request, stating merely that there had been no change in status due to circumstances beyond the registrant's control. He now asserts that he was denied due process both when the board refused to reopen his classification and when it failed to give a more elaborate statement of reasons in support of its refusal to reopen.
Kline's argument that the board erred in refusing to reopen is without merit. The Selective Service System's power to make reasonable timeliness rules for the presentation of claims to exemption from service includes the power to require the submission, prior to the mailing of an induction order, of a claim matured before that time. Ehlert v. United States, 1971, 402 U.S. 99, 101-102, 91 S. Ct. 1319, 28 L. Ed. 2d 625; United States v. Cunningham, E.D.Pa.1972, 345 F. Supp. 37. When, as here, the beliefs of a post-induction order applicant for conscientious objector status have matured in ample time for him to have notified the local board prior to the issuance of the order, and he has merely failed to do so, there is no "change in the registrant's status resulting from circumstances over which the registrant had no control" within the meaning of 32 C.F.R. § 1625.2, and the board may not reopen the registrant's classification. United States v. Stock, 9 Cir. 1972, 460 F.2d 480; United States v. Taylor, 5 Cir. 1971, 448 F.2d 349, 353, cert. denied, 1972, 404 U.S. 1024, 92 S. Ct. 677, 30 L. Ed. 2d 674; United States v. Simon, 9 Cir. 1971, 448 F.2d 1272; United States v. Angelico, 7 Cir., 427 F.2d 288, cert. denied, 1970, 400 U.S. 947, 91 S. Ct. 254, 27 L. Ed. 2d 253; United States v. Sandbank, 2 Cir. 1968, 403 F.2d 38, cert. denied, 1969, 394 U.S. 961, 89 S. Ct. 1301, 22 L. Ed. 2d 562; United States v. Kroll, 3 Cir. 1968, 400 F.2d 923, cert. denied, 1969, 393 U.S. 1069, 89 S. Ct. 728, 21 L. Ed. 2d 713; United States v. Gearey, 2 Cir. 1966, 368 F.2d 144, 149; United States v. Cunningham, E.D.Pa. 1972, 345 F. Supp. 37; United States v. Donaldson, E.D.Pa.1972, 336 F. Supp. 1086; United States v. Watson, E.D.Mo.1970, 314 F. Supp. 483, 492, aff'd, 8 Cir., 442 F.2d 1273, cert. denied, 1971, 404 U.S. 848, 92 S. Ct. 152, 30 L. Ed. 2d 85. Furthermore, under these circumstances lack of in-service review of Kline's conscientious objector claim would not deny him due process. AR 635-20, construed in Grubb v. Birdsong, 6 Cir. 1971, 452 F.2d 516, 519 n. 1; Morrison v. Larsen, 9 Cir. 1971, 446 F.2d 250; United States v. Donaldson, E.D.Pa.1972, 336 F. Supp. 1086.
It is asserted that defendant's failure to submit a timely pre-induction order application was reasonable because he was subjectively unaware that he would qualify as a conscientious objector pursuant to the prevailing legal standard.
Upon reading a newspaper account of the decision in Welsh v. United States,
Kline realized that he might qualify and thereafter applied for the exemption. However, this argument is insufficient to justify a registrant's failure to seek an administrative determination of his status. United States v. Keys, 6 Cir. 1972, 465 F.2d 736, 739 n. 3; United States v. Gerin, 9 Cir. 1972, 464 F.2d 492; United States v. Kirschke, E.D.Pa.1972, 339 F. Supp. 834; United States v. Townsend, E.D.Pa.1971, 335 F. Supp. 425. Since Kline concluded, subjectively and unilaterally, that he was not entitled to the exemption, there is no denial of due process from the board's refusal to consider his post-induction order application on the merits. United States v. Lloyd, 9 Cir. 1972, 460 F.2d 1052; United States v. Taylor, 5 Cir. 1971, 448 F.2d 349, cert. denied, 1972, 404 U.S. 1024, 92 S. Ct. 677, 30 L. Ed. 2d 674; United States v. Walker, 1 Cir. 1970, 424 F.2d 1069, cert. denied, 1971, 402 U.S. 985, 91 S. Ct. 1673, 29 L. Ed. 2d 151; United States v. Powers, 1 Cir., 413 F.2d 834, cert. denied, 1969, 396 U.S. 923, 90 S. Ct. 256, 24 L. Ed. 2d 205; United States v. Bender, D.Minn. 1972, 336 F. Supp. 763. Therefore, administrative remedies have not been exhausted, and defendant cannot now assert an improper denial of conscientious objector status as a defense to criminal prosecution. McGee v. United States, 1971, 402 U.S. 479, 91 S. Ct. 1565, 29 L. Ed. 2d 47; United States v. El, 3 Cir., 443 F.2d 925, cert. denied, 1971, 404 U.S. 913, 92 S. Ct. 239, 30 L. Ed. 2d 187; United States v. Kirschke, E.D.Pa.1972, 339 F. Supp. 834; United States v. Townsend, E.D.Pa.1971, 335 F. Supp. 425.
