Clark v. Gabriel

Decision Date16 December 1968
Docket NumberNo. 572,572
Citation89 S.Ct. 424,21 L.Ed.2d 418,393 U.S. 256
PartiesRamsey CLARK et al. v. Charles Joseph Cuney GABRIEL
CourtU.S. Supreme Court

See 393 U.S. 1112, 89 S.Ct. 853.

Solicitor General Griswold, Assistant Attorney General Weisl, Morton Hollander and Robert V. Zener, for appellants.

Norman Leonard, for appellee.

PER CURIAM.

Appellee's draft Board rejected his claim to classification as a conscientious objector and classified him I—A. His appeals within the Selective Service System were unsuccessful. After he was ordered to report for induction he brought an action in the United States District Court for the Northern District of California seeking to have his induction enjoined and to have the rejection of his claim to conscientious objector classification declared improper on the grounds that it had no basis in fact, that the Board had misapplied the statutory definition of conscientious objector, and that the members of the Board were improperly motivated by hostility and bias against those who claim to be conscientious objectors. The District Court entered a preliminary injunction preventing appellee's induction until after a determination of his claim on the merits.

In entering the preliminary injunction, the District Court held that it had jurisdiction to hear appellee's claim despite § 10(b)(3) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 460(b)(3) (1964 ed., Supp. III), which provides:

'No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reversed to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant.'

Acknowledging that this statute if applicable would prevent pre-induction review of appellee's classification, the District Court held that, so applied, § 10(b)(3) was unconstitutional because to provide for judicial consideration of the lawfulness of the Board's action only as a defense to a criminal prosecution would require that appellee pursue a 'tortuous judicial adventure' so beset by 'hazards' and 'penalties' as to result 'in no review at all.' The Government has appealed under 28 U.S.C. § 1252 which allows direct appeal to this Court of 'an interlocutory or final judgment, decree or order of any court of the United States * * * holding an Act of Congress unconstitutional in any civil action * * * to which the United States * * * or any officer * * * thereof * * * is a party.'

This Court has today, after full consideration, decided Oestereich v. Selective Service System Local Bd. No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402. Because the result here is dictated by the principles enunciated in that case, it is appropriate to decide this case summarily, reversing the District Court.

In Oestereich the delinquency procedure by which the registrant was reclassified was without statutory basis and in conflict with petitioner's rights explicitly established by the statute and not dependent upon an act of judgment by the board. Oestereich, as a divinity student, was by statute unconditionally entitled to exemption. Here, by contrast, there is no doubt of the board's statutory authority to take action which appellee challenges, and that action inescapably involves a determination of fact and an exercise of judgment. By statute, classification as a conscientious objector is expressly conditioned on the registrant's claim being 'sustained by the local board.' 50 U.S.C. App. § 456(j) (1964 ed., Supp. III).

Here the Board has exercised its statutory discretion to pass on a particular request for classification, 'evaluating evidence and * * * determining whether a claimed exemption is deserved.' Oestereich v. Selective Service System Local Bd. No. 11, supra, at 238, 89 S.Ct., at 416. A Local Board must make such a decision in respect of each of the many classification claims presented to it. To allow preinduction judicial review of such determinations would be to permit precisely the kind of 'litigious interruptions of procedures to provide necessary military manpower' (113 Cong.Rec. 15426 (report by Senator Russell on Conference Committee ac- tion)) which Congress sought to prevent when it enacted § 10(b)(3).

We find no constitutional objection to Congress' thus requiring that assertion of a conscientious objector's claims such as those advanced by appellee be deferred until after induction, if that is the course he chooses, whereupon habeas corpus would be an available remedy, or until defense of the criminal prosecution which would follow should he press his objections to his classification to the point of refusing to submit to induction. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305 (1944).

The motion of appellee for leave to proceed in forma pauperis is granted. The decision of the District Court is reversed, and the case remanded for issuance of an order dissolving the preliminary injunction and dismissing the action.

Reversed and remanded.

Mr. Justice DOUGLAS, concurring.

The evidence in this case, which I have set forth in an Appendix, makes plain, as the Court states, that the question whether the registrant should be classified as a conscientious objector turns on the weight and credibility of the testimony. I therefore agree that § 10(b)(3) of the Military Selective Service Act of 1967 precludes review of the action of the Board at this preinduction stage.

I would take a different view if this were a case where a registrant was moved from a CO (conscientious objector) classification to I—A because he made a speech, unpopular with the Board.

This would also be a different case if the registrant were a member of an institutionalized group,1 such as the Quakers, whose opposition to war was well known and the registrant, though perhaps unpopular with the Board, was a bona fide member of the group. Then, too, a Board would act in a lawless way 2 if it moved a registrant from a CO classification to I—A and disregarding all the evidence denied him a CO classification.

But in my view it takes the extreme case where the Board can be said to flout the law, as it did in Oestereich v. Selective Service Bd., 393 U.S. 233, 89 S.Ct. 414, to warrant pre-induction review of its actions.

APPENDIX TO OPINION OF DOUGLAS, J., CONCURRING.

Charles Gabriel is 23 years old, son of a white father and Negro mother. He graduated from Berkeley High School, attended San Francisco State College for two years before being dropped; for the following year he tried to regain entrance to that College by attending its 'Extension School'; but when he was denied re-admission, he spent the next year at a City College from which he graduated. He registered with the Selective Service in 1963 at the age of 18. Two years later, at the age of 20, he applied for CO status. He was denied reclassifi- cation, and his three requests for a 'personal appearance' before the board over a nine-month period were disregarded. Finally, he was given an opportunity for a personal appearance after he complained to the State Headquarters. He was denied reclassification.

(A) Gabriel's Letter of August 13, 1965.

In 1965, after he obtained a copy of Form 150 by which a registrant files for conscientious objector status, Gabriel filled out the form and sent his local draft board an accompanying letter explaining his conscientious convictions:

'As a Negro I firmly believe the United States Government has willfully let the Negro be deprived of his rights therefore the debt of forced service claimed arbitrarily from all eligible men for the purpose of fighting for the United States rights is in the Negroes case void. Because he has not been given the rights the United States fights for on its citizens behalf.

'My beliefs are superior to my human relations with the U.S. government and duties...

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