United States v. Vincent Francis McGee Jr. , 426 F.2d 691 ( 1970 )

FEINBERG, Circuit Judge

(dissenting) :

I respectfully dissent.

The Supreme Court has recently told us that “it is well to remember that use of the exhaustion doctrine in criminal cases can be exceedingly harsh.” McKart v. United States, 395 U.S. 185, 197, 89 S.Ct. 1657, 1664, 23 L.Ed.2d 194 (1969). This case shows how harsh that concept can be, particularly when — as here — it is applied unnecessarily. The record shows that there was apparently no basis in fact for denying the conscientious objeetor claim of Vincent Francis McGee, Jr. (as to this, we all agree), McGee presented his claim in timely fashion to his local draft board, and that body never passed on the merits of the claim. Despite this, the doctrine of exhaustion of remedies, born in the placid area of administrative law, is invoked thereby consigning McGee to jail for two years. That is too “harsh” for me.

As the majority opinion points out, McGee did present his 1-0 claim in full to his local board in February 1966. Examination of the record compels the conclusion that McGee’s local board did not at that or any other time consider his 1-0 application on the merits. The board refused to consider his initial application for 1-0 on the ground that he was then a student, and eighteen months later, in September 1967, refused to classify McGee 1-0 on the ground that his claim had already been rejected.

32 C.F.R. § 1623.2 requires that “the registrant shall be classified in the lowest class for which he is determined to be eligible.” Since II-S (student deferment) is a lower class than 1-0 according to the hierarchy set forth in that regulation, it would have been improper for the board to grant McGee a 1-0 so long as he held a II-S, which he unquestionably did at the time he first presented his 1-0 claim. Thus it is difficult to understand the majority’s contention that the local board’s letter to McGee dated March 23, 1966 was “ambiguous” on whether the 1-0 claim had been considered on the merits at that time. McGee then held a II-S classification. Under the regulation, therefore, consideration of the merits of McGee’s 1-0 claim would have been a fruitless task for the board since it would in any event have been obliged to leave his II-S status unchanged. The letter itself advised McGee that “your claim as Conscientious Objector will be considered when you no longer qualify for a student classification” — in light of the regulation, that seems a statement of reason which is plain enough for me. And if there were any ambiguity left, the testimony of the board chairman resolves it in favor of the conclusion that in February-March 1966, McGee’s 1-0 claim was not considered on the merits. While the majority correctly points out that the chairman testified that when the application was first filed in 1966, “there weren’t sufficient facts * * * to motivate me to grant the registrant the request he sought,” and that “what he set forth did not motivate me to grant him the relief he sought,” he also testified that he rejected the application “at that time * * * because the young man was attending college and in my judgment he rated a 2S qualification which we proceeded to give him.” (Emphasis added.) Almost immediately thereafter the following interchange took place:

Q. I believe you said before that it was because of his beliefs that you failed to grant him a CO ?

A. I did not say anything at all about his beliefs. You can refer to the record. I said in my opinion what he set forth did not motivate me to grant him the relief he sought.

Then came the following interchange between the government attorney and the board chairman (Mr. Lande):

Mr. Robinson: Your Honor, I think Mr. Lande has testified that Mr. McGee was a student at that time and therefore they gave him a 2S classification.

The Witness: I did state that.

In light of the regulation, the letter received by McGee, and the board chairman’s own testimony, the conclusion seems inescapable that when McGee applied for 1-0 in 1966 his claim was properly not considered on the merits, but was denied because he held a II-S classification at that time.

The record also indicates quite clearly that when McGee was classified I-A in September 1967, his 1-0 application was rejected on the ground that it had previously been considered and rejected, notwithstanding the fact that the initial rejection was not on the merits. It is true, as the majority joints out, that the trial judge found that the local board “considered the defendant’s application for a conscientious objector status and that was considered by the whole board on September 23,” and also true that the chairman testified that the board “reviewed the record of the young man’s case when we gave him the 1A and all pertinent information therein contained.” However, he also testified as to the nature of that review:

The Witness: To the best of my recollection * * * at that time [September 1967] the registrant was no longer in school. Based on our previous determination that his request for conscientious objection status was denied, we had no alternative at that time but to give him a 1A, which we did.

