United States v. Bert Daniel Stark

Appellant, classified 1-0 by his local draft board, stands convicted of failure to report for civilian work in lieu of induction into the military service. Upon appeal he asserts that no order to report was ever made by the board; that the only order issued was one by the clerk of the board and that the record is silent as to her authority. Appellant relies on Brede v. United States, 396 F.2d 155 , 400 F.2d 599 (9th Cir. 1968). The United States suggests that Brede should be re-examined. The court has taken the appeal in banc for that purpose.

In Brede we recited the Government’s contention as follows:

We then noted:

The same situation exists in this ease. Nevertheless we are of the view, and so hold, that where, as here (and in Brede), the board’s determination includes not only the type of employment deemed appropriate but also the employer to whom the registrant is to report, the critical exercise of administrative judgment by the board has been made and an order to report to the specified employer (subject to authorization of the National Director) is implicit and the action of the clerk in issuing the order is merely ministerial implementation. To this extent Brede is…