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February 19, 1971


Edward R. Becker, District Judge.

The opinion of the court was delivered by: BECKER

EDWARD R. BECKER, District Judge.

 This is a selective service case. It comes before us on the government's motion to remand the matter to the defendant's local draft board for a statement of reasons for its refusal to reopen defendant's classification, in accordance with the decision in Scott v. Commanding Officer (Volatile) 431 F.2d 1132 (3d Cir. 1970). The following facts, as set forth in the Motion and Briefs, are undisputed:

 Defendant is a registrant of Local Board No. 334 in Bristol, Pennsylvania. By virtue of an Order dated November 18, 1969, he was directed to report for induction into the Armed Forces on December 8, 1969, at 6:00 A.M. On the day set for induction, defendant appeared at the office of the local board with a letter which: (1) stated that he was a Conscientious Objector; and (2) requested a postponement of his induction so that the local board could review his case. This request was denied and defendant was directed by the secretary of the local board to proceed to the Armed Forces Induction Station for processing for induction. Defendant complied with that directive, but at the time he was ordered to step forward, symbolizing induction, refused to do so, stating that he was a Conscientious Objector.

 The local board responded by directing defendant to meet with it on February 11, 1970. After this meeting, the board, by a vote of 4 to 1, refused to reopen defendant's classification. The file fails to show why the local board refused to reopen. On August 19, 1970, defendant was indicted by the Grand Jury for failing to perform a duty required by the Selective Service Act, as amended, 50 App. U.S.C. ยง 462.

 On September 15, 1970, the United States Court of Appeals for the Third Circuit filed an Opinion in the case of Scott v. Commanding Officer (Volatile), supra ("Scott"). Scott held, inter alia, that, where a registrant's claim for conscientious objection, made after an order to report for induction has been issued, is prima facie valid, and where the local board fails to state reasons for its refusal to reopen his classification, i.e., "whether it has found the registrant incredible or insincere, or of bad faith and why", a consequent order for induction is invalid. For reasons which will appear below, it is necessary to observe that Scott expressly adopted the rule theretofore announced by the Fourth Circuit in United States v. Broyles, 423 F.2d 1299 (1970).

 Defendant was arraigned on January 29, 1971 and entered a plea of not guilty. The government, apparently fearful that Scott will prevent a conviction upon the present record, has filed the pre-trial motion to remand the matter to the local board for a statement of reasons for refusal to reopen classification. Resolution of the attendant issues requires at the outset a construction of Scott, upon which, in a certain sense, both the government and the defendant rely.

 The position of the government is that the Scott decision requires that the matter be remanded to the local board so as to clarify the record by a statement of its reasons for refusing to reopen defendant's classification. In support of this position, the government asserts that: (1) since, at the time of the meeting and decision of the local board, there were no Third Circuit decisions requiring a statement of reasons for refusal to reopen the classification, the decision of the board, both at the time of decision and, indeed, at the date of indictment (August 19th), fully met the necessary requirements; (2) defendant will not be prejudiced by remand, since the board would only be stating a "previously held reason for its decision"; and (3) the delay involved would be minimal and would not infringe upon defendant's right to a speedy trial.

 In seeking remand, the government acknowledges its reliance upon the concurring opinion in Scott of Judge Aldisert, 431 F.2d pp. 1138-1139, and particularly Judge Aldisert's statement that:

"I agree that this circuit should adopt the Broyles rule, but I do not believe its application should threaten previous determinations by local boards in the three states and the territory of this circuit. * * * Because of the effect such a rule would have on the administration of justice, Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1966), I would remand to the district court all appropriate cases heretofore processed for further remand to the local boards to afford the boards the opportunity of explaining rejections of requests for reopenings in these cases. For cases arising hereafter, I would accept the majority's procedure whereby the legality of the induction order is tested solely by the facts presented in the registrant's selective service file."

 The position of the defendant is that the holding of Scott forecloses the possibility of remand. This contention stems in part from the frequent citation by Judge Seitz, speaking for the majority, of the decision of the United States Court of Appeals for the Second Circuit in the case of Paszel v. Laird, 426 F.2d 1169 (1970). In Paszel, the Second Circuit, which has, like the Third Circuit, adopted the Broyles rule, permitted the curing of Scott-Broyles error in ancillary or remanded proceedings. The defendant argues that the Third Circuit's granting of the writ in Scott, after citing Paszel, and in the face of Judge Aldisert's suggestions about remanding cases "heretofore processed" to the local board for a statement of reasons, constitutes a rejection of remand procedure.

 Paszel, like Scott, arose on habeas corpus. It was an appeal by the government from the issuance of a writ to inductee, who had advanced the claim that conscientious objection had crystallized after the receipt of an order to report for induction. Commenting upon the narrowness of the scope of review of the actions of selective service boards, and the consequent necessity that the court know the reasons upon which the board acted, the court remanded the matter to the district court (which had not passed upon whether the board had a basis in fact for its finding, but only that Paszel had presented a prima facie case) for a hearing at which the board members would have an opportunity to explain the grounds for their rejection of Paszel's request to reopen. *fn1"

 United States v. Deere, 428 F.2d 1119 is a similar Second Circuit case, decided January 6, 1970, of which the Scott Court, while it did not cite it, might have been aware. Deere arose in connection with criminal proceedings. There, the Court of Appeals directed the district judge to conduct a post-conviction hearing, a proceeding ancillary to trial, so to speak, to elicit testimony from the local board members as to their ...

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