393 U.S. 233 (1968), 46, Oestereich v. Selective Service System Local Board No. 11

Docket Nº:No. 46
Citation:393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402
Party Name:Oestereich v. Selective Service System Local Board No. 11
Case Date:December 16, 1968
Court:United States Supreme Court
 
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Page 233

393 U.S. 233 (1968)

89 S.Ct. 414, 21 L.Ed.2d 402

Oestereich

v.

Selective Service System Local Board No. 11

No. 46

United States Supreme Court

Dec. 16, 1968

Argued October 24, 1968

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Syllabus

Petitioner, a theological student preparing for the ministry, was classified IV-D by his Selective Service Board in accordance with § 6(g) of the Selective Service Act, which provides that "students preparing for the ministry" in qualified schools "shall be exempt from training and service" under the Act. He returned his registration certificate "for the sole purpose of expressing dissent from the participation by the United States in the war in Vietnam." His Board then declared him delinquent for failure (1) to have his registration certificate in his possession and (2) to provide the Board with notice of his local status, and changed his classification to I-A. Petitioner took an administrative appeal and lost, and was ordered to report for induction. He sued to restrain his induction, but the District Court dismissed the complaint and the Court of Appeals affirmed, in part on the basis of § 10(b)(3) of the Military Selective Service Act of 1967, which states that there shall be no pre-induction judicial review "of the classification or processing of any registrant," judicial review being limited to a defense in a criminal prosecution or to habeas corpus after induction.

Held: Pre-induction judicial review is not precluded in this case. Pp. 235-239.

(a) There is no legislative authority to deny an unequivocal statutory exemption to a registrant who has qualified for one because of conduct or activities unrelated to the merits of granting or continuing the exemption, and delinquency proceedings cannot be used for that purpose. Pp. 236-237.

(b) Section 10(b)(3) cannot be construed to impair the clear mandate of § 6(g) governing the exemption for theological students. P. 238.

390 F.2d 100, reversed and remanded.

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DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Petitioner is enrolled as a student at a theological school preparing for the ministry, and was accordingly classified as IV-D by the Selective Service Board. Section 6(g) of the Selective Service Act, 62 Stat. 611, as amended. now § 6(g) of the Military Selective Service Act of 1967 (see 81 Stat. 100, § 1(a)), 50 U.S.C.App. § 456(g), gives such students exemption from training and service under the Act.1 He returned his registration certificate to the Government, according to [89 S.Ct. 415] the complaint in the present action, "for the sole purpose of expressing dissent from the participation by the United States in the war in Vietnam." Shortly thereafter, his Board declared him delinquent (1) for failure to have the registration certificate in his possession,2 and (2) for

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failure to provide the Board with notice of his local status. The Board thereupon changed his IV-D classification to I-A. He took an administrative appeal and lost, and was ordered to report for induction.

At that point, he brought suit to restrain his induction. The District Court dismissed the complaint, 280 F.Supp. 78, and the Court of Appeals affirmed. 390 F.2d 100. The case is here on a petition for a writ of certiorari, which we granted. 391 U.S. 912.

As noted, § 6(g) of the Act states that "students preparing for the ministry" in qualified schools "shall be exempt from training and service" under the Act.3 Equally unambiguous is § 10(b)(3) of the Military Selective Service Act of 1967, 81 Stat. 104, which provides that there shall be no pre-induction judicial review "of the classification or processing of any registrant,"4 judicial review being limited to a defense in a criminal prosecution or, as the Government concedes, to habeas corpus after induction.5 See Estep v. United States, 327

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U.S. 114, 12125; Eagles v. Samuels, 329 U.S. 304; Witmer v. United States, 348 U.S. 375, 377. If we assume, as we must for present purposes, that petitioner is entitled to a statutory exemption as a divinity student, by what authority can the Board withhold it or withdraw it and make him a delinquent?

In 1967, Congress added a provision concerning the immediate service of members of a "prime age group" after expiration of their deferment, stating that they were the first to be inducted "after delinquents and volunteers." 50 U.S.C.App. § 456(h)(1) (1964 ed., Supp. III). Congress has also made criminal the knowing failure or neglect to perform any duty prescribed by the rules or regulations of the Selective Service System. 50 U.S.C.App. § 462(a) (1964 ed., Supp. III). But Congress did

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not define delinquency, nor did it provide any standards for its definition by the Selective Service System. Yet Selective Service, as we have noted,6 has promulgated regulations governing delinquency, and uses them to deprive registrants of their statutory exemption, because of various activities and conduct and without any regard to the exemptions provided by law.