Q. You didn’t consider the conscientious objector claim again because it had been denied previously?

A. Yes — [Emphasis added.]

Thus it is clear that the basis for denying 1-0 status in September 1967 was the previous denial in February-March 1966 when the application was first submitted. And, as already noted, the record is even clearer that this initial consideration in February-March 1966 did not deal with the merits of the application or the nature or sincerity of McGee’s beliefs, but was based on the fact that he was a student with a II-S classification, who was not, for that reason, eligible for 1-0 status. At no time did the board pass on the merits of McGee’s claim, even though, as the trial judge found, the application was “considered” by the board in September 1967.

The majority takes the position that “the chairman remembered the Board’s dissatisfaction with McGee’s showing when his application was examined in early 1966 and that the Board saw no reason to change their minds eighteen months later.” However, the chairman did not testify concerning such memory. As noted, he did testify: “I did not say anything at all about his beliefs.” Such an evaluation of McGee’s beliefs was not necessary in February 1966 because McGee was then ineligible for 1-0 because of his II-S. Moreover, the chairman’s testimony made clear that he did not discuss McGee’s case with other members of the board in February 1966. In any event, the record establishes that neither the chairman alone nor the entire board ever considered whether McGee’s beliefs were those of a sincere conscientious objector to war.

Such a failure to consider McGee’s claim on the merits was a clear error by the local board, which one would think requires setting aside an order for induction. The board’s failure was not only a blunder, but it also violated a selective service regulation, which commands it “to receive and consider all information, pertinent to the classification of a registrant, presented to it,” 32 C.F.R. § 1622.1 (emphasis added), and undoubtedly violated the statute as well. E. g., 50 U.S.C. App. § 455(a) (1):

The selection of persons for training and service * * * shall be made in an impartial manner, under such rules and regulations as the President may prescribe * * *.

Yet, we are told that the board’s order should not be invalidated because McGee failed to utilize appellate remedies within the Selective Service System. I do not agree that we are required to invoke the doctrine of exhaustion in this case. It is true that McKart, supra, contains strong indications, quoted by the majority, that even the limited failure to exhaust present here may sometimes be fatal. But I do not read that case as necessarily and invariably preventing the defense of invalid classification when the registrant did give all the facts to the local board, especially where the record indicates that the local board applied no “expertise” in its ultimate decision and actually did not consider the classification on the merits at all. Compare McKart, supra, 395 U.S. at 198 n. 16, 89 S.Ct. 1657. The language of Glover v. United States, 286 F.2d 84, 90-91 (8th Cir. 1961), may appropriately be applied to McGee’s 1-0 claim:

We adhere to the general rule as to the necessity for exhaustion of administrative remedies in order to obtain a judicial review, and are of the opinion that such rule is generally applicable and usually necessary. However, we are of the view that such general rule is not absolute, inflexible and without exception, but that it is to be relaxed only under extremely exceptional and unusual circumstances. The factual situation presented in this case is appropriate for and requires the relaxation of such rule.

Cf. Wolff v. Selective Service Local Board No. 16, 372 F.2d 817, 825 (2d Cir. 1967).

The facts as to McGee’s 1-0 claim are sufficiently unusual to allow us properly to depart from the exhaustion doctrine: McGee presented a strong case for a 1-0 classification; his local board did not require a personal interview as a prerequisite for processing such a claim; McGee’s file contains no information reasonably contradicting his claim; the board chairman inaccurately thought that a letter in support of McGee advised the board that McGee would not accept a I-O; and when the board did “consider” the application, it dismissed it on the inaccurate assumption that the claim had already been rejected on the merits.

f Finally, and perhaps most important, the failure of the local board to consider McGee’s claim on the merits could not have been called to the attention of an appeal board because McGee could not know about that error and nothing in the record would disclose it. It is true that the appeal board might have reversed the denial of a 1-0 classification to McGee simply because it thought that he had made out a sufficient case. But that should not be dispositive in deciding whether to apply the exhaustion doctrine here. The appeal board might also have regarded the case, on the record as then known, as a close one which could go either way on the facts. Accordingly, even though review by the appeal board is de novo, the balance might have been tipped either way by a desire not to set aside the action of a local board. In such a case, a fair determination of the claim on the merits by the local board would be crucial. And, of course, that is precisely what McGee did not get. In Knox v. United States, 200 F.2d 398, 402 (9th Cir. 1952), the Ninth Circuit met the argument that a de novo review by an appeal board cured the failure of the local board to consider evidence supporting a claim of conscientious objection. The court rejected that contention as follows:

