412 F.2d 1103 (D.C. Cir. 1969), 21903, National Student Ass'n v. Hershey

Docket Nº:21903.
Citation:412 F.2d 1103
Party Name:NATIONAL STUDENT ASSOCIATION, Inc., et al., Appellants, v. Lewis B. HERSHEY, Appellee.
Case Date:June 06, 1969
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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412 F.2d 1103 (D.C. Cir. 1969)



Lewis B. HERSHEY, Appellee.

No. 21903.

United States Court of Appeals, District of Columbia Circuit.

June 6, 1969

Argued Dec. 3, 1968.

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[Copyrighted Material Omitted]

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Miss Harriet Van Tassel, Newark, N.J., with whom Messrs. Lawrence Speiser, Washington, D.C., and William M. Kunstler, New York City, were on the brief, for appellants.

Mr. Irwin Goldbloom, Attorney, Department of Justice, with whom Asst. Atty. Gen. Edwin L. Weisl, Jr., at the time the record was filed, Messrs. David G. Bress, U.S. Atty., at the time the record was filed, and Morton Hollander, Attorney, Department of Justice, were on the brief, for appellee.

Mr. Oliver Ellis Stone, Washington, D.C., filed a brief on behalf of American Friends Service Committee, Inc., as amicus curiae, urging reversal.

Before BAZELON, Chief Judge, McGOWAN and ROBINSON, Circuit judges.

BAZELON, Chief Judge:

This suit challenges (1) the celebrated 'Hershey directive' of October, 1967, 1 which threatened war protesters with loss of their draft deferments and in some cases with immediate induction into the armed forces as delinquents, and (2) the delinquency regulations 2 promulgated under the Military Selective Service Act of 1967. 3 The plaintiffs are fifteen college student-body presidents, the president of the University Christian Movement, and three national student organizations, all of whom sue both in their own behalf and in a representative capacity.

The so-called Hershey directive is in fact a letter, together with a Local Board Memorandum, from the Selective Service Director, General Hershey, addressed to all members of the Selective Service System. In essence, the letter asserts that since 'any action' violative of the Selective Service Act, regulations, or 'related processes' is patently contrary to the national interest, registrants who commit such actions 'should be denied deferment in the national interest.' In addition, it condemns 'illegal activity which interferes with recruiting or causes refusal of (military) duty' as 'not by any stretch of the imagination' compatible with the national interest. It goes on to declare that

Demonstrations, when they become illegal, have produced and will continue to produce much evidence that relates to the basis for classification and, in some instances, even to violation of the act and regulations. Any material of this nature received in national headquarters or any other segment of the system should be sent to state directors for forwarding to appropriate local boards for their consideration.

A local board, upon receipt of this information, may reopen the classification of the registrant, classify him anew, and if evidence of violation of the act and regulations is established * * *, also * * * declare the registrant to be a delinquent and * * * process him accordingly. This should include all registrants with remaining liability up to 35 years of age.

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The letter concludes by urging

all elements of the Selective Service System * * * to expedite responsive classification and the processing of delinquents to the greatest possible extent consistent with sound procedure.

Local Board Memorandum No. 85, apparently attached to this letter, instructs local boards to forward any abandoned or mutilated draft card they might receive to the owner's draft board, and informs the recipient board how it should go about declaring the owner delinquent.

The delinquency regulations provide in pertinent part that

Whenever a registrant has failed to perform any duty or duties required of him under the selective service law (other than certain designated duties) * * *, the local board may declare him to be a delinquent. 32 C.F.R. § 1642.4(a) (1968); a delinquent registrant may be classified 1-A and, if he is, should be moved to the head of the induction list. 32 C.F.R. §§ 1642.-12, 1642.13, 1631.7 (1968).

The complaint alleges that Congress has in no way deputized selective service members to help courts and prosecutors enforce the law; their business, it says, is to determine a registrant's eligibility for statutorily defined deferments or exemptions according to such criteria as Congress has established, not according to their own or their Director's view of whether a registrant's every act is 'in support of the national interest.' If Congress did intend draft boards to exercise a law enforcement function, the complaint asserts that such authorization necessarily abridges the freedoms of speech and assembly and imposes punishment without any of the trappings of criminal due process. Accordingly, appellants seek a declaratory judgment voiding the Hershey directive and the delinquency regulations and an injunction against the enforcement of either.

