(dissenting).
There was ample and, indeed, undisputable evidence to support the classification of the appellant in Class 1-A unless the effect of that evidence was overcome by proof that he was in fact a conscientious objector; and on that question he had the burden of persuasion. Selective Training and Service Act § 5(g), 50 U.S.C.A.Appendix, § 305(g). What has been treated in the opinion of the majority as a finding of fact which is held erroneous as a matter of law because not supported by any substantial evidence is nothing but a statement of the Director of Selective Service explaining why he decided adversely to the appellant on his administrative appeal. It merely shows that in his considered judg*632ment the, appellant failed to prove that he was conscientiously opposed to war in any 'form.
In so far as it is a finding of fact it is not of a fact needed to support the classification of 1-A which was given the appellant but only a negative finding relating to the inadequacy of the evidence the appellant relied on to prove his right to the different classification he claimed. Without a finding that he is in fact a conscientious objector .the appellant cannot escape classification in Class 1-A. .The Director has made no 'such finding, but we are now in effect holding that he was bound as a matter of law to do so regardless of his own judgment as to what was proved and are giving the appellant the benefit of a finding which has no legal or factual existence.
When this cause was remanded on the previous appeal, this court was acting out of an abundance of caution to make sure that the appellant had had the benefit of a correct application of the law to the facts found on his administrative appeal. It was recognized then, and it should be now, that the decision of 'the Director on the facts was final. See Medo Photo Supply Corp. v. N. L. R. B., 321 U.S. 678, 681 note 1, 64 S.Ct. 830, 88 L.Ed. 1007; Bowles v. United States, 319 U.S. 33, 63 S.Ct. 912, 87 L.Ed. 1194, rehearing denied 319 U.S. 785, 63 S.Ct. 1323, 87 L.Ed. 1125; United States ex rel. Brandon v. Downer, 2 Cir., 139 F.2d 761.
It was correctly said by this court on the previous appeal at pages 848; 849 of United States ex rel. Reel v. Badt, 141 F.2d 845,that:
“The relator can only secure exemption if it is found that the Director of Selective Service has held that he objected to ‘participation in any war under any circumstances because of the compelling voice of his conscience.’ It is not established that this was the holding, though we think it is equally not established just what the holding was. Under the circumstances, we shall not order the relator discharged from custody, but require him to be remanded for a further hearing before the District Court, in order that the latter may ascertain whether or not the Director of Selective Service (as the final appellate tribunal in this case) adopted the findings of fact of the hearing officer. This may be ascertained either by obtaining the testimony of the Director or by a certificate by him as to his action which he may furnish to the District Court. If, as a .result, it shall be found that the •Director of Selective Service rejected the findings of fact of the hearing officer or determined that the relator did not object to participation in any war under any circumstances because of the compelling voice of his conscience, the District Court should dismiss the writ of habeas corpus. On the other hand, if the District Court shall find that the Director of Selective Service adopted the findings of fact of the hearing officer or determined that the relator did object to participation in any war under any circumstances because of the compelling voice of his conscience, the writ should be sustained. Mahler v. Eby, 264 U.S. 32, 46, 44 S.Ct. 283, 68 L.Ed. 549; United States ex rel. Di Paola v. Reimer, 2 Cir., 102 F.2d 40, 42.”
Of course the Director was not bound to accept the findings of the hearing officer. 50 U.S.C.A.Appendix, § 305(g). And his certificate in the form of a statement under oath shows that he did not. It reads:
“The entire file in the appeal to the President of Frederick U. Reel, Order No. 419, Local Board No. 2, Washington, D. C., taken by the State Director from the classification of Board of Appeal No. 1, Washington, D. C., was forwarded to the Director of Selective Service as required by Section 628.4(c), Selective Service Regulations. On September 17, 1943, acting for the President and as Director of Selective Service, I classified Reel in Class 1-A. The practice of writing explanatory decisions on appeals to the President has not been followed since September 1942, therefore no such explanatory decision was written in this case. In this case as in all other cases considered by me, I considered all of the information in the file including the recommendation of the Department of Justice and the Report of the Hearing Officer and classified Reel in Class 1-A because the information in his file convinced me that he was not sincere in his claim that he was conscientiously opposed to war in any form. Lewis B. Hershey.”
Every right to a full and fair hearing by his local board, by the appeal board, and on appeal to the President was accorded this appellant. He has no grievance except that the administrative agencies which considered his case in compliance with the statute and applicable regulations did not accept his evidence at face value and consequently did not find that he was *633“conscientiously opposed to participation in war in any form.” We cannot make findings of fact or treat as proved what the trier of the facts refused to find. Even if the evidence has been all one way on that subject, and it was not, we would have no power to substitute our judgment for that of the Director as to the weight of the appellant’s evidence and the credibility of his witnesses. See Stern, Review of Findings of Administrators, Judges and Juries; A Comparative Analysis (1944) 58 Harv.L.Rev. 70, 103.
I would affirm the judgment.