Sterrett v. United States

• Decision Date: 25 October 1954
• Docket Number: 13952.,No. 13901,13901
• Citation: 216 F.2d 659
• Parties: Basil Leroy STERRETT, Appellant, v. UNITED STATES of America, Appellee. Joseph David TRIFF, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

216 F.2d 659 (1954)

Basil Leroy STERRETT, Appellant, v. UNITED STATES of America, Appellee.

Joseph David TRIFF, Appellant, v. UNITED STATES of America, Appellee.

Nos. 13901, 13952.

United States Court of Appeals Ninth Circuit.

October 25, 1954.

No. 13901:

J. B. Tietz, Los Angeles, Cal., Hayden C. Covington, Brooklyn, N. Y., for appellant.

Laughlin E. Waters, U. S. Atty., Edward J. Skelly, Hiram W. Kwan, Ray H. Kinnison, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

No. 13952:

Harold Shire, Beverly Hills, Cal., Hayden C. Covington, Brooklyn, N. Y., for appellant.

Laughlin E. Waters, U. S. Atty., Ray H. Kinnison, Manuel L. Real, Hiram W. Kwan, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before DENMAN, Chief Judge, and STEPHENS and POPE, Circuit Judges.

POPE, Circuit Judge.

Each of these appellants was found guilty of a refusal to submit to induction contrary to the provisions of the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 451 et seq. In each case the appellant, as a registrant, claimed exemption under the Act as a conscientious objector and made that claim before the local board. That board, after a personal appearance by the registrant, placed him in Class I-O (conscientious objector to both combatant and non-combatant military service). The registrants appealed, each claiming classification as a minister (IV-D).

In the case of Triff the appeal board on March 18, 1952, reviewed the file and "determined that registrant should not be classified in Class I-O under the circumstances set forth in subparagraph (4) of paragraph (a) of Section 1626.25 (a) (4)".¹ On the same day the appeal board took the same action and made the same determination with respect to Sterrett. In each case the registrant's file was forwarded to the United States Attorney for the stated purpose of securing an advisory recommendation from the Department of Justice. This was done by identical letters dated March 31, 1952. Under date of May 14, 1952, the United States Attorney returned Sterrett's file to the appeal board stating:

"Gentlemen: The records of this office indicate that registrant\'s conscientious objector claim was granted by the Local Board. Denial of the conscientious objector claim by the Local Board is a pre-requisite to our assumption of jurisdiction under Section 6(j) of the Universal Military Training and Service Act, as Amended.

"Under the circumstances we have no alternative but to return the registrant\'s file and it is enclosed herewith."

In like manner, and by a letter which was in substance the same, the United States Attorney, under date of June 10, 1952, returned Triff's file.

At the time the Department of Justice took this action, subdivision (c) of § 1626.25 of Title 32 C.F.R. headed: "Special provisions when appeal involves claim that registrant is a conscientious objector", provided that after transmission of the file to the United States Attorney, (note language quoted in footnote 1, supra,) "the Department of Justice shall thereupon make an inquiry and hold a hearing on the character and good faith of the conscientious objections of the registrants." This paragraph further provided for notice of such hearing and an opportunity to registrant to be heard, and for the making of recommendations by the Department.

Following the return of the file to the appeal board, that board in each case classified the registrant in Class I-A, (available for full military duty). This classification was made as to Sterrett on June 19, 1952 and in respect to Triff on June 24, 1952. Thereafter the files were returned to the local board showing this classification of I-A, and although each of the appellants thereafter made efforts to procure a review and a reopening of his case by the local board, this was refused and orders were issued for induction. Registrants refused to submit and prosecution followed.

Each appellant here contends, as he did in the court below, that his conviction cannot be sustained because the record of his classification shows that he was denied his right to a hearing before the Department of Justice as required by the applicable statute and regulations.

