United States v. Ford, 72-1376.

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: COFFIN, , ALDRICH and McENTEE, Circuit
• Citation: United States v. Ford, 478 F.2d 169 (1st Cir. 1973)
• Decision Date: 14 May 1973
• Docket Number: No. 72-1376.,72-1376.
• Parties: UNITED STATES of America, Appellee, v. Kevin Patrick FORD, Defendant, Appellant.

478 F.2d 169 (1973)

UNITED STATES of America, Appellee, v. Kevin Patrick FORD, Defendant, Appellant.

No. 72-1376.

United States Court of Appeals, First Circuit.

Argued March 6, 1973.

Decided May 14, 1973.

Lawrence E. Katz, Cambridge, Mass., by appointment of the Court, with whom Haroz, Katz, Rockwell & Sager, Cambridge, Mass., was on brief, for appellant.

Robert B. Collings, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.

Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges.

McENTEE, Circuit Judge.

This is an appeal from a conviction under 50 U.S.C. App. § 462 for refusing to submit to induction into the Armed Forces. Appellant contends that the validity of his induction order was vitiated by defective Selective Service procedures in processing his request for conscientious objector classification (I-O). For the reasons stated below, we affirm.

Appellant, Kevin Patrick Ford, first registered with Local Board No. 67 in Saugus, Massachusetts on August 7, 1967. After having had a series of classifications which we need not recount here, he was placed in Class I-A on September 8, 1970. On September 30, appellant submitted a written request for SSS Form 150 (Special Form for Conscientious Objector). This form was issued to him on the same date and was returned by him to his local board on October 29, 1970. In completing Form 150, appellant declined to sign either Statement A or B under Series I of the questionnaire, entitled "Claim for Exemption." These statements provide the registrant with an opportunity to claim exemption from combatant service only, or from both combatant and non-combatant service, on the basis of a religiously grounded opposition to "war in any form." Instead, appellant stated that "as a Selective Conscientious Objector, I feel that neither of the two statements apply to me." In elaborating the beliefs on which he based his claim to exemption, appellant reiterated that he was a selective conscientious objector and stated that his religious convictions prevented him from participating in "a war I believe to be unjust." Appellant's explanation of his beliefs also included the following statement:

"From my own perspective of the theory of proportionality, I firmly believe that the loss of human life, the human suffering, the atrocities committed by both sides, and the total destruction of much of the Vietnamese countryside, outweigh whatever vague good may or may not come from our involvement in Southeast Asia.

"With these as my moral and religious beliefs, I can in no way justify to God, or to myself, my participation, in any form, in the war effort in Southeast Asia."

In addition to his Form 150, appellant submitted various letters of recommendation to the local board in support of his claim. Virtually all of these letters made some reference to the selective nature of his conscientious objection, i. e., his opposition to the war in Vietnam.

On November 17, 1970, appellant appeared before his local board for a courtesy interview. Without his knowledge, a summary of this meeting was prepared by the local board's Executive Secretary and was placed in his file. He was never provided with a copy of this summary, which read as follows :

"Registrant was questioned as to his views and stated his stand that he was a Selective Conscientious Objector. He claimed that as a Catholic he didn\'t believe that the war in Vietnam was just. The local board voted unanimously to classify the registrant in Class I-A."

Following this interview, the local board reopened Ford's classification and, without stating any reasons for its action, reclassified him I-A. He thereupon notified the local board that he chose to exercise his right to a personal appearance. This second meeting with the board was held on January 26, 1971. A summary was again prepared by the Executive Secretary and was this time signed by Ford. A copy of the summary was placed in his file and read as follows:

"Registrant was questioned by the local board. Claimed as a Roman Catholic it is his right to feel as he does. Claimed that war is Evil and takes away the dignity of Human Beings. Would rather go to jail than to war. Decided to become a Conscientious Objector during the past year. Objects to participation in the Vietnam War—a particular war . . . . Board voted unaninimously sic to classify registrant in Class I-A."

In reaffirming appellant's I-A classification, the local board once again did not state any reasons for its denial of his conscientious objector claim. After receiving notification of the local board's action, Ford took an administrative appeal. His file was accordingly forwarded to the appeal board on February 25, 1971.

