Michael James Walsh v. United States ( 1971 )

HUFSTEDLER, Circuit Judge:

Walsh appeals from a conviction for violating 50 U.S.C. App. § 462 upon his failure to comply with an order of his local draft board to report for civilian work in lieu of induction. We reverse his conviction on the ground that the order to report for the civilian work to which he was assigned was invalid, because state law forbade Walsh’s employment in the job to which he was assigned.

Walsh, classified 1-0, was initially ordered by his local board to report to Mrs. Gwendolyn Williams, Personnel Assistant of the Nevada State Hospital, to do “welfare work.” Walsh reported to Mrs. Williams on March 18, 1969. She advised Walsh that there was an opening for a nursing assistant trainee, a position for which a written examination was required. He filed an application for that position. At the same time, he requested an application for a job as a hospital janitor, and he also filled out that application. No examination was required for the janitor’s job. Mrs. Williams told him that she considered a janitorial post as “institutional work,” not “welfare work,” and that, since Walsh was ordered to do “welfare work,” he must apply for a nursing- assistant trainee post.

On the same day, Walsh took the written examination for the nursing position. He scored 34; passing was 56. After he failed the test, Mrs. Williams took Walsh to an interview with Mrs. Mae Peebles, supervising psychiatric nurse, who was not told that Walsh failed the test. Mrs. Peebles agreed to hire Walsh. Mrs. Peebles, Mrs. Williams, and Walsh agreed that he should start work the following month. Mrs. Williams reported Walsh’s proposed hiring to the board. The board advised Mrs. Williams that Walsh was to report to work as a nursing assistant the next day, March 19, 1969. Mrs. Williams told Walsh on March 18 about the board’s direction. Walsh did not report on March 19. The board’s order of March 18, and Walsh’s failure, to report on March 19, are the bases for his conviction.

Under Nevada law, a person cannot be hired as a nursing assistant trainee unless either one of two conditions has been met: (1) the applicant passes a written examination, or (2) an emergency exists, justifying an emergency appointment for not more than 60 days, “to prevent the stoppage of public business,” in which event an applicant can be hired whether or not he has taken and passed the examination. (Nev.Rev. Stats. § 284.315; Rule 6(f), Nev.State Personnel Adm’n.) Mrs. Williams testified that Walsh’s employment was not necessary to prevent a work stoppage in the hospital. The district court was satisfied that there was no emergency in the staffing of the hospital. Thus, neither requirement of Nevada law was met.

There is nothing in the record to support a conclusion that any state employee was authorized to waive the provisions of Nevada law concerning Walsh’s employment, or that Walsh’s local draft board could do so.

Section 1660.1(a) (1) of the Selective Service System’s Regulations (32 C.F.R. § 1660.1(a) (1)) describes appropriate civilian work to which a registrant can be assigned in lieu of induction. Included in such work is state employment. But the regulations do not purport to authorize an order to undertake state employment for which, under state law, the registrant is disqualified. Moreover, the regulations do not exclude from appropriate civilian work employment as a hospital janitor. The order directing Walsh to report for work for which he was disqualified is not an order to report for “appropriate” civilian work within the meaning of section 1660.1(a) (1). The order is therefore void.

The Government suggests that the result should be different because Walsh may have deliberately failed the examination. Whether or not Walsh purposely disqualified himself from the post to which he was assigned is irrelevant. Even deliberate failure to pass an examination is not a federal offense.

The judgment is reversed with directions to dismiss the indictment.