ON PETITION FOR REHEARING
PER CURIAM.
On December 13,1968, we rendered our decision in Yates v. United States, 404 F.2d 462 (1st Cir. 1968), affirming appellant’s conviction for refusal to submit to induction in the armed forces.
By petition for rehearing defendant asks that we reconsider our prior holding relating to two issues — order of call and custodianship of selective service files. Normally, our disposition of a petition for rehearing is not accompanied by an opinion; however, we choose to expand upon our opinion in the present case in regard to order of call so that any misunderstanding may be prevented.
We begin by observing that each of petitioner’s contentions flows from his interpretation of the concept of “element of the offense” as automatically involving certain inevitable consequences in every case. We rejected this view in our original opinion, and we continue to do so, because we think that, especially in this area of the law, analysis is not aided by labels, and that classification of order of call as an element of the offense does not in itself conclusively settle questions relating to the presentation and resolution of the issue.
Specifically, petitioner argues that our original opinion’s reliance on a presumption of regularity where the order of call issue was not raised at trial is erroneous in that the presumption shifts the burden of proof to the defendant in a criminal case, and moreover that the presumption has no basis in fact or law.
We were careful to state in our opinion that the government always has the burden of proof on the order of call issue and that a defendant, if he so requests, is entitled to an instruction on order of call. However, where no evidence is presented at trial, the government will be aided by a presumption. The presumption is, however, only permissive. The jury may find that the defendant was called in order, but it is not compelled to do so. As we indicated in our earlier opinion, we do not think that this is unfair to defendants, and it certainly does not constitute a shifting of the burden of proof.
Petitioner also- challenges the correctness of the presumption by arguing that there is not a sufficiently close connection between the facts shown and the fact presumed. Essentially, petitioner contends that the presumption is given its prima facie force by the fact of the defendant’s silence, and not by virtue of the efficiency of the Selective Service System. We think that petitioner has misconceived the point of our holding. The prima facie force of the presumption does not stem from defendant’s silence but rests on the assumption — well established in our legal system — that, absent assertions to the contrary, an administrative agency has followed its own rules and regulations. See, Oestereich v. Selective Service Bd., 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968) (concurring opinion of Harlan, J.).
Petitioner places special emphasis on our language from our earlier opinion where we indicated that the presumption rests not so much upon the proven efficiency of the Selective Service System as upon the unworkability of detailed proof. We did not, of course, mean to imply that the traditional basis for applying a presumption of regularity is absent here. Moreover, we are unmoved by petitioner’s allegation that proper order of call is easily proved by a comparison of delivery lists with oldest-first classification records. We are unmoved because petitioner’s reliance on the most recent delivery lists and classification records involves a concomitant reliance upon a presumption of regularity with respect to the accuracy of the lists. If such a presumption is valid for petitioner’s purposes, why is it invalid in the context of our opinion? On the other hand, if petitioner would not be content to rely upon the recent lists, then the problems of proof which we adverted to in our opinion are present. Thus, not only would the government in such event have to establish the accuracy of the lists, but we see no basis for limiting how far into the past the government would be required to prove that registrants were called in order.
We reaffirm our view, expressed in our earlier opinion, that the approach which we have chosen is most consistent with the practical demands of the system and fairness to defendants.
Petition for rehearing denied.
. Petitioner’s argument with respect to the custodianship of his selective service files was thoroughly considered and. adequately disposed of in our earlier opinion.
. Petitioner’s challenge to the indictment is deserving of little, if any, comment. The question was considered in our original opinion, and we reassert our belief that the indictment contained the elements of the offense charged and sufficiently apprised the defendant of what lie would have to be prepared to meet.
. In view of his failure to request such an instruction we think that the court’s general charge to the jury — that the government had the burden of proof to show that the defendant was liable for service — was sufficient.
. We think that this also disposes of petitioner’s argument that the presumption exposes a defendant to the possibility of proving the government’s case. A defendant is not required to offer any evidence on order of call. As a practical matter, if a defendant raises the issue, it will be the government which is compelled to offer evidence. We also note that it is not impossible that a defendant may be able to show evidence of improper order of call. See, United States v. Smith, 291 F.Supp. 63 (D.N.H. 1968).
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is an appellant.