(dissenting):

I respectfully dissent. Our courts are all too often presented with appeals by Selective Service registrants who have failed to cooperate with the Selective Service boards in their difficult task and who have, in many cases, refused to pursue their administrative remedies. Here, in direct contrast, we have a registrant who has cooperated with his local board and who has attempted in every available manner to obtain consideration of his request, made pursuant to the Selective Service Regulations. His local board has consistently refused to undertake the simple consideration of his request, and, as I see it, that constitutes an abdication of the duty imposed by the controlling Regulations.

On February 3, 1966, Burton was classified I-A (available for military service) by the local board. He then requested a personal appearance before the board in order to reassert his previously claimed status as a conscientious objector. This personal appearance, which occurred on April 7, 1966, resulted in Burton’s reclassification to class 1-0 (conscientious objector available for civilian work contributing to the maintenance of the national health, safety, or interest). During the personal appearance, the following exchange occurred:

Subsequent to his reclassification, notice of which was mailed on April 7, 1966, Burton took the armed forces physical examination on May 5, 1966. On that same day, he wrote the local board and requested that he be allowed to fulfill his civilian work obligation through work as an animal keeper for the City of Los Angeles, this being the civil service job to which he had referred at the time of his personal appearance. It should be noted, in passing, that the animals being attended by Burton were the subjects of important medical study. The Government has not contested Burton’s showing at the trial that this employment met the requirements for “appropriate” civilian work, as defined in the Regulations. 32 C.F.R. § 1660.1 . Indeed, the evidence indicates that such employment appears on the State Director’s list of approved employment in several states.

Burton’s request to fulfill his obligation through employment as an animal keeper was received by the local board on May 6, 1966. Subsequently, a Statement *541 of Acceptability regarding his physical examination was mailed to Burton on May 12, 1966. On May 19, 1966, the local board then mailed to Burton a special report form for conscientious objectors. This form requested that the registrant submit three types of work, types appearing on the State Director’s “approved” list, which he would perform. In this report, received by the board on May 31, 1966, Burton reiterated his desire to continue in his work as an animal keeper in satisfaction of his civilian work obligation. He also noted that he had been unable to examine an “approved” list because of conflict between the hours when the board was open and the hours when he was required to be present at his job.

Following the board’s receipt of this report from Burton, an employee of the board requested the State Director to select three types of “approved” jobs to be submitted to the registrant. Such a list was submitted to Burton on June 13, 1966, and Burton, in reply, again requested that he be allowed to perform his job as an animal keeper in satisfaction of his obligation. At this point, on August 3, 1966, Burton met with the local board and a representative of the State Director. The transcript of this meeting is set out in footnote two of the majority opinion. In my opinion, the conversation makes it apparent beyond dispute that the board was continuing to insist that Burton was limited to a choice from the State Director’s list of approved employment.

The applicable Selective Service Regulations provide as follows:

32 C.F.R. § 1660.20 (a).

32 C.F.R. § 1660.20 (b).

The majority holds that the local board evaluated Burton’s request with regard to whether work as an animal keeper qualified as “appropriate” civilian employment, as defined in the Regulations, 32 C.F.R. § 1660.1 , and determined that it was not appropriate. Regardless of whether this specific job was an appropriate one — an issue which I do not here reach — I am absolutely unable to find any support for the majority’s holding. In fact, it appears to me that the Government has conceded the contrary. In its statement of facts at the beginning of its brief, the Government admits: “The Board explained [at the meeting with Burton and the representative of the State Director] that it was refusing to accept appellant’s request to perform his civilian work assignment at the Los Angeles City Zoo for the reason that *542 it was not on the approved list provided by the State Director * * (Emphasis added.) Later, in its written argument, the Government states that the issue in the Mang case, discussed infra, “was identical to the issue now before this Court; i. e., the Local Board relied on the State Director’s list of approved organizations, and appellant charges this constitutes an abdication of the Local Board’s duties; an illegal usurpation of authority by the State Director; and a denial of due process.” Finally, a third example of the many statements in the Government’s brief which support my belief as to the basis for the board’s action may be found in the Government’s assertion that “ [i] t was immaterial that the work chosen was in the public interest, the crucial factor was that it was not on the State Director’s list of approved places of employment.” (Emphasis added.)

The local boards must comply with, and should respect, the Selective Service Regulations. The relevant provision of those Regulations unambiguously states that before the board is to submit its own choice of work to the registrant, the local board is to find that none of the types of work properly requested by the registrant is appropriate. 32 C.F.R. § 1660.20 (b). For an example of such a finding, see Jessen v. United States, 242 F.2d 213 (10th Cir. 1957). No finding was ever made by the local board in Burton’s case. Indeed, it was not even the local board that formulated the “approved” list upon which the board placed its total reliance.

Two court of appeals decisions may be cited in support of the proposition, advanced by the Government, that the board may rely totally upon the “approved” list to the exclusion of any finding made on its own behalf. The most recent of the two cases is from our own court. Mang v. United States, 339 F.2d 369 (9th Cir. 1964). There a registrant requested work at one of the three “approved” jobs submitted by the board, but he soon quit. The board then submitted three more jobs to him, in response to which the registrant requested that he be ordered to work at another job which was not on the “approved” list. The local board refused this request because the job did not appear on the State Director’s list. Our court affirmed. Apart from direct reliance on, and extended quotation from, the second of the above-mentioned two cases, discussed infra, the Mang opinion in this connection relied only upon the assertion that “the problem of what type of civilian work is to be undertaken by a ‘1-0’ registrant is finally to be determined by the National Director of Selective Service.” 339 F.2d at 370 (emphasis in original). I have become convinced that the statement was incorrect as a generalization and is incorrect as applied to the case before us. As the Regulations make abundantly clear, the Director of Selective Service has no connection with the selection of civilian work for a registrant until after the local board has made a finding with regard to the registrant’s requested employment and after the registrant has refused to perform any of the appropriate employment opportunities submitted to him by the local board. 32 C.F.R. § 1660.20 .

