Before PARKER, BIGGS, MARIS, GOODRICH, and McLAUGHLIN, Circuit Judges, and LEAHY, District Judge.
Defendant, Estep, one of Jehovah's Witnesses, was indicted for failure to obey an order of his local board directing him to appear and be inducted into the United States Navy, 50 U.S.C.A. Appendix, § 311, and was found guilty. Estep had appeared at the induction center, after having been examined and found acceptable, and was told to "take one step forward"*fn1 constituting his induction into the Navy. He refused, giving the officer in charge a letter in which he asserted that as "a regular or duly ordained minister of religion" he was entitled to exemption from training and service by reason of Section 5(d) of the Selective Training and Service Act of 1940 as amended, 50 U.S.C.A. Appendix, § 305(d).
The facts are as follows. On June 30, 1942, Estep registered. Subsequently he filed his questionnaire in which he claimed to be a minister and entitled to IV-D status. The local board unanimously classified him I-A; he appeared before the board claiming IV-D classification. This was refused; and on October 27, 1942, he filed notice of appeal. Shortly thereafter, he attempted to file three affidavits corroborative of his activities as a minister of religion which the chief clerk refused, a refusal which the defendant asserts violated Section 615.43 of Selective Service regulations.*fn2
On cross-examination at the trial, the United States Attorney objected to the attempt by Estep's counsel to determine whether the clerk had lied as to the whereabouts of Estep's file; he was sustained. It is claimed this was error if for no other reason than that the credibility of the witness was involved in the question, but retrial on this ground alone was waived. The file or Cover Sheet was actually lost and apparently not found until early in 1944.
On February 22, 1944, Estep wrote to the local board stating that so far as he knew his case was being considered by the appeal board and that he did not wish to add to his file as it contained full explanation of his position. On April 19, 1944, Estep was directed to report for pre-induction physical examination; he was found fit for service and acceptable by the Navy. On May 23, 1944, Estep wrote to the local board stating he had examined his file and found certain documents missing; he inclosed eleven affidavits;*fn3 and he requested reconsideration of his I-A classification.*fn4 Of all the documents in his file these alone were not stamped; the chief clerk testified they were in the file but "not a part of his file." On July 28, 1944, Estep's file was forwarded to the appeal board. Accompanying it was a letter by the assistant clerk of the local board asserted to be violative of Section 627.13(b) of the Regulations.*fn5 On August 2, 1944, the appeal board unanimously classified Estep I-A and ordered him to report for induction on September 11, 1944. The events transpiring at the induction center have already been set out.
Estep asserts denial of due process of law by those charged with administering the Selective Training and Service Act. He contends that the local board's "Order to Report for Induction" was without legal sanction; that he had exhausted the Selective Service Process; and that he was entitled to raise these matters as a defense in his trial on the criminal indictment for violation of the Selective Service Act.
In one of the earlier decisions applying the Selective Service Act, this Court said in United States v. Grieme, 3 Cir., 1942, 128 F.2d 811, 815: "We think it is clear that, if a local draft board acts in an arbitrary and capricious manner or denies a registrant a full and fair hearing, the latter, although bound to comply with the board's order, may, by writ of habeas corpus, obtain a judicial determination as to the propriety of the board's conduct and the character of the hearing which it afforded. The registrant may not, however, disobey the board's orders and then defend his dereliction by collaterally attacking the board's administrative acts." See also Ex parte Stanziale, 3 Cir., 1943, 138 F.2d 312, certiorari denied Stanziale v. Paulin, 320 U.S. 797, 64 S. Ct. 267, 88 L. Ed. 481 and United States v. Pitt, 3 Cir., 1944, 144 F.2d 169. The Fourth Circuit took a somewhat different view in Goff v. United States, 4 Cir., 1943, 135 F.2d 610. In Falbo v. United States, 1944, 320 U.S. 549, 64 S. Ct. 346, 88 L. Ed. 305, the Supreme Court referred to the conflict and adopted the view stated in the Grieme case, supra. Even before the Falbo decision, supra, the same principle had been recognized. In the concurring opinion in Hirabayashi v. United States, 1943, 320 U.S. 81, 63 S. Ct. 1375, 1389, 87 L. Ed. 1774, Mr. Justice Douglas regarded it as settled law, and cited the Grieme case, supra, among others, as an instance in the law where "one must obey an order before he can attack as erroneous the classification in which he has been placed." And in the Falbo case, the Supreme Court held that Congress has not "authorized judicial review of the propriety of a board's classification in a criminal prosecution for wilful violation of an order directing a registrant to report for the last step in the selective process * * *." [320 U.S. 549, 64 S. Ct. 349].
