Richard Walter Burton v. United States

402 F.2d 536

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 24, 1969
• Docket: 22260
• Status: Published

Opinions

THOMPSON, District Judge:

Classified I-O by his local board of the Selective Service System, Appellant was ordered to report to the Los Angeles County Department of Charities, Los Angeles, California, for civilian work. He appeared at the designated place of employment but refused all work offered. Prosecution and conviction for violation of the Universal Military Training and Service Act followed.

Appellant is employed as an animal keeper by the Los Angeles County Zoo. Defense witnesses testified without contradiction to his skill in this employment and the public importance of the work. Throughout the preliminary proceedings required by the regulations which culminated in the order to report for civilian work, Appellant offered his present employment as animal keeper as the type of civilian work he was willing to do and obdurately refused to consider or accept any other types of employment offered by the local board or state director. These acceptable employments are set forth in a list approved by the state director.

Appellant contends that the local board abdicated its statutory responsibility to consider and approve or disapprove work which the registrant offered to perform in lieu of induction into the military service. The record does not support this contention. On August 2, 1966, the registrant and a representative of the state director met with the local board, as required by the regulations, 32 C.F.R. 1660.20(c), in an effort to reach an agreement. Appellant’s offer to work as an animal keeper for Los Angeles County was discussed and considered. The minutes of the meeting and the cover sheet show the following action by the local board: “The foregoing information together with the registrant’s complete file was reviewed. The local board then determined that work as an Institutional Helper at the Los Angeles County Department of Charities, 1200 North State Street, Los Angeles, California is appropriate to be performed by the registrant and that such work is available.” This designation of civilian work was approved by the Director of Selective Service, as required by the regulations [32 C.F.R. 1660.20(d)].¹

In this case we are not required to rely on Mang v. United States, 9th Cir. 1964, 339 F.2d 369, although it is sound authority for the proposition that there is no failure of due process or abdication of authority if a local board is guided by an approved list of acceptable civilian employments. We append as a footnote the full minutes of Appellant’s meeting with the local board on August 3, 1966.²

We think it demonstrates that the board did consider the employment offered by Appellant. The minutes as a whole persuade us that the local board concluded that caring for people in a hospital is in the national interest while caring for animals in a zoo is not. The board stated: “We don’t recognize all jobs working for the government as fulfilling your service obligation.” The law and regulations do not require offered employment to be accepted by the board simply because the employer is the government. 32 C.F.R. 1660.1(a) (1) provides that such work “may be considered” to be civilian work “contributing to the maintenance of the national health, safety, or interest and appropriate to be performed in lieu of induction.” The record shows that the board assumed and exercised its responsibility.

Affirmed.

1 . “(d) If, after the meeting referred to in paragraph (c) of this section, the local board and the registrant are still unable to agree upon a type of civilian work which should be performed by the registrant in lieu of induction, the local board, with the approval of the Director of Selective Service, shall order the registrant to report for civilian work contributing to the maintenance of the national health, safety, or interest as defined in § 1660.1 which it deems appropriate, but such order shall not be issued prior to the time that the registrant would have been ordered to report for induction if he had not been classified in class I-O, unless he has volunteered for such work.” 32 C.F.R. 1660.20(d).

2 . “In re: BURTON, Richard Walter

August 3, 1966

SS No. 4 117 46 1953

“Registrant met with local board members and Major Miller, State Director’s representative.

“PRESENT: HOWARD STICKNEY JAMES ANDERSON MAJOR MILLER

“Board — Will you raise your right hand please? Do you swear any statements you make before this Board will be the truth, the whole truth, and nothing but the truth so help you God?

“Burton — I do.

“Major Miller — Mr. Burton, the local board placed you in Class 1-0 in April, 1966 — you received a card notifying you of this classificiation did you?

“Burton — Yes.

“Major Miller — Now on May 19, 1966 the local board mailed you a form known as ‘Special Report for Class 1-0 Registrants’.

“Burton — Yes.

“Maj. Miller — You returned that form listing places you had previously been employed and also where you are presently working — you returned it to the local board on May 31st.

“Burton — Yes.

“Maj. Miller — Following this on June 13, 1966 the local board mailed to you a letter listing three types of work — one was an institutional helper at Los Angeles County Department of Charities; second was truck driver helper at Goodwill Industries and the third was a psychiatric technician trainee at Atascadero State Hospital — do you recall this?

“Burton — Yes.

“Maj. Miller — You returned that and signed the statement you declined to accept any of the types of work listed — will you explain to the board why you declined to accept this work?