Classification by the local board is an indispensable step in the process of induction. The registrant is entitled to have his claims considered and acted upon by these local bodies the membership of which is composed of residents of his own community. An underlying concept of the Selective Service System is that those subject to call for service in the armed forces are to be classified by their neighbors — people who are in a position to know best their backgrounds, their situation and activities.

This language in Knox has been cited with approval by the Ninth Circuit, most recently in Welsh v. United States, 404 F.2d 1078, 1083 (9th Cir. 1968), cert. granted, 396 U.S. 816, 90 S.Ct. 53, 24 L.Ed.2d 67 (1969), as well as by our own, Mintz v. Howlett, 207 F.2d 758, 762 (2d Cir. 1953), although we distinguished the latter case in United States v. Corliss, 280 F.2d 808, 816-818 (2d Cir.), cert. denied, 364 U.S. 884, 81 S.Ct. 167, 5 L.Ed. 2d 105 (1960) (claim of procedural unfairness but not failure to consider on merits).

It is true that there are compelling reasons behind the exhaustion doctrine, and I do not suggest that the requirement be cast aside when the registrant ignores the local board altogether and gives it no facts at all. Nor is it necessary in this case to resolve the issue whether failure to appeal denial of a I-O claim should generally be fatal at a subsequent criminal trial to the defense of invalidity of a I-A classification, a question which has recently split the Ninth Circuit, Lockhart v. United States, 420 F.2d 1143 (9th Cir. 1969) (in banc) (8-2); cf. United States v. Palmer, 223 F.2d 893 (3d Cir.) (in banc) (4-3), cert. denied, 350 U.S. 873, 76 S.Ct. 116, 100 L.Ed.2d 772 (1955). I would hold only that the exhaustion doctrine need not be inexorably applied when the basic error of the local board could not be disclosed by the appeal, and should not be invoked when the registrant did give all of the pertinent information to the local board and it never passed upon the merits at all. On this record, McGee’s failure to appeal from the board’s I-A classification should not be fatal, and the exhaustion doctrine should not be applied to McGee. I would hold that he should have been classified I-O, and would set aside the conviction on Count 1.

The majority opinion had no occasion to consider the convictions on Counts 2 and 3, and did not find it necessary to deal with Count 4. However, since I would reverse the conviction on Count 1, it does seem necessary for me to consider the other counts, albeit very briefly.

Count 2 charged McGee with failing to report for his pre-induction physical examination in October 1967, after he had been reclassified I-A. It is undisputed that McGee did not report. However, he argues that had he received the I-O classification to which he was entitled, his failure to report could not constitute a crime. This contention is essentially correct. The Order to Report (SSS Form 223) which was sent to McGee by his local board quite clearly indicates to a I-O registrant that failure to report for a physical examination would not subject him to fine and imprisonment, as it would I-A and I-A-0 registrants, and indeed would have no effect at all on his obligation to perform civilian work.¹ Under those circumstances, the notice to a I-O registrant to report for a physical examination is for his benefit and is not a “duty required of him” under 50 U.S.C. App. § 462(a). See United States v. Mendoza, 295 F.Supp. 673, 683 (E.D.N.Y. 1969); United States v. Walsh, 279 F.Supp. 115, 118-119 (D.Mass.1968). Cf. Shoemaker v. United States, 413 F.2d 274, 275 (9th Cir.), cert. denied, 396 U.S. 837, 90 S.Ct. 98, 24 L.Ed.2d 88 (1969). It is true that McKart, supra, 395 U.S. at 203, 89 S.Ct. at 1667, contains dicta suggesting that an invalid classification “would not be a defense today to a prosecution for failure to report for a pre-induction examination.” However, McKart did not deal with the wrongful denial of a 1-0 classification, and thus did not consider the option to waive a physical examination which is afforded to registrants holding such a classification. McGee should not be penalized because of the board’s error, or deprived of the benefit of selective service procedures designed for conscientious objectors. Therefore, McGee’s conviction on Count 2 should also be set aside.

