United States v. Pence, 19423.

• Decision Date: 01 May 1969
• Docket Number: No. 19423.,19423.
• Parties: UNITED STATES of America, Appellee, v. David Marshall PENCE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

410 F.2d 557 (1969)

UNITED STATES of America, Appellee, v. David Marshall PENCE, Appellant.

No. 19423.

United States Court of Appeals Eighth Circuit.

May 1, 1969.

Douglas Hall, Minneapolis, Minn., for appellant.

J. Earl Cudd, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Patrick J. Foley, U. S. Atty., Minneapolis, Minn., with him on the brief.

Before GIBSON, LAY and HEANEY, Circuit Judges.

LAY, Circuit Judge.

David Marshall Pence appeals his conviction of failing "to comply with an order of his local board to report for and submit to induction into the armed forces of the United States * * *" in violation of 50 U.S.C.App. § 462. The grounds of appeal are two-fold: (1) that defendant's I-A classification (available for military service) was without basis in fact and (2) that defendant's reclassification from I-A-O (conscientious objector available for noncombatant military service only) to I-A was arbitrary and capricious and beyond the authority of the board. The district court in denying defendant's motion to dismiss held that defendant did not exhaust his administrative remedies and therefore could not challenge his classification. Alternatively, the trial court found that there existed a basis in fact for defendant's I-A classification. We reverse with directions to enter a verdict of acquittal.

The chronological background of the defendant's various Selective Service classifications can be summarized briefly. He first registered with the Selective Service on November 16, 1964. At that time he did not claim to be a conscientious objector. On December 14, 1965, he was classified IV-D because of his attendance at a Roman Catholic seminary. On June 3, 1966, he discontinued his seminary studies and was reclassified I-A. On July 12, 1966, he was reclassified II-A because of enrollment in VISTA (Volunteers in Service to America) and spent one year in community work in Baltimore, Maryland and Bloomington, Delaware. On May 4, 1967, defendant requested to be classified as a conscientious objector. On the basis of his questionnaire his local board classified him I-A-O on August 9, 1967. Defendant was ordered to report for a physical examination on September 25, 1967. He refused to report. Defendant's refusal to undergo medical processing for his physical was reported to the State Selective Service Board. On September 28, 1967, the State Deputy Director of Selective Service recommended that on review of defendant's file he should be classified I-O rather than I-A-O and directed the local board to reopen defendant's classification. The local board was also directed to submit to defendant SSS form 151, which would give him an opportunity to volunteer for civilian work. On October 10, 1967, defendant appeared before his local board and was presented with SSS form 151. The defendant refused to sign it. Defendant was reclassified I-A on the same day. On October 23, 1967, defendant appealed this classification. On December 9, 1967, the appeal board classified him I-A by a 5-0 vote. On November 14, 1967, defendant was declared delinquent for failure to have his registration card and classification card in his possession. He had turned his registration card over to a United States Marshal in demonstration against the draft on October 16, 1967. Defendant was ordered to report for induction on January 22, 1968. He reported but refused to be processed. The present indictment followed on March 1, 1968.

The government claims that defendant has failed to exhaust his administrative remedies, pointing to his refusal to report for his pre-induction physical on the date of September 25, 1967, as well as his refusal to undergo medical processing on the date of his induction order. The government maintains that in order to challenge his classification, defendant must first have submitted to medical processing, since a physical examination might have changed his classification. See Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305 (1944).

However, Pence's argument reaches beyond a mere attack upon the quantum of evidence justifying a I-A classification. He asserts that his reclassification was brought about unlawfully for punitive and extrinsic reasons totally unrelated to the merits of granting or continuing the exemption itself. This distinction was clearly established in Oestereich v. Selective Serv. System Local Bd., 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed. 2d 402 (1968), where the Supreme Court allowed an attack upon a punitive reclassification to I-A of a defendant who rightfully possessed a statutory exemption. Such an attack is permitted without exhaustion of administrative remedies and notwithstanding the requirements of § 10(b) (3).¹ As Mr. Justice Douglas, speaking for the Court, stated:

