UNITED STATES of America, Appellee, v. Christian Winslow HAYDEN, Appellant, 445 F.2d 1365

ELY, Circuit Judge: Hayden appeals from his conviction on two counts of an indictment charging him with having violated § 12 of the Universal Military Training and Service Act, 50 U.S.C. App. § 462(a). The separate offenses charged were failure to report for a pre-induction physical examination and failure to report for induction. The judgments must be reversed. The facts are not in dispute. However, we think it desirable to review, in some detail, the unusual background of the prosecutions. Hayden urged his conscientious objector beliefs on his Local Board from the time he first registered in 1966.

His Board consistently rejected his claims. His first I-A classification was issued April 4, 1967, despite the Board’s failure previously to supply Hayden with a conscientious objector questionnaire (SSS Form 150), a duty imposed upon the Board by regulation. 32 C.F.R. § 1621.II. Thus, it was necessary for Hayden to request that his classification be reopened in order to obtain the opportunity to detail his conscientious objection to war. Upon its receipt of the completed questionnaire and supportive documents, the Board again, on July 11, 1967, classified Hayden I-A.

A month later, Hayden made a timely request for a personal appearance, and, on October 5, 1967, was notified that his appearance had been scheduled for October 17th. Hayden failed to appear as scheduled. Because the Board erroneously treated Hayden’s request for a personal appearance as an appeal also, it sent his file to the Appeals Board, while continuing his I-A classification. The Appeals Board unanimously upheld the I-A classification on November 16, 1967, and Hayden was so notified by his Local Board on November 28, 1967.

On December 6, 1967, Hayden returned his classification notice to the Board, explaining that the day before his scheduled personal appearance, he had surrendered his draft card to the Attorney General. He further stated that he would thereafter refuse to cooperate with the Selective Service System “in any way” and that he would no longer carry any Selective Service documents. Based on this information, and on the advice of the State Director of Selective Service, the Board declared Hayden delinquent and ordered him for priority induction on March 5, 1968.

After Hayden failed to report on the specified date, he was indicted, on one count, for having violated 50 U.S.C. App. § 462(a), the same statute under which he was convicted in the present case. On that prior indictment, Hayden was tried before District Judge Warren J. Ferguson, sitting without a jury.

He was acquitted upon Judge Ferguson's emphatic determination that Hayden’s conscientious objector claim was exceptionally well founded: “[I]f there ever was a case in which the Court is compelled to find the defendant not guilty, this is [such] a case. * * * No person, no reasonable person who reads this file could come to any other conclusion except the fact that he [Hayden] is a true, sincere believer in a Supreme Being, he is opposed to killing and violence, and he is a true, dogmatic, ordinary, routine conscientious objector. * * ” Pursuant to regulations, the Local Board was notified by the United States Attorney of Hayden’s acquittal.

The Board was also sent at least one copy of Judge Ferguson’s opinion. Notwithstanding this judicial determination that there was no basis in fact to support the I-A classification, the Local Board did not reclassify Hayden.

Instead, it requested Hayden to appear for an “Informal Interview,” in order “to develop further facts on which your Conscientious Objector claim is based, and the sincerity of such claim.” Hayden replied to his Board, in writing, stating that he did not believe that such an interview was necessary, inasmuch as Judge Ferguson had already ruled that he was a conscientious objector, and declining the invitation. Upon receipt of this letter the Board again classified Hayden I-A.

This time, a finding was inserted in the file that the record before the Board was insufficient to substantiate Hayden’s 1-0 claim, and that an adverse inference was being drawn regarding sincerity from Hayden’s refusal to accede to the invitation to appear for the “Informal Interview.” Hayden did not pursue an appeal, and when the time for appeal expired, his Local Board, once more acting upon the advice of the State Director, ordered Hayden to submit himself for a pre-in-duction physical examination.

His failure to appear therefor resulted in a declaration of delinquency and an order to report for priority induction. After Hayden failed to report, he was again indicted, and there followed the convictions from which he now appeals. I. FAILURE TO REPORT FOR INDUCTION The Board’s order for Hayden to report for induction was invalid, running afoul of the rule of Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970).

