United States ex rel. Brooks v. Clifford

• Decision Date: 25 June 1969
• Docket Number: No. 13275.,13275.
• Citation: 412 F.2d 1137
• Parties: UNITED STATES of America ex rel. Peter S. BROOKS, Appellant, v. Clark CLIFFORD, Secretary of Defense, Stanley R. Resor, Secretary of the Army, and Commanding Officer, Fort Jackson, South Carolina, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

412 F.2d 1137 (1969)

UNITED STATES of America ex rel. Peter S. BROOKS, Appellant, v. Clark CLIFFORD, Secretary of Defense, Stanley R. Resor, Secretary of the Army, and Commanding Officer, Fort Jackson, South Carolina, Appellees.

No. 13275.

United States Court of Appeals Fourth Circuit.

Argued March 6, 1969.

Decided June 25, 1969.

Leonard B. Boudin, New York City (Rabinowitz, Boudin & Standard, Joan Goldberg, New York City, and Jack McGuinn, Columbia, S. C., on brief) for appellant.

Wistar D. Stuckey, Asst. U. S. Atty. (Klyde Robinson, U. S. Atty., on brief) for appellees.

Before WINTER, CRAVEN and BUTZNER, Circuit Judges.

WINTER, Circuit Judge:

In the original briefs and in argument the parties touched peripherally upon the question of whether petitioner had exhausted his administrative remedies when he failed to apply to the Army Board for Correction of Military Records for discharge as a conscientious objector before seeking a writ of habeas corpus from the district court. We gave the question no fuller treatment.

Unbeknown to the parties and to us, the United States Court of Appeals for the Ninth Circuit had decided on March 5, 1969, the day before argument in our case, that a member of the Navy, whose application for discharge as a conscientious objector had been denied by the Chief of Naval Personnel, could not seek a writ of habeas corpus from a district court to review that denial when he had failed to apply to the Board for Correction of Naval Records for relief. Craycroft v. Ferrall, 408 F.2d 587 (9 Cir. 1969). Promptly after our decision was announced, respondents petitioned for rehearing solely on the exhaustion point, citing only Craycroft. We directed the parties to file briefs on the issue. After consideration of them, we have concluded to deny rehearing.

Petitioner, after his request for discharge was denied by the Department of the Army, made no application to the Army Board for correction of Military Records. This Board is one of several authorized by 10 U.S.C.A. § 1552 to be established by the Secretary of a military department, with the approval of the Secretary of Defense, and the Secretary of the Treasury, to act for them to "correct any military record of that department when he considers it necessary to correct an error or remove an injustice." From the papers filed with us, it appears that, even after Craycroft, the Board for Correction of Naval Records and the Secretary of the Navy "have determined that the case of a member of the naval service who has been denied a discharge as a conscientious objector is not properly a matter for consideration by the Board." The Army counterpart, however, claims jurisdiction in such cases. Negre v. Larsen, 394 U.S. 968, 89 S.Ct. 1450, 22 L.Ed.2d 750 (April 21, 1969) (Douglas, J. dissenting). The position of the Board for the Coast Guard and Air Force is unknown.

We do not find it necessary to discuss fully our analysis of the decision in Craycroft, because we think that a close reading of the recent decision in McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (May 26, 1969), decided after Craycroft and after the briefs of the parties addressed to exhaustion of administrative remedies were filed, and application of its principles to the facts before us indicate the result we reach.¹ In McKart the Court was concerned with the sole surviving son exemption of the Selective Service Act of 1948, and particularly whether petitioner was entitled to exemption after the death of his mother, when he had no surviving family. Petitioner had been denied the exemption by his local board and he had failed to avail himself of the appeal procedures established by Selective Service System Regulations. In a subsequent prosecution for failing to report for and submit to induction, the government contended that the petitioner could not raise the invalidity of his I-A classification and subsequent induction order because he had failed to appeal his reclassification after the death of his mother and thus had failed to exhaust available administrative remedies.

