Seitz and Aldisert, Circuit Judges, and Latchum, District Judge. Aldisert, Circuit Judge (concurring).
This appeal from an order of the district court denying a petition for a writ of habeas corpus raises some difficult questions concerning the proper procedures and standards for judging a selective service registrant's claim for conscientious objector status made after he has been ordered to report for induction.
Petitioner William Douglas Scott registered with his Massachusetts local board in June 1963 at age eighteen. In January 1965 he received a student deferment. He retained the deferment until September 1968 when the local board, believing he had been graduated from the University of Maine, changed his status to I-A. Petitioner notified the board that he was still in school and would graduate in January 1969, not June 1968 as originally scheduled. Shortly thereafter, by letter dated January 21, 1969, the University advised the local board that petitioner had been appointed a teaching assistant for the spring semester and requested an occupational deferment for him. The local board denied this request and petitioner's I-A classification was affirmed by the appeal board on July 8, 1969.
While his appeal from the denial of an occupational deferment was pending, petitioner asked the local board to postpone his induction, in the event his appeal was denied, until September 1, 1969. Although he gave no reason for this request, his file reveals that he participated in an extensive tour of Europe during that summer. On August 13, 1969, petitioner was ordered to report for induction on September 18, 1969. Petitioner returned to the United States on August 15, 1969 and found the waiting induction order.
On August 19, 1969 Westinghouse Electric Corporation notified the local board that petitioner had been hired as an associate engineer and asked that his induction be postponed and that he be given an occupational deferment. The board postponed petitioner's induction but on September 18, 1969 decided not to reopen his classification. State Headquarters then reviewed the file at Westinghouse's request but found no cause to intercede. Petitioner's induction was rescheduled and on November 17, 1969 he was ordered to report for induction on December 8, 1969.
Thereafter, on November 25, 1969, petitioner asked that his induction be transferred to the Philadelphia area where he was then residing, and this request was granted on December 1. Also on December 1, petitioner requested the Massachusetts board to send him a conscientious objector form (SSS Form 150), stating that he had become a conscientious objector. The board sent him a Form 150, again postponed his induction, and asked him to come in for a "courtesy interview" on December 11, 1969. Petitioner promptly completed the Form 150 and sent it to the local board, together with letters from various individuals attesting to the nature and sincerity of his beliefs. On the day after the courtesy interview petitioner was informed by letter that "It was the unanimous opinion of the board that the new information did not warrant reopening of your classification. * * *" No reason was offered why the information submitted did not warrant reopening and none is noted in petitioner's file.
Petitioner's induction was then rescheduled and he submitted to induction on January 16, 1970. He petitioned the district court for a writ of habeas corpus on the same day. He alleged that he had been illegally inducted because his local board had failed to reopen his classification and grant him conscientious objector status and, alternatively, that his local board "while purporting to refuse to reopen and consider anew petitioner's I-A classification, did in fact so reopen and consider the same anew but refused to grant petitioner * * * the rights of appellate review of the Board's refusal to reclassify petitioner to Conscientious Objector classification."*fn1
The district court restrained the respondent Commanding Officer of the induction station from removing petitioner from the jurisdiction. After a hearing and a review of petitioner's selective service file, however, the district court denied the writ on February 20, 1970. On February 25, 1970 another panel of this court restrained respondent from removing petitioner from the jurisdiction and further restrained him from placing petitioner on any other status than "soldier on excess leave" during the pendency of this appeal.
Petitioner claims that his induction order is invalid because his local board illegally refused to reopen his classification and grant him a conscientious objector classification. The reopening of selective service classifications is governed by 32 C.F.R. § 1625.2. This regulation has recently been construed by the Supreme Court to require that "where a registrant makes nonfrivolous allegations of facts that have not been previously considered by his Board, and that, if true, would be sufficient under regulation or statute to warrant granting the requested reclassification, the Board must reopen the registrant's classification unless the truth of these new allegations is conclusively refuted by other reliable information in the registrant's file." Mulloy v. United States, 398 U.S. 410, 416, 90 S. Ct. 1766, 1771, 26 L. Ed. 2d 362 (1970).
The request for reopening in Mulloy, however, came prior to the issuance of an induction order, while petitioner's was made after he had been ordered to report for induction. In post-induction-order requests for reopening, the following proviso to 32 C.F.R. § 1625.2 is also applicable:
"Provided * * * the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * * unless the local board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control." (emphasis added)
Since the result of this case turns on the proper application of this regulation to a post-induction-order claim for conscientious objector status, it is necessary to make a rather detailed ...