“Burton — Well because I felt the work I was doing and still am doing for the city of Los Angeles is more in keeping with my training and background and my abilities. I feel I am much more capable to help in the line of work I am in. Animal keeping is kind of a funny business. You have to work with the public and for the public. That is all important but there are other skills involved. I got these skills.

“Maj. Miller- — -Do you have any other objection to the three types of work the board offered you.

“Burton — No objection as far as I know —I don’t think I could do those jobs with the same ability as this job.

“Major Miller — Do you think you could physically perform the type of work the board offered you.

“Burton — I don’t know. I imagine I could drive a truck. I am not sure of the skills involved in the Atascadero job.

“Major Miller — I am talking about physically — do you think physically you could perform the type of work the board offered you.

“Burton- — -Yes I think so.

“Major Miller — Are there any other types of work you could offer the board other than the three offered you?

“Burton — I don’t know I did not get a chance to look over the list the local board has because I could not get off work.

“Maj. Miller — You are employed by the city of Los Angeles?

“Burton — Yes.

“Maj. Miller — How many hours do you work?

“Burton — 40.

“Maj. Miller — How much are you paid by the hour, or week or month?

“Burton — I am paid every two weeks and my take home I get about $180.00. I think it is $502.00 a month.

“Maj. Miller — There are other approved jobs throughout the State. This is a list of them if you would like to look through them.

“(Registrant reads list of jobs).

“Burton — I don’t know. You see what I did — both of these things were going on at the same time. I was trying to get this new job and I was being classified by you so I didn’t know what was going to happen. I like the job very much. I imagine the hospital work would be closest to anything that I could come up with.

“Maj. Miller — Does it take a great real of patience when you are caring for sick animals ?

“Burton — It depends on the animals.

“Maj. Miller — What about the cat family?

“Burton — Not too much. You don’t run into any problems unless you have a fairly intelligent animal like monkey or apes.

“Maj. Miller — Do you think you could help a human being in a hospital — helping him return to health?

“Burton — I don’t know. There is a gap between animal and man. You see with the animals at the zoo they are not all sick. It is a matter of caring for and feeding those that are not sick.

“Board — Mr. Burton, do you recognize the necessity of fulfilling your Selective Service obligation?

“Burton — Yes I do.

“Maj. Miller — Do you understand what would be the effect upon you if you refused this work of national importance?

“Burton — I have read it and I have thought about it.

“Major Miller — We will advise you and be sure you understand — if one is found guilty of violation of the Selective Service law as determined by the Courts, the maximum sentence is five years imprisonment and $10,000 fine — the indictment holds a felony record and with this felony record you could not hold a civil service job. I think you should know this so you would know which way to lean in your future life. Do you find anything interesting to you in the conscientious objector program in these other places throughout the State?

“Burton — I don’t really see anything there either that I could take.

“Maj. Miller — There is nothing there you feel you would want to apply for? You probably would not find anything in there in animal keeping.

“Burton — That is what I was going to say. I don’t think I could find anything that would incorporate my skills as well as this line of work.

“Board — Are you probably holding out for employment in animal keeping?

“Burton — With fingers crossed yes. I can’t see why not.

“Maj. Miller — If you were ordered to work of national importance to one of the places listed in the letter of June 13, 1966 as a conscientious objector, would you report to work?

“Burton — Yes—I don’t know — I imagine I would appeal.

“Board — In April, 1966, you said you would.

“Burton — Yes I said I would but I would appeal for this particular job.

“Maj. Miller — Your appeal is all gone.

“Burton — On the chart outside it says —work contributing to national health, safety and interest and I can’t see—

“Board — Do you realize that everybody’s job could be classified as such by them personally.

“Burton — Well yes. In this job I am actually being paid by the people for performing my work.

“Board — You would be paid by the people if you went to service.

“Burton — When I became 1-0 I looked for work with the Government because I thought this would be as close as possible to this form of work.

“Board — We don’t recognize all jobs working for the Government as fulfilling your service obligation.

“Maj. Miller — Will you read this statement please and see if you are willing to sign it.

“(Registrant reads statement).

“Burton — No I cannot sign this.

“Maj. Miller — That is alright. I have no further questions, gentlemen — do you have anything else to discuss with Mr. Burton?

“Board — I think Mr. Burton understands the situation quite well. I think he understood it when he was in here last April.

“Maj. Miller — You will hear from the board and the action taken at this meeting. Thank you for coming in.

“Burton — Thank you gentlemen.

/s/ Mary L. Armand

“The foregoing information together with the registrant’s complete file, was reviewed. The local board then determined that work as an Institutional Helper at the Los Angeles County Department of Charities, 1200 North State Street, Los Angeles, California is appropriate to be performed by tlie registrant and that such work is available.”