WINTER, Circuit Judge:
As submitted to us, these two appeals required us to determine, with particular reference to the Supreme Court’s decisions in Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970), and Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970), whether a local board may refuse to reopen a registrant’s classification when presented with a prima facie claim for a deferment after an order for induction had issued, and, if not, whether such illegal board conduct may be challenged prior to the registrant’s induction or prosecution for failure to submit to induction. No. 14,016 concerned a late request for a III-A hardship deferment. No. 14,155 concerned a belated crystallization of conscientious objection views.
After initial argument, we suggested rehearing en banc together with United States v. Collins, 445 F.2d 653 (4 Cir. [1007]*10071971), which also presented the question of a claim of belated crystallization of conscientious objection views. Counsel then suggested that we defer disposition of the cases until the decision in Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), which was then pending. Ehlert is now decided, and we have concluded to return the instant appeals to the original panel which heard them for decision. Ehlert was decided adversely to registrant and requires affirmance in No. 14,155. But in No. 14,016, we have concluded that there was illegal board conduct reviewable by pre-induction proceedings. In that case we, therefore, reverse and remand for further proceedings.
I
The registrant, Gerson Grosfeld, was a college student from September, 1964, until June, 1968. For each of these four undergraduate years he requested and was granted a II-S student deferment. Upon graduation he was classified I-A. Thereafter, he entered the University of Arizona as a full-time graduate student and a part-time teaching assistant. On the basis of these positions, Grosfeld requested his board to grant him a II-S graduate student deferment or a II-A occupational deferment. His board treated these requests as an appeal from his I-A classification and forwarded them to the appeal board along with the rest of Grosfeld’s file. The appeal board affirmed Grosfeld’s I-A classification on December 5, 1968.
On March 26, 1969, Grosfeld received an order to report for induction on April 15, 1969. He immediately wrote to his board to request a I-S graduate deferment in order to finish the school year. The board refused this request for a change in classification but notified him that his actual induction would be delayed until June so he could complete his course of study.
Grosfeld then requested a III-A hardship deferment. In a letter to his board he claimed that he had just learned for the first time that his mother, who suffered from a serious disease, would be gravely affected by his induction. Thereafter, the board was supplied with evidence which tended to support his claim.1 Almost two months later the board notified him that it had refused to reopen his classification to consider his claim for a III-A deferment. Simultaneously he was ordered to report for induction on August 12, 1969.
On August 5, Grosfeld instituted an action (No. 14,016) to compel his board to reopen his classification and consider the claims for deferments which he had advanced. The district court denied relief. It ruled that under § 6(h) (1) of the Selective Service Act of 1967, 50 U.S.C.A. App. § 456(h) (1), Grosfeld was not entitled to a I-S graduate deferment because he had requested and received an undergraduate II-S deferment and baccalaureate degree after the effective date of the Act.2 The district court also held that judicial review of Grosfeld’s claim to a III-A hardship deferment was barred by § 10(b) (3) of the Act, 50 U.S.C.A. App. § 460(b) (3).
II
On August 11, 1969, Grosfeld wrote again to his local board — this time claiming that he was a conscientious objector due to religious training and belief. Thereafter, he filled out and filed Selective Service Form 150 in which he alleged an upbringing in Orthodox Judaism, his belief in the basic ethical tenets of that tradition, and his realization upon receipt of his induction order that he could not in conscience serve in any war. Simultaneously he filed letters from two [1008]*1008close friends and four rabbis which attested to the sincerity of his beliefs. On October 6, 1969, the board held what it termed a “courtesy interview” at which it took sworn testimony from Grosfeld and his father. On November 22, 1969, the board refused to reopen and ordered Grosfeld to report for induction on December 3, 1969.
On November 25, 1969, Grosfeld filed a second action (No. 14,155) in the district court in which he alleged a number of irregularities including a claim that the board had wrongfully refused to reopen. The district court denied relief on the ground that § 10(b) (3) precluded pre-induction judicial review.
