United States v. Mulloy
| Decision Date | 10 June 1969 |
| Docket Number | No. 18709.,18709. |
| Citation | 412 F.2d 421 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joseph Thomas MULLOY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robert A. Sedler, Lexington, Ky., for appellant.
Philip Huddleston, Louisville, Ky. (Ernest W. Rivers, U. S. Atty., Philip I. Huddleston, Asst. U. S. Atty., Daniel O. Omer, Col. JAGC General Counsel, Selective Service System, Clarence R. Harris, Col. QMC Field Attorney, Selective Service System, on the brief), for appellee.
Before WEICK, Chief Judge, CELEBREZZE and McCREE, Circuit Judges.
Appellant Mulloy was convicted in the United States District Court of wilfully refusing to submit to induction into the Armed Forces, in violation of Military Selective Service Act of 1967. 50 U.S.C. App. § 462(a). A sentence of five years' imprisonment and a fine of $10,000 were imposed.
Appellant contends that the grand jury and the petit jury were improperly constituted; that the Universal Training Service Act as amended in 1967 is unconstitutional; and that the Vietnam war is illegal. These same contentions were made in United States v. Pratt, 412 F.2d 426 (6th Cir. 1969), which case was consolidated for argument with this one. For the reasons and upon the authority relied upon in Pratt, we reject these contentions.
Appellant further contends that his procedural rights were violated by the refusal of his Local Board to reopen his classification of 1-A (available for military service) which was granted to him by the Appeal Board. He asserts that this was arbitrary and unreasonable and constituted an abuse of discretion; and that it deprived him of a second administrative appeal and violated his constitutional rights.
Mulloy registered for the draft on June 13, 1962. He filed his Classification Questionnaire (SSS Form 100) on June 17, 1963. He did not at that time request an exemption as a conscientious objector. On November 22, 1963 his Local Board classified him 2-S (college student), which classification remained for four years. After leaving college he was employed by the Appalachian Volunteers, operated by the Office of Economic Opportunity, and was granted a one-year occupational deferment by the Board. Upon expiration of this deferment, he requested another occupational deferment so that he could continue his work with the Volunteers, but the Board on May 17, 1967, in accordance with its policy in such cases to limit deferment to one year, denied his request and classified him 1-A.
On July 17, 1967 the Board issued an order to Mulloy to report for induction. He then requested that his appeal be forwarded to the Board of Appeal and also asked for a personal appearance. The Board denied his request for personal appearance because the request had not been made within thirty days after classification, as required by the regulation (32 C.F.R. § 1624.1(a)). Although his right to appeal had expired, and because of an apparent misunderstanding, the Board forwarded his file to the Appeal Board and cancelled the order to report for induction. On August 16, 1967 the Appeal Board classified him in 1-A by a 5-0 vote.
On September 5, 1967, the Board received a letter from Mulloy advising that he was under arrest and out on bail, charged with sedition for teaching and advocating the violent and forceful overthrow of the United States Government and the State of Kentucky. On September 21, 1967 the Board issued an order to report for induction on October 16, 1967. This was the second induction order. On October 9th the Board received another letter from him advising that he was still under a $5,000-bond in the U. S. 6th District Court and also under a $500-bond to the Pike County Court
On October 12, 1967 the Board cancelled the second order to report for induction and advised Mulloy by letter of its action. On the day after he was scheduled to report for induction under the cancelled order, he wrote to the Board asking for "A Conscientious Objector Application Form", which was supplied to him. He returned it to the Board with attachment thereto on October 30, 1967. In his letter enclosing the form he stated that his lawyer advised that he was still under bond to the Federal Court in Lexington and "I request a personal interview with my Board to discuss my appalachian."
The Board replied by letter advising him that his appeal rights and personal appearance time had both expired but that it was granting him a personal appearance through courtesy. 32 C.F.R. § 1625.1(c).
Mulloy appeared at the meeting. The Board received and placed in his file a number of letters in support of his request. The Clerk of the Board prepared a résumé of his appearance and placed it in his file. The résumé indicates that the Clerk was instructed to write to the Federal Court in Lexington to inquire concerning his appeal and bond. The résumé further stated:
"Until such time as a reply is received, the members would not consider him a C.O."
An entry was made on his Classification Questionnaire on November 9th, stating "Classification was not reopened."
On November 17, 1967, the Board received a letter from Mulloy in which, among other things, he stated:
By letter dated December 2, 1967, Mulloy advised the Board that he had been "fired" by the Appalachian Volunteers "for stating that I am a C.O. and would refuse induction if ordered"; and that as far as he knew he was still under bond to the Federal Court.
On December 6, a letter from the Clerk of the District Court at Lexington was placed in his file which stated that Mulloy was recently a plaintiff in a civil action filed on the Pikeville Docket, but that the Clerk had "no information of his ever being a defendant in a matter in this court either civil or criminal."
On January 3, 1968, Mulloy wrote to the Board stating that he was now employed by the Southern Conference Educational Fund in Louisville and was working on a book "about my experience with the Poverty War in Appalachia"; and that the sedition charges had been dropped and the bond released. He was not sure about the Pike County peace bond.
On January 19, 1968, he was advised by letter from the Board that his file had been reviewed at its meeting held on January 11th, and that the members felt that the information in his file did not warrant a reopening of his classification. On January 21, Mulloy wrote to the Board appealing from the Board's failure to reclassify him 1-O. He stated that he considered the November interview a reopening of his case. The Board wrote in reply two days later that it did not consider the courtesy appearance as a reopening of his case since his time for appeal and personal appearance had expired. He was ordered to report for induction on February 23, 1968, but refused to submit.
Selective Service Regulation 32 C.F.R. § 1625.4, entitled "Refusal to Reopen And Consider Anew Registrant's Classification," provides in part:
"* * * Even if new facts are presented, when the Local Board is of the opinion that such facts, if true, would not justify a change in such registrant\'s classification, it shall not reopen the registrant\'s classification."
Under Regulation 1625.2 the Board has discretion to determine whether or not it will reopen a classification, but Regulation 1625.4 appears to be mandatory in that the Board shall not reopen the classification when it is of the opinion that the facts, if true, do not justify a change in the classification.
In Smith v. United States, 157 F.2d 176 (4th Cir. 1946) Judge Soper, who wrote the opinion for the Court, said:
"Whether or not the additional evidence was of sufficient weight to require...
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