405 U.S. 365 (1972), 70-58, Fein v. Selective Service System Local Board No. 7

Docket Nº:No. 70-58
Citation:405 U.S. 365, 92 S.Ct. 1062, 31 L.Ed.2d 298
Party Name:Fein v. Selective Service System Local Board No. 7
Case Date:March 21, 1972
Court:United States Supreme Court

Page 365

405 U.S. 365 (1972)

92 S.Ct. 1062, 31 L.Ed.2d 298



Selective Service System Local Board No. 7

No. 70-58

United States Supreme Court

March 21, 1972

        of Yonkers, New York

        Argued October 12, 1971




       Following petitioner's classification as a conscientious objector by his local Selective Service Board, the State Director requested an appeal. Petitioner was notified, but was not furnished with the basis for the appeal or given an opportunity to reply. The appeal board unanimously classified petitioner I-A and rejected his conscientious objector claim without stating any reasons therefor. Petitioner was not entitled under the regulations to appeal to the national board, but the National Director, on petitioner's request, did note an appeal. [92 S.Ct. 1065] The national board unanimously classified petitioner I-A, with no reasons given. There is no outstanding induction order for petitioner, who brought this pre-induction suit challenging, on due process grounds, the constitutionality of his Selective Service appeal procedures. The District Court dismissed the complaint, finding the suit barred by § 10(b)(3) of the Military Selective Service Act of 1967, and the Court of Appeals affirmed. That section provides that a classification decision of the local board "shall be final, except where an appeal is authorized," and that the classification decision on appeal also "shall be final." It further provides that

[n]o judicial review shall be made of the classification or processing of any registrant . . . except as a defense to a criminal prosecution . . . after the registrant has responded either affirmatively or negatively to an order to report for induction,

        and then the review "shall go to the question of the jurisdiction . . . only when there is no basis in fact, for the classification." By statute enacted in September, 1971, after petitioner's trial, a registrant is entitled to a personal appearance before a local or appeal board, and, on request, to a statement of reasons for any adverse decision. Ensuing changes in regulation, effective December, 1971, and March, 1972, provide the procedural features that petitioner complained were lacking.


        1. Section 10(b)(3) forecloses pre-induction judicial review where the board has used its discretion and judgment in determining facts and arriving at a classification for the registrant. Clark

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v. Gabriel, 393 U.S. 256, followed; Oestereich v. Selective Service Board, 393 U.S. 233, distinguished. In such case, the registrant's judicial review is confined to situations where he asserts his defense in a criminal prosecution or where, after induction, he seeks a writ of habeas corpus. Pp. 372-377.

        2. Petitioner's immediate induction is not assured, however, in light of the intervening statutory change, the new regulations thereunder, and a change in the Government's position, albeit in a post-induction case, to concede that some statement of reasons is necessary for "meaningful" review of the administrative decision when the registrant's claim has met the statutory criteria or has placed him prima facie within the statutory exemption. Pp. 377-381.

        430 F.2d 376, affirmed.

        BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN and WHITE, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 381. MARSHALL, J., filed a dissenting opinion, in which STEWART, J., joined, post, p. 387. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.

        BLACKMUN, J., lead opinion

        MR. JUSTICE BLACKMUN delivered the opinion of the Court.

       Petitioner Oliver T. Fein is a doctor of medicine. In February, 1969, he filed this pre-induction suit in the United States District Court for [92 S.Ct. 1063] the Southern District of New York. Jurisdiction was asserted under the federal question statute, 28 U.S.C. § 1331, under the civil rights statute, 28 U.S.C. § 1343, and under the federal officer statute, 28 U.S.C. § 1361. Fein challenged, on

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due process grounds, the constitutionality of his Selective Service appeal procedures and sought declaratory and injunctive relief that would prevent his induction into military service. The defendants are Fein's local board at Yonkers, New York, the Appeal Board for the Southern District, the State Selective Service Director, and the National Appeal Board.

        In an unreported memorandum decision, the District Court dismissed the complaint for want of jurisdiction. A divided panel of the Second Circuit affirmed. 430 F.2d 376 (1970). Certiorari was granted, 401 U.S. 953 (1971), so that this Court might consider the important question whether § 10(b)(3) of the Military Selective Service Act of 197, 50 U.S.C.App. § 460(b)(3),1 permits this pre-induction challenge to Selective Service appeal procedures.

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        Fein, born May 5, 1940, registered with his Yonkers local board at age 18. He was assigned a II-S student deferment during his undergraduate years at Swarthmore College and, subsequently, during the period of his attendance at Case-Western Reserve University School of Medicine. Upon graduation from medical school, Fein was assigned a II-A occupational deferment because of his internship at Cleveland Metropolitan General Hospital.

        In September, 1967, while still an intern, Fein wrote his local board "to declare myself a conscientious objector to war and the institution which propagates war, the military." He requested and received SSS Form 150 for conscientious objectors. He promptly completed and returned the form to the local board.

        In the form, Fein stated: He believes in a Supreme Being. The beliefs from which his conscientious objection springs include the concepts that "human beings are primarily `good,'" that this goodness "can only be realized, if human beings are allowed to fulfill their potential," and that "all human beings are fundamentally equal, in terms of their value as human beings." War violates "this essential being in all men. . . ." It "fosters irresponsibility for inhuman and cruel acts." It "demands a style of life which is violent and hierarchical. It curbs and extinguishes, rather than expands, man's potential." The

substance of my beliefs stems from this common foundation of all religions. Thus, my beliefs are not merely a personal moral code, but are ideals which emanate from centuries of religious tradition.

        He attributes the shaping of his beliefs to four principal sources: his parents, the church he formerly belonged to (a Lutheran body), the civil rights movement, and medicine. He believes "in the power

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and values of moral and ethical force," but rejects "violent force" except perhaps in defense of self or of a loved one. His ideals were not articulated by age 18, but he began to formulate them at Swarthmore. Then followed a trip to the South; his break with his church; a summer in Germany where he learned of "biased American journalism about Cuba"; his helping organize a trip by students to Cuba; his interest in SNCC; his work in the slums of San Francisco; his settling in Cleveland's "Negro ghetto" during his first year at medical school; his then "full commitment to non-violence"; his contact with Students for a Democratic Society, which provided "a framework for working out my ideals about justice and equality"; and his "commitment to cooperative living and the poor community [which] stands as a mature expression of my beliefs." Upon receiving Fein's Form 150 and letters supportive of his claim, the local board invited him to appear personally before it. He did so on November 15, 1967. After the interview, the board denied him a I-O classification "at this time." Inasmuch as Fein then held his II-A classification, this action by the board was consistent with Selective Service Regulation 32 CFR § 1623.2 providing that a registrant be placed in the lowest class for which he is eligible. In February, 1968, however, Fein was reclassified I-A. He immediately asked for another personal appearance before the board. The request was granted, and he appeared on May 27. The board then classified him as I-O, and thus gave him his desired conscientious objector classification. On June 4, the State Director, pursuant to 32 CFR § 1626.1, wrote the appeal board requesting an appeal and stating, "It is our opinion that the registrant would not qualify for a I-O classification as a conscientious objector." Notice of this was given Dr. Fein by mail.

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Fein then wrote seeking "a statement indicating the basis for the State Director's appeal" and an opportunity to reply. No explanation was forthcoming. The local board forwarded the file to the appeal board. Accompanying the file was a so-called "brief." This, as petitioner has conceded,2 was merely a summary of the file prepared by a lay employee of the board. The appeal board, by a unanimous 4-0 vote on June 20, classified Dr. Fein I-A, and thus rejected his claim to conscientious objector status. The board stated no reasons for its decision. Fein was notified of his reclassification. Under 32 CFR § 1627.3,3 a registrant was not entitled to take an appeal to the presidential, or national, appeal board from an adverse classification by the state appeal board made by a unanimous vote. Fein was in this position. Accordingly, he wrote the National Director of Selective Service in July and asked that the Director appeal on his behalf under 32 CFR § 1627.1(a). Fein's letter to the Director was detailed. It emphasized his above-stated beliefs and the way of life to which those beliefs had guided him. "It should be clear that I am willing to serve my country, but only in activities consistent...

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