November 6, 1947
UNITED STATES EX REL. FLAKOWICZ
Before L. HAND, SWAN and CHASE, Circuit Judges.
SWAN, Circuit Judge.
In 1944 the relator was convicted of violating the Selective Training and Service Act, 50 U.S.C.A.Appendix, § 301 et seq., by failing to report for induction; he was sentenced to imprisonment for three years. The judgment was affirmed by this court, 2 Cir., 146 F.2d 874, on the basis of the Falbo case, 320 U.S. 549, 64 S. Ct. 346, 88 L. Ed. 305 and certiorari was denied in 325 U.S. 851, 65 S. Ct. 1086, 89 F.2d 1971. Following the decision of the Estep case, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567. Flakowicz sued out the present writ charging that he was illegally imprisoned because in the criminal trial he had been denied the right to contest his draft classification. By his local board he was classified I-A while he claimed a IV-D classification. From an order sustaining the writ, the respondent, warden of the Federal Correctional Institution at Danbury, Connecticut, has appealed.
The basic question is whether Flakowicz had exhausted his administrative remedies under the Selective Training and Service Act prior to his refusal to report for induction, for if he had not the rule of Falbo's case was properly applied in his criminal trial. On January 27, 1944, pursuant to the amendment of December 5, 1943, 50 U.S.C.A.Appendix, § 304a, Flakowicz had been given a pre-induction physical examination, found acceptable for general military service, and notified by the local board of his acceptance. Thereafter on February 25, the local board notified him to report for induction on March 8, 1944. He acknowledged receipt of this order but he refused and failed to obey it. What constitutes exhaustion of administrative remedies under the Selective Service System was discussed in the cases of Gibson and Dodez, reported as Gibson v. United States, 329 U.S. 338, 67 S. Ct. 301. Dodez contended, as does Flakowicz, that the administrative process was completed when his pre-induction physical examination had been given and he was found acceptable for service, and that it was not necessary for him to report in order to exhaust his administrative remedies. So the court held. But Dodez, unlike Flakowicz, was classified as a conscientious objector, was assigned to work of national importance and was ordered to report for such work at a designated camp. Under the Regulations then in effect, when an "assignee" reported to the camp, the camp director accepted him as of course, merely making certain formal entries to complete the record. As the court said at page 349 of 329 U.S., at page 307 of 67 S. Ct.: "* * * we agree that these were only formal matters to be performed by camp officials, and left nothing to be done by them or by the applicant after reaching the camp which might result in his being rejected or released from the duty to remain and perform the further duties imposed on him." Consequently the decision in the Dodez case is not a controlling authority in the case of Flakowicz.
As to him the question must be determined by an examination of the Regulations applicable on March 8, 1944 to a registrant classified as I-A and ordered to report on that date for induction into the armed services. Following the enactment of the statute providing for a pre-induction physical examination, the Selective Service regulations governing the procedure relating to selection for service were changed in some respects, but they still left open the possibility that a registrant who had been found acceptable on a pre-induction physical examination within 90 days might nevertheless be rejected when he appeared for induction. The basic amendment, Amendment No. 200 (9 F.R. 440), effective Jan. 10, 1944 provided that every registrant, with certain exceptions not here relevant, before he is ordered to report for induction shall be given a pre-induction physical examination, section 629.1. Amendment No. 207 (9 F.R. 445) likewise effective Jan. 10, 1944 deals with the duty of a registrant "if he is not accepted by the armed forces," section 633.21(b)(6), and provides further that if registrants "are rejected," representatives of the armed forces shall supply transportation for their return trip, section 633.22(4). Moreover on January 6, 1944 the army issued orders in the form of a letter (printed in the margin)*fn1 which makes perfectly clear that a registrant may be rejected when he reports for induction if a "physical check" discloses "exceptional circumstances which indicate marked deterioration in physical condition, or error or omission by pre-induction examining personnel." See also the Army Regulation on Induction and Reception (A.R. 615-500) effective August 10, 1944, the pertinent parts of which are quoted below.*fn2
The regulations and army orders above discussed demonstrate the existence of a possibility that Flakowicz might have been rejected had he obeyed the order to report on March 8th. They demonstrate also the accuracy of Mr. Justice Douglas' dictum in note 4 to his opinion in the cases of Sunal and Kulick, reported as Sunal v. Large, 67 S. Ct. 1588, 1592, where the reason for denial of certiorari to Flakowicz was explained.*fn3 Since Flakowicz had not exhausted his administrative remedies before he failed to report, the rule of Falbo's case was applicable in his criminal trial.
This conclusion renders unnecessary any decision whether habeas corpus would be an available remedy had error occurred in the trial. Cf. Sunal v. Large, supra, where it was held that habeas corpus would not lie, but Mr. Justice Douglas added: "Of course, if Sunal and Kulick had pursued the appellate course and failed, their cases would be quite different."
Accordingly the order on appeal must be reversed and the cause remanded with directions to dismiss the writ.