There, the Supreme Court held that accelerated induction of Selective Service registrants, because of their delinquency under the regulations, has not been authorized by Congress. Here, it is hardly deniable, and, indeed, the Government does not deny, that Hayden’s order to report came when it did because of his having been declared delinquent.

This is irrefutably demonstrated by a notation in the Board’s own minutes, “Delinquent-— order for induction.” While it virtually concedes the applicability of Gutknecht, the Government attempts to avoid the effect of that authority by urging that its rule not be applied retroactively to Hayden’s conviction, which preceded the issuance of Gutknecht by some months. However, the cases in our Circuit are clear: When the record affirmatively reflects accelerated induction, Gutknecht is to be retroactively applied. United States v. Pennington, 439 F.2d 145 (9th Cir. 1971); United States v.

Browning, 423 F.2d 1201 (9th Cir. 1970); Gregory v. United States, 422 F.2d 1323 (9th Cir. 1970). Since, therefore, the Government’s contention on this point is without merit, it follows that Hayden’s conviction for failure to report for induction must be vacated. II. FAILURE TO REPORT FOR PRE-IN-DUCTION PHYSICAL EXAMINATION A. Relevance of Misclassification. The Government argues that even if Hayden’s conviction for failure to report for induction was wrong, we should nevertheless affirm the conviction for failure to report for a pre-induction physical examination.

Even if the denial of Hayden’s conscientious objector claim were without basis in fact, argues the Government, any misclassification was irrelevant to the issue of Hayden’s alleged duty to report for an examination. We reject this argument. The Government principally relies upon United States v. Zmuda, 423 F.2d 757 (3d Cir.), cert. denied, 398 U.S. 960, 90 S.Ct. 2176, 26 L.Ed.2d 545 (1970). There, the court, while reversing a conviction for failure to report for induction because of Gutknecht, affirmed the accused’s conviction, on a second count, for having failed to report for a physical examination.

The court was of the opinion that “[t]he alleged invalidity of appellant’s classification is not available as a defense to a prosecution for failing to report for a physical examination. The validity of a I-A classification has no relevance to the registrant’s obligation to undergo an examination to determine his physical eligibility to serve in the armed forces. McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969).” 423 F.2d at 759. The Zmuda court cited no other authority than McKart, nor did it further discuss the point.

This is regrettable, for our very close examination convinces us that McKart does not support the position ascribed to it in Zmuda and here taken by the Government. McKart’s exemption as a sole surviving son (Class IV-

A) had been revoked by his Local Board. Because this revocation was the result of an erroneous

interpretation of law, rather than an erroneous application of the “clear deferment standards,” McKart was under a duty to report for his physical examination despite his entitlement to a IV-A classification. See United States v. Brandt, 435 F.2d 324 (9th Cir. 1970). However, as we shall demonstrate, there is an exception to the general duty of registrants to report for physical examinations, an exception applicable to registrants classified as conscientious objectors (I-O). As to these registrants, miselassification may deprive them of a substantial right — the right not to submit to a physical examination.

The position of the Selective Service concerning 1-0 registrants who fail to report for or to submit to an armed forces physical examination appears to be that they shall nevertheless be treated in all respects as if they had taken such an examination and been found to be medically acceptable. Authority for this approach is found in

section 1660 of the Regulations: “When a registrant in Class 1-0 has been found qualified for service in the Armed Forces after his armed forces physical examination or when such a registrant has failed to report for or to submit to armed forces physical examination, he shall within ten days after a Statement of Acceptability (DD Form 62) has been mailed to him by the local board or within ten days after he .has failed to report for or to submit to armed forces physical examination, submit to the local board three types of civilian work contributing to the maintenance of the national health, safety, or interest as defined in

section 1660.1, which he is qualified to do and which he offers to perform in lieu of induction into the Armed Forces. If the local board deems any one of these types of work to be appropriate, it will order the registrant to perform such work. * * * ” SSS Reg. 1660.20(a), 32 C.F.R. § 1660.-20(a) (emphasis added).

