Oestereich v. Selective Service System Local Board No 11, Cheyenne Wyoming, No. 46

CourtUnited States Supreme Court
Writing for the CourtDOUGLAS
Citation21 L.Ed.2d 402,89 S.Ct. 414,393 U.S. 233
Decision Date16 December 1968
Docket NumberNo. 46
PartiesJames J. OESTEREICH, Petitioner, v. SELECTIVE SERVICE SYSTEM LOCAL BOARD NO. 11, CHEYENNE, WYOMING, et al

393 U.S. 233
89 S.Ct. 414
21 L.Ed.2d 402
James J. OESTEREICH, Petitioner,

v.

SELECTIVE SERVICE SYSTEM LOCAL BOARD NO. 11, CHEYENNE, WYOMING, et al.

No. 46.
Argued Oct. 24, 1968.
Decided Dec. 16, 1968.

Melvin L. Wulf, New York City, for petitioner.

Page 234

Erwin N. Griswold, Sol. Gen., for respondents.

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 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

Page 235

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, 88 S.Ct. 1804, 20 L.Ed.2d 651.

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

Page 236

U.S. 114, 123—125, 66 S.Ct. 423, 428, 90 L.Ed. 567; Eagles v. United States ex rel. Samuels, 329 U.S. 304, 67 S.Ct. 313, 91 L.Ed. 308; Witmer v. United States, 348 U.S. 375, 377, 75 S.Ct. 392, 393, 99 L.Ed. 428. 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

Page 237

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 free-wheeling 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.

Page 238

See Townsend v. Zimmerman, 6 Cir., 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 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, 73 S.Ct. 543, 97 L.Ed. 770, or with an Act taken as an organic whole. Clark v. Uebersee Finanz—Korp., AG, 332 U.S. 480, 488—489, 68 S.Ct. 174, 177, 92 L.Ed. 88. 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

Page 239

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.

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, 66 S.Ct. 423, 427—428, 90 L.Ed. 567 (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

Page 240

The pivotal language of § 10(b)(3), for present purposes, is the statute's proscription of pre-induction judicial review 'of the classification or processing of any registrant * * *.' I take the phrase 'classification or processing' to encompass the numerous discretionary, factual, and mixed law-fact determinations which a Selective Service Board must make prior to issuing an order to report for induction. I do not understand that phrase to prohibit review of a claim, such as that made here by petitioner, that the very statutes or regulations which the Board administers are facially invalid.

'Classification is the key to selection,' 32 CFR § 1622.1(b), and among a local Board's most important functions is 'to decide, subject to appeal, the class in which each registrant shall be placed.' 32 CFR § 1622.1(c). Classification is a highly individualized process, in which a Board must consider all pertinent information presented to it. Ibid. Thus, a Board may be required to determine, on a conflicting record, whether a registrant is conscientiously opposed to participation in war in any form, 32 CFR § 1622.14, or whether the registrant's deferment 'is in the national interest and or paramount importance to our national security * * *.' 32 CFR § 1622.20. A Board also exercises considerable discretion in the processing of registrants—for example, in securing information relevant to classification, 32 CFR §§ 1621.9—1621.15, scheduling of physical examinations, 32 CFR, pt. 1628, and scheduling and postponement of induction itself, 32 CFR, pt. 1632.

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  • Patent cases: Inter partes reexamination and technical amendments,
    • United States
    • Federal Register December 22, 2003
    • December 22, 2003
    ...the authority to declare unconstitutional the laws they are charged with administering. See, e.g., Oestereich v. Selective Service Board, 393 U.S. 233, 242 (1968); McGowan v. Marshall, 604 F.2d 885, 892 (5th Cir. 1979); and Buckeye Industries, Inc. v. Secretary of Labor, 587 F.2d 231 (5th C......
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    ...138 F.2d 936, 952—953 (1943), dismissed as moot, 332 U.S. 788, (68 S.Ct. 96, 92 L.Ed. 370).' Oestereich v. Selective Service Board, 393 U.S. 233, 242, 89 S.Ct. 414, 419, 21 L.Ed.2d 402 (1968) (Harlan, J., concurring in result); see Jaffe, Judicial Review: Question of Law, 69 Harv.L.Rev. 239......
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    ...v. United States, 327 U.S. 114, 119-20, 122-23, 66 S.Ct. 423, 425-26, 427, 90 L.Ed. 567 (1946); Oestereich v. Selective Service Board, 393 U.S. 233, 243 n. 6, 89 S.Ct. 414, 416 n. 6, 21 L.Ed.2d 402 (1968) (Harlan, J., concurring). Where one has been denied his right to a fair hearing prior ......
  • Green v. Connally, Civ. A. No. 1355-69.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • June 30, 1971
    ...Procedure Act, 5 U.S.C. §§ 551 et seq., 701 et seq., 3105 (Supp. V, 1970), cf. Oestereich v. Selective Service System Local Board, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 45 See Manual Supplement (II) 6G-58, issued December 21, 1970, § 2.04: The term "nondiscriminatory admissions policy,......
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368 cases
  • Johnson v. Robison 8212 1297, No. 72
    • United States
    • United States Supreme Court
    • March 4, 1974
    ...138 F.2d 936, 952—953 (1943), dismissed as moot, 332 U.S. 788, (68 S.Ct. 96, 92 L.Ed. 370).' Oestereich v. Selective Service Board, 393 U.S. 233, 242, 89 S.Ct. 414, 419, 21 L.Ed.2d 402 (1968) (Harlan, J., concurring in result); see Jaffe, Judicial Review: Question of Law, 69 Harv.L.Rev. 239......
  • Rosado v. Civiletti, Nos. 980-982
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 23, 1980
    ...v. United States, 327 U.S. 114, 119-20, 122-23, 66 S.Ct. 423, 425-26, 427, 90 L.Ed. 567 (1946); Oestereich v. Selective Service Board, 393 U.S. 233, 243 n. 6, 89 S.Ct. 414, 416 n. 6, 21 L.Ed.2d 402 (1968) (Harlan, J., concurring). Where one has been denied his right to a fair hearing prior ......
  • Green v. Connally, Civ. A. No. 1355-69.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • June 30, 1971
    ...Procedure Act, 5 U.S.C. §§ 551 et seq., 701 et seq., 3105 (Supp. V, 1970), cf. Oestereich v. Selective Service System Local Board, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 45 See Manual Supplement (II) 6G-58, issued December 21, 1970, § 2.04: The term "nondiscriminatory admissions policy,......
  • Griffith v. Federal Labor Relations Authority, No. 86-5720
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 25, 1988
    ...of its delegated powers." Kyne, 358 U.S. at 188, 79 S.Ct. at 184. Similarly, in Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), the Court followed Kyne to permit review of a final decision of a Selective Service Board that, solel......
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1 books & journal articles
  • The Supreme Court of the United States, 1969-1970
    • United States
    • Political Research Quarterly Nbr. 23-4, December 1970
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    ...declared him delinquent and reclassi-fied him I-A. An opinion by Justice Black (vote: 8-0) held that Oestereich v.Selective Service Board, 393 U.S. 233 ( 1968) , controlled this situation. &dquo;In situations a draft registrant who was required by the relevant law not to be inductedwas in f......

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