United States v. Rundle

• Decision Date: 08 July 1969
• Docket Number: No. 19573.,19573.
• Citation: 413 F.2d 329
• Parties: UNITED STATES of America, Appellee, v. John Steven RUNDLE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

413 F.2d 329 (1969)

UNITED STATES of America, Appellee, v. John Steven RUNDLE, Appellant.

No. 19573.

United States Court of Appeals Eighth Circuit.

July 8, 1969.

Lawrence Le Tourneau, of Jesse, Le Tourneau & Johnston, Des Moines, Iowa for appellant and filed brief.

Allen L. Donielson, U. S. Atty., Des Moines, Iowa, for appellee, Claude H. Freeman, Asst. U. S. Atty., was on the brief with Allen. L. Donielson, Des Moines, Iowa.

Before BLACKMUN, MEHAFFY and LAY, Circuit Judges.

LAY, Circuit Judge.

This is an appeal from a jury-waived conviction under 50 U.S.C. App. § 462 for wilfully refusing induction into the Armed Forces of the United States. Defendant's main contention is that his order to report for induction was void by reason of the local draft board's refusal to reopen his I-A classification and cancel his induction order at a time when he had furnished the board evidence that he was "satisfactorily pursuing a full-time course of instruction" as an undergraduate at Iowa State University.

The district court found no prejudicial error by reason of the board's failure to reopen the defendant's classification because his school quarter would have ended in a few days and his status would then have had to be changed. The district court also found that the defendant failed to cooperate with the local board by furnishing additional information concerning his schooling and that the defendant further voluntarily terminated his school studies after the spring quarter. Under these circumstances, the district court held that the defendant had not been prejudiced. We reverse.

The board must function according to statutory requirements and the administrative regulations governing its procedure. Simmons v. United States, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453 (1955). Congress has provided:

"Any person who while satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution is ordered to report for induction under this title, shall, upon the facts being presented to the local board, be deferred (A) until the end of such academic year, or (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier * * *." 50 U.S.C. App. § 456(i) (2).

See also 32 C.F.R. § 1622.15(b). Under the Selective Service Regulations it is mandatory for the board to "reopen and consider anew the classification of a registrant to whom it has mailed an Order to Report for Induction * * * whenever facts are presented to the local board which establish the registrant's eligibility for classification into Class I-S because he is satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution of learning." 32 C.F.R. § 1625.3(b). Under 32 C.F.R. § 1625.14, when the board reopens a classification, it must cancel any pending order to report for induction.

On January 11, 1967, the draft board reclassified Rundle as I-A(3) (available for military service) from a II-S (student deferment) because the board had been notified by the University that Rundle was no longer in school. On January 25, Rundle reported that he was still registered in school. On February 13, 1967, the board received notice from the University by Form 109 stating Rundle was a full-time student. This was sufficient request and notice to cause a reclassification of Rundle from I-A to II-S. 32 C.F.R. § 1622.25. John Rundle had first enrolled at the University in September of 1963. Subsequently he had been reclassified four different times to a II-S through use of the Form 109 certifying Rundle was satisfactorily pursuing his course of instruction. Although the specific facts are not clear, Rundle had frequently been delinquent in his tuition payments for various reasons and this had caused a breakdown in the University's timely certification of his active pursuit of study. In each instance these had been corrected, certification had been made and the board's change of classification from I-A(3) to II-S had been accomplished. However, notwithstanding the certification by the University on February 13, 1967, the board did not reclassify him II-S.

On April 4, 1967, the board received another Form 109, again saying Rundle was no longer enrolled. However, the board did not investigate further, because of their prior classification of I-A, pending since January 11, 1967. On May 5, 1967, Rundle received his notice to report for induction on June 28, 1967. On May 8, 1967, Rundle informed the board he was still in school and that because of sickness he had not paid his tuition on time but was attending classes. The board informed him that it would be necessary to have the University certify that he was properly enrolled and they would then recommend a postponement of induction.¹ He told the board he would graduate in August of 1967. He also informed the board he was going into the Peace Corps in September.