III
In both actions, Grosfeld alleged that the district court had jurisdiction under the Mandamus and Venue Act of 1962, 28 U.S.C.A. § 1361, and the Federal Habeas Corpus Statute, 28 U.S.C.A. § 2241. In his second action he added 28 U.S.C.A. § 1331(a) as an alleged jurisdictional foundation. We need not consider, however, whether Grosfeld is now by virtue of his induction order “in custody” within the meaning of 28 U.S.C.A. § 2241(c) (1) or whether the $10,000 jurisdictional amount required by 28 U.S.C.A. § 1331(a) is present, because we consider § 1361 an adequate jurisdictional basis for these two actions. It provides that
The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.
Nor need we be concerned with the extent to which the traditional mandamus dichotomy between ministerial and discretionary administrative functions survives in § 1361 as a limitation on judicial review. See e. g., Byse & Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and “Nonstatu-tory” Judicial Review of Federal Administrative Action, 81 Harv.L.Rev. 308, 331-36 (1967); L. Jaffe, Judicial Control of Administrative Action, 181-82 (1965). That limitation on traditional mandamus relief reflected the policy that the judiciary should not control an administrative officer’s valid exercise of a delegated power. Here, however, Gros-feld claims that his board has no authority under the Selective Service Act to refuse to reopen his classification, consider his new grounds for deferment, and permit him an administrative appeal from an adverse decision. If his argument is correct, judicial review would not interfere with the board’s exercise of a legitimate discretionary power. Therefore, even under traditional mandamus principles, § 1361 confers jurisdiction to consider this claim. See Carey v. Local Board No. 2, 297 F.Supp. 252, 254-55 (D.Conn.), aff’d, 412 F.2d 71 (2 Cir. 1969) (per curiam).3
Free access — add to your briefcase to read the full text and ask questions with AI
WINTER, Circuit Judge:
As submitted to us, these two appeals required us to determine, with particular reference to the Supreme Court’s decisions in Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970), and Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970), whether a local board may refuse to reopen a registrant’s classification when presented with a prima facie claim for a deferment after an order for induction had issued, and, if not, whether such illegal board conduct may be challenged prior to the registrant’s induction or prosecution for failure to submit to induction. No. 14,016 concerned a late request for a III-A hardship deferment. No. 14,155 concerned a belated crystallization of conscientious objection views.
After initial argument, we suggested rehearing en banc together with United States v. Collins, 445 F.2d 653 (4 Cir. [1007]*10071971), which also presented the question of a claim of belated crystallization of conscientious objection views. Counsel then suggested that we defer disposition of the cases until the decision in Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), which was then pending. Ehlert is now decided, and we have concluded to return the instant appeals to the original panel which heard them for decision. Ehlert was decided adversely to registrant and requires affirmance in No. 14,155. But in No. 14,016, we have concluded that there was illegal board conduct reviewable by pre-induction proceedings. In that case we, therefore, reverse and remand for further proceedings.
I
The registrant, Gerson Grosfeld, was a college student from September, 1964, until June, 1968. For each of these four undergraduate years he requested and was granted a II-S student deferment. Upon graduation he was classified I-A. Thereafter, he entered the University of Arizona as a full-time graduate student and a part-time teaching assistant. On the basis of these positions, Grosfeld requested his board to grant him a II-S graduate student deferment or a II-A occupational deferment. His board treated these requests as an appeal from his I-A classification and forwarded them to the appeal board along with the rest of Grosfeld’s file. The appeal board affirmed Grosfeld’s I-A classification on December 5, 1968.
On March 26, 1969, Grosfeld received an order to report for induction on April 15, 1969. He immediately wrote to his board to request a I-S graduate deferment in order to finish the school year. The board refused this request for a change in classification but notified him that his actual induction would be delayed until June so he could complete his course of study.
Grosfeld then requested a III-A hardship deferment. In a letter to his board he claimed that he had just learned for the first time that his mother, who suffered from a serious disease, would be gravely affected by his induction. Thereafter, the board was supplied with evidence which tended to support his claim.1 Almost two months later the board notified him that it had refused to reopen his classification to consider his claim for a III-A deferment. Simultaneously he was ordered to report for induction on August 12, 1969.
