United States v. Balogh, 53

• Decision Date: 02 June 1947
• Docket Number: Docket 20312.,No. 53,53
• Citation: 160 F.2d 999
• Parties: UNITED STATES v. BALOGH.
• Court: U.S. Court of Appeals — Second Circuit

160 F.2d 999 (1947)

UNITED STATES v. BALOGH.

No. 53, Docket 20312.

Circuit Court of Appeals, Second Circuit.

April 7, 1947.

Writ of Certiorari Denied June 2, 1947.

Hayden C. Covington, of Brooklyn, N. Y., for appellant.

Mario Pittoni, of Brooklyn, N. Y., for appellee.

Before L. HAND, SWAN, and FRANK, Circuit Judges.

Writ of Certiorari Denied June 2, 1947. See 67 S.Ct. 1522.

PER CURIAM.

On a petition by the prosecution for certiorari, the Supreme Court rendered the following decision: "The petition for writ of certiorari is granted. The judgment is vacated and the case remanded to the United States Circuit Court of Appeals. Falbo v. United States, 320 U.S. 549, 64 S. Ct. 346, 88 L.Ed. 305." 67 S.Ct. 625. We interpret this to mean that the court did not pass upon the questions which we discussed upon the original appeal,¹ because it thought that we should ourselves first pass upon a question which we did not discuss, and which if decided against the appellant, made moot all that we did discuss. We therefore understand our duty to be to decide whether Balogh had "exhausted his administrative remedies" before he was served with the induction order on December 12, 1945, because if he had not, under Falbo v. United States,² he was obliged to respond to the order. The prosecution, when the case was before us originally, very vigorously argued this point; and we considered and overruled it, but, because, we discussed it in a kindred appeal in which we handed down our decision at the same time, we did not repeat what we had said.

Were it not for a circumstance which we shall mention presently, we should therefore conform to the Supreme Court's order, as we understand it, by merely saying that, for the reasons that we gave in United States ex rel. Kulick v. Kennedy, supra,³ we held that Balogh had "exhausted his administrative remedies" before the order of induction was served upon him, and that therefore, by virtue of Estep v. United States,⁴ he was privileged upon his trial to challenge the regularity of the proceedings of the authorities which drafted him. Indeed, as we read Gibson v. United States,⁵ we should have been right in so ruling, had Balogh been physically examined within 90 days before the induction order was served upon him; and it is because he had not been so examined that the appeal takes on a different face. When the case was before us originally we had not discovered the Army Regulation, passed on August 10, 1944,⁶ the important part of which we quote in the margin;⁷ nor did either side call it to our attention. This declared that 90 days after a registrant has been examined his examination becomes void, and that he must be reexamined before induction. On December 12, 1945, Balogh's only physical examination, which had been on April 21st, had therefore ceased to be valid; and he should have been subjected to a new and "complete examination," which might have resulted in his exemption or reclassification. Therefore, unless the regulation was itself invalid, he had not "exhausted his administrative remedies" within Falbo v. United States, supra,⁸ and was not within Estep v. United States, supra.⁹

Balogh asserts that the regulation was invalid because it ran counter to the amendment of the Selective Service Act, passed December 5, 1943.¹⁰ That act was intended to relieve registrants of a serious embarrassment. A man who had not been examined might learn that he would soon be subject to induction; but he could not know whether he might not be rejected when he appeared. Meanwhile, he would have to prepare against the possibility that he would be accepted by making definitive arrangements, all of which would be abortive, if he were rejected. This caused inconvenience and hardship which the amendment avoided by giving a registrant the means of learning in advance whether he would pass his examination, so that he should have some assurance that he would not have to undo his preparations. Balogh insists that it was intended to do more than this: that is, to assure a registrant who had been once examined and passed that he would be inducted. It is of course true that such an examination would give such an assurance, and that the regulation impaired it by invalidating it after 90 days; a registrant, having made ready for induction, if it were delayed for over 90 days, might find himself in the same predicament as though the amendment had not been passed. Whatever might be the necessary implications from the amendment, if it had been in other words, the language chosen leaves no doubt that it did not have the effect which Balogh desires; for it explicitly declared that the putative physical examination shall be "subject to re-examinations," and indeed, even more significantly, to "periodic re-examination." These words were an invitation to promulgate just the kind of regulation which the Army did promulgate; it put all registrants on guard that they became "subject to" a new examination every three months; and it was valid, so far as concerned the amendment.

So much for the Army Regulation. The Selective Service Regulations which, as we read Billings v. Truesdell,¹¹ are paramount to them in authority, contained a provision¹² — originating we cannot learn when — also invalidating a physical examination after 90 days; but it was repealed on July 3, 1944; and, at least after July 23, 1945, the only relevant provision of these regulations read as follows: "Every registrant before he is ordered to report for induction shall be given a pre-induction physical examination." Balogh argues that, if the Army Regulation invalidated his examination of April 21, 1945, then it was as though he had never been examined at all, and the Selective Service Regulation which we have just quoted required a physical examination before induction. Since he was not given such an examination, the induction order was void, and he might safely ignore it under the doctrine of Tung v. United...