"Once a person registers and qualifies for a statutory exemption, we find no legislative authority to deprive him of that exemption because of conduct or activities unrelated to the merits of granting or continuing that exemption." (Emphasis ours.) 393 U.S. at 237, 89 S.Ct. at 416.²

Furthermore, he added:

"We would have a somewhat different problem were the contest over, say, the quantum of evidence necessary to sustain a Board\'s classification. Then we would not be able to say that it was plain on the record and on the fact of the Act that an exemption had been granted and there would therefore be no clash between § 10(b) (3) and another explicit provision of the Act." 393 U.S. at 238 n. 7, 89 S.Ct. at 417 n. 7.

The requirement that a party be "finally" aggrieved by exhausting his possibility of rejection is necessary to achieve full compliance and administrative regularity with the Selective Service laws. However, where a legislative exemption exists, and a local board withdraws this exemption for arbitrary and unauthorized reasons, the policy behind the exhaustion doctrine disappears. In these circumstances the board itself has acted outside the law and has thereby breached the administrative regularity deemed essential to the law itself. When this occurs there exists no compelling reasons for the individual to comply with the exhaustion requirements. To hold otherwise would be to sanction the perpetuation of discriminatory and lawless action of government itself. Cf. Clark v. Gabriel, 393 U.S. 256, 258, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968).

We therefore turn to the facts in David Pence's case. In 1967 he sought to be classified as a conscientious objector. As evidenced by his response to the conscientious objector questionnaire, he acknowledged the existence of a Supreme Being and stated, "it is this duty to the life-force or God, * * * that precludes for me as an individual participation in war." And he added:

"For me to share in God\'s life is to live in love and search for truth through human methods of love, openness, and understanding. To be true to these beliefs means much more than merely a negation of war. To be true to these beliefs means most profoundly an affirmation of love and openness in reaching truth in every human relationship and individual encounter. To be most true to these beliefs means to be bound to openness and love in search for truth and to respond to this bond rather than the dictates of any other human relationship which may demand of me a suspension of these values."

And he described to the board his background in the seminary and his experience in VISTA:

"I saw the foppery of violence in the fights I witnessed in my neighborhood. I saw the danger of violence when I saw the response of the older teenagers to the demagougery of Stokley Carmichael. I saw that to answer violence with violence only corrodes the goals of purposeful social change. To make democracy work and to renew society on foundations of truth and justice, I found violence self-defeating. To build something I have learned it is necessary to use the proper tools and materials. The `war solution,\' the fact that in any way `might makes right\' and violence in all forms denies peaceful means and truthful ends."

"In the seminary I was interested in new concepts of God. In my year in VISTA, I reaffirmed this interest to the extent of belief in the non-person God of my first statement. My year in VISTA has been a year of rethinking my relationship to God and human society. It has been a year of applying an evolving philosophy of personalism to the non-violent way of life."

On the strength of these statements he was denied a I-O status (conscientious objector available for civilian work) but was classified I-A-O by his board on August 9, 1967. As such he was entitled to the statutory exemption provided under 50 U.S.C.App. § 456(j) which allowed him to be assigned to noncombatant service. Pence was ordered to report for his physical examination on September 25, 1967. Pence wrote to the board as to his reasons for refusing the physical. He stated he could not accept a I-A-O classification "as a matter of conscience." His refusal to report was then reported by the local board to the State Deputy Director of the Minnesota Selective Service. The latter reviewed his file and requested:

"That his classification be reopened * * * since we believe this registrant is eligible for a Class I-O classification."

"At the time he appears before the local board for an interview he should be given an opportunity to sign an SSS Form 151." (Emphasis ours).

On October 10, 1967, Pence again appeared before his local board and pursuant to the Deputy Director's instruction he was handed SSS form 151 to sign as a volunteer for civilian work.³ On the day Pence personally appeared before the local board for the recommended reclassification to the I-O status, he not only refused to volunteer for civilian work by signing SSS form 151, but also presented a written statement which reflected an oral statement made at that time.⁴ Because of its significance we set forth this statement which reads as follows:

"On October 10, I appeared before

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