RESPONDENT: Selective Service Local Board No. 16
LOCATION: Holmes County Board of Education
DOCKET NO.: 65
DECIDED BY: Burger Court (1969-1970)
LOWER COURT: United States Court of Appeals for the Second Circuit
CITATION: 396 US 460 (1970)
ARGUED: Nov 19, 1969
DECIDED: Jan 26, 1970
Facts of the case
Media for Breen v. Selective Service Local Board No. 16
Audio Transcription for Oral Argument - November 19, 1969 in Breen v. Selective Service Local Board No. 16
Warren E. Burger:
Number 65, Breen against the Selective Service Board.
Mr. Chief Justice and may it please it the Court.
Warren E. Burger:
The question presented in this case, I think, can be fairly reduced to the following whether in the light of this Court's decisions in Oestereich and Gabriel.
Section 10 (b) (3) of the Military Selective Service Act of 1967 precludes pre-induction judicial review of delinquency, reclassification processes by local draft board against a full time undergraduate student who is statutorily entitled to a II-S classification simply because he surrendered his draft card to a clergymen to register his dissent against the war in Vietnam.
Put another way, the question is, does Oestereich control this case or does Gabriel control it?
The facts in the case are admitted for purposes of this appeal and are further agreed to and the agreed statement on appeal which is part of the appendix.
The petitioner at the time in question was a 19-year old undergraduate student at the Berklee School of Music in 1967, a school located in Boston, Massachusetts.
At that time, he was satisfactorily pursuing a full time course of instruction at the college and was properly classified by his local board, board number 16 in Bridgeport, Connecticut as a II-S for the academic year in 1967 to 1968.
At all relevant times, the petitioner maintained the necessary status for his II-S in full compliance with all of the statutory requirements.
On November 16th 1967, the petitioner along with numerous others took part in a meeting at the Arlington Street Church in Boston protesting the war in Vietnam and in the course of this meeting delivered his registration certificate along with a number of other registrants to a clergymen for the sole purpose of registering his dissent against the war in Vietnam.
The action by the petitioner was peaceful.
It was nonviolent and it was expressed as a form of speech under the First Amendment.
A few weeks prior to this occasion, a memorandum and letter was issued from the director of Selective Service General Hershey which was addressed to all members and officials of the Selective Service System.
This memorandum and letter which we will herein after refer to as the Hershey directive and instructed and advised the members of the system to strip deferments and exemptions from all registrants who in anyway violate the Selective Service regulations or its related processes or who take part in any so-called illegal demonstrations.
The directive further recommended that the delinquency reclassification induction procedure be pursued for any registrant who abandons his draft card or his classification card.
Subsequent to the action by the petitioner on January 9th, 1968, he received a simultaneous declaration of delinquency and reclassification in the mail, reclassification from II-S to I-A.
This was a clear implementation of the directive of General Hershey and as the court below aptly put it, it was certainly in line with this directive.
The ground set forth in the delinquency notice were “failure to have registrations certificate in your possession”.
Two days later, the petitioner was ordered for a physical examination and in early February of 1968, he appealed his reclassification.
The litigation below was commenced on February 20th, 1968 in the District Court for Connecticut wherein a declaratory judgment and injunction and other relief was asked by way of a remedy on behalf of the petitioner together with other forms of relief including damages.
The initial hearing before that Court took place on March 1st 1968 where a temporary restraining order was obtained.
However, on March 8, 1968, all of the petitioner’s claims for relief were denied, the temporary restraining order was dissolved and the respondent's motion to dismiss was granted primarily on the grounds that 10 (b) (3) deprived the District Court of jurisdiction.
On April 30, 1968, subsequent to the litigation, the Appeal Board for Connecticut confirmed the classification of the petitioner's I-A.
Prior to that time had passed his physical examination and was ordered to report for induction.
He has not reported for induction based on stays obtained by the District Court subsequently by the Court of Appeals and eventually by this Court.
The rationale by the Court of Appeals in upholding the action of the District Court was geared clearly to differentiation which it drew between this Court's decisions and Oestereich and in Gabriel.
The Court held that Oestereich was distinguishable based on a demarcation between exemption and deferment under the statute with extremely heavy reliance upon Gabriel.
Petitioner contends that the essential error below is in the failure of the majority in its opinion to identify the case as it should have with Oestereich rather than with Gabriel.
We submit that the Oestereich case clearly and unmistakably controls the case at bar and we submit this initially for factual reasons because the salient facts in both Oestereich and in a case at bar are absolutely identical in at least seven respects.