The Court rejected the government's contention and discussed carefully the scope and application of the exhaustion doctrine. It was said first that the "application of the doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved." Proceeding with that thesis, the Court noted first that the most common application of the exhaustion doctrine is where it is statutorily required. Where a statute does not require exhaustion, the rationale of judicial invocation of the doctrine is to avoid premature interruption of the administrative process, thereby preserving the integrity and autonomy of the agency — particularly where the administrative agency has vested in it discretionary powers or is intended to apply its expertise to the problem before it. Related to the concept of administrative autonomy are the notions that the administrative agency should be given a chance "to discover and correct its own errors" and that overly frequent interruptions of administrative processes may encourage parties to ignore contemplated administrative procedures. 395 U.S. at 195, 89 S.Ct. at 1663.

Another aspect of the doctrine is that judicial review "may be hindered by the failure of the litigant to allow the agency to make a factual record, or to exercise its discretion of apply its expertise." 395 U.S. at 194, 89 S.Ct. at 1663. An independent consideration arises from "practical notions of judicial efficiency," in that a complaining party may be successful in his pursuit of administrative remedies so that courts are not called upon to exercise their jurisdiction. 395 U.S. at 195, 89 S.Ct. at 1657.

In the McKart case the Court recognized that the exhaustion doctrine "must be tailored to fit the peculiarities of the administrative system Congress has created." 395 U.S. at 195, 89 S.Ct. at 1663. The Court was impressed with the fact that petitioner no longer had a right to appeal and could assert the invalidity of his classification and order to report for induction only at the peril of his liberty. The Court pointed out that the question before it was solely one of statutory interpretation involving no particular expertise on the part of the appeal board and involving no discretion. Even if the appeal board passed upon the question of statutory interpretation, "judicial review would not be significantly aided * * *." 395 U.S. at 199, 89 S.Ct. at 1665. Finally, the Court rejected the government's argument that failure to require exhaustion would induce registrants to by-pass available administrative remedies because the Court felt that the presence of criminal sanctions in a prosecution for failure to report would insure "that the great majority of registrants will exhaust all administrative remedies before deciding whether or not to continue the challenge to their classifications." 395 U.S. at 200, 89 S.Ct. at 1666. For a thorough pre-McKart discussion of these general principles, see Sherman, Judicial Review of Military Determinations and the Exhaustion of Remedies Requirement, 55 Va.L.Rev. 483, 520-26 (1969), particularly ft. 197, p. 524.

Consideration of these principles and the application of them to the facts before us lead to the same conclusions.

Neither D.O.D. No. 1300.6 nor A.R. 635-20, under which petitioner sought his discharge, provides for or contemplates an application to the Army Board for Correction of Military Records in the event of denial of the request by the Department of the Army, although neither specifically precludes it. So far as these regulations are concerned, unlike those in McKart, the administrative process was complete and completed on December 13, 1968, except for notification of petitioner, when his request for discharge as a conscientious objector was denied. Within the contemplation of these regulations, the administrative process would neither be interrupted nor its integrity violated if judicial review were held permissible immediately after the Department of the Army refused a request for discharge.

Although we do not decide the question, it is at least arguable that a military board for correction of records established under 10 U.S.C.A. § 1552 does not have jurisdiction to grant relief in an appropriate case; the differing interpretations of the Army and Navy are witness to the fact. The legislative history of § 1552, as well as the provisions of the statute, indicate that the basic purpose of the statute was to relieve Congress from consideration of private bills to correct injustices, usually of the type involving an appropriation of money — subjects far different from the adjudication of a claim of conscientious objection.² It has been held that § 1552 was not intended to affect judicial jurisdiction. Nelson v. Miller, 373 F.2d 474, 479 (3 Cir. 1967); Ogden v. Zuckert, 111 U.S.App.D.C. 398, 298 F.2d 312, 314 (1961).

Even if the legislative intent is determined not to foreclose exercise of this type of jurisdiction under the broad mandate to "correct an error or remove an injustice," the Board for Correction is not presumed to have any particular expertise in conscientious objection matters, nor would its decision involve the exercise of discretion. While the Army Board for Correction of Military Records, established under 32 C.F.R. § 581.3, promulgated pursuant to the statute, may grant a hearing, in which event the applicant has the right to produce witnesses if he can arrange for their appearance at the time and place set for the hearing, the Board is composed of civilian officers or employees of the Department of the Army. By contrast, the procedure established by D.O.D. No. 1300.6 and A.R. 635-20 provides for an appearance before a person "knowledgeable in policies and procedures relating to conscientious objector matters." Thus, the only expertise which is brought into consideration of...