On August 5, Grosfeld instituted an action (No. 14,016) to compel his board to reopen his classification and consider the claims for deferments which he had advanced. The district court denied relief. It ruled that under § 6(h) (1) of the Selective Service Act of 1967, 50 U.S.C.A. App. § 456(h) (1), Grosfeld was not entitled to a I-S graduate deferment because he had requested and received an undergraduate II-S deferment and baccalaureate degree after the effective date of the Act.2 The district court also held that judicial review of Grosfeld’s claim to a III-A hardship deferment was barred by § 10(b) (3) of the Act, 50 U.S.C.A. App. § 460(b) (3).
II
On August 11, 1969, Grosfeld wrote again to his local board — this time claiming that he was a conscientious objector due to religious training and belief. Thereafter, he filled out and filed Selective Service Form 150 in which he alleged an upbringing in Orthodox Judaism, his belief in the basic ethical tenets of that tradition, and his realization upon receipt of his induction order that he could not in conscience serve in any war. Simultaneously he filed letters from two [1008]*1008close friends and four rabbis which attested to the sincerity of his beliefs. On October 6, 1969, the board held what it termed a “courtesy interview” at which it took sworn testimony from Grosfeld and his father. On November 22, 1969, the board refused to reopen and ordered Grosfeld to report for induction on December 3, 1969.
On November 25, 1969, Grosfeld filed a second action (No. 14,155) in the district court in which he alleged a number of irregularities including a claim that the board had wrongfully refused to reopen. The district court denied relief on the ground that § 10(b) (3) precluded pre-induction judicial review.
III
In both actions, Grosfeld alleged that the district court had jurisdiction under the Mandamus and Venue Act of 1962, 28 U.S.C.A. § 1361, and the Federal Habeas Corpus Statute, 28 U.S.C.A. § 2241. In his second action he added 28 U.S.C.A. § 1331(a) as an alleged jurisdictional foundation. We need not consider, however, whether Grosfeld is now by virtue of his induction order “in custody” within the meaning of 28 U.S.C.A. § 2241(c) (1) or whether the $10,000 jurisdictional amount required by 28 U.S.C.A. § 1331(a) is present, because we consider § 1361 an adequate jurisdictional basis for these two actions. It provides that
The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.
Nor need we be concerned with the extent to which the traditional mandamus dichotomy between ministerial and discretionary administrative functions survives in § 1361 as a limitation on judicial review. See e. g., Byse & Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and “Nonstatu-tory” Judicial Review of Federal Administrative Action, 81 Harv.L.Rev. 308, 331-36 (1967); L. Jaffe, Judicial Control of Administrative Action, 181-82 (1965). That limitation on traditional mandamus relief reflected the policy that the judiciary should not control an administrative officer’s valid exercise of a delegated power. Here, however, Gros-feld claims that his board has no authority under the Selective Service Act to refuse to reopen his classification, consider his new grounds for deferment, and permit him an administrative appeal from an adverse decision. If his argument is correct, judicial review would not interfere with the board’s exercise of a legitimate discretionary power. Therefore, even under traditional mandamus principles, § 1361 confers jurisdiction to consider this claim. See Carey v. Local Board No. 2, 297 F.Supp. 252, 254-55 (D.Conn.), aff’d, 412 F.2d 71 (2 Cir. 1969) (per curiam).3
IV
The main issue raised by these appeals concerns the government’s argument that § 10(b) (3) of the Selective Service Act of 1967, 50 U.S.C.A. App. § 460(b) (3), deprived the district court of jurisdiction to review the board’s actions prior to induction or attempted induction. Section 10(b) (3) provides:
No judicial review shall be made of the classification or processing of any registrant by local boards * * * except as a defense to a criminal prosecution * * * after the registrant has responded either affirmatively or negatively to an order to report for induction. * * *
[1009]*1009In Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), the Supreme Court rejected a literal reading of this legislation as a flat bar on all pre-induction judicial review. It held that § 10(b) (3) did not bar pre-induction judicial review of a registrant’s claim that his draft board had unlawfully ordered him to report for induction as a delinquent when he was entitled to the statutory exemption for students preparing for the ministry. Since the statutory exemption contained no indication that it could be denied for “delinquency,” Oestereich’s classification was “blatantly lawless” and, therefore, subject to pre-induction review.
