Such notification is important for the Regulations do not provide a right to appeal a decision not to reopen and consider anew a registrant's classification. 32 C.F.R. § 1625.4, Klubnikin v. United States, 9 Cir., 1955, 222 F.2d 87; United States v. Majher, S.D.W.Va., 1966, 250 F. Supp. 106.
Nothing in his file rebutted these allegations. Cf. United States v. Singleton, 282 F. Supp. 762 (S.D.N Y 1968); United States v. Majher, 250 F. Supp. 106 (S.D.W.Va. 1966); United States v. Ransom, 223 F.2d 15 (7th Cir. 1955). A Jehovah's Witness who qualifies as a minister under the Act's definition is entitled to exemption.
Here, in order to intelligently find if there has been a status change, due to uncontrollable factors, the local board received the registrant's claims, postponed his induction, gave Wolfe a hearing, and determined no change in his classification was warranted. To have refused any hearing would have been contrary to United States v. Majher, 250 F. Supp. 106 (S.D.W.Va. 1966), upon which appellant relies. Appellant's brief assumes that it was discretionary for a local board to reopen, but states what was here done was "in the best light, * * * an abuse of discretion."
Knox v. United States, 200 F.2d 398, 399 (9th Cir. 1952), quoting former provisions of 32 C.F.R. § 1624.2(b). Accord, United States v. Peebles, 220 F.2d 114, 119-120 (7th Cir. 1955); United States ex rel. Berman v. Craig, 207 F.2d 888, 891 (3d Cir. 1953); Mintz v. Howlett, 207 F.2d 758 (2d Cir. 1953); United States v. Longworth, supra. Cf. United States v. Burlich, supra. Also see Parrott v. United States, 370 F.2d 388 (9th Cir. 1966); United States v. Majher, 250 F. Supp. 106 (S.D.W.Va. 1966). Since his local board's decision rested on irrelevant considerations rather than on a weighing of the merits of his claim, Magaro was denied a meaningful appraisal of his request by the citizens of his own community.
While in most cases the "basis in fact" test is applied to the final classification action of the local board, it is equally applicable to a refusal by the board to reopen the registrant's classification. United States v. Ransom, 223 F.2d 15 (7th Cir. 1955); accord, Stain v. United States, 235 F.2d 339, 343 (9th Cir. 1956); United States v. Burlich, 257 F. Supp. 906, 911 (S.D.N.Y. 1966); United States v. Majher, 250 F. Supp. 106, 110 (S.D.W.Va. 1966); see Klubnikin v. United States, 227 F.2d 87, 89 (9th Cir. 1955), cert. denied, 350 U.S. 975, 76 S.Ct. 453, 100 L.Ed. 846 (1965); cf. United States v. Ruppell, 278 F. Supp. 287, 290 (E.D.N.Y. 1968). Judge Hamley of our court has expressed the rule concisely: "Refusal of a local board to reopen on the ground that the newly-asserted facts would not justify a change in classification may be set aside if such refusal has no basis in fact."
The Court is of the opinion that the information presented to the Local Board with respect to the claims of entitlement to a II-A and III-A classification was not before the Board when the registrant was classified I-A and that such information, if true, would justify a change in the registrant's classification and that the Local Board erred in refusing to reopen registrant's I-A classification and consider his classification anew based upon the facts presented. S.S.S.Reg. §§ 1625.2, 1625.4, 1625.11; e.g., Petrie v. United States, 407 F.2d 267 (9th Cir., 1969) (en banc); Robertson v. United States, 404 F.2d 1141 (5th Cir., 1968); United States v. Rundle, 413 F.2d 329 (8th Cir., July 8, 1969); United States v. Majher, 250 F. Supp. 106 (S.D.W.Va., 1966). 50 U.S.C.App. § 456(h)(2); S.S.S. Reg. §§ 1622.20-1622.23; and see 50 U.S.C. App. § 454(g), LBM 95 and Circular Letter III-2-i, N.C.State Headquarters, S.S.S.
The sole function of the Court in these cases is to determine whether there is any basis in fact for the decision of the Board, Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955), Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953), Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946), and whether the registrant was given sufficient opportunity to present his arguments at a hearing to meet the requirements of substantive and procedural process. United States v. Majher, 250 F.Supp. 106 (S.D.W.Va.1966), United States v. Hestad, 248 F.Supp. 650 (W.D.Wis.1965), United States v. Kovalchick, 255 F.Supp. 826 (E.D.Pa.1966). As the Court stated in Witmer, supra, 348 U.S. at 380, 75 S.Ct. at 395:
This lack of a right to appeal has been upheld as fair and adequate. Klubnikin v. United States, 1956, 9 Cir., 227 F.2d 87, cert. denied, 350 U.S. 975, 76 S.Ct. 453, 100 L.Ed. 846, motion for rehearing denied, 351 U.S. 915, 76 S.Ct. 701, 100 L.Ed. 1449; Stain v. United States, 1956, 9 Cir., 235 F.2d 339, 342 n. 7; United States v. Beaver, 1962, 4 Cir., 309 F.2d 273, 277, cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499; United States v. Majher, 1966, S.D.W.Va., 250 F. Supp. 106, 110. It is not necessary for the Court to decide whether the additional facts presented by the defendant required the local board as a matter of law to reopen and consider anew the defendant's classification.
" The Court of Appeals, 9th Circuit, in Parrott, et al. v. United States, 370 F.2d 388 at 396, quotes from the opinion of District Judge Christie in United States v. Majher, D.C., 250 F. Supp. 106 at 109, as follows: "Our judicial review of these administrative proceedings leading to defendant's classification is very limited.
The Court must merely determine if there was any basis in fact for the decision of the Board, Witmer v. United States, 348 U.S. 375, 380, 75 S.Ct. 392, 99 L.Ed. 428 (1955), Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953), Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567 (1946), and whether the registrant was given a sufficient opportunity to present his arguments at a hearing to meet the requirements of substantive and procedural due process. United States v. Majher, 250 F. Supp. 106, 109 (S.D.W.Va. 1966), United States v. Hestad, 248 F. Supp. 650, 656 (W.D.Wis. 1965). As the Court stated in Witmer, supra, 348 U.S. at 380-381, 75 S.Ct. at 395: