Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.
This is an appeal from a conviction for failing and refusing to be inducted into the armed forces of the United States after being ordered to do so.*fn1 There is no doubt that the appellant, Hagaman, refused to be inducted into the armed forces. The defense to the criminal prosecution is that he was not obliged to obey the order to report and be inducted because the order was predicated upon Selective Service classification so improper that a court, acting within judicial province as defined in Estep v. United States, 1946, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567, should declare it invalid.
Hagaman makes three distinct contentions: first, that the local board failed to follow prescribed procedure; second, that his claim to deferment as a minister of religion was rejected arbitrarily; and third, that the National Appeal Board had no basis for action it took changing his 1-O classification to 1-A.
All of us agree that the first and second contentions are without merit. The reasons for that conclusion appear in the opinion of Judge Goodrich. However, it is the decision of the court that appellant's third contention is sound and, therefore, that the conviction cannot be sustained.
This is the reasoning on the decisive third point which seems sound to a majority of the court. The registrant claiming to be both a minister of religion and a conscientious objector, appealed to his district board from his local board's order placing him in class 1-A. On that appeal, in accordance with established procedure, the file was referred to the Department of Justice for advisory opinion. Honorable Curtis Bok, sitting as hearing officer for the Eastern District of Pennsylvania, then heard the registrant and filed his report and recommendation expressing his strong and complete conviction that the young man was sincere and was entitled at least to a conscientious objector classification. The Department of Justice so recommended and the five member district board by unanimous vote so decided, classifying the registrant 1-O.
Thereafter, the registrant, still believing that he was entitled to the additional exemption of a minister, caused the Director of Selective Service to appeal the 1-O conscientious objector classification, thus placing the whole matter before the National Appeal Board for reconsideration. That board, by a two to one vote, without stating any reason, and apparently without any additional evidence, not only denied the ministerial classification but revoked the conscientious objector classification and placed the registrant in class 1-A.
Thus, the present attack upon registrant's classification does not raise the question whether the local board had any justification for the initial 1-A classification, - and we do not suggest that it did - but rather whether the national board had any allowable basis for replacing the 1-O classification put into effect by the district board with its own 1-A classification. This distinction is important because the national board, very much like the court in this proceeding, seems merely to have reviewed the record made below, while the district board had made its 1-O classification on the basis of new matter, a report of a de novo hearing before an examiner and the resulting recommendation of the Department of Justice,*fn2 in addition to the local board file.
Upon what did the national board predicate its decision? We can look at the record and see what the considerations must have been for and against the claim of ministerial exemption. But the record does not disclose what it was that moved the national board to change the 1-O classification to 1-A. There certainly was very obvious basis in the record for the district board's action in classifying registrant as a conscientious objector. We are left to speculate why the national board refused to accept that showing.
The Court of Appeals for the Sixth Circuit disposed of a record very much like this one by saying merely that, since there was no evidence contradicting the registrant's claim or inconsistent with his actual classification as a conscientious objector, and the national board acted merely on the file without taking testimony, the reclassification from 1-O to 1-A "was arbitrary and capricious and without basis in fact." Jewell v. United States, 6 Cir., 1953, 208 F.2d 770, 771; cf. United States v. Alvies, D.C.N.D.Cal., 1953, 112 F.Supp. 618. Even more recently the Court of Appeals for the Fourth Circuit has disposed of such a record by saying "An examination of the file shows that there is nothing therein contradictory of the facts stated in the * * * [report and] recommendation [of the Department of Justice] and nothing upon which appellant could be denied his claim of exemption as a conscientious objector. The order giving him the classification 1-A, having no support in the record, is therefore void." Pine v. United States, 4 Cir., 212 F.2d 93. In a somewhat similar situation the Court of Appeals for the Second Circuit reversed a denial of habeas corpus and remanded the case to the district court to determine as a fact the basis upon which the conscientious objection claim had been rejected. United States ex rel. Reel v. Badt, 2 Cir., 1944, 141 F.2d 845.
In the case last cited the court indicated that such agencies as these boards should make their processes "sufficiently explicit to reveal, so far as may be reasonably practicable, whether or not they are keeping within the statute under which they purport to act". 141 F.2d at page 848. Of course such disclosure need not be technical or elaborate. And it is not necessary at all in the usual case where the issue in controversy and the basis of decision are made apparent by the record itself. But in cases like the one now before us, the reclassifying board should indicate in a general and non-technical way why it changed the classification.
However, we are reluctant to reverse on this procedural deficiency, if there is any satisfactory way of reaching the merits of the case. For that reason we have searched the record for possible bases of reclassification, though none has been made explicit or even inferentially clear. We find just two possibilities. The board may have thought that as a matter of law the showing made did not meet the statutory requirements for classification as a conscientious objector.*fn3 Or it may have disbelieved the registrant's testimony as to his convictions about participation in war.
We are inclined to believe that the national board proceeded on the first ground, taking the position that as a matter of law Jehovah's Witnesses are not conscientious objectors. This impression is based in large part upon the fact that in recent months Courts of Appeals have had to consider a whole series of rather similar cases where unexplained orders of the national board changing the classification of Jehovah's Witnesses from 1-O to 1-A make sense only if they represent a consistent administrative application of this understandable, if mistaken, legal theory. Pine v. United States, 4 Cir., 1954, supra; Jewell v. United States, 6 Cir., 1953, supra; United States v. Hartman, 2 Cir., 1954, 209 F.2d 366; cf. Taffs v. United States, 8 Cir., 1953, 208 F.2d 329, certiorari denied 1954, 347 U.S. 928, 74 S. Ct. 532. Indeed, the government urged this legal point in its brief on the present appeal. It was pointed out that the registrant as one of Jehovah's Witnesses predicates his opposition to war on the tenets of the Watchtower Bible and Tract Society.Admittedly, that religious organization disapproves international war but sanctions "theocratic war". Hence, it was contended that Jehovah's Witnesses are not taught opposition "to participation in war in any form." But on oral argument in this case that contention was abandoned in the light of impressive decisions against the government on the very point since Hagaman's conviction. Taffs v. United States, supra; United States v. Hartman, supra. Thus, it is now conceded that the national board was wrong if it reclassified the registrant on the theory that his professed creed would not sustain a claim of conscientious objection to war.
But what if, apart from this legal question, the national board did not believe the registrant was sincere in his professions? Was the national board entitled, on the paper record alone, thus to discredit and reject the registrant's proof which had been so convincing to the hearing officer and the district board? Jewell v. United States, supra, and Pine v. United States, supra, both strike down such action as arbitrary. But here the government argues that such disbelief of the registrant might properly have been based on the fact that this young man, one of whose parents was a Jehovah's Witness, had not himself embraced that faith until he was seventeen years old at a time just three months before he registered for Selective Service. However, such rejection of testimony would have reflected the antithesis of the normal and proper unwillingness of a reviewing agency, which has not heard a witness, to reverse a judgment as to his credibility. Beyond that, it is a striking example of the very type of refusal to credit the evidence on the basis of suspicion and speculation, no conflict appearing on the face of the record, which the Supreme Court disapproved very recently in Dickinson v. United States, 1953, 346 U.S. 389, 74 S. Ct. 152, 157. It does not matter whether we accept the statement of the majority in the Dickinson case, that "* * * the courts may properly insist that there be some proof that is incompatible with the registrant's proof of exemption", or the complaint of the dissenters, that "Under today's decision, it is not sufficient that the board disbelieve the registrant. The board must find and record affirmative evidence that he has misrepresented his case * * *." 346 U.S. at page 396, 399, 74 S. Ct. at page 159. Under either formulation we would have to assume ...