the special Conscientious Objectors' form, by his local board. It carried an instruction that it was to be completed and returned within 30 days. He returned the form to the local board on January 9, 1970, along with five letters of support.
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. § 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."