United States v. Warren Gerald Harding

461 F.2d 993 UNITED STATES of America, Plaintiff-Appellee, v. Warren Gerald HARDING, Defendant-Appellant. No. 71-2486. United States Court of Appeals, Ninth Circuit. April 7, 1972. John F. Moulds, III (argued), of Blackmon, Isenberg, Moulds & Blicker, Sacramento, Cal., for defendant-appellant. Chester Moore, III, (argued), Joseph E. Reeves, F. Steele Langford, Asst. U. S. Attys., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiff-appellee. Before DUNIWAY, HUFSTEDLER and KILKENNY, Circuit Judges. DUNIWAY, Circuit Judge: 1 Harding was convicted of violating 50 U.S.C. App. Sec. 462 by refusing to be inducted into the Armed Forces as ordered. We reverse. 2 Harding's local board classified him I-A on June 20, 1968. He wrote to the board on June 29, stating that he was a full-time undergraduate college student, and again on July 6, requesting a IV-D classification as a minister in the Universal Life Church. The board refused to reopen his file and reconsider his I-A status. On July 23, 1968, three days after expiration of the 30-day period allowed by 32 C.F.R. Sec. 1626.2(c) for appeal from his I-A classification, Harding sent his local board a letter stating:…

Harding was convicted of violating 50 U.S.C. App. § 462 by refusing to be inducted into the Armed Forces as ordered. We reverse.

*994 Harding’s local board classified him I-A on June 20, 1968. He wrote to the board on June 29, stating that he was a full-time undergraduate college student, and again on July 6, requesting a IV-D classification as a minister in the Universal Life Church. The board refused to reopen his file and reconsider his I-A status. On July 23, 1968, three days after expiration of the 30-day period allowed by 32 C.F.R. § 1626.2 (c) for appeal from his I-A classification, Harding sent his local board a letter stating: “I appeal your decision and continue my petition for IV-D classification.” The Executive Secretary of the board, without consulting the board, responded to appellant on July 25, 1968:

Selective Service Regulations, 32 C.F. R. § 1626.2(d), provide in pertinent part:

appeal, and § 1626.2(d) was applicable. That regulation vests discretion to allow late-filed appeals in the local board, not in the Executive Secretary nor in the courts. The Executive Secretary by her letter of July 25 foreclosed the local board’s option to permit the appeal under the…

(dissenting) :

Appellant’s letter 1 of July 23, 1968, was an attempted appeal from the *995 board’s refusal to reopen his classification, rather than an appeal from the I-A classification of June 20th. Appellant was first classified I-A on August 19, 1963. Again, on November 21, 1966, December 30, 1966, and October 23, 1967, he was classified I-A and then granted student deferments, the last deferment on February 26, 1968. The record demonstrates beyond all doubt that appellant is intelligent and articulate. In these circumstances, we should not read into the letter something which is not there. Of course, we have no power to entertain an attempted appeal from the order refusing to reopen. United States v. Norman, 412 F.2d 629, 631 (9th Cir. 1969), Petrie v. United States, 407 F.2d 267, 275 (9th Cir. 1969) (In Banc). The secretary had no more authority to treat the letter as an appeal, than she had to otherwise exercise discretion on behalf of the board.

Even assuming that appellant’s letter should be treated as a late appeal, the conviction should not be reversed. I find nothing in the record which supports the majority’s conclusion that the local board might exercise its…