Cornelious Lockhart v. United States

420 F.2d 1143

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 16, 1970
• Docket: 21311
• Status: Published

Opinions

ELY, Circuit Judge.

This appeal follows appellant’s conviction for having refused to submit to induction under the Universal Military Training and Service Act, 50 U.S.C. App. § 462. Our jurisdiction is conferred by 28 U.S.C. §§ 1291,1294.

Shortly after his eighteenth birthday, Lockhart registered with the Selective Service System at Local Board No. 121 (“the board”) in Los Angeles, California.¹ As the time for induction of registrants in the appellant’s age-group approached,² the board mailed Lockhart a Classification Questionnaire, SSS Form No. 100. In this form, which he immediately completed and returned, Lockhart indicated that he was a conscientious objector and requested a special form, SSS Form No. 150,³ in which he might more fully describe his beliefs. The board immediately sent this special form to Lockhart; however, the Selective Service file discloses that the form was never returned. Shortly thereafter, on October 2, 1964, Lockhart’s board classified him I-A, available for military service. When informing Lockhart of this classification, the board explained that should he question the validity of the classification, he had a right to a personal appearance before the board, or alternatively, the right to appeal the classification to the state appeal board. See 32 CFR §§ 1624.1, 1624.2, 1624.2(e), 1625.13 (1969).

Lockhart took neither of the remedial avenues of which he was advised; however, after allowing more than five months to pass, he requested a second Special Form for Conscientious Objectors, the Form No. 150. Although the board was not required to do so, it immediately complied with his request, and this time, Lockhart completed and returned the form. The board reopened Lock-hart’s Selective Service file to consider the information which the completed form contained and then concluded that Lockhart had failed to present sufficient evidence to warrant a change in his class. I-A status. Again Lockhart was notified of his rights to the full administrative review which Congress has provided. See Petrie v. United States, 407 F.2d 267 (9th Cir. 1969). Thereafter, when Lockhart again failed to initiate any administrative review within the prescribed period, the board issued the order of induction which led to Lockhart’s conviction.

Lockhart’s defense consisted, in large measure, of a challenge to the validity of his induction order upon the contention that there was no “basis in fact” to support the board’s denial of a conscientious objector exemption. The District Court, following its interpretation of Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946), and Donato v. United States, 302 F.2d 468 (9th Cir. 1962), applied the doctrine requiring the exhaustion of administrative remedies⁴ and refused to consider the propriety of the board’s classification. In taking this course, the District Court faithfully adhered to an unbroken line of this court’s opinions. See, e. g., Yeater v. United States, 397 F.2d 975 (9th Cir. 1968); Edwards v. United States, 395 F.2d 453 (9th Cir.), cert. denied, 393 U.S. 845, 89 S.Ct. 128, 21 L.Ed.2d 115 (1968); Woo v. United States, 350 F.2d 992 (9th Cir. 1965); Greiff v. United States, 348 F.2d 914 (9th Cir. 1965); Badger v. United States, 322 F.2d 902 (9th Cir. 1963), cert. denied, 376 U.S. 914, 84 S.Ct. 669, 11 L.Ed.2d 610 (1964) ; Prohoroff v. United States, 259 F.2d 694 (9th Cir. 1958), cert. denied, 359 U.S. 907, 79 S.Ct. 583, 3 L.Ed. 2d 572 (1959); Evans v. United States, 252 F.2d 509 (9th Cir. 1958). It is the District Court’s application of the exhaustion doctrine which is here challenged.

Generally, a proper application of the exhaustion doctrine is made when the nature of the particular dispute is such that the objectives sought to be served by the doctrine are achieved by its application to the specific controversy. As the Supreme Court has explained in the context of a Selective Service case, “Application of the doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved.” McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969). See also Craycroft v. Ferrall, 408 F.2d 587, 594 (9th Cir. 1969).

The exhaustion doctrine serves an important function in our governmental scheme. Administrative agencies are not a part of the Government’s judicial branch. They are “independent” and part of the Executive. L. Jaffe, Judicial Control of Administrative Action 425 (1965). Accordingly, when litigants urge the courts to resolve questions which Congress has committed to the discretion • or expertise of the Executive through a particular agency, the courts, mindful of the checks and balances built into our system, avoid interference with the agency unless and until it has exceeded its powers. Any other course would quickly lead the courts to exercise their judicial discretion in areas wherein they should be powerless to act. When properly applied, then, the exhaustion doctrine prevents improper encroachment into the Executive area, or, as Professor Jaffe explains, the exhaustion requirement is “an expression of executive and administrative autonomy.” Id.

