The opinion of the court was delivered by: TENNEY
Defendant Werner Herbert Meyer stands indicted for failure to report for induction into the armed services of the United States in violation of 50 App. U.S.C. § 462(a) (1971) and 32 C.F.R. § 1632.14 (1972). He now moves to dismiss the indictment on the ground, inter alia, that his I-A classification is without a basis in fact. For the reasons set out infra, the motion is granted.
A review of defendant's Selective Service file reveals the following facts. Meyer duly registered with the Selective Service System on April 3, 1965. From May 12, 1965 through September 9, 1970, defendant enjoyed a student deferment (either class I-S(H) or II-S). On February 20, 1970, he filed a conscientious objector form (SSS form 150) with his local board. He was, however, continued in his II-S classification.
On September 9, 1970, defendant was classified I-A. His letter requesting a personal appearance before the board was received on October 5, 1970. Meyer appeared before his local board on November 10, 1970 and requested that he be classified I-O as a conscientious objector. The board rejected his claim by a 3 to 0 vote and, on the same date, classified him I-A.
Meyer wrote to the local board on December 8, 1970 requesting an appeal of the board's decision. He also requested that he be allowed to consult with the Government Appeal Agent in Smithtown, New York rather than with the agent at his local board in Nyack, New York, since the former was much closer to his school residence than the latter. This request was granted on December 15, 1970 by the local board but his file was not sent to the agent in Smithtown since that agent had no jurisdiction over the local board in Nyack. On the same date, defendant's selective service file was forwarded to the Southern District Appeal Board in Yonkers, New York.
Defendant then wrote to the New York State Selective Service System Director claiming that (1) he was effectively denied his right to consult with a Government Appeal Agent because his local board refused to send his file to the agent in Smithtown, and (2) his file was prematurely forwarded to the appeal board and, thus, that he was unable to add several letters of support to his file. Copies of this letter and the letters of support were mailed to the local board, the Government Appeal Agent at the local board and the Southern District Appeal Board. They were received by the first two on December 23, 1970 and by the third on December 28, 1970.
The State Director replied by letter to Meyer dated January 5, 1971 stating that the proper procedure had been followed by the local board in all respects. On January 29, 1971, the Appeal Board affirmed the local board's classification by a 3 to 0 vote and, on the same date, an order to report for induction was mailed to defendant. Meyer failed to report for induction and on March 2, 1971, his file was forwarded to the United States Attorney's Office for the Southern District of New York for further action. Prosecution of the case was halted, however, on July 29, 1971, when the New York State Headquarters of the Selective Service System directed the local board to reopen Meyer's classification due to the absence of stated reasons for the denial of his conscientious objector claim.
On August 11, 1971, the local board, without notice to defendant, reconsidered his claim and again voted 3 to 0 to classify him I-A. On the same day, SSS form 110, Notice of Classification, was mailed to defendant. A second order to report for induction was sent to Meyer on October 8, 1971. Again Meyer failed to report and again the file was forwarded to the United States Attorney's Office for the Southern District of New York for action. Defendant is now being prosecuted for failure to comply with the second order to report for induction.
Several grounds have been raised in support of Meyer's motion to dismiss the indictment including (1) insufficiency of the indictment in alleging a knowing failure to report, (2) deprivation of defendant's right to due process, and (3) improper proceedings before the grand jury.
It is not necessary to consider these grounds, however, since the Court finds that defendant's classification is without a basis in fact.
Exhaustion of Administrative Remedies
Before proceeding to the merits of defendant's motion, it is necessary to meet the Government's claim that he has failed to exhaust his administrative remedies and is, therefore, precluded from asserting the invalidity of his classification. The basis for this claim is that Meyer, after being duly notified of his I-A classification of August 11, 1971 and of his right to a personal appearance and appeal (both accomplished by the mailing of SSS form 110 on the same date), chose to pursue neither course of action and merely failed to report for a second time on November 16, 1971.
The Government relies heavily on the Supreme Court's decision in McGee v. United States, 402 U.S. 479, 91 S. Ct. 1565, 29 L. Ed. 2d 47 (1971). That case involved a defendant who deliberately pursued a policy of non-cooperation with the Selective Service System after the denial of a I-O claim. The Court held that:
"The exhaustion requirement is properly imposed where . . . the claim to exemption depends on careful factual analysis and where the registrant has completely sidestepped the administrative process designed to marshal ...