The opinion of the court was delivered by: LORD, III
JOSEPH S. LORD, III, Chief Judge.
At the outset, we must decide whether we can even consider defendant's challenges to the validity of his induction order.
The significant chronological happenings in this case are:
On July 20, 1970 the local board received Weaver's completed Form 150 applying for conscientious objector status, accompanied by three reference letters from others in support of his application. On August 27, 1970 Weaver was notified that he was classified 1-A, accompanied by notification of his right to appeal that classification and request a personal appearance. No notice of appeal or request for a personal appearance was received by the local board within the 30 day statutory appeal period. 32 C.F.R. § 1626.2(c)(1). On November 2, 1970 Weaver was ordered to report for induction, to take place on November 16, 1970. Four days after receiving this notice, he requested a personal appearance before the local board. This was denied as not being timely, but he was granted a personal interview on November 13, 1970. After the interview, the local board declined to reopen his classification and ordered him to report and submit to induction as scheduled on November 16, 1970.
The defendant argues that his failure to take a timely appeal or request for a personal appearance was justified. We are not persuaded, however, that an appeal of his classification would have been futile, self-defeating, or judicially wasteful. United States v. Deans, 436 F.2d 596 (3rd Cir. 1971); United States v. Zmuda, 423 F.2d 757 (3rd Cir. 1970), cert. denied 398 U.S. 960, 90 S. Ct. 2176, 26 L. Ed. 2d 545 (1970).
Having decided that Weaver's failure to exhaust administrative remedies was not excusable, we are confronted with the larger question presented by this case. That is whether the exhaustion doctrine should apply at all in a case where a registrant's proposed defense is that his induction order is invalid because the local board procedures in handling his case were so lacking in basic fairness as to deny him due process of law.
It is well settled that this claim of a denial of due process is one of two general grounds which may be asserted to avoid conviction for refusal of induction, the other being that the classification has no basis in fact. United States v. Bellmer, 404 F.2d 132 (3rd Cir. 1968). The Court's recent decision in McGee v. United States, 402 U.S. 479, 91 S. Ct. 1565, 29 L. Ed. 2d 47 (1971), clearly precludes judicial consideration of the "no basis in fact" defense where there has been a failure to exhaust administrative remedies. The allowance of a bypass of appeal procedures would be particularly damaging to the Selective Service System in that situation, because the consideration of the factual basis for a conscientious objector claim involving an evaluation of the beliefs and sincerity of the registrant is clearly a matter which Congress intended for administrative expertise.
On the other hand, the Court in McKart v. United States, 395 U.S. 185, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969), held that exhaustion of administrative remedies was not necessary when the question of whether a claimed exemption was to be granted or not was solely a matter of statutory interpretation of the Congressional enactment creating the exemption. No appeal to the appeal board was required there because the question of law involved was not really a matter of administrative expertise, such as fact gathering and evaluation.
The Fifth Circuit, in a decision before McKart, expressed doubt that there could be any exceptions to the exhaustion doctrine. In DuVernay v. United States, 394 F.2d 979 (5th Cir. 1968), a black registrant sought to defend against his criminal prosecution for refusing induction by proving that his local board had violated his due process rights in handling his case, and that due process was violated because blacks were systematically excluded from membership on the local board. The court held that the defendant was barred from presenting these due process claims as a defense to his prosecution because he had failed to exhaust his administrative remedies. Accord, Evans v. United States, 252 F.2d 509 (9th Cir. 1958).
The decision in DuVernay was affirmed by an equally divided Supreme Court,
without opinions. 394 U.S. 309, 89 S. Ct. 1186, 22 L. Ed. 2d 306 (1969). Thus, it is an open issue whether the exhaustion doctrine should apply in cases where the registrant claims that his induction order is invalid because local board procedures leading to the order violated the requirements of due process.
In the only case in this Circuit dealing with the applicability of the exhaustion doctrine to a challenge to local board procedural irregularity, the court held that a failure to exhaust administrative remedies precluded the defense that the board was illegally constituted. United States v. Tobias, 447 F.2d 227 (3rd Cir. 1971). The defendant in Tobias challenged the composition of the local board on the ground that only two of the five board members were residents of the area while a Selective Service Regulation provided that where practicable board members should be residents of the area.
In reaching its decision, the court emphasized that Congress had entrusted to the Selective Service System the power to define the jurisdiction and composition of the local boards. The challenge to local board action in Tobias was neither constitutional nor statutory, but emanated solely from a regulation promulgated from within the Selective Service System itself. The court concluded that the composition of the local boards was clearly a matter of administrative expertise calling for the application of the exhaustion doctrine. It carefully limited this holding to the circumstances ...