Donato v. United States, 17473.
| Decision Date | 14 February 1962 |
| Docket Number | No. 17473.,17473. |
| Citation | 302 F.2d 468 |
| Parties | Jan Emil DONATO, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
J. B. Tietz, Los Angeles, Cal., for appellant.
Francis C. Whelan, U. S. Atty., Thomas R. Sheridan and J. Brin Schulman, Asst. U. S. Attys., Los Angeles, Cal., for appellee.
Before CHAMBERS, MERRILL and BROWNING, Circuit Judges.
Appellant stands convicted of refusal to submit to induction under the Universal Military Training and Service Act, 50 U.S.C.Appendix, § 462, and has been sentenced to serve three years' imprisonment.
Appellant is a member of Jehovah's Witnesses and asserts conscientious objection to military service. Notwithstanding his showing to this effect, the local board with which he had registered classified him 1-A rather than as a conscientious objector. After reporting for induction in response to the board's order, appellant refused to submit to induction.
Upon this appeal appellant contends that he had made out a prima facie case for a conscientious objector classification of 1-0 (50 U.S.C.Appendix, § 456(j)), which case was not rebutted; that there was no basis in fact for the board's classification of 1-A; that under Estep v. United States, 1946, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567, the board was without jurisdiction to classify him in this manner. While the United States disputes this, its principal contention upon this appeal is that appellant has failed to exhaust his administrative remedies through failure to take an appeal from the local board's ruling to the appeal board established by selective service regulations; and that this failure "prohibited the trial court from examining the propriety of the board's actions in classifying him as it did."
Appellant concedes his failure to exhaust his administrative remedies in this respect, but contends with substantial citation of authority that the exhaustion of remedies rule is not an inflexible rule but is one which may and should be relaxed by the courts in proper cases, at least where, as here, defendant did not interrupt the selective service process, but pursued it to the point where he could go no farther without abandoning his claim of right, reporting for induction, completing his physical examination, and refusing only at the final step of submitting to induction. Compare Falbo v. United States, 1944, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305, with Estep v. United States, 1946, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567. The United States, in response, asserts that however flexible the rule may be in other circuits this court has refused to regard it as other than inflexible.
This court's strict adherence to the rule that administrative remedies must be exhausted has been (as in Prohoroff v. United States, 9 Cir., 1958, 259 F.2d 694, and Evans v. United States, 9 Cir., 1958, 252 F.2d 509) in cases where failure to appeal appeared to be a deliberate and intentional rejection of the administrative review which had been provided. An area does remain, however, within...
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...the failure to appeal. No such circumstances appear here." We did find these exceptional circumstances in Donato v. United States, 302 F.2d 468, 470 (9th Cir. 1962), cert. denied, 374 U.S. 828, 83 S.Ct. 1868, 10 L.Ed.2d 1052 (1963). In Donato, a selective service registrant had been summone......
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...Local Bd. No. 16, 372 F.2d 817, 825 (2d Cir. 1967); Daniels v. United States, 372 F.2d 407, 414 (9th Cir. 1967); Donato v. United States, 302 F. 2d 468, 470 (9th Cir. 1962); Glover v. United States, 286 F.2d 84, 90 (8th Cir. 1961); Townsend v. Zimmerman, 237 F.2d 376 (6th Cir. 1956); United......
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Lockhart v. United States, 21311.
...Court, following its interpretation of Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946), and Donato v. United States, 302 F.2d 468 (9th Cir. 1962), applied the doctrine requiring the exhaustion of administrative remedies4 and refused to consider the propriety of the b......