Significantly, Rundle's Selective Service file then shows a call by the board's secretary to the Registrar's office dated May 9, 1967. The file relates:

"Per telecon Mrs. Springer, Registrar\'s ofc., ISU, registrant did not pay his spring qtr. fees until 5 May. Deadline for paying fees was March 8. She says he registered for 12-hrs. & claimed that he has been attending classes even tho he was not registered & had not paid fees. She stated that she had left word at his home for him to return to their office for further info & that she would not send a SSS 109 until his situation there is cleared up. Said it will have to be determined if he has been attending classes & if he will get full academic credits for this quarter." (Emphasis ours.)

On May 12, three days after this call, the University notified the board by Form 109 that Rundle was a full-time student. We conclude that at least in the circumstances of this case, the University's certification was sufficient to establish under 32 C.F.R. § 1625.3(b) that Rundle was in fact "satisfactorily pursuing" his schooling. United States ex rel. Berman v. Craig, 207 F.2d 888 (3 Cir.1953). As the government concedes in its brief:

"Some local boards would have no communication with the college administration and perhaps while a Form 109 is not the ultimate in proof of `satisfactorily pursuing" it would certainly be reasonable to use it as some evidence of satisfactory enrollment."

More significantly, there is no dispute that Rundle was in fact attending school and was in fact eligible under § 1625.3(b) for a I-S deferment at that time.

On June 9, the board attempted to get further information from the registrant as to his credit hours then completed, the expected date of his graduation, and a verification of his enrollment in the summer session. On June 19, the board called the University and ascertained that Rundle was no longer enrolled and had not authorized the University to release any further information as to his credits. Such investigative procedures were within the prerogative of the board and certainly, the board was in good faith in attempting to verify this information.

However, in view of the fact that the evidence conclusively shows that at the time Rundle received his induction order in May, he was pursuing his education and upon certification of that fact to the board under 32 C.F.R. § 1622.15(b) and the statute 50 U.S.C. App. § 456(i) (2)² the board was nonetheless required to reopen and reconsider his I-A classification and cancel his induction order 32 C.F.R. § 1625.14. See United States ex rel. Berman v. Craig, 207 F.2d at 890 (3 Cir.1953). To hold otherwise would be to permit a board to disregard a mandatory duty to reopen by simply delaying consideration until the registrant's status has changed sufficiently so that he is no longer entitled to the requested reclassification. Indeed, a board's delay might in itself cause a change in a registrant's status. The local board's delay, coupled with both its evident reluctance to grant a I-S classification and the outstanding induction order might well have caused Rundle to conclude that registration for summer school was a futile act. For the same reason, Rundle's subsequent withdrawal of his request for a I-S deferment on June 23 and his application then to be considered for a I-A-O status cannot affect the board's mandatory duty under the regulations to reopen and consider anew his classification.

The reopening and reconsideration of a classification have significance independent of the reclassification itself. This was recognized in Miller v. United States, 388 F.2d 973 (9 Cir.1967), where Senior Circuit Judge Harvey Johnsen held that the local board had erred in refusing to reopen a classification when it had "shortcut the situation, without purporting to reopen," by proceeding directly to a consideration on the merits of the probative elements in the registrant's file. Noting that the board had thereby eliminated the registrant's rights to appear personally and to appeal, Judge Johnsen stated:

"For a local board to be able to effect a discrimination of such substance * * * would seem to us to constitute a matter of basic unfairness and hence to be, in the language of Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884, and Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218, `so unjustifiable as to be violative of due process.\'" Id. at 976-977.

Failure to follow administrative procedures for reopening classification has been consistently held to be a violation of due process. Davis v. United App. § 456(i) (2)², the board was none-States, 410 F.2d 89 (8 Cir. 1969); United States v. Freeman, 388 F.2d 246 (7 Cir.1967); Miller v. United States, 388 F.2d 973 (9 Cir.1967); Olvera v. United States, 223 F.2d 880 (5 Cir.1955). The argument that Rundle was not "prejudiced" by the failure to do so is unavailing. The evidence of prejudice is conclusive here.

First, at the time of May 12, 1967, Rundle wanted to...