Paszel v. Laird, 351

• Decision Date: 08 April 1970
• Docket Number: Docket 34052.,No. 351,351
• Citation: 426 F.2d 1169
• Parties: John J. PASZEL, Petitioner-Appellee, v. Melvin R. LAIRD, Secretary of Defense, Stanley R. Resor, Secretary of the Army, and Commanding Officer, Armed Forces Examining and Entrance Station, Fort Hamilton, Brooklyn, New York, Respondents-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

426 F.2d 1169 (1970)

John J. PASZEL, Petitioner-Appellee, v. Melvin R. LAIRD, Secretary of Defense, Stanley R. Resor, Secretary of the Army, and Commanding Officer, Armed Forces Examining and Entrance Station, Fort Hamilton, Brooklyn, New York, Respondents-Appellants.

No. 351, Docket 34052.

United States Court of Appeals, Second Circuit.

Argued January 22, 1970.

Decided April 8, 1970.

Jerome C. Ditore, Asst. U. S. Atty. (Edward R. Neaher, U. S. Atty., for the Eastern District of New York, Brooklyn, N. Y., of counsel), for respondents-appellants.

Frederick B. Boyden, New York City, for petitioner-appellee.

Before MOORE, FRIENDLY and HAYS, Circuit Judges.

FRIENDLY, Circuit Judge:

This is an appeal by the Secretary of Defense and other respondents from the issuance of a writ of habeas corpus to an inductee who had advanced a claim that conscientious objection had crystallized after receipt of a notice to report for induction.

Petitioner Paszel, who was born on August 16, 1943, registered in 1961, and completed his classification questionnaire on March 2, 1963, has had an elaborate classification history, with 137 documents in his Selective Service file. He was initially classified II-S and retained this until graduation from college in the summer of 1965. He then requested a II-A classification because of enlistment with the Peace Corps; he received and, with an exception not here material, retained this through April 1968, during which period he served in Nigeria as a teacher. His request for a year's extension was denied by the Local Board, which classified him as I-A. The Appeal Board reclassified him as II-A, but the State Director appealed to the Presidential Appeal Board which restored the I-A classification on September 10, 1968. On October 11, the Local Board directed Paszel to report for induction on November 4. Shortly thereafter it received letters from Paszel and from a Philadelphia school district advising that Paszel had been hired as a teacher in a slum school and requesting an occupational deferment until June 30, 1969. On October 25 the Board postponed induction pending a determination of this request. Later it declined to reopen the I-A classification and, on November 8, 1968, issued an order requiring Paszel to report for induction on December 3.

On November 12 Paszel wrote the Local Board:

I am a conscientious objector. Please send to me a Form 150.

The Board complied and again postponed the induction date, and Paszel filed the form. He asserted that his religious beliefs and training against participation in war originated from his Catholic background and training, developed and blossomed during his college years including a semester's enrollment in the R.O.T.C. which he had left because "it presented a mode of life and thought" he "found difficult to accept," and began to come into focus during his two years in war torn Nigeria and as a result of certain reading which he summarized. He explained his belated assertion of conscientious objection on the bases that he had thought he had 30 days to appeal after his new classification by the Presidential Appeal Board; that when he received an induction order within the 30 day period, he thought it might have been a procedural error;¹ that he "therefore" applied for a deferment on the basis of the Philadelphia teaching position; that the second induction order and its implication that "the reality of entrance into the armed forces could not longer be considered a remote possibility" forced him "to think about everything that had gone on before"; and that "It was at this point that my views crystallized and I realized that I was indeed a conscientious objector." The form was accompanied by nine letters from high school and college teachers and acquaintances. These attested Paszel's character, sincerity, and devotion to his less fortunate fellow-men, but said nothing about the date when his conscientious objection matured. The Board granted Paszel a brief interview on December 16, 1969, but declined to reopen his classification.

The Board recorded its action on a Selective Service Form the defective wording of which, we think, may have given rise to much of the difficulty in this case. The pertinent portion read:

Complete the following if applicable. If either of the following is checked, the opinion of the local board should be recorded on the Minutes of the Local Board Meeting (SSS Form 112).