Thus, the Local Boards are advised: “If the registrant is in Class 1-0 [and has failed to take a physical], consider him for all purposes as if he had been physically and mentally examined and found acceptable for military service and process him thereafter in the same manner as any other registrant in Class 1-0 who has been found acceptable for service after being given an armed forces physica) examination.” Local Board Memorandum No. 14, para. 3(b) (issued November 19, 1948, as amended March 17, 1969) (emphasis added).

The Local Boards are also told: “A registrant classified in Class 1-0 shall be ordered to report for armed forces physical examination in the same manner as any other registrant. If he fails to report for or to submit to this examination, he does not thereby become delinquent but shall be available for assignment to appropriate civilian work in the same manner as if he had been found qualified after examination.” Local Board Memorandum 64, para. 3(a) (issued March 1, 1962, as amended September 12, 1968).

Support for the position taken by the Service is also found in two reported opinions: “It is not disputed, and this Court finds, that both classes of conscientious objectors — not only those who claim I-A-0 status but also those who claim 1-0 status — are required under Selective Service procedures to be ordered by local draft boards to submit to physical examinations. 32 C.F.R. § 1628.10. However, those conscientious objectors who are classified 1-0 and who nevertheless fail to report as ordered for a physical examination * * * are deemed to have met that requirement.” United States v.

Walsh, 279 F.Supp. 115 (D.Mass.1968) (emphasis added). See also United States v. Mendoza, 295 F. Supp. 673 (E.D.N.Y.1969). Registrants who take and pass physical examinations are not susceptible to prosecution, and since 1-0 registrants who fail to submit to physical examinations are treated as medically acceptable, they, too, should be immune from prosecution for the charge in question. The Service cannot be permitted to violate, or ignore, its own regulations. United States v. Walsh, supra, 279 F.Supp. at 121. The reason for the unique position of 1-0 registrants in this respect is simple.

They are permanently ineligible for military service, no matter what the national emergency. Unlike IV-F registrants, who are similarly exempt, the physical examination has nothing to do with their ability, as 1-0 registrants, to serve. It would seem undeniable that the Government, therefore, cannot have the same interest in the physical condition of exempt conscientious objectors that it rightfully has in the conditions of those potentially eligible for induction.

While registrants with 1-0 classifications are available for civilian work in lieu of induction, “[ojbviously the physical examination is not designed to test the qualifications of a 1-0 registrant to perform civilian work, but is intended only for his own benefit.” United States v. Mendoza, 295 F.Supp. at 683. The court’s opinion in Walsh, supra, supports the foregoing. Walsh, a registrant classified I-A-O, was charged for his failure to report for an armed forces physical examination.

Because of the peculiar nature of his conscientious objector beliefs, he had sought a classifi-' cation in which he would not be required to submit to a physical examination or to perform medical work. Misunderstanding the advice given him by a government appeals agent, he requested and eventually received a I-A-0 classification. When he received an order to report for a physical examination, he attempted to obtain the reopening of his file, explaining his problem to his Local Board.

After his Board refused his request, for reasons which do not appear in the opinion, he then disobeyed the order to report and was indicted. Walsh was tried before the court, sitting without a jury, and in his case, the Government conceded that I-O registrants were not required to submit to physical examinations. The Chairman of Walsh’s Local Board testified that he did not know this at the time the Board refused Walsh’s request that his classification be reopened.

Thus, the court reasoned that the Board might have refused to reopen solely because it did not realize that if a registrant were classified I-O, his religious views concerning physical examinations could be respected. If the Board had reopened, the court continued, it might have granted Walsh the requested I-O classification. Because prosecution of a I-O registrant for failure to report for a physical examination would be impermissible, the court concluded that the Board’s refusal to reopen had deprived Walsh of highly significant procedural rights and that Walsh should be acquitted.

We emphasize our belief that the relevance of misclassification to a charge of failure to report for physical examination, where the appropriate classification is argued to be I-O, is not in any way inconsistent with anything written in McKart. The precise issue now under discussion did not arise in that case, as the classification argued for by Mc-Kart was IV-A, not I-O. It is the peculiar and unique attribute of the I-O class, not the mere fact of misclassification, upon which we base our conclusion. B. Denial of Hayden’s I-O Claim.

