The opinion of the court was delivered by: SHERIDAN
On May 18, 1970, David Thomas Kline was issued a duly authorized order to report for induction into the Armed Forces of the United States on June 12, 1970. He had been classified IA in May 1967. Subsequent to the issuance of the induction order, and pursuant to defendant's written request, the induction date was postponed until July 15, 1970. At the appointed time and place, Kline reported for induction but refused to take the symbolic step forward. The instant indictment, for having failed to submit to induction in violation of 50 U.S.C. App. § 462, followed. Defendant has waived trial by jury.
It is defendant's contention that he has been denied due process of law in various respects. The material facts are not in dispute and will be elaborated in the context of the legal arguments presented.
Kline's first argument is that he was subjected to an invidious discrimination
by an Executive Order abolishing the paternity deferment for any registrant not already possessing it who failed to notify the local board of information establishing eligibility therefor prior to April 24, 1970.
Defendant's child was conceived prior to that date, but he did not learn of his wife's pregnancy until May 1970. Under these circumstances, Kline's failure to qualify is alleged to arbitrarily favor those registrants who possessed the required information in time to assert their claims. However, this contention ignores the fact that, for purposes of qualifying for the fatherhood exemption, possession and transmission of the required information has been made the salient differentiating characteristic. The Selective Service System has the power to make and to enforce reasonable timeliness regulations,
and this must perforce encompass the ability to prescribe time limitations regarding the submission of information relevant to a claimed exemption. Equal protection merely requires that a classification have a fair and substantial relationship to a legitimate official objective, so that all persons similarly situated shall be treated alike. Eisenstadt v. Baird, 1972, 405 U.S. 438, 446-447, 92 S. Ct. 1029, 31 L. Ed. 2d 349; Reed v. Reed, 1971, 404 U.S. 71, 75-76, 92 S. Ct. 251, 30 L. Ed. 2d 225. Though the test has been variously stated, the ultimate criterion is whether the line drawn is a rational one;
and a classification is arbitrary only if it is without any reasonable basis. Shapiro v. Thompson, 1969, 394 U.S. 618, 638 n. 20, 89 S. Ct. 1322, 22 L. Ed. 2d 600. The defendant has failed to establish, and the court fails to perceive, that the abolition of the paternity deferment discriminates invidiously. Kline's argument implicitly assumes that any enactment which creates or terminates rights must arbitrarily affect those who suffer by exclusion. However, equal protection does not prevent an enactment from having a beginning or an end, and thereby distinguishing between rights of an earlier or a later time. Russo v. Shapiro, D.Conn.1969, 309 F. Supp. 385, 391.
Next, defendant claims to have been denied due process when the local board neglected to inform him of the existence of an exemption based upon extreme hardship
and when the board failed to reopen his classification to consider his right to a hardship deferment on the merits. These arguments will be discussed seriatim.
On May 18, 1970, Kline personally informed a secretary at his local board that he was married. He also indicated that his wife was pregnant and inquired whether he could qualify for a paternity deferment. The secretary accurately replied that the law had recently been changed and that he could no longer qualify for an exemption based upon impending fatherhood.
Defendant's induction order was mailed to him the same day. He now contends that this conversation affirmatively misled him to conclude that the deferment based upon extreme hardship had also been abolished. Alternatively, Kline argues that the board failed in its affirmative duty to apprise him of the existence of the hardship deferment.
To show conduct by the local board which is sufficiently misleading to constitute a defense to a criminal prosecution for refusing induction, Kline must establish that the board conveyed false information to him, that he was in fact misled by it, and that it was reasonable for him to rely on the information without being required to make further inquiries of the board. United States v. Timmins, 9 Cir. 1972, 464 F.2d 385. He has not done so. The information given him by the secretary was not misleading: he was correctly informed that he could no longer qualify for a paternity deferment. Assuming the information had been false, he could not have been misled by it unless he had prior knowledge of the existence of the hardship deferment; Kline testified at trial that he had no such knowledge. In addition, it is arguable that any reliance upon the secretary's unverified assertion would have been unreasonable without an attempt to obtain clarification from the board.
