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June 25, 1975

Allan Aaron SHAPIRO, Defendant

Robert L. Carter, District Judge.

The opinion of the court was delivered by: CARTER

ROBERT L. CARTER, District Judge.

In July, 1967, defendant Allan Aaron Shapiro was indicted for refusal to submit to induction, in violation of 50 U.S.C. App. ยง 460(a). In January, 1968, he fled the United States and has remained outside the jurisdiction of the court to this day. Defendant moved to dismiss the indictment in November, 1974. The government declined to answer Shapiro's motion on the merits while defendant remained a fugitive. In an opinion dated March 24, 1975, it was held that the merits of Shapiro's motion would be decided without requiring him to surrender, and the government was directed to respond on the merits. See 391 F. Supp. 689. The government has now done so.

 Defendant's motion to dismiss is grounded solely on the claim that his local Selective Service board failed to state any reason for its denial of his application for a conscientious objector exemption. The government contends that Shapiro is precluded from raising this defense because he did not perfect an appeal from the local board's ruling and therefore failed to exhaust administrative remedies. Alternatively, the government argues that the board was not required to give any reason for its action because Shapiro's application did not make a prima facie case for conscientious objector classification. Finally, the government contends that even if Shapiro did make a prima facie case for exemption, the board gave an adequate statement of its reasons.

 The following facts appear to be substantially undisputed. *fn1" Defendant registered under the Selective Service System in 1962 when he was 18 years old. He was classified 2-S as a full-time student. By letter dated December 1, 1965, his local board asked him to confirm that he was still attending City College. The following day, he replied that he was currently enrolled, but that he expected to take a leave of absence shortly and would not return before the spring term of 1966. On December 13, 1965, the board voted 3-0 to classify Shapiro 1-A, available for induction, and the following day SSS Form 110 was sent to Shapiro notifying him of his classification and his right to appeal. On December 21, 1965, the board received a letter from Shapiro requesting a personal appearance. The board did not acknowledge his request, and on January 8, 1966, Shapiro wrote to the board noting this, and requesting SSS Form 150, the application for conscientious objector classification.

 On January 17, 1966, the local board sent Shapiro SSS Form 150, indicating on the form that it was to be completed and returned in one week. On January 24, 1966, Shapiro personally submitted his application at the headquarters of the local board, *fn2" but he was informed that a personal appearance scheduled for that day had been postponed. On February 7, he was notified that his personal appearance was scheduled for February 14, 1966. On February 13, Shapiro wrote to the board, setting forth "the salient points" of his objection to the Vietnamese war; but this letter was not received until February 15. *fn3" Shapiro made a personal appearance before the board on February 14, and a summary of his appearance was prepared by Mr. Jack P. Daniels, chairman of the local board. (Exhibit 5C).

 On February 15, 1966, Form 110 was sent to defendant notifying him of the board's vote again classifying him 1-A, and of his right to appeal. Shapiro waited more than a month to respond, but on March 22, 1966, he wrote saying that he had taken more than the ten days allowed for the appeal "in order to think on what should be my future action." He stated in this letter that at his previous hearing, members of the board had suggested that he wait for his physical where he might be rejected on the recommendation of his therapist. He refused to take this suggestion, and requested an additional personal appearance. On April 18, 1966, Shapiro again made a personal appearance. A summary prepared by Daniels stated:

"Reg. in again. Appeal procedure explained. No basis for change as no change from February '66 presentation. To give reg. appeal right class 1A again and mail out card." (Exhibit 8A).

 On April 22, 1966, Form 110 was sent to Shapiro, notifying him again of his 1-A classification and of his right to appeal within ten days. Shapiro did not appeal by May 2, but on June 6, 1966, the local board wrote advising him that an appointment had been made for him with a government appeal agent for June 14, 1966. On June 8, 1966, Shapiro replied, saying that he had been informed by Daniels during his last appearance (April 18) that he would have to appeal within ten days following notice of classification. He continued as follows:

"Taking Mr. Daniel's [sic] advice -- that an appeal was futile since there was no law providing deferrment [sic] under these circumstances -- I chose to relinquish my right to appeal. If, however, some quirk in my case requires an appearance before the Government Appeal Agent, I shall be glad to comply, although I cannot appear on the date set in your letter. I would request delaying the appeal one week, when my hours at work will be more flexible." (Emphasis in original). (Exhibit 11).

