United States v. Vincelli, 268

• Decision Date: 09 November 1954
• Docket Number: No. 268,Docket 23071.,268
• Citation: 216 F.2d 681
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael VINCELLI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

216 F.2d 681 (1954)

UNITED STATES of America, Plaintiff-Appellee, v. Michael VINCELLI, Defendant-Appellant.

No. 268, Docket 23071.

United States Court of Appeals Second Circuit.

Argued August 27, 1954.

Decided November 9, 1954.

J. Edward Lumbard, U. S. Atty., New York City, Boudinot P. Atterbury, Asst. U. S. Atty., New York City, of counsel, for petitioner.

Hayden C. Covington, Brooklyn, N. Y., for respondent.

Before CHASE, FRANK and HINCKS, Circuit Judges.

PER CURIAM.

The appellant did not send the minister's statement with his letter of December 26, 1950, to his local board as we mistakenly said in our opinion. That statement was not filed with the board until January 9, 1951, and the opinion is amended in that respect.

The following are the material facts on which decision turns as to whether the appellant made a timely request for a reclassification. On December 12, 1950, his local board classified him I-A. On December 18, 1950, it mailed him a Form 110 notice of that classification. On December 26, 1950, his letter in which he said, "I hereby appeal my 1-A classification for the above mentioned reasons — and would prefer a IV-D classification," was received and filed by the board. As a result of that, the board gave him SSS Form 150 which he filled out and returned and which was considered by it on January 9, 1951, the day on which the minister's statement was filed. The minutes of the board on that date are as follows: "SSS # 150 & accompanying paper considered by Board. Reopening and reclassification not warranted. Send file to Appeal Bd. E F B."

By giving the appellant SSS Form 150 after it received his letter of December 26, 1950, a form which could serve no useful purpose except in supplying data to support a timely request for re-classification, the board treated the appellant's letter at least as a request for reclassification. It remains to be seen whether what it subsequently did was a reopening of his classification and then a denial of his request for reclassification on the merits. If it was, the mistake of fact in our previous opinion cannot, in any event, affect the result we then reached.

Judge Chase believes that the reversal of United States v. Packer, 2 Cir., 200 F.2d 540 by the Supreme Court in United States v. Nugent, 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417, left untouched our holding that in the Packer case what the local board did amounted to a reopening since otherwise his failure to claim conscientious objector status when he filled out and filed the selective service questionnaire would have been a waiver of that claim. Had it not agreed with us that what the local board did amounted to a reopening which had done away with the effect of the previous waiver, the Supreme Court would presumably have reversed our decision on the ground that Packer's waiver had foreclosed his right to a IV-D classification anyway and would not have reached the question of due process in the subsequent administrative proceedings as to the denial of which it held we were in error.

Judges Frank and Hincks, however, are of the opinion that the mandate of the Supreme Court in the Packer case, the terms of which did not appear in the opinion of the Court as reported in 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417, was correctly construed by the trial court in the Packer case on remand as carrying a reversal of our...