The Act, Act of June 24, 1948, c. 625, Title I, 62 Stat. 604 et seq., Title 50 U.S. C.A.Appendix, §§ 451-473, as amended at the period here in question, contained two sets of provisions relating to the appeals by registrants from the action of a local board to the civilian appeal boards provided by the Act. § 10 of the Act, Title 50 App. § 460, providing generally for the inclusion of appeal boards in the Selective Service System, authorized the President to create such boards by regulation and provided that the local boards should have the power to determine all questions or claims with respect to exemption or deferment "subject to the right of appeal to the appeal boards herein authorized". The section further provided: "The decision of such appeal boards shall be final in cases before them on appeal unless modified or changed by the President."

§ 6(j), Title 50 App. § 456(j), contained a further provision relating to the action of the appeal boards in certain cases. That subdivision recites: "Nothing contained in this title (sections 451-454 and 455-471 of this Appendix) shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form." The section proceeds then to define what is meant by religious training and belief and to recite the service or work persons claiming exemption as conscientious objectors and found entitled thereto shall be required to perform, and states: "Any person claiming exemption from combatant training and service because of such conscientious objections shall, if such claim is not sustained by the local board, be entitled to an appeal to the appropriate appeal board. Upon the filing of such appeal, the appeal board shall refer any such claim to the Department of Justice for inquiry and hearing. The Department of Justice, after appropriate inquiry, shall hold a hearing with respect to the character and good faith of the objections of the person concerned, and such person shall be notified of the time and place of such hearing. The Department of Justice shall, after such hearing, if the objections are found to be sustained, recommend to the appeal board that (1) if the objector is inducted into the armed forces under this title (said sections), he shall be assigned to non-combatant service as defined by the President, or (2) if the objector is found to be conscientiously opposed to participation in such noncombatant service, he shall in lieu of such induction be ordered by his local board, subject to such regulations as the President may prescribe, to perform for a period equal to the period prescribed in section 4(b) (section 454 (b) of this Appendix) such civilian work contributing to the maintenance of the national health, safety, or interest as the local board may deem appropriate * * *."

To make clear the Government's view of how this section should be construed, it quotes the language of the section with emphasis as follows: "Any person claiming exemption from combatant training and service because of such conscientious objections shall, if such claim is not sustained by the local draft board, be entitled to an appeal to the appropriate appeal board. Upon the filing of such appeal, the appeal board shall refer any such claim to the Department of Justice for inquiry and hearing." Says the Government: the appellant whose claim had been sustained by the local board, was not appealing for a conscientious objector classification but appealing from a conscientious objector classification for in each of these cases the registrant was claiming classification as a minister entitled to be classified in Class IV-D.²

It is apparent that in returning the files to the appeal board without conducting a hearing the Department of Justice was placing this construction upon the Act itself. While shortly thereafter § 1626.25 of the Regulations above referred to was amended so as to provide expressly that the hearing by the Department of Justice should be called for only where "the local board has classified the registrant in any class other than I-O," yet that amendment did not occur until June 18, 1952, (17 F.R. 5449) after the return of these two files on May 14, 1952 and June 12, 1952, respectively. In each case the appeal board's actual classification of registrant in I-A occurred subsequent to this amendment of the Regulation. (In Sterrett's case on June 19, 1952 and in Triff's case on June 24, 1952.)

The appellants' very different view of the provisions for a Department of Justice hearing and recommendation stems from their position that all of the statutory and administrative provisions relating to a registrant's appeal and the duties of the appeal boards must be read together, — that they were intended to constitute a unified whole. Thus it is pointed out that § 10 of the Act above referred to, provides for appeals generally, and permits a registrant dissatisfied with the local board's disposition of his claim for exemption or deferment to appeal without discrimination as to the cause of his dissatisfaction and without regard to the nature of his claim. Upon such an appeal the Regulations have provided that all questions relating to the registrant's classification are before the appeal board. Thus at all times here in question the Regulations, § 1626.26(a) provided: "Decision of appeal board. (a) The appeal board shall classify the registrant, giving consideration to the various classes in the same manner in which the local board gives consideration thereto when it classifies a registrant, except that an appeal board may not place a registrant in Class IV-F because of physical or mental disability...