Jan Emil Donato v. United States

302 F.2d 468 Jan Emil DONATO, Appellant, v. UNITED STATES of America, Appellee. No. 17473. United States Court of Appeals Ninth Circuit. Feb. 14, 1962. J. B. Tietz, Los Angeles, Cal., for appellant. Francis C. Whelan, U.S. Atty., Thomas R. Sheridan and J. Brin Schulman, Asst. U.S. Attys., Los Angeles, Cal., for appellee. Before CHAMBERS, MERRILL and BROWNING, Circuit Judges. MERRILL, Circuit Judge. 1 Appellant stands convicted of refusal to submit to induction under the Universal Military Training and Service Act, 50 U.S.C.Appendix, 462, and has been sentenced to serve three years' imprisonment. 2 Appellant is a member of Jehovah's Witnesses and asserts conscientious objection to military service. Notwithstanding his showing to this effect, the local board with which he had registered classified him 1-A rather than as a conscientious objector. After reporting for induction in response to the board's order, appellant refused to submit to induction. 3 Upon this appeal appellant contends that he had made out a prima facie case for a conscientious objector classification of 1-O (50 U.S.C.Appendix, 456(j)), which case was not rebutted; that there was no basis in fact for the board's…

Appellant stands convicted of refusal to submit to induction under the Universal Military Training and Service Act, 50 U.S.C.Appendix, § 462, and has been sentenced to serve three years’ imprisonment.

Appellant is a member of Jehovah’s Witnesses and asserts conscientious objection to military service. Notwithstanding his showing to this effect, the local board with which he had registered classified him 1-A rather than as a conscientious objector. After reporting for induction in response to the board’s order, appellant refused to submit to induction.

Upon this appeal appellant contends that he had made out a prima facie case for a conscientious objector classification of 1-0 (50 U.S.C.Appendix, § 456(j)), which case was not rebutted; that there was no basis in fact for the board’s classification of 1-A; that under Estep v. United States, 1946, 327 U.S. 114 , 66 S.Ct. 423 , 90 L.Ed. 567 , the board was without jurisdiction to classify him in this manner. While the United States disputes this, its principal contention upon this appeal is that appellant has failed to exhaust his administrative remedies through failure to take an appeal from the local board’s ruling to the appeal…

(dissenting).

No particular harm is done here in reopening a judge tried case to probe further into Donato’s excuse for not taking-his administrative appeal. I think Prohoroff and Evans, supra, were correctly decided on their facts. I would not contend that there are no valid excuses for failure to take an administrative appeal-But, I think on the face of it, Donatohas already shown his excuse too weakThereforej I dissent.