Fein v. Selective Service System Local Board No. 7 of Yonkers, New York

PETITIONER: Fein
RESPONDENT: Selective Service System Local Board No. 7 of Yonkers, New York
LOCATION: Georgia State Capitol

DOCKET NO.: 70-58
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 405 US 365 (1972)
ARGUED: Oct 12, 1971
DECIDED: Mar 21, 1972

ADVOCATES:
Erwin N. Griswold - for respondents
Michael B. Standard - for petitioner

Facts of the case

Question

Media for Fein v. Selective Service System Local Board No. 7 of Yonkers, New York

Audio Transcription for Oral Argument - October 12, 1971 in Fein v. Selective Service System Local Board No. 7 of Yonkers, New York

Warren E. Burger:

We will hear arguments next in 70-58, Fein against the Selective Service System.

Michael B. Standard:

Mr. Chief Justice and may it please the Court.

I would like to introduce David Rosenberg on common brief in this case.

This case is here by a writ of certiorari to review a decision of the Court of Appeals for the Second Circuit which affirmed the finding of the District Court that it had consistent with the standards of 10 (b) (3) of the Military Selective Service Act of 1967.

No jurisdiction to review actions of the Selective Service System which removed a conscientious objector classification, given to petitioner by his local Board and I should alert the Court at the outset to the fact that since the briefing in this case on September 28 of this year, Congress has enacted a new statute.

You will find only cursory reference in our reply brief filed on Friday of the week just passed to that statute.

That statute will become I think of considerable comments as the argument unfolds.

What about the change?

Michael B. Standard:

What Congress has done is to suggest that it is now its policy that a fair hearing shall be given to a registrant.

I will read the pertinent portion of the brief.

“It is hereby declared to be the purpose of this Section to guarantee to each registrant, asserting a claim before a Local or Appeal Board, a fair hearing consistent with the informal and expeditious processing which is required by selective service cases.”

It then goes on to recite four particular standards which it suggests should be the basis for --

What does this citation (Inaudible)?

Michael B. Standard:

It is Public Law 92-129, Your Honor and its effective date is September 28, 1971, just two weeks ago.

Public Law?

Michael B. Standard:

Public Law 92-129, growing out of HR6531, the same session.

It then recites four particular instances which shall be standards used by the President or the Selective Service System to create reasonable rules and regulations.

Two of those standards are of prominence in this case because in effect it is the enshrining by Congress of the due process arguments which we have made in our brief.

I will read those two, they are brief: “Each registrant shall be afforded the opportunity to appear in person before the Local or any Appeal Board of the Selective Service System to testify and present evidence regarding his status.”

And the second applicable regulation that is statutory provision, “in the event of a decision, adverse to the claim of a registrant, the Local or Appeal Board in making such decision shall upon request, furnish each registrant a brief written statement of the reasons for its decision.”

Mr. Standard, (inaudible)

Michael B. Standard:

I am sorry, Your Honor.

I said a cursory mention was made in petitioner’s reply brief.

But not the text that you have read?

Michael B. Standard:

Well, you will find the text I believe on page 2 of the reply brief.

At least the text of the provisions I had just read to you.

The fact is just simple and they are not in dispute essentially.

The plaintiff is a Doctor of Medicine.

In September of 1967, while occupationally deferred as an intern at Western Reserve Medical School, holding a II-A classification, he wrote to his Board and he indicated to his Board that moral convictions are empty unless substantiated by moral acts and he asked his Board to send him a 150 conscientious objector application form.

Harry A. Blackmun:

Mr. Standard, how long has he been an MD?