Oestereich was followed by Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968). There the Court upheld the constitutionality of § 10(b) (3) and concluded that it barred pre-induction judicial review of a registrant’s claim that his board had made an erroneous factual determination of his status as a conscientious objector. Gabriel distinguished Oestereich on the following ground:
In Oestereich the delinquency procedure by which the registrant was reclassified was without statutory basis and in conflict with petitioner’s rights explicitly established by the statute and not dependent upon an act of judgment by the board. Oestereich, as a divinity student, was by statute unconditionally entitled to exemption. Here, by contrast, there is no doubt of the board’s statutory authority to take action which appellee challenges, and that action inescapably involves a determination of fact and an exercise of judgment.
393 U.S. at 258, 89 S.Ct. at 426.
The Supreme Court’s recent decision in Breen v. Selective Service Local Board No. 16, supra, completes the current trilogy on § 10(b) (3). There the registrant claimed that his board had unlawfully ordered him to report for induction as a “delinquent” in the face of a statutory deferment for full-time college students to which he was entitled. Again the Court concluded that “a draft registrant who was required by the relevant law not to be inducted was in fact ordered to report for military service.” 396 U.S. at 467, 90 S.Ct. at 666. Since the board’s action constituted “clear departure * * from its statutory mandate,” pre-induction judicial review was not precluded. 396 U.S. at 467, 90 S.Ct. at 666, quoting from Oestereich v. Selective Service Local Board No. 11, 393 U.S. at 238, 89 S.Ct. 414.
In applying this pronounced exception to § 10(b) (3), lower federal courts have been faced with the problem of more closely defining its scope. Many of them have been disposed to adhere to a general test of “blatantly lawless” board action, placing little or no significance upon the type of challenge raised by the complaint. E. g., Steiner v. Officer in Command, 436 F.2d 687, 690 (5 Cir. 1970); Fein v. Selective Service System Local Board No. 7, 430 F.2d 376, 379 (2 Cir. 1970), cert. granted, 401 U.S. 953, 91 S.Ct. 975, 28 L.Ed.2d 236 (1971). Others, however, have attached significance to the language in Clark v. Gabriel, supra, which distinguished between challenges to discretionary action and factual conclusions of a local board on the one hand, and challenges to a board’s processing procedures on the other. Thus, in Bucher v. Selective Service System, 421 F.2d 24 (3 Cir. 1970), it was stated that: [1010]*1010421 F.2d at 27. See also, Liese v. Local Board No. 102, 440 F.2d 645 (8 Cir. 1971); Zerillo v. Local Board No. 102, 440 F.2d 136 (8 Cir. 1971); McClain v. Selective Service Local Board No. 47, 439 F.2d 737 (8 Cir. 1971);4 Hunt v. Local Board No. 197, 438 F.2d 1128 (3 Cir. 1971) (opinions of Gibbons and Freedman, JJ.); Edwards v. Selective Service Local Board No. 111, 432 F.2d 287 (5 Cir. 1970) (dissenting opinion, Tuttle, J.); Fein v. Selective Service System Local Board No. 7, supra (dissenting opinion, Lumbard, C. J.); Nestor v. Hershey, 138 U.S.App.D.C. 73, 425 F.2d 504 (1969).
[1009]*1009Section 10(b) (3) does not bar pre-induction judicial review where, as here, the validity of the Selective Service System’s delinquency reclassification procedures is challenged on the grounds that they lack statutory authorization, and/or violate constitutional rights. The Section bars pre-induction judicial review only where there is a challenge to the System’s resolution of factual questions in the classification or processing of a draft registrant, (emphasis supplied.)