In the unusual circumstances of this case, Hayden cannot be precluded from the benefit of our foregoing opinion because his Board had rejected his I-O claim and imposed a I-A classification. The Board may not abrogate procedural rights by arbitrary action. If Hayden was entitled to a I-O classification, he was also entitled to all the attendant rights and attributes of that classification, including exemption from the duty to take an armed forces physical examination.

Our review of the record, including the opinion of District Judge Ferguson, convinces us that there was absolutely no basis in fact for the rejection of Hayden’s claim for conscientious objector exemption. In reaching this conclusion, we have not overlooked the proposition that judicial review of Selective Service Classifications is "the narrowest known to law.” Bishop v. United States, 412 F.2d 1064, 1067 (9th Cir. 1969) (quoting from Blalock v. United States, 247 F.2d 615, 619 (4th Cir. 1957)). The Local Board need not build a record, and there need only be a “basis in fact” for a challenged classification.

Furthermore, “[w]hen a reviewing court is considering whether a board’s denial of a conscientious objector claim in a given case had basis in fact, the board’s action is entitled to the support of any inference of sham or insincerity on the part of the registrant which the board could have drawn validly and fairly from the record upon which it acted.” Bradley v. United States, 218 F.2d 657, 661 (9th Cir.), reversed, 348 U.S. 967, 75 S.Ct. 532, 99 L.Ed. 754 (1954) (citation omitted). See also Bishop v. United States, supra. Nevertheless, Selective Service classifications are subject to judicial review.

If a registrant presents a prima facie case for an exemption or a deferment, his claim may not be rejected absent some objective facts, appearing, in the record, justifying inferences which may have been drawn against him by the classifying Board. See Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1954); Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953); United States v. Davila, 429 F.2d 481 (5th Cir. 1970); United States v. Haughton, 413 F.2d 736 (9th Cir. 1969); United States v. Washington, 392 F.2d 37, 39 (6th Cir. 1968).

Thus, mere disbelief in the sincerity of a registrant, grounded on no objective evidence of insincerity, will not suffice to deny a registrant an exemption as. a conscientious objector. Dickinson v. United States, supra; Parrott v. United States, 370 F.2d 388, 391 (9th Cir. 1966). Here, as we noted in the beginning, Hayden’s Local Board justified its denial of a 1-0 classification on the basis of a finding inserted in Hayden’s file, concerning the sincerity of his beliefs. Since this is the only recorded explanation of the Board’s reasons for denying Hayden’s claim, it must be assumed that it is complete.

United States v. Haugh-ton, supra. The Board purported to rely both on the record and on Hayden’s refusal to accept the invitation to be interviewed. However, it totally ignored the prior judicial history of Hayden’s problems concerning his classification. A United States District Court, applying the same, narrow test of review which we have described, to the same record to which the Local Board addressed itself, had previously declared that Hayden was a sincere, genuine conscientious objector. “He is not a humanist. His conscientious belief is not a philosophical or a moral belief.

It is a true spiritual, ordinary, routine religious belief.” “And why the draft board refused to see it is beyond my comprehension. * * * It got an awful lot of publicity, I guess, because of his father [] and his outside activities. But he is a routine, ordinary person who is a conscientious objector, that is all.” The Government argues that this judicial declaration was not “binding” on the Board. This is true, in the sense that no judicial decision can forever bar a Selective Service Board from altering a registrant’s classification.

But it should not be allowed to reimpose a classification which a federal court has invalidated unless there are newly disclosed facts or considerations adequately supportive of its action. If the Government is contending that the Board was not required to attach any significance whatsoever to Judge Ferguson’s previous decision, we thoroughly disagree. Under traditional principles of collateral estoppel, we believe that no decided issue essential to the judgment in that litigation should be permitted again to be raised between Hayden and the United States in a criminal context.