The instant case presents a registrant who, having failed to exhaust an appeal, asked the District Court to determine whether he sustained his burden of proving entitlement to military exemption as a conscientious objector. Whether or not Lockhart deserved the exemption which he claimed depends entirely upon the sincerity of the beliefs described in his SSS Form 150. Sincerity, vel non, as has frequently been explained, is ascertained by an appraisal of the registrant’s subjective state of mind and is simply not amenable to unerring objective determination. See, e. g., Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955); Bishop v. United States, 412 F. 2d 1064 (9th Cir. 1969); Bradley v. United States, 218 F.2d 657 (9th Cir. 1954). See also McKart v. United States, supra. By its nature, the question which Lockhart presented to the court below is one which, for its resolution, necessarily requires the application of discretion — discretion which, in the first instance, we think Congress properly placed with the local and appeal boards of our Selective Service System.⁵ Accordingly, we have heretofore held that registrants who, like Lockhart, claim conscientious objector exemption must exhaust administrative remedies available to them within the System.⁶ Now, we must consider whether the teaching of McKart v. United States, supra, requires us to abandon the position which, hitherto, we have consistently taken.

In McKart, the Supreme Court examined the severe effects upon registrants where, as here, the exhaustion doctrine is invoked in a criminal prosecution for failure to comply with a Selective Service order. The Court recognized the severity of the exhaustion requirement; nevertheless, it concluded that its application is proper in certain eases. McKart v. United States, supra, 395 U.S. at 197-198, 89 S.Ct. 1657. See Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944).

McKart was not such a ease. There, the registrant’s board revoked his sole-surviving son exemption when the last member of his immediate “family unit” died. During the criminal prosecution which followed his refusal to submit to induction, McKart argued that his classification was invalid because the Selective Service board misinterpreted the exempting statute in ruling that the existence of a “family unit” is crucial. As the Supreme Court observed, the administrative review which McKart did not exhaust was not created for determination of the particular type of issue which McKart presented to the courts. Indeed, it was apparent that he was simply asking the judiciary to do something long considered part of its constitutional prerogative, to determine the meaning of a Congressional enactment. Hence, since it was not a matter which Congress could have delegated to the exclusive discretion or expertise of another branch of the government, and since the issue did not, for its resolution, require additional administrative fact-gathering, there was no compelling need for an agency decision in the first instance.'⁷' In short, none of the purposes supporting the exhaustion doctrine would be served by its application in McKart’s case; hence, held the High Court, it was not applicable.

But as the Supreme Court recognized in McKart, claims such as Lockhart’s present a wholly distinct problem.⁸ Here, where evaluation of Lockhart’s claim would involve the court in matters clearly committed to the discretion of local and appeal boards within the Selective Service System, application of the doctrine serves the important objectives supporting the rule. In this case, application of the doctrine is supported not only by McKart but also by the disposition, as well as the history, of DuVernay v. United States, 394 U.S. 309, 89 S.Ct. 1186, 22 L.Ed.2d 306 (1969), aff’g 394 F.2d 979 (5th Cir. 1968). DuVernay was convicted for having refused to submit to induction, the trial court holding that his failure to appeal the local board’s reclassification foreclosed consideration of various defensive contentions. DuVernay attempted to introduce evidence which, according to him, would tend to prove that Negroes were systematically excluded from membership on his local board, that he was denied due process of law by his local board, and that the chairman of the board was affiliated with the Ku Klux Klan. The trial court rejected the proffered testimony.

On appeal the Fifth Circuit affirmed DuVernay’s conviction on the sole ground that DuVernay had failed to exhaust his administrative remedies. Oral argument in both DuVernay and McKart was heard by the Supreme Court on the same day, but DuVernay’s conviction was affirmed by an equally divided court, Mr. Justice Fortas not participating. The Supreme Court’s affirmance of DuVernay’s conviction occurred only a relatively short time before the issuance of the reversing opinion in McKart.

