Lockhart v. United States, 21311.

• Decision Date: 16 January 1970
• Docket Number: No. 21311.,21311.
• Citation: 420 F.2d 1143
• Parties: Cornelious LOCKHART, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

420 F.2d 1143 (1969)

Cornelious LOCKHART, Appellant, v. UNITED STATES of America, Appellee.

No. 21311.

United States Court of Appeals Ninth Circuit. En Banc.

December 18, 1969.

Rehearing Denied January 16, 1970.

J. B. Tietz (argued), Michael Hannon, Los Angeles, Cal., for appellant.

Gabriel A. Gutierrez (argued), Craig B. Jorgenson (argued), Robert L. Brosio, Asst. U. S. Attys., Wm. Matthew Byrne, Jr., U. S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS, BARNES, HAMLEY, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, CARTER and HUFSTEDLER, Circuit Judges.

ELY, Circuit Judge.

This appeal follows appellant's conviction for having refused to submit to induction under the Universal Military Training and Service Act, 50 U.S.C. App. § 462. Our jurisdiction is conferred by 28 U.S.C. §§ 1291, 1294.

Shortly after his eighteenth birthday, Lockhart registered with the Selective Service System at Local Board No. 121 ("the board") in Los Angeles, California.¹ As the time for induction of registrants in the appellant's age-group approached,² the board mailed Lockhart a Classification Questionnaire, SSS Form No. 100. In this form, which he immediately completed and returned, Lockhart indicated that he was a conscientious objector and requested a special form, SSS Form No. 150,³ in which he might more fully describe his beliefs. The board immediately sent this special form to Lockhart; however, the Selective Service file discloses that the form was never returned. Shortly thereafter, on October 2, 1964, Lockhart's board classified him I-A, available for military service. When informing Lockhart of this classification, the board explained that should he question the validity of the classification, he had a right to a personal appearance before the board, or alternatively, the right to appeal the classification to the state appeal board. See 32 CFR §§ 1624.1, 1624.2, 1624.2(e), 1625.13 (1969).

Lockhart took neither of the remedial avenues of which he was advised; however, after allowing more than five months to pass, he requested a second Special Form for Conscientious Objectors, the Form No. 150. Although the board was not required to do so, it immediately complied with his request, and this time, Lockhart completed and returned the form. The board reopened Lockhart's Selective Service file to consider the information which the completed form contained and then concluded that Lockhart had failed to present sufficient evidence to warrant a change in his class I-A status. Again Lockhart was notified of his rights to the full administrative review which Congress has provided. See Petrie v. United States, 407 F.2d 267 (9th Cir. 1969). Thereafter, when Lockhart again failed to initiate any administrative review within the prescribed period, the board issued the order of induction which led to Lockhart's conviction.

Lockhart's defense consisted, in large measure, of a challenge to the validity of his induction order upon the contention that there was no "basis in fact" to support the board's denial of a conscientious objector exemption. The District 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 board's classification. In taking this course, the District Court faithfully adhered to an unbroken line of this court's opinions. See, e. g., Yeater v. United States, 397 F.2d 975 (9th Cir. 1968); Edwards v. United States, 395 F.2d 453 (9th Cir.), cert. denied, 393 U.S. 845, 89 S.Ct. 128, 21 L.Ed.2d 115 (1968); Woo v. United States, 350 F.2d 992 (9th Cir. 1965); Greiff v. United States, 348 F.2d 914 (9th Cir. 1965); Badger v. United States, 322 F.2d 902 (9th Cir. 1963), cert. denied, 376 U.S. 914, 84 S.Ct. 669, 11 L.Ed.2d 610 (1964); Prohoroff v. United States, 259 F.2d 694 (9th Cir. 1958), cert. denied, 359 U.S. 907, 79 S.Ct. 583, 3 L.Ed. 2d 572 (1959); Evans v. United States, 252 F.2d 509 (9th Cir. 1958). It is the District Court's application of the exhaustion doctrine which is here challenged.

Generally, a proper application of the exhaustion doctrine is made when the nature of the particular dispute is such that the objectives sought to be served by the doctrine are achieved by its application to the specific controversy. As the Supreme Court has explained in the context of a Selective Service case, "Application of the doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved." McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969). See also Craycroft v. Ferrall, 408 F.2d 587, 594 (9th Cir. 1969).