Having thus concluded that because McGee was improperly denied classification as a conscientious objector he should have been acquitted on Counts 1 and 2 of the indictment, there remains a grave issue as to the proper treatment of his convictions on the remaining two counts. These charged that McGee knowingly failed to have in his personal possession a valid Notice of Classification (Count 3) and failed to submit information requested by his local board (Count 4). Appellant also attacks his conviction on these counts, but his arguments — particularly as to Count 3- — are not very persuasive.

My problem is of a different sort. Having found error in Counts 1 and 2, I am left with the uneasy feeling that the case might have turned out differently if only Counts 3 and 4 had been involved. All of McGee’s offenses grew out of the same operative fact: his policy of noncooperation with his draft board starting in April 1967. Yet because of his earlier request, he was entitled to be classified I-O. If he had been so classified in September 1967 — when he should have been — there is at least doubt that he would have become involved with the criminal law at all. It is true that he then would have been liable for civilian alternate service and presumably would have been ordered to report for it; we simply do not know whether, despite earlier contrary indications,² he would have obeyed such an order, which would have recognized the sincerity of his convictions. If he had, it is difficult to believe that prosecution on Counts 3 and 4 would have followed.³ And, in any event, there is a substantial question whether the jury or the judge would have reacted differently to prosecution of a conscientious objector on Counts 3 and 4. Although the trial judge certainly acted within his authority when he sentenced McGee to concurrent two year terms, he might well have given McGee a shorter prison sentence, or even probation, had he known that McGee should have been classified as a conscientious objector and could not be convicted on Counts 1 and 2. I am aware that it is only

on rare occasion that we have set aside a conviction on otherwise presumably “good” counts because of defects in the conviction of a defendant on “bad” counts.

United States ex rel. Weems v. Follette, 414 F.2d 417 (2d Cir. 1969); cf. United States v. Bottone, 365 F.2d 389, 394 (2d Cir.), cert. denied, 385 U.S. 974, 87 S.Ct. 514, 17 L.Ed.2d 437 (1966). This case is an appropriate instance for exercising such discretion. See United States v. Barash, 365 F.2d 395, 403 (2d Cir. 1966) ; United States v. Hines, 256 F.2d 561, 563 (2d Cir. 1958). Doing so would not only eliminate any doubt that McGee was prejudiced on Counts 3 and 4 by the invalid convictions on Counts 1 and 2, it would also afford the Government an opportunity to consider whether it still wishes to press the prosecution on Counts 3 and 4 against this conscientious objector and divinity student.

Accordingly, I would reverse the convictions on Counts 1 and 2 and direct a judgment of acquittal, and reverse the convictions on Counts 3 and 4 for further proceedings consistent with this dissenting opinion.

1 . The Order to Report (SSS Form 223) states:

To Class I-O Registrants:

This examination is given for the purpose of determining whether you are qualified for military service. If you are found qualified, you will be available, in lieu of induction, to be ordered to perform civilian work contributing to the maintenance of the national health, safety or interest. If you fail to report for or to submit to this examination, you will be subject to be ordered to perform civilian work in the same manner as if you had taken the examination and had been found qualified for military service.

There is a sharp distinction in the advice the Form gives to a Class I-A and I-A-0 registrant; he is told that:

If you fail to report for examination as directed, you may be declared delinquent and ordered to report for induction into the Armed Forces. You will also be subject to fine and imprisonment under the provisions of the Universal Military Training and Service Act, as amended.

See also Local Board Memorandum No. 14, reported in S.S.L.R. 2160 (1969), which provides:

3. Action by Local Board Subsequent to Refusal of Its Own Registrants to Submit to Armed Forces Examination. * * *

(b) If the registrant is in Class I-O, consider him for all purposes as if he had been physically and mentally examined and found acceptable for military service and process him thereafter in the same manner as any other registrant in Class I-O who has been found acceptable for service after being given an armed forces physical examination. * * *

2 . Gf. majority opinion, note 8.

3 . Indeed, the Selective Service authorities in this case did not recommend prosecution on Count 4, even though McGee refused to obey the induction order. Gov’t Exs. 39, 40.