Since the contentions raised by Du-Vernay did not relate to the discretionary functions of the local board, they would doubtless have been ignored by an appeal board. It seems to us, therefore, that DuVernay made a stronger case for relaxation of the exhaustion requirement than Lockhart has been able to present in the case at hand. Thus it follows, a fortiori, that Lockhart’s challenge to his local board’s evaluative classification decision was properly foreclosed because he had failed to exhaust his administrative remedies. Hence, guided in part by DuVernay and seeing nothing in McKart which requires us to overturn the well-established rule that registrants such as Lockhart must advance their claims before a Selective Service System appeal board, we hold that the District Court’s decision was correct, absent “exceptional circumstances” which justify relaxation of the rule. See, e. g., Edwards v. United States, 395 F.2d 453, 454 (9th Cir.), cert. denied, 393 U.S. 845, 89 S.Ct. 128, 21 L. Ed.2d 115 (1968); Donato v. United States, 302 F.2d 468, 469-470 (9th Cir. 1962).

The particular circumstances held to call for such relaxation in Donato v. United States, supra, were highly unique. There, a registrant who intended to pursue his administrative appeals was summoned to firefighting duty during the specified time within which he might have taken such appeals. The prescribed period expired before Donato was able to return from his firefighting mission, and we held that his failure to take his administrative appeal should be excused. Although we have often explained that cases such as Donato are extremely rare, we have continued to recognize that, in “exceptional circumstances,” the failure to exhaust administrative remedies may be excused. See, e. g., Edwards v. United States, supra. Here, Lockhart’s only excuse for not appealing his classification was that he did not know that failure to do so would bar later efforts to challenge that classification. The District Court did not believe that this excuse could be equated with those rare and compelling reasons, such as were present in Donato and its progeny, which can justify elimination of the requirement for exhaustion. We agree. See Greiff v. United States, 348 F.2d 914 (9th Cir. 1965).

Lockhart also argues that his conviction must be reversed due to certain procedural irregularities which allegedly occurred during the induction proceedings. The first of these contentions rests on the fact that the Selective Service file contains a Security Questionnaire, DD Form 98, on which Lockhart’s name is typed but which is otherwise blank. Lockhart points to the board’s notes which indicate that this form was not originally returned to the board by army personnel following the refusal to submit to induction. From this, we are urged to infer that Lockhart was never given an opportunity to complete the Security Questionnaire. Lockhart did not argue this point during his trial; however, he did make a Motion for Judgment of Acquittal which, while admittedly an indirect and unsatisfactory method of raising such issues, was sufficient to preserve it for our consideration. Howze v. United States, 409 F.2d 27 (9th Cir. 1969); Oshatz v. United States, 404 F.2d 9 (9th Cir. 1968). See also United States v. Mizrahi, 417 F.2d 246 (9th Cir. Sept. 18, 1969).

The appellant is quite correct that if the army failed to give him an opportunity to complete the DD Form 98, his conviction must be reversed. Oshatz v. United States, supra. However, it is also true that if he were given an opportunity to complete the form and refused to do so, he cannot rely on a claim of consequent prejudice. Welsh v. United States, 404 F.2d 1078 (9th Cir. 1968), cert. granted, 396 U.S. 816, 90 S.Ct. 53, 24 L.Ed.2d 67 (Oct. 13, 1969); Oshatz v. United States, supra.

Aside from the fact that the form is blank and was not among the papers initially sent to the board by the induction center, there is absolutely nothing in the record which supports the inference which Lockhart urges us to draw. To the contrary, there is testimony of Lockhart himself that during the induction process, he refused to complete certain forms which were made available to him.⁹ From this, the stronger inference is that Lockhart simply refused to complete the Security Questionnaire. We are obliged to review the record in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and since Lockhart introduced no proof, not even as a part of his own testimony, to the contrary, the inference that he refused to complete a presented loyalty questionnaire should control. Accordingly, he may claim no prejudice from the fact that the questionnaire was not completed. Welsh v. United States, supra.

Finally, Lockhart contends (1) that there was irregularity in the manner in which he was asked to take the symbolic step signifying induction and (2) that the Government failed to prove that his local board had jurisdiction to order him for induction. The record does not support these contentions.

Affirmed.

1 . With certain enumerated exceptions, every male citizen of the United States must familiarize himself with his responsibilities under the Selective Service Act and must present himself for registration in the Selective Service on his eighteenth birthday. See 32 CFR §§ 1611.1-1611.7 (1969).

2 . Under section 5(a) of the Selective Service Act, the President determines the manner and order of selection, and the Act specifically allows such selection to be “by age group or groups.” The present regulations, which were also effective when Lockhart received his induction notice, provide an “oldest first” order of selection. Hence, local boards draft all eligible registrants closest to age twenty-six before processing younger registrants. See 32 CFR § 1631.7(a) (1969).

