.

Although we do not construe this to be a direct ruling by the Supreme Court on the issue, the Court made two distinct references to a prima facie requirement, and we must acknowledge that there is not formidable judicial support for eliminating the prima facie requirement.² United States v. Jones, 456 F.2d 627 (3d Cir. 1972); United States v. Wood, 454 F.2d 765 (4th Cir. 1972); United States v. Heigl, 455 F.2d 1256 (7th Cir. 1972). We conclude, therefore, that a registrant must still establish a prima facie case of entitlement before a statement of reasons for denial is required.

III.

We now turn to the task of analyzing the factual presentation which confronted the Selective Service System. We do this to decide whether the registrant satisfied the prima facie requirement in order to entitle him to a statement of reasons for the denial of the requested classification.³

By brief and argument, appellant pegs his appeal on the theory that "a prima facie case of occupational deferment was presented to the Selective Service System." Thus it becomes necessary to emphasize that this was not a request for graduate student deferment, although correspondence from appellant dated June 30, 1970 (received by the local board July 3, 1970), suggests a request for relief from induction on the ground that he was "registered as a full time student at the University of Georgia and is presently doing ecological research in Yellowstone National Park." Indeed, appellant had retained 2-S student deferment classification from August 9, 1966, through July 15, 1969, when he was reclassified I-A.

On August 5, 1969, following his I-A reclassification, appellant requested a personal appearance before the board. By letter dated January 21, 1970, the board advised: "your request for personal appearance before the Local Board has been granted and you should appear at the above address on 27 Jan. 1970 at 2:45 p. m." The letter was addressed to the registrant at his home and was received by his father the next day, who testified that he communicated the contents thereof to his son on the same day. The registrant thereupon dispatched a letter to the board, which, with accompanying letters, forms the basis of registrant's claim for occupational deferment:

250 Little St Athens, Ga. 30601 January 23, 1970 Local Board No. 58 Fidelity-Lansdowne Bldg Lansdowne & Baltimore Ave Lansdowne, Pa. 19050

Dear Sirs:

Due to the relatively short notice and the great distance involved, I will not be able to keep my appointment for a personal appearance before the local board. However, in lieu of that, I submit this letter for consideration. I have requested certain of my colleagues to forward letters in support of my statements.

I am currently pursuing a graduate degree in ecology at the University of Georgia and am a member of the Institute of Ecology at that university. Part of my duties include teaching of undergraduates in biological and premedical curriculums. I have conducted original ecological research at the Savannah River Ecology Laboratory under a fellowship from the Atomic Energy Commission\'s Division of Biology and Medicine and will do continuing environmental work there beginning in June. There is little room for doubt that there is a pressing and immediate need for trained ecologists in a world which is polluting its air with harmful toxins, destroying its water resources with a variety of effluents, and endangering all that lives with the ever present threat of atomic radiation or famine from over population. President Nixon has declared that the decade of the seventies be a time to cure the many ills besetting our environment. If the challenge is to be met, trained individuals are an obvious prerequisite. Thus, as a teacher and as a student in a field of high priority in the national interest, I request an occupational deferment.

Sincerely yours, /s/ William G. Cale, Jr. William G. Cale, Jr. Sel. Serv. No XX-XX-XX-XXXX

On January 27, 1970, the date set for registrant's personal appearance, the record indicates that the board met and took the following official action: "Case reopened. Class I-A. Mail SSS Form 110. Mail SSS Form 111 to person(s) entitled to receive such notice (1623.4)." The minutes file of registrant, page 8, reflects the following entry: "Entire file reviewed and considered. Classification reopened Class I-A."

Registrant took an appeal to...