Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. ON REMAND FROM SUPREME COURT OF THE UNITED STATES RECEIVED DECEMBER 14, 1973.
Swygert, Chief Judge, Castle, Senior Circuit Judge, and Morgan, District Judge.*fn* Swygert, Chief Judge, dissenting.
The original decision on appeal here affirmed the defendant Bush's conviction for willfully failing to submit to induction under the Selective Service Act. That decision along with Chief Judge Swygert's dissenting opinion were published at 476 F.2d 1094 (1973). On writ of certiorari to this court, the Supreme Court of the United States, in its case No. 73-5054, sub nom., Donald Alan Bush v. United States, 414 U.S. 1019, 94 S. Ct. 441, 38 L. Ed. 2d 311, has now vacated the judgment of this court and remanded the cause "for reconsideration in light of the position presently asserted by the Government."
In the Supreme Court, the Government agreed with neither the majority nor dissenting opinion here and acceded to the position that, because he was subsequently reclassified and deferred several times on other grounds, petitioner Bush's failure to exhaust administrative remedies on his conscientious objector claim in 1966 "is not dispositive of his attack on the 1-A classification underlying this prosecution." We now proceed from that starting point and note, in passing, the Government's further position in the Supreme Court that this court had "reached the correct result in this case, although for the wrong reasons."
The 1-A classification underlying this prosecution was adopted by the local board on November 15, 1968, after expiration of the last of several student deferments. On December 12, 1968, abandoning a previous claim for hardship deferment, Bush advised the board that he wished to appeal the 1-A classification because of his conscientious objection, referring to the claim in that regard asserted in 1965, from the denial of which he had taken no appeal.
On January 8, 1969, the board informed Bush that it had scheduled a personal appearance for him on February 25, 1969. He responded that he would be unable to attend this meeting personally, but he enclosed a statement outlining his beliefs in order to aid the draft board in determining his draft status. On February 25, the local board, without stating reasons therefor, declined to reclassify him as a conscientious objector; it notified him of his 1-A classification by means of Form 110 and accompanying Form 217, which indicated that he had thirty days to appeal the board's decision. Appeal was taken to the State Appeal Board, which agreed that 1-A classification was proper. After other delays not here relevant, Bush was ordered to report for induction on August 13, 1970. He reported as ordered, but refused induction. The conviction here involved followed.
Of importance for consideration here is whether the local board's consideration of that written statement on February 25, 1969, and its mailing of a new notice of classification and of appeal rights to him thereafter, necessarily showed a reopening of the classification and reclassification to the same 1-A classification as before, or whether it was, instead, a consideration and refusal to reopen. On this point we agree with the Solicitor General's position in the Supreme Court that application of the notice requirements of Regulation 1624.2(d) is not dependent on every "personal appearance" being physically in person. As here, having been invited for a personal appearance, Bush accomplished that appearance within the meaning of the regulations by the written statement he chose to supply, instead of coming himself. This construction avoids any necessity of presuming a statement of prima facie case of conscientious objection on a reopening which can be said to have occurred only by such unjustified and unnecessary presumption. We conclude that the board refused to reopen on good grounds apparent on the record.
Without such presumed reopening by the local board, the rule of United States v. Lemmens, 430 F.2d 619 (CA7 1970), does not come into play. Neither is there help for Bush in this circumstance in Joseph v. United States, 405 U.S. 1006, 31 L. Ed. 2d 473, 92 S. Ct. 1274 (1972).
There appears to us simply no basis for the conclusion that the board considered that a prima facie case of conscientious objection had been presented. The fact that the board recognized the December 12, 1968 letter as a reassertion of the old C-O claim and scheduled a personal appearance thereon indicates the contrary. It clearly shows acceptance of the responsibility to permit Bush to state a case anew if he could, having failed to do so and having abandoned the effort in 1966. It seems clear that they received his written statement as his appearance and his best effort in this regard and found it less than a prima facie case.
It remains simply for the court to evaluate the effort as appearing in the record to determine whether in fact it was sufficient to state a prima facie case. It is clear that it was not. Bush's written statement in support of his conscientious objector claim, set forth in full in the file, revealed that he relied upon a merely personal moral code based upon essentially philosophical views (see 50 U.S.C. App. § 456(j)). These views are not the sort which were considered equivalent to orthodox religious views in United States v. Seeger, 380 U.S. 163, 13 L. Ed. 2d 733, 85 S. Ct. 850, and Welsh v. United States, 398 U.S. 333, 26 L. Ed. 2d 308, 90 S. Ct. 1792. A prima facie case of conscientious objection was clearly never presented anywhere.
Upon reconsideration on remand as aforesaid, the judgment of the district court, for the reasons stated, is again