Jan Emil Donato v. United States

Appellant stands convicted of refusal to submit to induction under the Universal Military Training and Service Act, 50 U.S.C.Appendix, § 462. He asserts that he is a conscientious objector and that there was no basis in fact for his classification as 1-A by his local board. The United States asserts that appellant failed to take an administrative appeal from the local board’s ruling; that appellant accordingly has failed to exhaust his administrative remedies and that this should preclude resort to the courts upon the merits of his claimed exemption. Appellant asserts that he had intended to take an administrative appeal and that his failure to do so was due to the fact that he had been called to duty as a fire fighter in the Los Angeles area; that under these circumstances the exhaustion of remedies rule should be relaxed.

In Donato v. United States, 9 Cir., 1962, 302 F.2d 468 , these issues were presented to this court and the applicable law was there discussed. It appeared that the district court, in finding appellant guilty, had applied the exhaustion of remedies rule. It did not appear from the record that the court had given consideration to the circumstances under which…