Michael James Walsh v. United States

436 F.2d 1188 Michael James WALSH, Appellant, v. UNITED STATES of America, Appellee. No. 25813. United States Court of Appeals, Ninth Circuit. Jan. 12, 1971. Earl Monsey (argued), Las Vegas, Nev., for appellant. Bart M. Schouweiler (argued), U.S. Atty., Wm. Patterson Cashill, Asst. U.S. Atty., Las Vegas, Nev., for appellee. Before ELY and HUFSTEDLER, Circuit Judges, and BYRNE, 1 District judge. HUFSTEDLER, Circuit Judge: 1 Walsh appeals from a conviction for violating 50 U.S.C. App. 462 upon his failure to comply with an order of his local draft board to report for civilian work in lieu of induction. We reverse his conviction on the ground that the order to report for the civilian work to which he was assigned was invalid, because state law forbade Walsh's employment in the job to which he was assigned. 2 Walsh, classified I-O, was initially ordered by his local board to report to Mrs. Gwendolyn Williams, Personnel Assistant of the Nevada State Hospital, to do 'welfare work.' Walsh reported to Mrs. Williams on March 18, 1969. She advised Walsh that there was an opening for a nursing assistant trainee, a position for which a written examination was required. He filed an application…

Walsh appeals from a conviction for violating 50 U.S.C. App. § 462 upon his failure to comply with an order of his local draft board to report for civilian work in lieu of induction. We reverse his conviction on the ground that the order to report for the civilian work to which he was assigned was invalid, because state law forbade Walsh’s employment in the job to which he was assigned.

*1189 Walsh, classified 1-0, was initially ordered by his local board to report to Mrs. Gwendolyn Williams, Personnel Assistant of the Nevada State Hospital, to do “welfare work.” Walsh reported to Mrs. Williams on March 18, 1969. She advised Walsh that there was an opening for a nursing assistant trainee, a position for which a written examination was required. He filed an application for that position. At the same time, he requested an application for a job as a hospital janitor, and he also filled out that application. No examination was required for the janitor’s job. Mrs. Williams told him that she considered a janitorial post as “institutional work,” not “welfare work,” and that, since Walsh was ordered to do “welfare work,” he must apply for a nursing- assistant trainee post.

On the same…

I respectfully dissent.

Under the regulations of the Selective Service System, registrants classified 1-0 perform, in lieu of induction into the Armed Forces, civilian work which is deemed in “the national health, safety, or interest.” Primary responsibility for *1190 determining “appropriate” civilian work is vested in the officials of the Selective Service System. In the instant case, this responsibility has been - seemingly dissipated by the holding of the majority. Here, the registrant classified I-O, sabotaged a legitimate order to report for “appropriate” civilian work because he determined this work to be incompatible with his personal interests. In light of the conspicuous absence of even a hint of supporting authority, this curious result must be labeled as an odd precedent.

Walsh was ordered by his local board to report on March 17, 1969, to Mrs. Gwendolyn Williams to determine his “employability” for “welfare” work at the Nevada State Hospital. Arriving a day late, March 18, he met with Mrs. Williams, a personnel assistant. Mrs. Williams informed Walsh the only position with a vacancy was that of “nursing assistant trainee.” Despite the lack of openings, Walsh…