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400 F.2d 599

Docket No. 21928.

Brede v. United States

Ninth Circuit Court of Appeals

Decided Sept. 16, 1968.

Ninth Circuit Court of Appeals · decided 1968-09-16

Cited by 50 later decisions — most recently November 1970 · most notably United States v. Baker (1969), United States v. Powers (1969)

35 federal appellate · 1 district ·

Key passage — most relied on by later courts

““The Government’s contention may have merit in an appropriate case. Here, however, the record is silent as to administrative construction and practice, or as to any understanding of the board in such respects from which it might be found that the critical exercise of administrative judgment had been made.””

quoted by 4 later decisions, including United States v. Stark, Cupit v. United States

““The United States contends that under universal administrative construction of § 1660.20(d), and universal administrative practice, a determination that certain work is appropriate constitutes an implied order to report for such work, subject to authorization of the National Director and notice. Consequently at the meeting of March 14,1966, an agreement as to work was reached and an implied conditional order to report was entered and the action of the clerk of the board was no more than ministerial implementation of the order.””

quoted by 1 later decision, including United States v. Stark

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1968-09-16

View the full empirical analysis of this case →

¶1Before MERRILL and DUNIWAY, Circuit Judges, and TAYLOR, District Judge.

¶2PER CURIAM:

¶3Petitioning for rehearing, the United States specifically disputes two statements made in our opinion:

1. “… section [1660.20(d)] requires the local board, after receiving such authorization, to meet and order the appellant to report for such civilian work.”

¶4The United States contends that § 1660.20(d) does not require that a meeting be held after receipt of authorization ; that an order to report could be entered prior to authorization but subject to subsequent authorization and notice.

¶5We agree. In this respect our opinion is modified by striking “after receiving such authorization.”

2. “At [the board] meeting [of March 14, 1966] no agreement as to a type of work in lieu of induction was reached by the board and appellant.”

¶6*600The United States contends that under universal administrative construction of § 1660.20(d), and universal administrative practice, a determination that certain work is appropriate constitutes an implied order to report for such work, subject to authorization of the National Director and notice. Consequently at the meeting of March 14, 1966, an agreement as to work was reached and an implied conditional order to report was entered and the action of the clerk of the board was no more than ministerial implementation of the order.

¶7The Government’s contention may have merit in an appropriate case. Here, however, the record is silent as to administrative construction and practice, or as to any understanding of the board in such respects from which it might be found that the critical exercise of administrative judgment had been made.

¶8In this respect our opinion should be read as qualified by the state of the record.

¶9With such modification and clarification of our opinion rehearing is denied.

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