We are, of course, now faced with a new classification decision, one which must be independently reviewed. Nevertheless, to the extent that the new classification was based on the same record that had been carefully reviewed by Judge Ferguson, the Board should have foreclosed itself from any conclusion inconsistent with the judicial declaration before it. The gravamen of a conscientious objector claim is the sincerity, vel non, of the registrant. Witmer v. United States, supra. Here, Hayden’s sincerity was unchallenged from the time he first registered until Judge Ferguson’s judgment- of acquittal was made.

We must assume that had it been possible to draw any inference adverse to Hayden’s sincerity, based on his record to the date of his first trial, such would have been urged before Judge Ferguson and would have altered the conclusion which he reached. But no such showing was attempted, nor do any facts, “objective” or otherwise, tending to cast doubt on Hayden’s sincerity, appear anywhere in the record. The Boards, like the courts, must give weight to a registrant’s expression of his religious feelings, United States v.

Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), and, here, the only possible new fact thought to justify the inference of Hayden’s insincerity was the failure to appear for the “Informal Interview.” From this, it is argued that Hayden was uncooperative. But, one’s lack of cooperation with the Selective Service System is not, of itself, a federal crime, and cannot supply the sole basis for the denial of an otherwise valid claim for exemption. Sicurella v. United States, 348 U.S. 385, 391, 75 S.Ct. 403, 99 L.Ed. 436 (1954); Kessler v. United States, 406 F.2d 151, 153 (5th Cir. 1969); cf. Woo v.

United States, 350 F.2d 992, 994-995 (9th Cir. 1965). Of more importance is our opinion that in this case, Hayden’s failure to appear should not be equated with an uncooperative attitude of defiance. Hayden did not ignore the Board’s invitation. He replied, promptly and courteously, reminding the Board of the declaration of the United States Court that he was entitled to a 1-0 classification. Hayden had no duty to appear. Such “courtesy” appearances were without statutory authority, and the Local Board memorandum which authorized them has since been rescinded.

Hayden was not informed that his failure to appear for the “courtesy” interview would, or might, prejudice him, gravely or at all. Indeed, a registrant’s failure to avail himself of an informal, unauthorized procedure should not be seized upon as a basis for an inference, against a judicial declaration, that the registrant’s professed beliefs are insincere. When Hayden declined to accept the Board’s invitation to appear, he expressly relied, as we think he was entitled to do, upon a valid judicial confirmation of the religious beliefs which he had been vainly urging upon his Local Board for two years.

We simply cannot permit, in circumstances like these, an inference of Hayden’s insincerity to be drawn merely because he sought, in unchallenged good faith, to rely upon the judgment of one of our District Courts. Since the denial of Hayden’s claim for conscientious objector exemption was without basis in fact, his conviction for failure to report for a physical examination cannot stand. The judgments of conviction are reversed. Upon remand, the indictment will be dismissed. Reversed, with directions. .

The Board was put on notice of Hayden’s conscientious objector claim by his signature to Series VIII of the classification questionnaire (SSS Form 100), completed by him March 10, 1967. Hayden’s next communication from the Board was his classification notice, and that was received May 24, 1967, almost two months after the vote of the Board. . United States v. Hayden, crim. No. 1923, C.D.Cal. 9/24/68, reporter’s transcript at 3-4 [hereinafter cited as Hayden, I]. .

At oral argument, the court was informed by counsel that both' Hayden and the United States Attorney had sent true copies of Judge Ferguson’s opinion to the Board. For some reason, the Board apparently neglected to insert the opinion in Hayden’s Selective Service file. . Hayden wrote: “Dear Miss Phillips & Board Members: This is to inform you that I must decline your invitation to an Informal Interview on the morning of December 3, 1968. On September 24, 1968, Federal Judge Warren Ferguson stated that I was a Conscientious Objector, and should be classified as such.

I believe his decision, and the material in the Selective Service file under my name provide you with more than enough evidence to make a decision regarding the matter of my classification. Thank you for your invitation. * * * ” . McKart concerned a one-count conviction for failure to report for induction.

The Government argued that the reviewing court could not entertain the merits of McKart’s allegedly erroneous classification, inasmuch as he had failed to exhaust his administrative remedies within the Selective Service System; to wit, failing to report for a physical examination and failing to appeal his classification. It was in rejecting this contention that Mr. Justice Marshall addressed himself to the effect of miselassification. . The general duty is outlined in 32 C.F.R. §§ 1628.10, 1628.11, and 1628.16. .