3 . Lockhart signed the following portion of the Form 100 which his board sent to him:

“I claim to be a conscientious objector by reason of my religious training and belief and therefore request the local board to furnish me Special Form for Conscientious Objector (SSS Form 150).”

This was the only indication of Lock-hart's beliefs which Lockhart supplied to his board prior to his initial I-A classification.

4 . In his ruling on the application of the exhaustion doctrine, the district judge commented:

“I am * * * a District Judge confronted with a Supreme Court decision, not just another District Judge, or some administrative ruling, where in the Estep versus United States, in that case the Supreme Court of this country made this matter of exhausting administrative remedies very clear and very plain, I think.

“And I would read the Donato ease as saying that if, for example, the man doesn’t appeal because he is sick, or he is fighting fires, or he was hit by an automobile, or something that would prevent him from actually doing this, then in that event they would allow, they would set aside this defense, or this exhaustion of the administrative remedies decision. So that that would not apply to that particular individual.

“I find under the state of the evidence in this case that this is not the situation here.”

5 . In McKart v. United States, supra, the Supreme Court recognized the vast area of discretion which surrounds such determinations by both local and appeal boards.

“Conscientious objector claims, Military Selective Service Act of 1967, § 6 (j), 81 Stat. 104, 50 U.S.C.App. § 456 (j) (1964 Ed., Supp. III), or deferments for those engaged in activities deemed necessary ‘to the maintenance of the national health, safety, or interest,’ id., § 6(h) (2), 81 Stat. 102, 50-U.S.C.App. § 456(h) (2) (1964 ed., Supp. III), would appear to be examples of questions requiring the application of expertise or the exercise of discretion. In such cases, the Selective Service System and the courts may have a stronger interest in having the question decided in the first instance by the local board and then by the appeal board, which considers the question anew. 32 CFR § 1626.26. The Selective Service System is empowered by Congress to make such discretionary determinations and only the local and appeal boards have the necessary expertise. See Thompson v. United States, 380 F.2d 86 (C.A.10th Cir. 1967).”

395 U.S. at 198 n. 16, 89 S.Ct. at 1665.

6 . See, e. g., Yeater v. United States, 397 F.2d 975 (9th Cir. 1968); Edwards v. United States, 395 F.2d 453 (9th Cir.), cert. denied, 393 U.S. 845, 89 S.Ct. 128, 21 L.Ed.2d 115 (1968); Woo v. United States, 350 F.2d 992 (9th Cir. 1965); Greiff v. United States, 348 F.2d 914 (9th Cir. 1965); Badger v. United States, 322 F.2d 902 (9th Cir. 1963), cert. denied, 376 U.S. 914, 84 S.Ct. 669, 11 L.Ed.2d 610 (1964); Prohoroff v. United States, 259 F.2d 694 (9th Cir. 1958), cert. denied, 359 U.S. 907, 79 S.Ct. 583, 3 L.Ed.2d 572 (1959); Evans v. United States, 252 F.2d 509 (9th Cir. 1958).

7 . “Since judicial review would not be significantly aided by an additional administrative decision of this sort, we cannot see any compelling reason why petitioner’s failure to appeal should bar his only defense to a criminal prosecution. There is simply no overwhelming need for the court to have the agency finally resolve this question in the first instance, at least not where the administrative process is at an end and the registrant is faced with criminal prosecution.” 395 U.S. at 199, 89 S.Ct. at 1665.

8 . See note 6, supra, and accompanying text.

9 . Lockhart’s testimony in the court below included the following:

“Q. Now, before you were taken to this room where the others were, and somebody whispered to somebody, had anything occurred to let the man who brought you there know that you were going to be an objector, a refusal?

“A. No, I don’t.

* * * * *

“Q. What happened five minutes before you were brought to the room where the others were seated?

“A. Well, here we were filling out some written forms, and it had a clause in there stating that you would go to the Service, or some form at the time that I wouldn’t sign, or I refused to sign it at the time, so on then receiving my paper, they called it to my attention that I had not signed, and I told him, ‘That is right,’ that I was not going, T am not going to sign,’ so they immediately called in someone else, and then this person, he looked at my paper, and he said, ‘Oh no,’ made some remark like that, and then he says, ‘Follow me.’ ”

(Emphasis added).