On cross motions for summary judgment, the District Court dismissed the complaint for lack of jurisdiction over the subject matter. However, we think appellants were entitled to partial relief in accordance with the following conclusions:

I. Section 10(b)(3) of the Military Selective Service Act of 1967, which prohibits judicial review of a draft board's 'classification or processing of any registrant, ' is not a bar to this suit (infra, pp. 1107-1109).

II. A. An allegation that the general threat of enforcement of a law or official policy chills the exercise of protected First Amendment freedoms does not automatically establish the existence of a justiciable case or controversy, but in some circumstances such an allegation may be sufficient (infra, pp. 1110-1121).

B. There is no justiciable case or controversy with respect to (1) the delinquency regulations or that part of the Hershey directive which purports to construe them (infra, pp. 1116-1117), or (2) Local Board Memorandum No. 85 (infra, p. 1117), but there is a justiciable controversy with respect to (3) the remaining portion of the directive, envisaging reclassification on account of protest activity which is not within the scope of the delinquency regulations (infra, pp. 1117-1119).

C. The appellant organizations, as student political associations substantially committed to anti-war or anti-draft activities, have standing to bring this suit, since they and their members are vulnerable to the directive's chilling effect on protected protest (infra, pp. 1119-1120).

III. That portion of the Hershey directive which purports to authorize draft boards, independently of the delinquency regulations, to deny deferments or exemptions on the basis of illegal protest activity is itself unauthorized, and the local boards have no such authority (infra, pp. 1121-1124).

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I. SECTION 10(b)(3)

Section 10(b)(3) of the Military Selective Service Act provides in part that

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 * * * after the registrant has responded either affirmatively or negatively to an order to report for induction * * *.

50 U.S.C. App. § 460(b)(3) (Supp. III, 1965-67). Appellants carefully note that they are neither seeking 'review * * * of the classification or processing of any registrant, ' nor contesting any classification action of 'local boards, appeal boards, or the President.' Instead, they have mounted a direct attack on administrative regulations and an official policy, and with one exception 4 none of them even claims to have been classified or processed by a draft board.

Since appellants' complaint does not fall within the literal terms of Section 10(b)(3), the question is whether it is encompassed by the section's rationale. The legislative history 5 discloses three interrelated purposes to be served by this provision: (1) to reaffirm existing law; (2) to reverse recent court holdings apparently disregarding that law; and (3) to prevent 'litigious interruption of military manpower procurement.' 6 We conclude that none of these purposes precludes prompt judicial review of the legality of announced criteria for classification, provided such review is otherwise proper.

(1) The 'existing law' which Congress approved is the doctrine that a draft registrant must exhaust his internal administrative remedies to the point of reporting for induction before he can challenge the legality of his classification or processing in court. 7 This doctrine rests on the provision ascribing 'finality' to local board decisions on such matters, 8 and thus does

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not apply to litigation involving no challenge to local board actions. Such litigation may raise questions of general law, to be considered infra, concerning the presence of a justiciable case or controversy, but it does not affront the finality provision of the Selective Service Act. 9

(2) Congress did not say which court holdings it sought to expunge by way of Section 10(b)(3), 10 but appellee refers us to Wolff v. Selective Service Local Board No. 16, 11 Townsend v. Zimmerman, 12 and Ex parte Fabiani. 13 In each of these cases, the court reviewed the classification action of Selective Service boards even though the registrant had failed to exhaust his administrative remedies. The language of Section 10(b)(3) can readily be construed to overrule these cases without operating as a bar to the instant suit.

Moreover, it may be that Congress could not overrule the Wolff decision without running afoul of the First Amendment. In Wolff, the appellant registrants had been reclassified as delinquents because of their participation in a draft board sit-in demonstration protesting the war in Vietnam. The Second Circuit Court of Appeals felt obliged to 'intervene at once' in the processing of these registrants in order to prevent irreparable constitutional injury, because

the effect of the (challenged) reclassification * * * (was)...

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