UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: January 26, 1973.
UNITED STATES OF AMERICA, APPELLEE
CLINTON BARRETT SHRIVER, APPELLANT
(D.C. Criminal No. 71-44) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Van Dusen, Gibbons and Hunter, Circuit Judges. Gibbons, Circuit Judge, concurring.
Opinion OF THE COURT
HUNTER, Circuit Judge.
Appellant Clinton Barrett Shriver was indicted on four counts relating to alleged violation of the Military Selective Service Act, 50 U.S.C. App. § 462 (1967). He was acquitted on three of the counts but convicted for failing to report for an armed forces physical pursuant to § 462 and 32 C.F.R. § 1628.10. He is appealing that conviction.
It is undisputed that appellant did not report for a physical scheduled for January 5, 1971. At all times, he was classified 1-A. Although he was sent the proper form four and one-half months before the date of his physical, appellant did not submit a claim for a conscientious objector classification until after the date of his physical had passed. His local board did consider his claim, however, and refused to reclassify him. Appellant did not appeal from this decision.
Appellant now contends that he should have been classified as a conscientious objector. According to regulations in effect at that time, it was not a crime for a person already classified as a conscientious objector to fail to report for a physical. See United States v. Hayden, 445 F.2d 1365 (9th Cir. 1971).*fn1 Appellant argues that he should be able to prove that he is a conscientious objector and that if he does,*fn2 this should be a defense to his prosecution. The Ninth Circuit accepted a similar argument in United States v. Hayden, supra. Previously, however, this circuit rejected appellant's argument in United States v. Zmuda, 423 F.2d 757 (3d Cir. 1970), cert. denied 398 U.S. 960, 90 S. Ct. 2176, 26 L. Ed. 2d 545 (1970). Accord, United States v. Dombrouski, 445 F.2d 1289, 1297 (8th Cir. 1971).
In Zmuda, we said:
"First and foremost, it must be emphasized that the alleged invalidity of appellant's classification is not available as a defense to a prosecution for failing to report for a physical examination. The validity of a I-A classification has no relevance to the registrant's obligation to undergo an examination to determine his physical eligibility to serve in the armed forces." (Citation omitted). Id. at 759.
Alternatively, appellant is precluded from raising the propriety of his classification in these proceedings since he failed to exhaust his administrative remedies. United States v. McGee, 402 U.S. 479, 29 L. Ed. 2d 47, 91 S. Ct. 1565 (1971); United States v. Zmuda, supra at 759. In McGee the Supreme Court held that a claim that a registrant should have been classified as a conscientious objector could not be raised as a defense to a prosecution if the registrant had failed to exhaust his administrative remedies.*fn3
This failure to exhaust also distinguishes this case from Hayden. There, appellant had been acquitted of a previous charge of failing to report for induction when a district court found that Hayden was a conscientious objector. Despite this acquittal, his board refused to reclassify him. Appellant was notified of this fact and refused to appeal. He was then re-ordered to report for a pre-induction physical. The Ninth Circuit excused this failure to pursue an administrative remedy:
"At this point, Hayden had clearly exhausted his remedies and had given the system every opportunity to correct its error, and to amplify the factual record. The full panoply of the administrative process having been brought to bear on Hayden's claim, the denial of his I-O claim was held, by a federal court, to have been without basis in fact.
"It is this circumstance, the prior judicial resolution of Hayden's claim, based on a fully developed administrative record, which distinguishes his case from that of McGee." Id. 445 F.2d at 1379.
Appellant here made no attempt to challenge denial of his conscientious objector claim. He did not even submit the claim until after his date for reporting had passed. He therefore cannot raise the validity of his classification as a defense.
The district court found that appellant had actual notice of the date of his physical in time for him to report but the exact date on which he received this order was not ascertained. His order to report was mailed eight days before the date he had to report. He claims this was insufficient time and contends that he had a right to fifteen days between mailing and time for reporting, as 32 C.F.R. § 1628.6b now provides. At that time, however, no minimum amount of notice was required, and appellant has not shown any prejudice that would make us hold that due process had been violated. Appellant testified and wrote to the board that his decision not to report was due to a desire to resist the system and not to a lack of notice.
The judgment of the district court will be affirmed.
GIBBONS, Circuit Judge concurring.
The registrant was convicted of failing to report for a selective service physical examination on January 5, 1971. As Judge Hunter's opinion makes clear, he had such notice of the scheduled examination as was then required by the applicable Selective Service System Regulations. On January 13, 1971 the registrant first mailed to his Local Board Selective Service System Form 150, setting forth a conscientious objector claim. He had, as early as July 29, 1969 informed the board of a possible conscientious objector claim, and it wasn't until August of 1970 that the board forwarded a Form 150 to him. None of the delay between August, 1970 and January 13, 1971 in the filing of the Form 150 is attributable to the Selective Service System. Thus, as of January 5, 1971, when his physical examination was scheduled, the registrant was properly classified I-A.
In these circumstances the special treatment for I-O registrants with respect to physical examinations set forth in the then applicable regulation, 32 C.F.R. § 1660.20(a), did not cover his case. The registrant was under a duty to report. In this respect there is no difference between Judge Hunter and me.
To the extent, however, that Judge Hunter relies upon our prior decision in United States v. Zmuda, 423 F.2d 757 (3d Cir. 1970), I express my disagreement. Zmuda holds that a conscientious objector's status as such had no relevance to his duty to undergo a physical examination. But Zmuda was decided without reference to 32 C.F.R. § 1660.20(a). As the Ninth Circuit makes clear in United States v. Hayden, 445 F.2d 1365, 1369 (9th Cir. 1971), this shortcoming make the Zmuda analysis seriously defective. Were the issue presented in this case I would vote to follow Hayden rather than Zmuda. In this case, however, at the time the registrant failed to comply with the order to report for a physical examination he did not fall within 32 C.F.R. § 1660.20(a). Thus he was under a duty to report on January 5, 1971, and his conviction for failure to do so was proper.