Mulloy v. United States

PETITIONER: Mulloy
RESPONDENT: United States
LOCATION: Holmes County Board of Education

DOCKET NO.: 655
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 398 US 410 (1970)
ARGUED: Apr 20, 1970
DECIDED: Jun 15, 1970

Facts of the case

Question

Media for Mulloy v. United States

Audio Transcription for Oral Argument - April 20, 1970 in Mulloy v. United States

Warren E. Burger:

The next case for argument is Number 655, Mulloy against the United States.

Mr. Sedler, you may proceed whenever you're ready.

Robert Allen Sedler:

Thank you, Your Honor.

May it please the Court?

The issues in this case, arise out of the stated refusal of petitioner Mulloys Selective Service Board to reopen his classification and consider his claim for conscientious objector status.

That's what we are dealing with here, a failure to reopen.

We do not have the case where the board has decided to claim, at least officially, on the merits and where there has been an appeal, or at least, an opportunity for an appeal, so that the question before this Court would be whether there was a basis in fact for the determination.

The issue is not whether the petitioner was a conscientious objector or whether there was a basis in fact for a substantive determination that he was not.

The issue is purely a procedural one.

Did the petitioner make enough of a showing of entitlement to classification as a conscientious objector that he was entitled to an appealable determination by the board?

I guess what this case is all about is that the petitioner claims, he was entitled to a full-scale determination including the right of appeal.

The board summarily dismissed.

The first issue then revolves around the summary dismissal.

The petitioner is contended throughout these proceedings that the board either was required to reopen because based on his SSS Form 150 and the letters and other information submitted in support of a claim, he made out a prima facie case of entitlement or, that what really happened was that the board in fact reopened deciding the claim against him on the merits but denying him the appeal to which he was entitled by the regulations.

In this Court, the Government now concedes which is a clear departure from its position here before that based on the SSS Form 150 and the supporting letters, the petitioner made out a prima facie case of entitlement but says the Government, even so, the board does not have to reopen.

I think issue was joined on that first point.

The second issue --

Potter Stewart:

Do you think it can be -- this record -- what reading for the board's action?

Robert Allen Sedler:

No, Your Honor.

This is a point that we have made and that the board did not say why it found that he wasn't a conscientious objector.B

ut the record does clearly say what the board did.

The Form 100, the phase form, falling the November 9th meeting, says, “Classification not reopened”.

Now, following the meeting on January 11th, the SSS Form 100 reads all information in the file considered including claim of conscientious objector.

The board felt that information did not warrant reopening of 1-A classification vote four to nothing.

This was also brought out at the testimony both in the civil trial and the criminal trial where Chairman Sherman stated, “That taking everything in the file.”

Assuming what he said to be true, he did not make out a case and we saw no reason to reopen because it wasn't there.

I think it is very clear that the board's reason for its action was that the petitioner did not make out a prima facie case for entitlement.

This was the Government's argument both in the District Court and before the Court of Appeals.

The Court of Appeals explicitly stated that, petitioner did not make out a prima facie case and therefore the board was not required to reopen.

Now, we have contended all along, that the only way you could say, he did not make out a prima facie case is to totally distort the meaning of prima facie case, and say that prima facie case means the same thing as a merits determination.