Gibson v. United States Dodez v. Same

• Decision Date: 23 December 1946
• Docket Number: Nos. 23 and 86,s. 23 and 86
• Citation: 91 L.Ed. 331,67 S.Ct. 301,329 U.S. 338
• Parties: GIBSON v. UNITED STATES. DODEZ v. SAME. Re
• Court: U.S. Supreme Court

329 U.S. 338

67 S.Ct. 301

91 L.Ed. 331

GIBSON

v UNITED STATES.

DODEZ

v. SAME.

Nos. 23 and 86.

Reargued Oct. 23, 1946.

Decided Dec. 23, 1946.

[Syllabus from pages 338-340 intentionally omitted] Mr.Hayden Covington, of Brooklyn, N.Y., for petitioners.

Mr. Irving S. Shapiro, of Washington, D.C., for respondent.

Mr. Justice RUTLEDGE delivered the opinion of the Court.

These cases carry forward another step the sequence in decision represented by Falbo, Billings, Estep and Smith.¹ Each petitioner has been convicted for violating § 11 of the Selective Training and Service Act, 54 Stat. 894, 50 U.S.C.App. § 311, 50 U.S.C.A.Appendix, § 311, Dodez for failing to report for work of national importance after being ordered to do so and Gibson for having unlawfully deserted the camp to which he had been assigned for such work.²

In each instance the conviction was sustained on appeal³ and certiorari was granted because of the importance of the questions presented for the administration of the Act. No. 23, 326 U.S. 708, 66 S.Ct. 96, restored to the docket for reargument before a full bench, 66 S.Ct. 677; No. 86, 328 U.S. 828, 66 S.Ct. 1017.

The principal issues relate to the time of completing the administrative selective process and the effect in each case of what was done in this respect upon the petitioner's right to make defense in the criminal proceedings on various grounds going to the validity of the classification.

In both cases tendered defenses of this character were excluded in the trial court and the exclusion was sustained on appeal. The effect was, in Gibson's case, to rule that although he had completed the administrative process by reporting to the camp, pursuant to the requirement of the Falbo decision, nevertheless his remedy if any, on account of the alleged misclassification was by habeas corpus, not by defense in the criminal cause. 8 Cir., 149 F.2d 751. In Dodez' case it was held that by refusing to report for service at the amp he had failed to exhaust his administrative remedies and therefore under the Falbo doctrine he could not question his classification in the criminal suit. 6 Cir., 154 F.2d 637.⁴

I

Both petitioners are Jehovah's Witnesses. Each has claimed consistently since the time of his registration that he is a minister of religion and therefore exempt from training and service under the Act.⁵ Each was denied this classification (IV-D), being classified instead as a conscientious objector (IV-E).⁶ Administrative appeals were exhausted. Pursuant to the classifications given and the applicable statutory provisions and regulations, Dodez and Gibson were assigned to work of national importance and ordered to report for such work at designated camps.

Dodez refused to go to the camp. But Gibson, thinking the Falbo decision required him to report there in order to exhaust his administrative remedies, went to the camp, remained for five days, and then departed without leave. It is undisputed that he intended at no time to submit to the camp's jurisdiction or authority and that he at all times made this intent clear. Everything he did was done solely to make sure that the administrative process had been finished and with a view to avoiding the barrier Falbo encountered in his trial when he sought to question his classification.

Obviously the petitioners have sought to reach the same point, namely, the place at which the selective process is exhausted administratively, but have differed concerning its exact location. Dodez maintains that the point was reached, under the applicable regulations,⁷ when his preinduction physical examination had been given and he was found acceptable for service by the Selective Serv- ice system. This was on February 21, 1944, two months prior to the date (April 21, 1944) when he was ordered to report for work and refused to go.

On the other hand, Gibson argues that until the preliminaries to actual service, including physical examination, were completed at the camp, he was not foreclosed by going through with them from exercising his choice not to submit to the camp's jurisdiction, cf. Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917, or, upon doing so, from asserting the invalidity of his classification in a criminal trial either for failing to report for service or for desertion from the camp, Cf. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423; Smith v. United States, ibid. Clearly, on the facts and the issues, the question as to Dodez, like that in Falbo's case, is whether he went far enough to exhaust the administrative process; while as to Gibson it is said that he went too far, that is, beyond the point of completing that process, and that this cut off the right of defense concededly available to him at that point.

II

If these cases were controlled in all respects by the regulations effective when Falbo's case was decided, Dodez would seem clearly to fall within the decision's proscription. The Court there said: 'Completion of the functions of the local boards and appellate agencies, important as are those functions, is not the end of the selective service process. The selectee may still be rejected at the induction center and the conscientious objector who is opposed to noncombatant duty may be rejected at the civilian public service camp. The connected series of steps into the national service which begins with registration with the local board does not end until the registrant is accepted by the army, navy or civilian public service camp. Thus a board order to report is no more than a necessary intermediate step in a united and continuous process designed to raise an army speedily and efficiently.' 320 U.S. at page 553, 64 S.Ct. at page 348, 88 L.Ed. 305. Since acceptability for service was not finally determined under the regulations then applicable until the registrant had reached camp, had there undergone or waived the specified physical examinations, and thereupon had been found acceptable,⁸ and since Falbo had not taken those steps, the Court held he was not entitled to question his classification and therefore sustained his conviction.

However, intermediate the Falbo decision and issuance of the order to Dodez to report, the regulations governing the procedure relating to selection for service were changed and in a manner which Dodez says relieved him from the necessity of going to the camp in order to complete the administrative process. The Government now concedes, we think properly,⁹ that Dodez is right in this view.

It is not necessary to review in detail the regulations which were governing in Falbo's case, since they are not controlling in either of the present ones. Although it is now argued that the Court misconceived their effect,¹⁰ we need only to note that it was within the registrant's power to secure a physical examination by the camp physician by indicating a change in his physical condition, it could not be known in advance in any case whether he would demand it, and until this was determined it could not be known finally and irrevocably whether he would be 'accepted for work of national importance.' ¹¹ The decision therefore correctly ruled that 'the conscientious objector who is opposed to noncombatant duty may be rejected at the civilian public service camp' and that the board's order to report there for service was no more than a necessary intermediate step' in the continuous selective process, which was not ended until the last possibility for rejection had been exhausted. Under those regulations there was no final and conclusive acceptance for service until after those procedures at the camp were c mpleted.

It was exactly in this respect, however, that the changes made in the regulations immediately after the Falbo decision¹² and shortly prior to issuance of Dodez' order to report, together with still others made later but prior to the order to Gibson, were effective. The changes were extensive and important. The altered regulations are lengthy. We therefore give a summary in the margin, noting the more important differences between those applicable to Dodez and those in effect as to Gibson.¹³

It is of some importance to note that the changes affecting both registrants were made in consequence of the enactment of § 5 of Public Law 197, 78th Congress, approved December 5, 1943, 57 Stat. 596, 599, 50 U.S.C.Appendix, § 304a, 50 U.S.C.A.Appendix, § 304a. This required preinduction physical examinations to be given before the registrant was ordered to report for induction and service.¹⁴ Previously he first had been ordered to report for induction, was then given his preinduction examination by the armed forces and, on being found acceptable, was inducted at once.¹⁵ The major changes in the regulations giving effect to § 5 were made on January 10, 1944, one week aft r the Falbo decision came down, some taking effect on that date,¹⁶ others on February 2d following. These applied to Dodez. Still others not applicable to him but operative as to Gibson took effect on June 7, 1944.¹⁷

The changed regulations, following out the command of § 5 of Public Act 197, provided for a preinduction physical examination to be given before issuance of the order to report for induction, rather than afterward. Section 629.1 of Amendment No. 200(9 F.R. 400—442), effective January 10, 1944.¹⁸ This was the basic amendment. It applied to all registrants subject to call for service, includ- ing those classified IV—E. Moreover, by Amendment No. 210(9 F.R. 1416), effective February 2, 1944, § 653.11 of the Regulations applicable to men so classified was changed to eliminate the previously effective paragraph (c) providing for physical examination by the camp physician on indication of changed condition and consequent possible rejection at the camp. Instead the amended regulation stated simply that (a) when the 'assignee' had reported to the camp, the camp director should 'complete the Order to Report for Work of National...