The exhaustion doctrine serves an important function in our governmental scheme. Administrative agencies are not a part of the Government's judicial branch. They are "independent" and part of the Executive. L. Jaffe, Judicial Control of Administrative Action 425 (1965). Accordingly, when litigants urge the courts to resolve questions which Congress has committed to the discretion or expertise of the Executive through a particular agency, the courts, mindful of the checks and balances built into our system, avoid interference with the agency unless and until it has exceeded its powers. Any other course would quickly lead the courts to exercise their judicial discretion in areas wherein they should be powerless to act. When properly applied, then, the exhaustion doctrine prevents improper encroachment into the Executive area, or, as Professor Jaffe explains, the exhaustion requirement is "an expression of executive and administrative autonomy." Id.

The instant case presents a registrant who, having failed to exhaust an appeal, asked the District Court to determine whether he sustained his burden of proving entitlement to military exemption as a conscientious objector. Whether or not Lockhart deserved the exemption which he claimed depends entirely upon the sincerity of the beliefs described in his SSS Form 150. Sincerity, vel non, as has frequently been explained, is ascertained by an appraisal of the registrant's subjective state of mind and is simply not amenable to unerring objective determination. See, e. g., Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955); Bishop v. United States, 412 F. 2d 1064 (9th Cir. 1969); Bradley v. United States, 218 F.2d 657 (9th Cir. 1954). See also McKart v. United States, supra. By its nature, the question which Lockhart presented to the court below is one which, for its resolution, necessarily requires the application of discretion — discretion which, in the first instance, we think Congress properly placed with the local and appeal boards of our Selective Service System.⁵ Accordingly, we have heretofore held that registrants who, like Lockhart, claim conscientious objector exemption must exhaust administrative remedies available to them within the System.⁶ Now, we must consider whether the teaching of McKart v. United States, supra, requires us to abandon the position which, hitherto, we have consistently taken.

In McKart, the Supreme Court examined the severe effects upon registrants where, as here, the exhaustion doctrine is invoked in a criminal prosecution for failure to comply with a Selective Service order. The Court recognized the severity of the exhaustion requirement; nevertheless, it concluded that its application is proper in certain cases. McKart v. United States, supra, 395 U.S. at 197-198, 89 S.Ct. 1657. See Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944).

McKart was not such a case. There, the registrant's board revoked his sole-surviving son exemption when the last member of his immediate "family unit" died. During the criminal prosecution which followed his refusal to submit to induction, McKart argued that his classification was invalid because the Selective Service board misinterpreted the exempting statute in ruling that the existence of a "family unit" is crucial. As the Supreme Court observed, the administrative review which McKart did not exhaust was not created for determination of the particular type of issue which McKart presented to the courts. Indeed, it was apparent that he was simply asking the judiciary to do something long considered part of its constitutional prerogative, to determine the meaning of a Congressional enactment. Hence, since it was not a matter which Congress could have delegated to the exclusive discretion or expertise of another branch of the government, and since the issue did not, for its resolution, require additional administrative fact-gathering, there was no compelling need for an agency decision in the first instance.⁷ In short, none of the purposes supporting the exhaustion doctrine would be served by its application in McKart's case; hence, held the High Court, it was not applicable.

But as the Supreme Court recognized in McKart, claims such as Lockhart's present a wholly distinct problem.⁸ Here, where evaluation of Lockhart's claim would involve the court in matters clearly committed to the discretion of local and appeal boards within the Selective Service System, application of the doctrine serves the important objectives supporting the rule. In this case, application of the doctrine is supported not only by McKart but also by the disposition, as well as the history, of DuVernay v. United States, 394 U.S. 309, 89 S.Ct. 1186, 22 L.Ed.2d 306 (1969), aff'g 394 F.2d 979 (5th Cir. 1968). DuVernay was convicted for having refused to submit to induction, the trial court holding that his failure to appeal the local board's reclassification foreclosed consideration of various defensive contentions. DuVernay attempted to introduce evidence which, according to him, would tend to prove that Negroes were systematically excluded from membership on his...