United States v. Lathrop, 71-2107.

• Decision Date: 23 May 1972
• Docket Number: No. 71-2107.,71-2107.
• Parties: UNITED STATES of America v. Robert Mulson LATHROP, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

460 F.2d 761 (1972)

UNITED STATES of America v. Robert Mulson LATHROP, Appellant.

No. 71-2107.

United States Court of Appeals, Third Circuit.

Submitted April 20, 1972.

Decided May 23, 1972.

George Schumacher, Schumacher & White, Pittsburgh, Pa., for appellant.

David M. Curry, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.

Before ADAMS, MAX ROSENN and HUNTER, Circuit Judges.

Submitted April 20, 1972 under 3rd Cir. Rule 12(6).

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

Robert Lathrop was tried and found guilty in the Western District of Pennsylvania for refusing to report for civilian work of national importance, in violation of the Selective Service Act of 1967, 50 App. U.S.C. § 462(a).¹

Appellant is a registrant of Local Board No. 63 in Erie, Pennsylvania. In November of 1968, he submitted as required by law, Form 100 (the registrant's initial "Classification Questionnaire"), specifically (a) requesting a I-O (Conscientious Objector) classification, and (b) disclaiming, inter alia, any claim to a IV-D ministerial exemption. He subsequently filed a Form 150 ("Special Form for Conscientious Objector"), stating that he was a Jehovah's Witness and again requesting that he be classified I-O. The Board so classified him in September, 1969. There was no appeal.

In February of 1970, Lathrop submitted Form 152 ("Special Report for Class I-O Registrants") which is sent to all conscientious objectors in order for the Board to determine the type of alternative service for which a registrant would be best suited. Lathrop indicated that he preferred assignment to either (a) the "full time ministry"; (b) work at the Watch Tower Bible and Tract Society Headquarters in New York; or (c) work at the Watch Tower Bible and Tract Society, Watch Tower Farm. The Board notified Lathrop that his latter preference—Watch Tower Farm— was approved and that he should secure employment there. He failed to do so, although in May of 1970 he was notified that he had been reached for call. He was subsequently informed of other civilian employment acceptable to the Board but failed to act in regard to any of those options. In June of 1970, appellant wrote the Board that although he was still willing to accept alternative service as listed on the 152 Form, he was no longer "eligible" for employment at the Watch Tower Farm. Further negotiations between Lathrop and the Board as to the type of service Lathrop would be required to perform were to no avail since a mutually satisfactory agreement could not be reached. As a result, the Board notified Lathrop that it had selected a position for him: hospital work at the Woodville State Hospital in Carnegie, Pennsylvania. Although required to report on October 9, 1970, he wrote the Board on October 6, 1970, that he would refuse, citing "religious conflicts." He did not report and this indictment followed.

In this appeal Lathrop contends that he was denied due process of three separate occasions: (1) when the Board failed to consider his "claim" for IV-D ministerial classification; (2) when the Board refused to reopen his classification when presented with new "facts" establishing a "request" for a change of classification to IV-D; and (3) when the clerk of the Board allegedly refused to supply the necessary application for a IV-D classification.

I

Initially, appellant argues that he was denied due process, alleging that the Board should have been aware "that he was not merely claiming a conscientious objector classification" as indicated by the submission of the 150 Form, but in fact desired a IV-D ministerial exemption. Specifically, he contends that the Board was required to consider the I-O application as an application for a IV-D classification. This argument is based solely on the fact that in the 150 Form, appellant referred to himself on various occasions as a "minister"—notwithstanding the fact that all Jehovah's Witnesses claim to be "ministers."²

There is no evidence that, prior to his failure to report, appellant ever formally requested, suggested or even intimated that he wished a IV-D classification. The District Court's summary is particularly apt:

"As we see this case, all we have here is a man who was properly determined to be a conscientious objector and told the board that he was willing to perform certain work of national importance on which the board agreed with him, but who then refused to appear and perform as required by law. He never asked the board for a classification IV-D as a minister and this is apparently an afterthought on his part after he had completed the offense."

In United States v. Pompey, 445 F.2d 1313 (3d Cir. 1971), we stated:

"It is settled that merely because a registrant belongs to a Jehovah\'s Witnesses, all of whose members claim to be ministers, he does not thereby become automatically entitled to the ministerial exemption under the statute and regulations. Each registrant `bears the burden of clearly establishing\' that he has satisfied all the criteria for the exemption and is thus a minister in the statutory sense." 445 F.2d at 1317.³

This burden was certainly not met in the instant case.

Finally, it is also dispositive that Lathrop never appealed his conscientious objector classification and is therefore precluded from raising any alleged defects in this initial classification. McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971).

II

Appellant's second argument is that on the basis of facts submitted by him in the 152 Form the Board should have interpreted those facts as a "request" to reopen his classification pursuant to Selective Service Regulation 1625.2. He contends that references to the "ministry" contained in the 152 Form should have "alerted" the Board, that while never indicating dissatisfaction with the I-O classification, he nevertheless wished to be considered for a ministerial classification. This argument is presented in the face of appellant's express statement in the 152 Form that he was "prepared to perform alternative service . . ." because he was "conscientiously opposed to participation in war in any form."

Again reference to Pompey, supra, is...