United States v. Waldron

• Decision Date: 08 February 1973
• Docket Number: No. 71-1230.,71-1230.
• Citation: 474 F.2d 90
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Haines WALDRON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

474 F.2d 90 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Robert Haines WALDRON, Defendant-Appellant.

No. 71-1230.

United States Court of Appeals, Seventh Circuit.

Argued September 15, 1972.

Decided February 8, 1973.

Joseph Beeler, Federal Defender Program, Chicago, Ill., for defendant-appellant.

James R. Thompson, U. S. Atty., William T. Huyck, Theodore T. Scudder, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Before HASTINGS, Senior Circuit Judge, and PELL and STEVENS, Circuit Judges.

PELL, Circuit Judge.

This is an appeal from a conviction for refusal to submit to induction in violation of 50 U.S.C. App. § 462. Defendant Waldron, a registrant of a Fort Wayne, Indiana board, attended the Art Institute of Chicago, graduating in June 1968. During his attendance there he received a II-S student deferment, 32 C.F.R. § 1622.25 (1968). In order to obtain that deferment he had executed Selective Service SSS Form 104, requesting an undergraduate deferment on September 18, 1967. Following his graduation, he was reclassified I-A, 32 C.F.R. § 1622.10 (1968), on July 2, 1968. He immediately appealed this classification requesting a III-A hardship deferment, 32 C.F.R. § 1622.30, but this appeal was rejected by both his local board and his appeals board. On December 30, 1968, Waldron was mailed his order to report for induction. The date scheduled was February 5, 1969.

Shortly thereafter, Waldron filed a form requesting conscientious objector classification. The local board notified Waldron on January 24, 1969, that it had considered his application but "found no grounds for reopening your classification." However, on January 28, 1969, Colonel Rhodes, the Indiana State Director of Selective Service, reviewed Waldron's file and recommended that "the local board give postponement and ask registrant in for interview as per LBM #41 Local Board Memorandum 41." The board thereupon sent Waldron SSS Form 264 stating that by authority of SSS Regulation 1632.2 Waldron's order to report for induction was postponed until February 19, 1969. A letter accompanied the form advising Waldron that he would be given an "interview" by the board on February 5, 1969. On February 6, the board sent Waldron two letters, the first advising him that it "found no grounds for reopening your classification after you sic being interviewed" and the second ordering him to report for induction on February 19, 1969. Because he was living in Chicago, Waldron had the order to report transferred to Chicago. On March 27, 1969, Waldron refused to submit to induction.

On this appeal Waldron raises two principal grounds for reversal: first, that his application for conscientious objector status was improperly denied, both substantively and procedurally; and second, that he was impermissibly precluded from obtaining a I-S(C) deferment, 32 C.F.R. § 1622.15 (1968), during the school year 1968-69 while he was in graduate school.¹ For the purposes of this appeal we will assume, arguendo, that Waldron did present a prima facie case for conscientious objector status. Our first determination is whether or not such a claim was barred by Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971).

Admittedly, if the induction notice of December 30, 1968, is deemed to be the controlling notice, then Waldron's conscientious objector claim was late and barred by Ehlert. To avoid the force of the Ehlert decision, Waldron argues that the order of December 30, 1968, was superseded by the letter of February 6, 1969, and, thus, his conscientious objector claim of January 1969 was timely filed. In support of his position, Waldron cites Rodriguez v. United States, 452 F.2d 659 (7th Cir. 1971), and White v. United States, 422 F.2d 1254 (9th Cir. 1970).

In Rodriguez, the defendant had failed to report for induction because of extremely bad weather and consequently had been ordered to report a second time. This court held that the second order cancelled the first so as to make timely the defendant's application for a III-A classification filed before the second order to report was mailed. The White case presents a slightly different factual situation with the Ninth Circuit holding that a second order to report for civilian work following White's refusal to report superseded the prior order and made timely his III-A application. The Government urges us to distinguish these cases on the ground that they involved dependency claims based on "objectively identifiable" and "extraneous" circumstances beyond the registrant's control, as opposed, apparently, to a volitional claim. Cf. Ehlert, supra, 402 U.S. at 104-105, 91 S.Ct. 1319.

