United States v. Hodgins
| Decision Date | 02 November 1973 |
| Docket Number | No. 72-2844.,72-2844. |
| Citation | 485 F.2d 549 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Michael Francis HODGINS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michel F. Willey (argued), San Francisco, Cal., for defendant-appellant.
Joseph E. Reeves, Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiff-appellee.
Before MERRILL and ELY, Circuit Judges, and MURPHY, District Judge.*
Appellant has taken this appeal from conviction of refusal to submit to induction into the armed forces. At issue is the validity of his classification as I-A in light of his application for conscientious objector status. His motion for acquittal was denied by the District Court upon two grounds: that he had failed to state a prima facie claim for a I-O classification; that he had failed to exhaust his administrative remedies. Appellant contends that in both respects the court was in error.
When appellant registered for the draft he applied for a I-O status and completed and filed his SSS form 150 with the local board. The local board rejected a I-O classification without stating reasons, and he was classified I-A. He was granted a personal appearance before the local board. It adhered to its classification. On appeal, the appeal board retained him in I-A without giving reasons. After physical and psychiatric examination he was then reclassified I-Y. Some months later he was re-examined and determined to be fit and was then reclassified I-A. No appeal was taken from this last reclassification. On being ordered to report for induction, he appeared but refused induction.
In support of the District Court's judgment the Government contends that appellant failed to state a prima facie claim for conscientious objector status in that insufficient information was presented as to the religious nature of his beliefs, how they came to be acquired or the depth to which they were held. We cannot agree.
The "three basic tests" for conscientious objector status as specified in United States v. McKinley, 447 F.2d 962, 963 (9th Cir. 1971) are: (1) that the registrant is opposed to war in any form, rather than selectively to some wars; (2) that his opposition is founded upon religious training and belief (as this language was construed in Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970)); (3) that his beliefs are sincerely held.
The answers given by appellant in his form 150 are set forth in the margin.1 In three short sentences he sufficiently described his concept of God and why it was that the nature of his belief in God precluded his taking human life. Nowhere does it appear that his objection to war was selective. Absence from his statement of self-serving protestations of sincerity or depth of feeling does not, in our view, defeat a prima facie claim since these matters more appropriately and effectively are subject to exploration in interview.
Assuming that appellant's beliefs were sincerely and deeply held (and we find nothing in the record inconsistent with sincerity or depth of feeling), this statement was sufficient to provide a prima facie claim. In denying him a conscientious objector status it was then incumbent upon the local board or the appeal board to specify the basis for denial — whether it was founded on a view that the statement was legally insufficient or upon a finding of lack of sincerity or necessary depth of belief. United States v. Haughton, 413 F.2d 736, 738 (9th Cir. 1969). Here the records of the local board show only "the local board did not feel there was sufficient reason to be granted a I-O classification."
We conclude that appellant was improperly classified I-A.
The Government further contends that by failing to appeal his reclassification from I-Y to I-A, appellant failed to exhaust his administrative remedies and is thus precluded from judicial review. We cannot agree.
In McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969), the Court discussed at length the reason for the exhaustion rule. It is designed to avoid premature interruption of the administrative process and allow the agency a measure of autonomy subject to review for abuse. 395 U.S. at 193-194, 89 S.Ct. 1657. It serves to allow the agency to develop the factual background for the case and exercise its administrative expertise. 395 U.S. at 194, 89 S.Ct. 1657. It serves to avoid judicial intervention, at a point when the administrative process may yet resolve the dispute favorably to the complainant. 395 U.S. at 195, 89 S.Ct. 1657.
The Court noted, however, that these administrative law principles may have to be softened somewhat in the Selective Service context where the registrant is denied any judicial review of his induction order, save in criminal proceedings had against him. "Such a result should not be tolerated unless the interests underlying the exhaustion rule clearly outweigh the severe burden imposed upon the registrant if he is denied judicial review." 395 U.S. at 197, 89 S.Ct. at 1664.
In the case before us all purposes of the exhaustion rule had been met when the appeal from the original I-A classification was taken. No new circumstances appear to have arisen that would suggest that the question on appeal from reclassification would in any respect be different. The reclassification to I-A was from I-Y, and the issues upon appeal would rationally seem to relate to the propriety of terminating the I-Y classification. If properly terminated, the justification for the I-A classification had already been determined. Insistence on a second appeal, under these circumstances, would simply subject the appeal board to a rehearing upon the same facts, a result that would seem to add unnecessarily to its burdens. To require the registrant to seek rehearing on all occasions when the opportunity fortuitously presents itself, in our view places an undue burden on him without any compensating administrative advantages.
United States v. Nelson, 476 F.2d 254 (9th Cir. April 12, 1973), is distinguishable. While it holds that a claim of lack of basis in fact was barred by failure of the registrant to take a second administrative appeal following reopening and reclassification by his local board, an entirely new issue was presented by the local board action, one that had not been presented on the first appeal.
We conclude that the rule requiring exhaustion of administrative remedies did not require the taking of appeal from the order reclassifying appellant I-A from his I-Y classification.
Judgment reversed.
With great respect, I disagree.
What with the Congress having ended compulsory military service and peace a fact in Vietnam, perhaps it is too late in the game to protest. I feel, however, constrained to do so.
Only two issues are presented for review: (1) whether the Local Board had a "basis in fact" for the denial of appellant's classification as a conscientious objector, and (2) whether appellant failed to exhaust his administrative remedies after he was reclassified from 1-Y to 1-A. A summary of his selective service file reveals the following.
Appellant registered for the draft on October 18, 1966, three days after he became 18, and stated in his classification questionnaire that he claimed exemption as a conscientious objector by signing "Series VIII," which reads:
On March 12, 1967, he was sent Form No. 150, which he answered and filed on April 3, 1967. The Local Board classified him 1-A on April 11, 1967, and appellant appealed on April 19th. Before the appeal was heard he was accorded a personal appearance before his Local Board on May 9, 1967. After the personal appearance, the Clerk of the Local Board made the following endorsement on his file:
On August 31, 1967, the Appeal Board retained the appellant in classification 1-A.
After having failed to report for a pre-induction physical examination on August 7, 1967 (which prompted a delinquent warning), he was again ordered to report for a pre-induction physical on April 12, 1968. He then reported, but refused to allow a serology test to be performed. He again reported on May 15, 1968, and was examined by a psychiatrist, who recommended that he be classified 1-Y and to be recalled for a further examination in one year. He was so classified by his Local Board on June 14, 1969, and ordered to appear for another pre-induction physical examination on August 8, 1969. He reported on this date and was again examined and found fit for military service, and was so notified. He was reclassified by the Local Board from 1-Y to 1-A on October 7, 1969.
On June 17, 1970, he was ordered to report for induction...
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...ethical, or religious principle....' " Id. at 404 (quoting Welsh, 398 U.S. at 342, 90 S.Ct. at 1797); see also United States v. Hodgins, 485 F.2d 549, 552 (9th Cir.1973) (conscientious objector denial can be "founded on a view that the [application] was legally insufficient or upon a findin......
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United States v. Bautista, 73-2724.
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