467 F2d 1364 United States v. Nelson

467 F.2d 1364

UNITED STATES of America, Plaintiff-Appellee,
Stanton Francis NELSON, Defendant-Appellant.

No. 71-2923.

United States Court of Appeals,
Ninth Circuit.

Oct. 13, 1972.

Ralph Johansen (argued), Berkeley, Cal., for defendant-appellant.

Robert E. Carey, Jr., Asst. U. S. Atty. (argued), F. Steele Langford, Asst. U. S. Atty., James L. Browning, Jr., U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Before DUNIWAY and GOODWIN, Circuit Judges, and WALLACE, District Judge.*


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This Selective Service appeal seeks a relaxation of the exhaustion-of-administrative-remedies doctrine of McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971).


Nelson was classified I-A and notified both of his right to appeal and of the availability of a Government Appeal Agent to assist him in preparing an appeal. He did not then appeal his classification. He later requested and received from his local board a Form 150, which he completed and returned with supporting letters claiming conscientious-objector status. The board (in New York) asked Nelson to appear for an interview. Nelson (in California) did not respond. He was thereafter informed that he had been retained in I-A, and he was again notified of his right to appeal. This time, however, the local board failed to send Nelson a Form 217 advising him of the availability of a Government Appeal Agent. Nelson did not appeal, and in due course he was ordered to report for induction.


Nelson refused induction, and defended the resulting prosecution on the ground that he should have been classified I-O, and that the failure of his local board to send him a second Form 217 excuses his failure to pursue his administrative remedies. The trial court did not agree, and he was convicted. We affirm.


While it has been held that a board's failure to send a registrant a Form 217 is an "exceptional circumstance" excusing a failure to appeal. United States v. Davis, 413 F.2d 148 (4th Cir.1969), we believe that the failure of the board to send a second Form 217 was nonprejudicial in this case, and that to sustain this attack upon the order to report for induction would elevate form over substance. There is no reason to believe that Nelson, who was well-educated, and who knew of his right to appeal, was caused to neglect his administrative remedy by the failure of the board to remind him of the availability of an appeal agent.


Other alleged procedural defects of which Nelson complains do not present substantial defenses to the charged offense.




The Honorable J. Clifford Wallace, United States District Judge for the Southern District of California, sitting by designation; now United States Circuit Judge