With respect to defendant's final argument, viz., that he was denied due process when the board did not elaborate its reasons for refusing to reopen his classification, heavy reliance is placed upon the decision in Scott v. Commanding Officer,
in which it was held that a local board's inadequate statement of reasons for refusing a post-induction order request to reopen upon being presented with a prima facie showing of conscientious objection based upon alleged late crystallization yields a denial of due process which invalidates a subsequent induction order. The court reasoned that once a prima facie case is made, the reviewing authority would risk blind endorsement of an unwarranted factual inference or of the application of an erroneous legal standard unless apprised of the basis for the board's decision;
pursuant to this rationale, reasons must also be given to facilitate adequate review within the administrative process. United States ex rel. Bent v. Laird, 3 Cir. 1971, 453 F.2d 625, 632 n. 2; United States v. Neamand, 3 Cir. 1971, 452 F.2d 25; United States v. Stephens, 3 Cir. 1971, 445 F.2d 192, 197 (Concurring Opinion); United States v. Speicher, 3 Cir. 1971, 439 F.2d 104, 108. However, the court does not feel that Scott and its progeny
are apposite under the circumstances of this case.
As a condition precedent to the board's due process obligation to articulate its reasons for refusing to reopen, the registrant must establish a prima facie entitlement thereto. Cale v. Volatile, 3 Cir. 1972, 465 F.2d 1110, 1112-1113. Once an induction order has issued, this requires not only that the registrant present new allegations demonstrating a presumptive right to the underlying exemption, but also that the new allegations amount to a change in status resulting from circumstances over which the registrant had no control.
32 C.F.R. § 1625.2. In support of his request to reopen, Kline unambiguously informed the board that the beliefs upon which he based his claim had remained constant for approximately two years prior to his scheduled induction. Since he failed to establish a prima facie change of status and since the local board was therefore powerless to reopen under the clear mandate of 32 C.F.R. § 1625.2, no statement of reasons need be given.
United States v. Solomon, 5 Cir. 1971, 450 F.2d 456; United States v. Gibboney, E.D.Va.1971, 342 F. Supp. 1185, 1186-1187.
This is not a case in which the failure to require an elaboration of reasons will prejudice the judicial review of a possibly erroneous legal or factual judgment made by the board with respect to the underlying exemption. Scott v. Commanding Officer, 3 Cir. 1970, 431 F.2d 1132, 1137-1138. Nor is it a case in which the board's decision might reasonably have rested on any of several alternative grounds,
some of which might militate against the full evaluation on the merits to which defendant would otherwise be entitled.
Instead, the board could only have decided that the undisputed facts submitted in support of Kline's application failed to establish a change of status as a matter of law. Accord, Clark v. Volatile, 3 Cir. 1970, 427 F.2d 7, 12 (Concurring Opinion); United States v. Ziskowski, 3 Cir. 1972, 465 F.2d 480, 484 and n. 10. Under these circumstances, whatever the local board may have done vis-a-vis the underlying exemption is simply irrelevant; its action would be ipso facto harmless,
and there could be no denial of due process. United States v. Thompson, 3 Cir. 1970, 431 F.2d 1265, 1272; United States v. Bellmer, 3 Cir. 1968, 404 F.2d 132, 135 n. 6; United States v. Spiro, 3 Cir. 1967, 384 F.2d 159, cert. denied, 1968, 390 U.S. 956, 88 S. Ct. 1028, 19 L. Ed. 2d 1151; United States v. Weaver, E.D.Pa.1972, 336 F. Supp. 558, 562.
In reaching this conclusion, the court merely holds that when a local board is presented with a post-induction order request to reopen a registrant's classification on grounds of conscientious objection which indicates unambiguously that the beliefs upon which the registrant relies have remained fixed for approximately two years prior to the request, there is no denial of due process if the local board, in refusing to reopen, merely states that the registrant has failed to establish a change in status due to circumstances over which he had no control. As stated by Judge Hoffman in United States v. Gibboney:
". . . Since Gibboney's initial claim as a conscientious objector was received after the issuance of two orders to report for induction, and after the actual receipt of at least one of said orders, it was not incumbent upon the Local Board to state its reasons for the denial of a post-induction notice conscientious objector claim. . . . It would be an idle gesture to require draft boards to analyze and state the reasons for any denial of a request to reopen, when all that need be done is to say to the registrant: 'You are too late.'"