 On June 10, 1966, the board wrote back as follows:

"Receipt is acknowledged of your letter of June 8th, 1966. Is [sic] you wish to relinquish your right of an appeal, we must have this statement in writing by return mail." (Exhibit 12).

 Shapiro responded on June 15, 1966, saying: "I'm afraid I don't quite understand what is happening." He then continued:

"I have received the classification notice; I have not written an appeal letter. All of a sudden I received a letter stating my appointment before the Appeal Board. I then wrote, stating that I had not requested this appointment and asking for an explanation; instead of an explanation, I have received your letter of 10 June, asking that I specifically relinquish my right of appeal.
"I am now explicitly requesting an explanation of the Board's behavior, an explanation of why I must specifically relinquish my right of appeal and what this will mean." (Emphasis in original). (Exhibit 13).

 Letters evidently crossed, and on June 15, without receiving Shapiro's letter of that date, the board wrote that a second appointment with the government appeal agent had been made for June 28, 1966. Shapiro's letter of June 17 stated that the board had not given the explanation he had requested; the letter continued:

"I expect an explanation of the board's action; then, if it is necessary, I shall make arrangements to be available for an appointment with the Government Appeal Agent. As of now, I shall be working, Tuesday, 28 June, 1966, at 3:45 and will not be able to make this appointment." (Emphasis added). (Exhibit 15).

 Despite Shapiro's statement that he would be available for an appointment with the appeal agent if necessary, on June 20, Daniels, the chairman of the local board, informed Shapiro that he need not appear before the government appeal agent because of his claimed relinquishment of his right of appeal:

"This is in reference to your letters of June 8th and 17th. There will be no need for you to appear before the Government Appeal Agent. This is based on your statement that you were relinquishing your right to appeal.
"We regret any inconvenience our letters inviting you to see the Appeal Agent may have caused you." (Exhibit 16).

 On June 23, 1966, Shapiro wrote stating that contrary to Daniels' statement in his June 20th letter, he had never relinquished his appeal right:

"It appears that this matter of relinquishing the right to appeal, will never be clarified. As far as I am concerned, I have not requested an appearance with the Government Appeal agent and I have not made any statement that I would relinquish this right." (Emphasis added). Exhibit 17).

 The previous day, however, the board had sent Shapiro Form 223, his pre-induction notice to report for his physical on July 7. Some eight months later, on March 21, 1967, a notice of acceptability was sent to Shapiro, and in April, 1967, he retained his present counsel, Joan Goldberg, Esq. Ms. Goldberg "suggested to the Local Board that defendant be permitted to appeal the denial of his CO application." (Affidavit of Joan Goldberg, sworn to February 24, 1975, para. 16). The Legal Division informed the board that since Shapiro had knowingly allowed the ten-day appeal period following the April 22 notice to lapse, no procedural rights had been denied him.

 On May 24, 1967, defendant was ordered to report for induction. After obtaining one postponement, he appeared on June 27, 1967, but refused to take one step forward when his name was called for induction. He was arrested the following day, and his indictment followed.


 The standard to be applied to determine whether a Selective Service registrant has exhausted his administrative remedies was laid down in McKart v. United States, 395 U.S. 185, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969). In McKart, the Supreme Court explained that in the context of a criminal prosecution, the term "exhaustion" does not refer to a "premature resort to the courts," since administrative remedies are closed to the defendant when the issue arises. Rather, in a Selective Service prosecution, the government asserts the registrant's previous failure to exhaust administrative remedies in order to preclude him from raising certain defenses: *fn4"

"We are asked instead to hold that petitioner's failure to utilize a particular administrative process -- an appeal -- bars him from defending a criminal prosecution on grounds which could have been raised on that appeal." 395 U.S. at 197, 89 S. Ct. at 1664.

 In McKart, where the exhaustion doctrine was held not to bar consideration of the registrant's defenses even though he had sought neither a personal appearance nor an appeal, the Court stated that the doctrine can be "exceedingly harsh":

"* * * [It] is well to remember that use of the exhaustion doctrine in criminal cases can be exceedingly harsh. The defendant is often stripped of his only defense; he must go to jail without having any judicial review of an ...

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