[1010]*1010We accept the distinction recognized in these latter authorities. Taken collectively, we think that Oestereich, Gabriel and Breen establish the rule that § 10(b) (3) does not bar pre-induction judicial review of a claim that a board’s classification procedure is without statutory authorization and, therefore, illegal, where the classification procedure involves neither a determination of fact nor an exercise of judgment.5 Thus, we must proceed to determine whether Grosfeld’s allegations of illegal board conduct have merit, and, if so, whether preinduction review is permitted under the exception to § 10(b) (3) as defined.
V
For simplicity, it is perhaps best first to consider and decide No. 14,155 — the belated conscientious objector claim. Registrant’s theory of the action is that he alleged a prima facie claim of conscientious objection constituting a change in his circumstances over which he had no control, that the board was, therefore, required to reopen and reconsider his classification, and that the board’s failure to do so constituted the type of unlawful action which entitled the registrant to pre-induction judicial review.
Ehlert v. United States, supra, demolished an essential link in registrant’s chain of argument, because it held that a local board is not required to reopen to consider a claim of conscientious objection when the claim is first lodged after issuance of an order to report for induction. Under such circumstances, the Court held, the registrant should report for induction and seek discharge under military regulations as a conscientious objector. It necessarily follows in the instant case that registrant can gain nothing from pre-induction review of valid board action, and the district court’s denial of relief in No. 14,155 will be affirmed. See United States v. Collins, supra; United States v. McKee, 446 F.2d 974 (4 Cir. 1971).
VI
In the remaining appeal (No. 14,-016), Grosfeld alleged that he presented the board with a prima facie case for entitlement to a III-A hardship deferment and that it was illegal for the board to refuse to reopen his classification. The [1011]*1011regulation dealing with reopening a registrant’s classification reads as follows:
The local board may reopen and consider anew the classification of a registrant (a) upon the written request of the registrant * * * if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant’s classification ; * * * provided * * * the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * * unless the local board first specifically finds there has been a change in circumstances over which the registrant had no control.
32 C.F.R. § 1625.2. Thus, a local board may reopen on the basis of a post-induction order request if three elements are present: (1) new facts not previously before the board are alleged, (2) these new facts, if true, would be sufficient to justify a change in classification, and (3) these new facts have arisen from circumstances beyond the control of the registrant.
Grosfeld’s request for a III-A hardship deferment satisfied all three of these conditions. It is not disputed that the information concerning his mother’s condition was not previously before the board. The facts, if true, would justify a change in classification. 32 C.F.R. § 1622.30(a) provides that:
In class III-A shall be placed any registrant whose induction in the armed forces would result in extreme hardship (1) to his * * * parent * * * who is dependent on him for support. * * *
And 32 C.F.R. § 1622.30(d) indicates that the dependency can be “based upon other than financial considerations.” Lastly, the new facts were clearly a result of circumstances beyond Grosfeld’s control. The record is devoid of the faintest suggestion that Grosfeld knew of the alleged effect on his mother of
his induction prior to issuance of the order to report. In Ehlert v. United States, supra, the Supreme Court, while recognizing as binding an administrative interpretation that a claim of conscientious objection could never be beyond the registrant’s control, stated that “[i]t is clear that the regulation was meant to cover at least such nonvolitional changes as injury to the registrant or death in his family making him the sole surviving son.” 402 U.S. at 104, 91 S.Ct. at 1323. The Court went on to approve the government’s view of the regulation as applying to “those ‘objectively identifiable’ and ‘extraneous’ circumstances that are most likely to prove manageable without putting undue burdens on the administration of the Selective Service System.” 402 U.S. at 105, 91 S.Ct. at 1324. Grosfeld’s allegations concerning the condition of his mother met this standard.
