United States v. Stanton Francis Nelson

Ninth Circuit

United States v. Stanton Francis Nelson

467 F.2d 1364, 1972 U.S. App. LEXIS 7194

CourtCourt of Appeals for the Ninth Circuit

DecidedOctober 13, 1972

Docket71-2923

StatusPublished

Cited by1 cases

This text of 467 F.2d 1364 (United States v. Stanton Francis Nelson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Stanton Francis Nelson, 467 F.2d 1364, 1972 U.S. App. LEXIS 7194 (9th Cir. 1972).

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Opinion

PER CURIAM:

This Selective Service appeal seeks a relaxation of the exhaustion-of-administrative-remedies doctrine of McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971).

Nelson was classified I-A and notified both of his right to appeal and of the availability of a Government Appeal Agent to assist him in preparing an appeal. He did not then appeal his classification. He later requested and received from his local board a Form 150, which he completed and returned with supporting letters claiming conscientious-objector status. The board (in New York) asked Nelson to appear for an interview. Nelson (in California) did not respond. He was thereafter informed that he had been retained in I-A, and he was again notified of his right to appeal. This time, however, the local board failed to send Nelson a Form 217 advising him of the availability of a Government Appeal Agent. Nelson did not appeal, and in due course he was ordered to report for induction.

Nelson refused induction, and defended the resulting prosecution on the ground that he should have been classified I-O, and that the failure of his local board to send him a second Form 217 excuses his failure to pursue his administrative remedies. The trial court did not agree, and he was convicted. We affirm.

While it has been held that a board’s failure to send a registrant a Form 217 is an “exceptional circumstance” excusing a failure to appeal. United States v. Davis, 413 F.2d 148 (4th Cir.1969), we believe that the failure of the board to send a second Form 217 was nonprejudicial in this case, and that to sustain this attack upon the order to report for induction would elevate form over substance. There is no reason to believe that Nelson, who was well-educated, and who knew of his right to appeal, was caused to neglect his administrative remedy by the failure of the board to remind him of the availability of an appeal agent.

Other alleged procedural defects of which Nelson complains do not present substantial defenses to the charged offense.

Affirmed.

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PER CURIAM:

This Selective Service appeal seeks a relaxation of the exhaustion-of-administrative-remedies doctrine of McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971).

Nelson was classified I-A and notified both of his right to appeal and of the availability of a Government Appeal Agent to assist him in preparing an appeal. He did not then appeal his classification. He later requested and received from his local board a Form 150, which he completed and returned with supporting letters claiming conscientious-objector status. The board (in New York) asked Nelson to appear for an interview. Nelson (in California) did not respond. He was thereafter informed that he had been retained in I-A, and he was again notified of his right to appeal. This time, however, the local board failed to send Nelson a Form 217 advising him of the availability of a Government Appeal Agent. Nelson did not appeal, and in due course he was ordered to report for induction.

Nelson refused induction, and defended the resulting prosecution on the ground that he should have been classified I-O, and that the failure of his local board to send him a second Form 217 excuses his failure to pursue his administrative remedies. The trial court did not agree, and he was convicted. We affirm.

While it has been held that a board’s failure to send a registrant a Form 217 is an “exceptional circumstance” excusing a failure to appeal. United States v. Davis, 413 F.2d 148 (4th Cir.1969), we believe that the failure of the board to send a second Form 217 was nonprejudicial in this case, and that to sustain this attack upon the order to report for induction would elevate form over substance. There is no reason to believe that Nelson, who was well-educated, and who knew of his right to appeal, was caused to neglect his administrative remedy by the failure of the board to remind him of the availability of an appeal agent.

Other alleged procedural defects of which Nelson complains do not present substantial defenses to the charged offense.

Affirmed.

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Bluebook (online)

467 F.2d 1364, 1972 U.S. App. LEXIS 7194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-stanton-francis-nelson-ca9-1972.

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