McLaughlin, Van Dusen and Adams, Circuit Judges. Gerald McLaughlin, Circuit Judge (dissenting).
Opinion ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
This controversy is here once again,*fn1 this time on remand from the United States Supreme Court where the Solicitor General, in a memorandum, confessed error and urged vacation of this Court's judgment and reversal of appellant's conviction. Under these circumstances, we reverse the conviction without prejudice to the Selective Service System's reprocessing of appellant.
Appellant was convicted of willful refusal to submit to induction, in violation of 50 U.S.C. App. § 462(a). He registered with his local draft board in August 1964 and was classified I-A. In October, 1964, upon matriculation at college, he was reclassified II-S. After graduation from college in 1968, he received a I-A classification. On November 21, 1968, after a pre-induction physical examination, appellant was found acceptable for military service. On that day he requested a conscientious objector Form 150 which he returned completed on December 20, 1968. In the form, appellant made detailed statements about his beliefs, but submitted no letters in support of his application for C.O. status.*fn2 He requested a personal appearance to discuss his claim with the board members; the request was granted. After appellant's appearance on February 2, 1969, the local board voted unanimously not to reopen his classification. No reasons were given for its action. He was informed of the board's decision and advised of his right to an administrative appeal.
On March 11, 1969, appellant informed the local board of his intention to appeal. A number of letters were submitted to the local board attesting to his sincerity.*fn3 Jones also filed with his notice of appeal a supplementary statement explaining in detail the crystallization of his objector beliefs.*fn4 These letters and appellant's supplemental statement were included in his Selective Service file which was then forwarded to the State Appeal Board. On July 25, 1969, the Appeal Board voted unanimously to retain appellant in Class I-A. It gave no reasons in support of its decision. On August 20, 1969, appellant was ordered to report for induction. When the time for induction came, he refused to take the symbolic step forward. After a non-jury trial in the district court, Jones was convicted, and this Court affirmed in a 2-1 decision.
Jones then sought a writ of certiorari from the Supreme Court within the time period provided by the rules. The Solicitor General submitted a memorandum to that Court in which he stated that "petitioner had satisfied the prima facie requirement," and that "the failure of [the State Appeal Board] to state reasons for its classification decision was sufficiently prejudicial to invalidate the induction order." The Solicitor General concluded that "the judgment of the court of appeals should be vacated and the judgment of conviction should be reversed." The Supreme Court, in an order dated June 19, 1972, vacated the judgment and remanded the case to this court "for reconsideration in light of the position presently asserted by the Government."
A careful review of the record clearly indicates that the information contained in Jones' Selective Service file, including his supplemental letter, forwarded by the local board to the Appeal Board constitutes a prima facie claim of conscientious objection under 50 U.S.C. App. § 456(j).*fn5 Because a prima facie case was presented at least to the Appeal Board,*fn6 that body was obliged, in rejecting his claim, to state reasons for its denial. In the absence of such a statement of reasons by an appeal board, despite the existence of a prima facie case, a subsequent induction order is invalid.*fn7 This Court can no more exercise effective review over an appeal board decision failing to state reasons than it can over such determinations by local boards.*fn8 For this reason, Appeal Boards, as well as local boards,*fn9 must state reasons for a denial of a request for conscientious objector status when a prima facie case is presented.
Moreover, any disposition by this Court other than a reversal of Jones' conviction would offend the letter as well as the spirit of the rule recently enunciated in Cale v. Volatile, 465 F.2d 1110 (3d Cir., filed Sept. 7, 1972). In that case, the Government took a position different from that which it had taken in another case. In an opinion by Judge Aldisert, this Court said: "If this was the position taken by the government in confessing error in Joseph, a selective service case emanating from this circuit, . . . basic maxims of equality of justice compel us to require the government to maintain a consistent position in the case at bar."
Here, the Government has confessed error before the Supreme Court, in this very same case. Under these circumstances, stronger than those prompting the Court in Cale to require the Government to maintain consistent positions, appellee will not be heard to suggest that other than a prima facie case was presented to the Appeal Board and that, therefore, that body was not obliged to state reasons for its denial of appellant's claim.
In view of the above, the judgment of convictions will be reversed. However, such reversal does not declare Jones to be a conscientious objector, nor does it relieve him of his obligation to the country. Instead, Jones is still in I-A status with an application for a I-O classification pending. His local board now has the responsibility, if it chooses to reprocess Jones, of interviewing him again to determine the validity of his C.O. claim. If found to be entitled to I-O status, Jones will be required to perform two years of alternate service. If the local Board denies his claim, it will state its reasons and reprocess Jones for induction.*fn10
It is often tempting in cases of this kind to read into the law one's own private notions of policy. This, however, we are not justified in doing, no matter how deep the feeling about these notions, and no matter how mischievous we deem their disregard. The task of a judge is not that of an ordinary citizen. To discharge his duty properly, he must frequently suppress his personal views, and be ever mindful that in the final analysis, the only check upon the exercise of judicial power is a sense of self- restraint.
GERALD McLAUGHLIN, Circuit Judge (dissenting).
The current court opinion here while in the essence of good faith, countenances the miscarriage of justice which came about by the mistaken view of the attorney for the plaintiff before the Supreme Court to the effect that a prima facie case of conscientious objection had been made out by appellant. All of the reported case law on the subject is to the contrary. See our earlier opinion in this suit, 456 F.2d 627 (1972) which spread out for all to see that appellant never did present and never in reality claimed to have made a legitimate conscientious objector prima facie statement. He, his lawyers, and all of the courts which had to pass upon the various maneuvers to keep appellant from being inducted into the armed forces of the United States, know that in Selective Service, a prima facie position has been developed "if a registrant has presented facts which, if ...