We think, however, that the clear answer here is that the postponement of Waldron's induction by the board as a result of Waldron's application for conscientious objector status was just that, a postponement, and as such no new order issued on February 6. The granting of a courtesy interview, even erroneously, if at the request of the registrant should not, by virtue of its necessitating an induction postponement, be used to make timely all previously filed claims. Otherwise, a local board could never grant a courtesy interview without concatenating reopening. We think this result is precluded by Ehlert and its rationale. In reference to the "legal limbo" in which a registrant is placed while his induction is postponed, we note only that it was at Waldron's request and only for a brief period of time. See United States v. Benson, 469 F.2d 1356 (7th Cir. 1972), where far longer postponements were held not to be prejudicial.

Waldron also urges that the intervention by the State Director effectively reopened his classification, thus circumventing the bar of Ehlert. We first note that the local board treated the postponement and interview as being pursuant to 32 C.F.R. § 1632.2, and not as a mandatory reopening under 32 C.F.R. § 1625.3. Regulation § 1625.2, however, as the Supreme Court held in Ehlert, "barred presentation to the local board of a claim that allegedly arose between mailing of a notice of induction and the scheduled induction date." 402 U.S. at 108, 91 S.Ct. at 1325. (Emphasis added.) There being no basis for the board to assume that the State Director had invoked 32 C.F.R. § 1625.3, it is clear that the board could not have reopened Waldron's classification. See Wright v. Ingold, 445 F.2d 109 (7th Cir. 1971).

Waldron argues that even if reopening were improper under 32 C.F.R. § 1625.2, the State Director's request nevertheless mandated a reopening under 32 C.F.R. § 1625.3(a). He analogizes his position to that in United States v. Aufdenspring, 439 F.2d 388 (9th Cir. 1971), United States v. Noonan, 434 F.2d 582 (3d Cir. 1970), cert. denied, 401 U.S. 981, 91 S.Ct. 1190, 28 L.Ed.2d 333 (1971), and Miller v. United States, 388 F.2d 973 (9th Cir. 1967). Each case is, however, distinguishable from the case before us. In Aufdenspring, the language of the letter from the California Headquarters was construed as releasing the board from any restrictions. This distinction was relied upon by the Ninth Circuit itself in United States v. Hand, 443 F.2d 826 (9th Cir. 1971). In Noonan, the State Director's letter was much stronger than the oral statement of Colonel Rhodes. Miller is the source of the doctrine of de facto reopening, but, although the language has some relationship to the present case, a significant fact is that Miller by a letter had claimed conscientious objector status before his induction notice was mailed and thus the case has an inapposite foundation for us. Further, on their facts, all three of the above cases are distinguished from Waldron's in that in each there was "written" communication from the state headquarters to the local board, a requirement of 32 C.F.R. § 1625.3. Colonel Rhodes's advice was merely oral and thus failed to comply with the regulation.

In his reply brief, Waldron concedes that there was no "order," but argues that the "State Director authorized it the board to reopen his classification." While the State Director can release the local board from the constraints of § 1625.2, e. g., United States v. Aufdenspring, supra, we do not find "authorized" to be equatable with "ordered." While we recognize that some of the state headquarters' written communications in the Miller line of cases scarcely seem to be couched in mandatory terms, and without determining that we would have reached the same conclusion as those courts did on the facts before them, we do note the Miller court language that the "effect of what the State Director did was to open up the situation . . . in the same manner and to the same extent as if the induction order had not been issued." 388 F.2d at 975. We feel compelled to no such conclusion in the present case by the oral recommendation of postponement and interview. We do not, however, rest our determination solely on the oral nature of the communication as we would not find the Miller effect even if the State Director's recommendation had been in a formal written communication.

Even if we were to assume, arguendo, that the State Director, in contradistinction to an ordered release from the § 1625.2 restraints, could delegate his authority to reopen to the local board, we find no basis for thinking that the delegation would be appropriate in the present type of case. All of the cases cited by Waldron were instances in which the State Director was found by the reviewing court actually to have exercised his reopening authority under § 1625.3. We do not see any instance of an intermediate position between § 1625.2 and § 1625.3 with the State Director delegating his authority to the local board. The regulations just do not include such authority. That the courtesy interview recommended by the State Director may have been pointless, insofar as the board's authority was concerned in light of the subsequent decision in Ehlert, does not require us to...