We can find no authorization for that use of delinquency. Even if Congress had authorized the Boards to revoke statutory exemptions by means of delinquency classifications, serious questions would arise if Congress were silent and did not prescribe standards to govern the Boards' actions. There is no suggestion in the legislative history that, when Congress has granted an exemption and a registrant meets its terms and conditions, a Board can nonetheless withhold it from him for activities or conduct not material to the grant or withdrawal of the exemption. So to hold would make the Boards freewheeling agencies meting out their brand of justice in a vindictive manner.

Once a person registers and qualifies for a statutory exemption, we find no legislative authority to deprive him of that exemption because of conduct or activities unrelated to the merits of granting or continuing that exemption. The Solicitor General confesses error on the use by Selective Service of delinquency proceedings for that purpose.

We deal with conduct of a local Board that is basically lawless. It is no different in constitutional implications from a case where induction of an ordained minister or other clearly exempt person is ordered (a) to retaliate against the person because of his political views or (b) to bear down on him for his religious views or his racial attitudes or (c) to get him out of town so that the amorous interests of a Board member might be better served.

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See Townsend v. Zimmerman, 237 F.2d 376. In such instances, as in the present one, there is no exercise of discretion by a Board in evaluating evidence and in determining whether a claimed exemption is deserved. The case we decide today involves a clear departure by the Board from its statutory mandate. To hold that a person deprived of his statutory exemption in such a blatantly lawless manner must either be inducted and raise his protest through habeas corpus or defy induction and defend his refusal in a criminal prosecution is to construe [89 S.Ct. 417] the Act with unnecessary harshness. As the Solicitor General suggests, such literalness does violence to the clear mandate of § 6(g) governing the exemption. Our construction leaves § 10(b)(3) unimpaired in the normal operations of the Act.

No one, we believe, suggests that § 10(b)(3) can sustain a literal reading. For, while it purports on its face to suspend the writ of habeas corpus as a vehicle for reviewing a criminal conviction under the Act, everyone agrees that such was not its intent. Examples are legion where literalness in statutory language is out of harmony either with constitutional requirements, United States v. Rumely, 345 U.S. 41, or with an Act taken as an organic whole. Clark v. Uebersee Finanz-Korp., 332 U.S. 480, 488 489. We think § 10(b)(3) and § 6(g) are another illustration, and the Solicitor General agrees. Since the exemption granted divinity students is plain and unequivocal, and in no way contested here,7 and since the scope of the statutory delinquency concept is not broad enough to sustain a revocation of what Congress has

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granted as a statutory right, or sufficiently buttressed by legislative standards, we conclude that pre-induction judicial review is not precluded in cases of this type.

We accordingly reverse the judgment and remand the case to the District Court, where petitioner must have the opportunity to prove the facts alleged and also to demonstrate that he meets the jurisdictional requirements of 28 U.S.C. § 1331.

Reversed.

HARLAN, J., concurring

MR. JUSTICE HARLAN, concurring in the result.

I concur in the holding that pre-induction review is available in this case, but I reach this conclusion by means of a somewhat different analysis from that contained in the opinion of my Brother DOUGLAS.

At the outset, I think it is important to state what this case does and does not involve. Petitioner does not contend that the Selective Service System has improperly resolved factual questions, or wrongfully exercised its discretion, or even that it has acted without any "basis in fact," as that phrase is commonly used in this area of law. See Estep v. United States, 327 U.S. 114, 122-123 (1946); ante at 238, n. 7. He asserts, rather, that the procedure pursuant to which he was reclassified and ordered to report for induction -- a procedure plainly mandated by the System's self-promulgated published regulations, 32 CFR, pt. 1642 -- is unlawful. Specifically, he asserts that the delinquency reclassification scheme is not authorized by any statute, that it is inconsistent with his statutory exemption as a ministerial student, 50 U.S.C.App. § 456(g), and that, whether or not approved by Congress, the regulations are facially unconstitutional.1

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The pivotal language of § 10(b)(3), for...

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