Under Mulloy v. United States, supra, it is now established that, in the case of a request for reclassification made prior to the issuance of an induction order, a local board may not refuse to reopen a registrant’s classification when presented with allegations which prima facie satisfy the reopening requirements of 32 C.F.R. § 1625.2, notwithstanding that the regulation is couched in discretionary terms. See also, e. g., United States v. Grier, 415 F.2d 1098 (4 Cir. 1969). In Mulloy, a unanimous Court placed great emphasis on the fact that, under the regulations, a refusal to reopen, unlike a refusal to reclassify after reopening, is not subject to review within the Selective Service System.
Where a registrant makes nonfrivo-lous allegations of facts that have not been previously considered by his board, and that, if true, would be sufficient under regulation or statute to warrant granting the requested reclassification, the board must reopen the registrant’s classification unless the truth of these new allegations is conclusively refuted by other reliable information in the registrant’s file. [1012]*1012* * * For in the absence of such refutation there can be no basis for the board’s refusal to reopen except an evaluative determination adverse to the registrant’s claim on the merits. And it is just this sort of determination that cannot be made without affording the registrant a chance to be heard and an opportunity for an administrative appeal, (emphasis supplied.)
398 U.S. at 416, 90 S.Ct. at 1771, 26 L.Ed.2d 362.
We can discern no convincing reason why the Mulloy rule is not also applicable to the case of a request for reclassification made after an induction order has issued. The only difference between the two situations under the regulations is that, in the case of a post-induction order claim, an additional condition must be satisfied in order to establish a prima facie case; i. e., there must be nonfrivolous allegations indicating that the new facts arose from circumstances beyond the registrant’s control. Certainly, the importance of administrative review, stressed in Mulloy, is not diminished by the fact that an induction order has issued.
In the instant case, after making his request for reclassification, Grosfeld was granted a “courtesy hearing.” The notations on SSS Form 119, the board’s memorandum of this “hearing,” strongly suggest that Grosfeld’s claim was rejected on the merits:
Hardship
Mother has ailment of 12 yrs standing — during this time registrant [had a student deferment] * * * From our conversation with Registrant] there did not seem to be any extensive change in Mother’s condition during his absence in [school] * * * * * *
We see no reason to grant hardship on basis of information developed at this hearing.
******
As pointed out in Mulloy, it is precisely these factual determinations which, if reached, must, under the Act, be subjected to the registrant’s right to administrative review.6
In accord with our view of the scope of Mulloy is the decision in United States v. Foster, 439 F.2d 29, 33 (9 Cir. 1971). Paszel v. Laird, 426 F.2d 1169 (2 Cir. 1970), is to the contrary, but it was decided prior to Mulloy. However, United States v. Jones, 433 F.2d 1292 (2 Cir. 1970), would indicate to the contrary, but we are not persuaded to follow it. Our view is supported also by our prior decision in United States v. Bittinger, 422 F.2d 1032 (4 Cir. 1969), which dealt with a post-induction order request for reclassification. There we held that a board could not refuse to reopen on the ground that the new facts did not arise from circumstances beyond the registrant’s control without making an informed determination to this effect. We [1013]*1013recognized that ‘[t]he purpose of the regulation is not to arbitrarily foreclose the possibility of reopening,” but rather to assure “that last minute changes in status, made at the whim of the registrant, will not interfere with the orderly procedures prescribed by the Act.” 422 F.2d at 1035. For the same holding see Scott v. Commanding Officer, 431 F.2d 1132 (3 Cir. 1970); United States ex rel. Brown v. Resor, 429 F.2d 1340 (10 Cir. 1970).
VII
Since we have concluded that the board illegally refused to reopen Grosfeld’s classification on the basis of his request for a III-A deferment, the remaining question is whether such illegal conduct is subject to pre-induction judicial review under the exception to § 10(b) (3) discussed above. We hold that pre-induction review is available. Manifestly, whether a registrant alleges a prima facie case of entitlement to a different classification is a question of law which is not affected by resolutions of fact or exercise of judgment by the local board. Under the Mulloy rule, all that is required is that the registrant’s request be examined to determine whether the allegations meet the reopening standards set by the regulations. In reviewing a board’s decision to reopen or not reopen, a court would be doing no more than testing the legal sufficiency of the facts alleged, the same function performed pursuant to a motion to dismiss for failure to state a claim under Rule 12(b) (6) of the Federal Rules of Civil Procedure. See Hunt v. Local Board No. 197, 438 F.2d at 1136-1137 (opinion of Gibbons, J.).