The very form which the Selective Service itself employs to order registrants to take their physical examinations makes this distinction between 1-0 and differently classified registrants perfectly clear.

Those who have been classified I-A and I-A-0 are warned, via an “Important Notice” printed on the face of the form, that failure to report for or to submit to examination subjects them to a wide range of penalties, including possible fine and imprisonment. 1-0 registrants, however, are merely advised that: “If you fail to report for or to submit to this examination, you will be subject to be ordered to perform civilian work in the same manner as if you had taken the examination and had been found qualified for military service.” SSS Form 223 (revised June 20, 1968). .

There is some analogy in the fact that since a physical examination of a registrant who is not to be subjected to the rigors of military life is not so necessary, it has been held that the failure of the Government to provide a 1-0 registrant with a physical examination does not invalidate a subsequent order that he report for civilian work in lieu of induction. See, e. g., Shoemaker v. United States, 413 F.2d 274 (9th Cir.), cert. denied, 396 U.S. 837, 90 S.Ct. 98, 24 L.Ed.2d 88 (1969).

If, because a physical examination of a 1-0 registrant is unnecesary, he has no right to demand the examination, the Selective Service authorities should have no greater power to order his submission for examination. The sword should cut both ways. . It is also possible that the Service may have recognized that many 1-0 registrants, due to their religious antipathy toward war, are unwilling to cooperate with a System associated with military aims.

This may be another reason why the Service, wishing to avoid useless friction with 1-0 registrants concerning technical requirements, has, with the consent of Congress, generally excused the registrants of that class who have failed to report for physical examinations. . “We, the members of Local Board No. 95, reviewed the registrant’s file and his letter of December 2, 1968 [declining the board’s invitation to appear before it].

It is our decision to reopen and reclassify in Class I-A, since we are unable to determine the sincerety [sic] of his beliefs solely on the basis of the material in the file, and since we had no opportunity to observe the demeanor of the registrant and to question him concerning the sincerety [sic] of his claimed beliefs.” “The Board was of the opinion that the registrant’s failure to appear before the Local Board to answer questions and to permit the Board to observe him and his demeanor, was an adverse fact showing that the registrant was not sufficiently sincere about his beliefs to appear before the Board.” .

Hayden’s father is a prominent motion picture actor. . II ay den I, at 4-5. . The Local Board ordered Hayden for Ms physical examination upon the advice of the State Director’s office. In a letter written to the Board on January 20, 1969, the Director attempts an analysis of certain “defects” in Hayden’s answers to the Conscientious Objector Questionnaire (SSS Form 150).

However, the bulk of his letter reviewed material that had already been carefully considered by Judge Ferguson, and which should now be foreclosed from further consideration, except insofar as it sheds significant light on the events subsequent to Judge Ferguson’s decision. . Letter from State Director to Local Board 95, supra note 13. . Local Board Memorandum No. 41 (rescinded August 27, 1970). The Memorandum was very careful to state that the interview did not satisfy the requirements of SSS Reg. 1624.1, 32 O.F.R. § 1624.1, pertaining to registrants’ rights to personal appearances. .

The Government suggests that we should not review the validity of Hayden’s elassifieation, inasmuch ns Hayden did not exhaust his administrative remedies within the Selective Service System. However, neither the effect of Judge Ferguson’s decisión on subsequent reclassification decisions nor the legal sufficiency of Hayden’s nonappearance at an Informal Interview as supporting an inference of incincerity are matters appropriate for the exercise of administrative discretion. These are matters of law, appropriate for consideration by the federal courts. See McKart v.

United States, 395 U.S. 185, 89 S.Ct. 1657 (1969); United States v. Davila, 429 F.2d 481 (5th Cir. 1970). A case such as this, wherein the facts are uncontested and no discretion is involved, is judicially reviewable whether the applicable law involves statute, administrative regulation, or court decision, Cf. Shea v. Mitchell, 421 F.2d 1162 (D.C. Cir. 1970).