In United States v. Lawson, 337 F.2d 800 (3d Cir. 1964), cert. denied, 380 U.S. 919 , 85 S.Ct. 913 , 13 L.Ed.2d 804 (1965), the registrant requested that he be allowed to fulfill his civilian work obligation through employment with Goodwill Industries. Despite the fact that Goodwill Industries at that time appeared on the “approved” lists in many states and had, several years previously, appeared on the list in the state involved, the local board rejected the request because the job was not on its current “approved” list. The Third Circuit upheld the board’s action in an opinion which, as I read it, does not clearly define the basis of the court’s reasoning. 1 In any event, the *543 court did not discuss the relevant provisions of the Selective Service Regulations which I have set forth above.

The majority here states that Mang “is sound authority for the proposition that there is no failure of due process or abdication of authority if a local board is guided by an approved list of acceptable civilian employment.” (Emphasis added.) I have no quarrel with this proposition. Certainly, it is desirable that the local board be aided in its difficult task by whatever sound guides may be made available .to it by the state and national Selective Service authorities. See 32 C.F.R. § 1621.14 ; cf. Tyrrell v. United States, 200 F.2d 8, 13 (9th Cir. 1952), cert denied, 345 U.S. 910 , 73 S.Ct. 646 , 97 L.Ed. 1346 (1953) (list of recognized theological or divinity schools to be used as a classification guide, rather than as an inflexible standard). My only objection is that, when the Regulations have otherwise been observed, the local board is not bound by such guides and must itself assume the final responsibility where, as here, the Regulations specifically direct that the ultimate finding be made by the local board. This is as it should be, for I cannot reasonably assume that each State Director’s list will necessarily include every type of employment which may be available within the particular state and which is “appropriate" under the definition of the Regulations. 32 C.F.R. § 1660.1 .

Finally, I respectfully submit that Mang and Lawson are not controlling in our case. This is because of a factor which, while not considered by the parties in their briefs, is one to which I attach the utmost significance. In Lawson the registrant was ordered to take his physical examination on August 2, 1961. On August 1, 1961, he notified the local board that he would not appear for that examination, and, in fact, he did not take the examination. Subsequently, on October 17, 1961, the board submitted to the registrant three appropriate jobs. This was done pursuant to the Regulations. 32 C.F.R. § 1660.20 (b). Still later, after a number of further contacts with the registrant in connection with appropriate employment, the local board, on August 7, 1962, directed that the registrant report to a New Jersey state-operated hospital to fulfill his two-year obligation. Finally, on the same date, August 7th, the registrant wrote to the board and for the first time requested that he be allowed to fulfill his obligation through employment with Goodwill Industries. Thus more than a year had passed between the date when the registrant was to have submitted to the physical examination and the date of his request for approval of employment at Goodwill Industries in satisfaction of his obligation.

In Mang the civilian-employment procedure had been carried by the board and the registrant to the point where the reg *544 istrant had actually begun performance of appropriate employment pursuant to a valid order of the board. Shortly after entering into this performance, however, the registrant quit the employment, allegedly due to illness. Five months thereafter, the board submitted to the registrant three new choices of appropriate employment, since the registrant had yet to fulfill his two-year civilian-employment obligation. Following this action of the local board, the registrant, for the first time, requested that he be allowed to fulfill his work obligation in employment specified by him. As indicated previously, the board refused this request on the ground that the job did not appear on the “approved” list.

Section 1660.20(a) of the Regulations, quoted supra, specifically requires that the registrant submit his request for appropriate employment which he offers to perform within ten days after the mailing of a Statement of Acceptability to him or within ten days after he fails to take his armed forces physical examination. It is upon this request, which must be made before the ten-day period expires, that the local board is required by the Regulations to make a finding. In both Many and Lawson , the registrant’s first request came long after the ten-day limit had expired. Thus in neither of those cases was the request properly made pursuant to the Regulations, and, therefore, in neither case was the board required by the Regulations to consider the registrant’s request.

The situation in Burton’s case is far different. As related previously, Burton took the armed forces physical examination on May 5, 1966. His request to fulfill his obligation through employment as an animal keeper was written on that same day, presumably after he learned that he had passed the examination, and the request was received by the local board on May 6, 1966, one day later. A Statement of Acceptability, dated May 5, 1966, was mailed to Burton on May 12, 1966. Thus, without question, Burton complied with the requirements of the Regulations, and the local board was therefore under a corresponding duty also to abide by the Regulations by independently making the required finding as to the appropriateness of the specific employment which Burton had properly requested. The local board failed to perform its duty, and its failure resulted from its erroneous belief that the State Director’s list operated to restrict, and even confine, the free exercise of its lawfully vested discretion.

I would reverse.

. The crucial portion of the Third Circuit’s opinion reads as follows :

United States v. Lawson, 337 F.2d at 816 .