Furthermore, we are convinced that a board’s violation of the Mulloy rule is “blatantly lawless” within the meaning of Oestereich and Breen. If a prima facie case is not alleged, obviously a board is not required to reopen. If, on the other hand, a prima facie ease is alleged, Mulloy requires the board to reopen to make its resolutions of fact, its conclusions as to credibility, and its ultimate decision as to entitlement to a change in classification, all of which may be required to undergo the scrutiny of administrative review. Where, however, a board refuses to reopen in the face of a prima facie case, there are only two conceivable explanations for the decision. On the one hand, the decision could be completely arbitrary. This possibility was recognized in United States v. Bittinger, supra, where, despite the board’s professed reason that the change in circumstances was not beyond the registrant’s control, we said that “[i]t is apparent the board declined to reopen Bittinger’s classification because his request for a ministerial exemption came after he had been ordered to report for civilian work.” 422 F.2d at 1034. The only other possible explanation would be that the board’s decision is based on factual and credibility resolutions which amount to a decision on the merits, a decision which, under the statute and the regulations, must be subject to administrative review. It seems clear to us that this is what occurred in the instant case. Arbitrary decisions and procedural techniques which cut off rights to administrative review of determinations otherwise reviewable are within the purview of a standard of “blatant lawlessness.”
Admittedly, we have found no reported ease holding that a local board’s breach of the Mulloy rule is subject to pre-induction review. We find support, however, in Liese v. Local Board No. 102, supra; Zerillo v. Local Board No 102, supra; McClain v. Selective Service Local No. 47, supra; Fein v. Selective Service System Local Board No. 7, supra (dissenting opinion, Lumbard, C. J.); Hunt v. Local Board No. 197, supra (opinions of Gibbons and Freedman, JJ.); Edwards v. Selective Service Local Board No. Ill, supra (dissenting opinion, Tuttle, J.). The latter two authorities argue for exactly the position we take here.
On the other hand, the following authorities denying pre-induction review may be construed to the contrary: Steiner v. Officer in Command, supra; Fer[1014]*1014rell v. Selective Service Local Board No. 38, 434 F.2d 686 (2 Cir. 1970); Edwards v. Selective Service Local Board No. 111, supra (majority opinion); Bookout v. Thomas, 430 F.2d 1343 (9 Cir. 1970); Sloan v. Local Board No. 1, 414 F.2d 125 (10 Cir. 1969). Most of these cases are distinguishable, however. For example, in Sloan the registrant objected to the local board’s refusal to reopen his classification on the basis of a claim of conscientious objection lodged prior to the issuance of an induction order. It appears, however, that this claim was in fact subjected to administrative review, so that in effect there was no refusal to reopen.7 Furthermore, Sloan was decided prior to Mulloy. Both Ferrell and Steiner involved post-induction order claims of conscientious objection. As has been noted, the administrative interpretation of 32 C.F.R. § 1625.2 approved by the Supreme Court in Ehlert v. United States, supra, makes it impossible to allege a prima facie case of conscientious objection based on views first maturing after such an induction order has issued. The other late claim in Steiner was a III-A hardship claim which had previously been asserted and denied after an administrative appeal, and thus the mere reassertion of the claim did not amount to new facts not previously considered. And in Edwards, the court specifically noted that the registrant’s claim of an occupational deferment did not state a prima facie case. 432 F.2d at 295.8
In No. 14,155, the order of the district court is affirmed. In No. 14,016, we reverse the judgment of the district court and remand for entry of an order requiring the board to reopen Grosfeld’s classification and to determine his entitlement to a III-A deferment.
No. 14,016, reversed and remanded.
No. 14,155, affirmed.