Similarly, there was no denial of due process when the secretary with whom Kline spoke on May 18, 1970, did not tell him of the existence of the hardship deferment after being apprised of Kline's marriage and of his wife's pregnancy. It is of course true that registrants are not to be treated as if engaged in formal litigation assisted by counsel. United States ex rel. Berman v. Craig, 3 Cir. 1953, 207 F.2d 888. When a registrant indicates, no matter how unclearly, a desire for a procedural right, it is the duty of the local board to construe the request in his favor and to obtain necessary clarification from him. United States v. Thompson, 3 Cir. 1970, 431 F.2d 1265; United States v. Turner, 3 Cir. 1970, 421 F.2d 1251. In ascertaining whether a request for assistance has been made, the analytical inquiry is whether the registrant has given the board reasonable notice that he is seeking clarification of his status; if so, the board has a duty to inquire to the extent necessary to procure those facts relevant thereto. United States v. Wilson, S.D.N.Y.1972, 345 F. Supp. 894; United States v. Galluppi, E.D.Pa.1972, 344 F. Supp. 1015. However, even assuming that Kline's conversation with the secretary was sufficient to impute knowledge of its substance to the local board, Kline never remotely intimated that his financial condition might be relevant to his draft status. Under these circumstances, the failure of the board to infer that he might be interested in procuring a hardship deferment and to provide him with information pertaining to it did not amount to a denial of fundamental fairness. United States v. Lathrop, 3 Cir. 1972, 460 F.2d 761, 763.
After Kline received his notice to report for induction, he wrote a letter to the local board in which he referred to various personal financial obligations and in which he requested that his induction be postponed one month.
The requested postponement was granted until July 15, 1970. He now asserts that the board erroneously refused to reopen his classification upon being presented with facts in the letter which are alleged to establish a prima facie entitlement to reopening on grounds of hardship.
Initially, it must be remarked that the court does not believe that the board should even be required to construe the letter as a request to reopen defendant's classification. A registrant, untutored in the intricacies of Selective Service procedures, should not be denied procedural rights merely due to a failure to punctiliously follow the regulations; however, to hold that every submission of new facts incorporates an implicit request to reopen would impose an extraordinary administrative burden on the Selective Service System, i.e., it is essential that the registrant indicate in some way that he is dissatisfied with his classification and wishes to have it changed. United States v. Pompey, 3 Cir. 1971, 445 F.2d 1313, 1320-1321. Kline never expressed a desire to apply for a hardship deferment, and he never gave the board reason to believe that he was unaware of its existence. Instead, he merely requested that his induction be postponed one month to allow an amelioration of his personal financial condition. The requested postponement was granted. Under these circumstances, the board was justified in assuming that Kline was seeking precisely what he asked for and received, viz., a postponement in order to smooth his transition into the Armed Forces. United States v. Lathrop, 3 Cir. 1972, 460 F.2d 761, 764; United States v. Pompey, 3 Cir. 1971, 445 F.2d 1313, 1320-1321.
However, assuming arguendo that defendant's letter should have been construed as a request to reopen, its substance does not establish a prima facie entitlement thereto.
Prior to the issuance of an induction order, if the local board is presented with new factual allegations which, if true, would warrant granting the requested classification, it is an abuse of discretion for the board to refuse to reopen unless the truth of the new allegations is conclusively refuted by other reliable information in the registrant's file; in contradistinction to these criteria, an additional condition precedent to reopening after the induction order has issued is a specific finding by the local board that the new facts constitute a change in the registrant's status due to circumstances over which he had no control. 32 C.F.R. § 1625.2 (1971), construed in Mulloy v. United States, 1970, 398 U.S. 410, 414 n. 2, 415-416, 90 S. Ct. 1766, 26 L. Ed. 2d 362. Kline argues that his pre-existing debts in conjunction with his wife's pregnancy establish such a non-volitional change in status. This argument is rejected. Accord, United States v. Scialabba, 9 Cir. 1972, 465 F.2d 1395; Clark v. Volatile, 3 Cir. 1970, 427 F.2d 7. Furthermore, he has failed to address himself to the criteria necessary to make a prima facie showing with respect to the underlying hardship exemption, and the court is not persuaded that the facts set forth in the letter demonstrate "extreme hardship" within the meaning of 32 C.F.R. § 1622.30(a). Since there were no facts before the board which would have allowed it to reopen, defendant could not have been prejudiced by the board's failure to construe his letter as a request to do so. Therefore, there has been 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.
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 ...