Prior to the appeal board's consideration of appellant's claim, the clerk of the board prepared a summary of his case consisting solely of the words "selective C.O." Neither this summary nor any part of his file was made available to the members of the board before their meeting of March 26, 1971. At that meeting, the appeal board considered his claim and voted unanimously to classify him I-A. No reasons were given for its action. Appellant subsequently failed to report for induction on May 6, 1971, and his indictment, trial and conviction followed.

Ford's primary contentions on appeal relate to the failure of both draft boards to state their reasons for denying him conscientious objector status. In United States v. Edwards, 450 F.2d 49 (1st Cir. 1971), we held that where a prima facie case for conscientious objector classification has been stated, the local board must inform the registrant of its reason for denying his claim. Appellant first argues that his presentations to the local board made out such a prima facie claim, and that a statement of reasons was therefore required under Edwards. He further contends, however, that even if a prima facie claim was not made out, the local board's de facto reopening of his classification was sufficient to bring the reasons requirement into play. Finally, he urges us to expand our holding in Edwards beyond the realm of prima facie claims to require a statement of reasons whenever a request for conscientious objector classification is denied by a local board.

We find considerable force in appellant's third argument, which is supported both by logic and some authority. See United States v. Stephens, 445 F.2d 192, 199-200 (3d Cir. 1971) (Aldisert, J., concurring) ; United States v. Auger, 337 F.Supp. 342 (N.D. Cal.1972) ; United States v. Reese, 331 F.Supp. 1088 (N.D.Ga.1971) ; cf. SEC v. Chenery Corp., 332 U.S. 194, 196-197, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). The leading Supreme Court case concerning the reasons requirement, Clay v. United States, 403 U.S. 698, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971), may also be read as providing support for appellant's viewpoint. But see Fein v. Selective Service System, 405 U.S. 365, 380, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972). Nevertheless, a number of considerations prevent us from accepting appellant's invitation to depart from our holding in Edwards. First, our opinion in that case distinguished our earlier decision in United States v. Curry, 410 F.2d 1297 (1st Cir. 1969), precisely on the ground that, in Curry, a prima facie case for exemption had not been made out. Thus, the clear import of Edwards was that a statement of reasons would not be required in the absence of a prima facie claim. This was a proposition on which draft boards within this circuit were entitled to rely, and we would have difficulty in now ruling that they were incorrect in doing so. Nevertheless, we might undertake such a holding if it were necessary to effectuate a rule of law more in accordance with proper administrative procedure than the one we originally laid down in Edwards. In December of 1971, however, the Selective Service System amended its own regulations to require that a statement of reasons be recorded in a registrant's file whenever he is placed in a class other than the one he has requested. 32 C.F.R. 1623.4(c) (1972). In view of this amendment, the only effect of our departing from Edwards would be to vitiate an uncertain number of Selective Service prosecutions merely because of a local board's reliance on a decision of this court. Moreover, the federal courts of appeals have been virtually unanimous in limiting the applicability of the reasons requirement to cases where a prima facie claim has been made out. See, e. g., Cale v. Volatile, 465 F.2d 1110 (3d Cir. 1972) ; United States v. Heigl, 455 F.2d 1256 (7th Cir.), cert. denied, 406 U.S. 925, 92 S.Ct. 1796, 32 L.Ed.2d 127 (1972) ; United States v. Wood, 454 F.2d 765 (4th Cir. 1972) ; United States v. Stetter, 445 F.2d 472 (5th Cir. 1971) ; United States v. Haughton, 413 F.2d 736 (9th Cir. 1969) ; but see United States v. Lenhard, 437 F.2d 936 (2d Cir. 1970) (no mention made of prima facie prerequisite). In view of these authorities, and the considerations discussed above, we hold that appellant's draft boards were not obligated to state their reasons for denying his conscientious objector claim unless his entitlement to such classification was prima facie established.

Turning then to the prima facie validity of appellant's application for conscientious objector status, we find that his claim clearly failed to meet the statutory criteria for exemption. See 50 U.S.C. App. § 456(j). In order to meet these standards, a registrant must be opposed to war in any form, Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971), on the basis of "religious training and belief" as that term has been construed in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) and Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970). We think that the appellant has indisputably failed to meet the first of these requirements ; rather, by his own characterization, he is a "selective...