( ) It is the local board\'s opinion that the registrant is not a genuine conscientious objector and that his beliefs are no different now than they were prior to the issuance of his order to report for induction.

( ) It is the opinion of the local board that the registrant\'s beliefs matured after the issuance of his order to report for induction. (If such is the case, the local board is required to reopen the registrant\'s classification.)

The Board checked the first item; the file presented to us does not contain any minutes of the Board's meeting. Paszel was ordered to report for induction on January 7, 1969. This was postponed again when he notified the Board of his intention to appeal the refusal to reopen and to join this with an appeal already taken from the order denying a II-A classification based on his Philadelphia teaching post. The Board refused to process these appeals, since they were taken after issuance of an induction order. After the State Director, on the request of Paszel's attorney, had reviewed the record and concluded that the Board was not required to reopen the I-A classification, Paszel was ordered to report for induction on February 6, 1969. He did and, upon being inducted, immediately filed a petition for habeas corpus in the District Court for the Eastern District of New York. On May 26, 1969, Judge Bartels filed an opinion granting the writ and directing a further hearing by the Local Board on Paszel's conscientious objection claim.

I.

The applicable regulation, 32 C.F.R. § 1625.2, prescribes:

The local board may reopen and consider anew the classification of a registrant (a) upon the written request of the registrant, the government appeal agent, any person who claims to be a dependent of the registrant, or any person who has on file a written request for the current deferment of the registrant in a case involving occupational deferment, if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant\'s classification; or (b) upon its own motion if such action is based upon facts not considered when the registrant was classified which, if true, would justify a change in the registrant\'s classification; provided, in either event, the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction (SSS Form No. 252) or an Order to Report for Civilian Work and Statement of Employer (SSS Form No. 153) unless the local board first specifically finds there has been a change in the registrant\'s status resulting from circumstances over which the registrant has no control.

Reopening has important consequences. It rescinds the outstanding classification and entitles the registrant to be classified anew. 32 C.F.R. § 1625.11. When the new classification is issued, the registrant has the same rights to personal appearance² and appeal as upon his initial classification. 32 C.F.R. § 1625.13. If the board refuses to reopen, neither of these rights is accorded. "The evil of a contrary rule is obvious; if there were an appeal from every refusal to change a classification, a registrant could interminably delay his induction by successive requests and appeals," United States ex rel. La Charity v. Commanding Officer, 142 F.2d 381, 382 (2 Cir., 1944).³

In United States v. Gearey I, 368 F.2d 144 (2 Cir. 1966), cert. denied, 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368 (1967), we dealt with the question whether a local board must consider a reopening request based on a recently matured conscientious objection when, as in the present case, the request was not made and the belief allegedly not formed until after notice of induction. We answered in the affirmative because, under the proviso to § 1625.2,

if the Board finds * * * that the applicant\'s beliefs ripened only after he received his notice, and that his beliefs qualify him for classification as a conscientious objector then a change in status would have occurred "resulting from circumstances over which the registrant had no control," * * *.

Id. at 150. Two propositions are implicit in that decision: the ascension to conscientious objection is a change in status, and the point in time when a registrant's beliefs form is a circumstance beyond his control. The first seems unassailable and the second, long the subject of debate among psychologists and philosophers, is now the law of this circuit. While Gearey I thus decided that the board must consider an appropriate request to reopen, only in United States v. Gearey II, 379 F.2d 915 (1967), did we directly face the question what the board must find to justify a refusal to grant the request.⁴ Stating that the rule announced in Gearey I insures that boards will reach the "merits" of conscientious objector claims made after notice of induction, we held that a board is not required to reopen if it finds that the registrant is not sincere and if that finding is supported by a basis in fact. 379 F.2d at 920.

It is difficult to see anything in these decisions to support the proposition that if the registrant simply makes out a prima facie case for reopening, the board is required to grant his request and proceed to the merits of his conscientious objector claim, with consequent rights of personal appearance and appeal. However, Judge Bartels, citing a footnote in Gearey II, 379 F.2d at 922 n. 11, and other cases in this circuit holding that a...