Defendant accepts the Falbo decision, as of course he must. But he contends that the "last step in the selective process" is acceptance by the military forces after preinduction examination, and appearance at local board and induction center, rather than actual induction into service. For this he relies heavily on the decision in Billings v. Truesdell, 1944, 321 U.S. 542, 64 S. Ct. 737, 88 L. Ed. 917 which followed less than four months after the Falbo decision. The holding in the Billings case was that a man is not subject to military law or discipline until inducted and he is not inducted when accepted by the military but only when he has undergone the formal induction ceremony. The distinction thus made between acceptance and induction serves defendant as a basis for his contention that acceptance completes the administrative process, and that thereafter judicial review of classification can be called for.
In deciding when the administrative process is completed, it is relevant to keep in mind what all the activity is for. It is not ceremonial ritual, nor was it designed to provide committee activity for citizens of the various communities. It was, and is, designed to provide an Army and a Navy in a time of national emergency. The language of Congress, of the Supreme Court, and of those responsible for the administration of the selective service system, all make this clear.
In the first words of the Act, itself, Congress declared it "imperative to increase and train the personnel of the armed forces of the United States." 50 U.S.C.A. Appendix, § 301(a). The Supreme Court, taking note of Congressional intent in the Falbo case, emphasized that the "Act was passed to mobilize national manpower with the speed which that necessity and understanding required."
Couple these statements with the fact that the Act contains no explicit provision for judicial review prior to induction and Congressional design becomes manifest. The needs of the country come before those of the individual. Public necessity outweighs temporary individual inconvenience, even, it may be admitted, imposes considerable individual hardship in some cases. We cannot force the recruiting of the armed forces to wait while a civilian litigates his own private claims. Until a man is actually inducted he remains a civilian and military need is unsatisfied. The Billings case, far from being of aid to defendant, only makes it clearer that civilian status remains unchanged until induction actually takes place. So far as achieving what Congress intended is concerned, it makes no difference whether a man refuses to register, or to fill out a questionnaire, to report to local board or induction station, or refuses to be inducted. In any event, the end is not achieved while the man remains a civilian. Until he is inducted the administrative process has not been exhausted. Until it is, the registrant may not challenge validity of the local board's order in court.
The intent of the Act is further reflected in the Selective Service Regulations which provide in part that an order to report for induction carries with it the duty "to report for induction"*fn6 and "to submit to induction."*fn7 The order is clearly part of the administrative process which is not exhausted until the order is fully obeyed. Partial obedience is not exhaustive. We think the explicit language of the Regulations is in accord with what seems to us the clear Congressional purpose of the Act.
The Falbo case, supra, goes much further than establishing a mere procedural requirement. The principle laid down, as already noted, is based on congressional intent concerning necessity of uninterrupted speed in fulfilling the local board's orders, for complete achievement of national defense. As was pointed out in Smith v. United States, 4 Cir., 1945, 148 F.2d 288, 292: "Among the advantages in cases such as this of limiting the remedy of the draftee to habeas corpus proceedings commenced after the administrative process has been completed, is that * * * questions which are primarily constitutional in character are heard before a judge without the distractions and uncertainties likely to accompany a criminal jury trial. Constitutional right of citizens must, of course, be preserved in war as well as in peace; but the procedure outlined in the Falbo and Billings cases enables the courts to preserve them without unduly interfering with the war effort."
Still another consideration has been presented by Connor and Clarke, Judicial Investigation of Selective Service Action, (1945) 19 Tulane Law Review 344: "* * * a criminal proceeding presents an inappropriate forum for testing selective service action. This is evident because if the alleged improper or illegal action were not established as a defense nothing remains for the court to do but to fine or imprison the defendant, and the latter penalty is usually imposed. In any case the armed forces have lost a unit of manpower, whereas if the hearing is on a petition for the writ of habeas corpus the petitioner would in such a case be returned immediately to military control to begin his training. On the other hand, if the allegations of the defendant in the criminal proceedings were sufficiently convincing to justify acquittal he is discharged, but the same result obtains when the hearing is on the writ of habeas corpus."
After the Falbo and Billings cases, supra, a number of cases arose in the various circuits. One case, Tung v. United States, 1 Cir., 1944, 142 F.2d 919, 922 must be distinguished for there the defendant, "had not somewhere along the line by choice abandoned the administrative remedies given him by the Act, but instead was attempting to pursue them [by means of appeal]." There followed a series of cases where the registrant had not gone quite as far toward completion of the administrative process as in the instant case. Defendant either did not report to induction station or to the local board. See for example: Giese v. United States, 1944, 79 U.S.App.D.C. 126, 143 F.2d 633, affirmed, Per Curiam, 323 U.S. 682, 65 S. Ct. 437; Enge v. Clark, 9 Cir., 1944, 144 F.2d 638; Bagley v. United States, 9 Cir., 1944, 144 F.2d 788; United States v. Madole, 2 Cir., 1944, 145 F.2d 466; Biron v. Collins, 5 Cir., 1944, 145 F.2d 759; Goodrich v. United States, 5 Cir., 1944, 146 F.2d 265; Tatum v. United States, 9 Cir., 1944, 146 F.2d 406; Shigeru Fujii v. United States, 10 Cir., 1945, 148 F.2d 298; Klopp v. ...