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

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?

Michael B. Standard:

He has been, well, in 1960 — He completed his internship in 1967 in June, I am sorry 1968 in June and he has been a doctor since then.

He is now 31 years of age, Mr. Justice.

Harry A. Blackmun:

So he has been a physician, a licensed physician for three years.

Am I correct in my impression that prior to that time, he induced an interest in Political Science and even registered in Columbia or some place and its borders?

Michael B. Standard:

Yes, that is correct.

Harry A. Blackmun:

And then reversed his direction, and went to Medical School?

Michael B. Standard:

That is correct, Your Honor.

Warren E. Burger:

When would you assess of the time that his claim ripened?

Michael B. Standard:

I would say that it ripened at the moment when he wrote to his Board, although it is quite clear and his application makes quite clear in terms of the length of time that it took him to get to that position.

I would say that the day you would fix it would be the day when he makes that day in 1967, when he wrote to his Board saying my claim has matured and history of the registrant in this regard is quite pertinent.

The registrant has and reflected in the CO application, a traditional Lutheran background.

Harry A. Blackmun:

In that connection which Lutheran Church, there are many?

Michael B. Standard:

Well, I do not suggest that he has ever been a formal member of the Lutheran Church in recent years and I cannot tell you which.

I am not a Lutheran myself Your Honor.

I never thought to inquire Mr. Justice Blackmun as to which —

Harry A. Blackmun:

You do not know whether it’s Missouri center or Wisconsin center Lutheran Church of America that he —

Michael B. Standard:

I am sorry I do not know that, but the petitioner does not rely on a particular sect that he or his family may have been a member on.

In coming to his conscientious objector position, he refers to early training by his parents, early and attentive training by his parents in the Church tradition.

He refers to his matriculation (Inaudible) College to his activity in the civil rights movement and finally to the vocation of Medicine which for him reflected a vocational method of acting out of his views with regard to non-violence.

His application in response to the question; do you believe in the Supreme Being, was answered in affirmative.

In addition to the strict religious basis for his application however, he referred to a broader moral standard, he believes that man believed, the members in the community among men and then one cannot take right under any circumstances.

It is certainly clear, although I do not think it is an issue in this case because the posture of this case at this moment as I understand it is that there is no question about the propriety of his classification of processing.

What we are here doing is attacking an appellate regulatory procedure which is riven with due process violations.

The application which he filed with Board, however, between September and November of 1967, was supported by reference letters from regiment, from the Dean of the Medical School, from colleagues and from friends, all of them are testing for two things; first to his sincerity and second to the nature of his belief.

In November of 1967, Fein appeared, when interviewed before his Local Board, at that interview, he was canvassed, rather carefully in detail as what his reference letters with regard to the nature of his religious belief and to whether he would perform alternative service that is alternative non-combatant service.

Fein unequivocally took the position at that time that he would perform any work in the national interest, any where in the United States.

He expressed the hope that he might use his capacity as physician to aid in some activity preferably in a ghetto constituted area and in addition parenthetically, he said, my wife is a physician and if we could find a place to work together that would please us, but is not necessary.

He was then asked about the nature of his religious belief and unequivocally asserted a belief stated in both traditional Supreme Being, Pre-Seega (ph) and in Seega — I suppose what we would now call (Inaudible) in Seega terms, relying on the moral attack.

The Board in response to the II-A classification which the registrant then held said, “we will not find you a conscientious objector at this time.

We will retain you in your II-A classification” and it said, “we will give a right to appeal when and if the moment ever comes.”

Michael B. Standard:

Well, that moment did come.

In February of 1968, the registrant was re-classified I-A from his II-A classification and in timely fashion, he asked his Board for another personal interview.

The Board granted that interview on May 22.

In anticipation of that interview, the registrant filed with the Board a series of answers to questions which appear to be troubling the Board at its earlier November interview, particularly those with regard to the position of a Lutheran Church.

You will find that I believe annexed to the government’s brief at page, I do not have the citation, I am sorry, Your Honor.

The substance of the second meeting before the Local Board was similar to that of the first.

They asked if he would perform an alternative service and he said, of course I would.

They asked the nature of his religious belief and series of other questions which he apparently answered satisfactory because his Board on that day, May 22, 1968, gave him his conscientious objector classification.

Ten days later, the State Director appealed to the New York State Appeal Board.

Procedurally, what the State Director did was to notify, not the registrant of that fact, but notified the Appeal Board and the Local Board and it is the Local Board which in turn notifies the registrant.

As soon as the registrant became aware that there was an appeal taken, after a finding by this linchpin of the Selective Service System, the Local Board, that’s phenomena which is your friends and neighbors, your community, a theory of none of that.

The registrant wrote to the Appeal Board and said I do not understand this and I now bewildered and surprised, but I would like an opportunity to get a statement of reasons from the State Director or from the Appeal Board.

I do not know what it is that he has in mind when he in effect reverses, or appeals from a finding of I-0 classification, no pertinent response to that letter.

Secondly, registrant inquires of the Appeal Board, what are the issues?

What are the reasons?

No pertinent response from the Appeal Board.

Registrant then says, I like a chance to appear before the Appeal Board or at least to rebut somehow issues which are in the dark.

No pertinent response except for a minute of action, dated in July which in effect revoked his conscientious objector classification by unanimous vote and returned him to a I-A classification.

Now, by Selective Service Regulation, a registrant has no right to appeal to the Presidential Appeal Board unless there has been a dissent below.

The registrant nevertheless wrote to the then Selective Service, Director General Hershey and described his case and asked the good offices of General Hershey in asking the Appeal Board to review his case.

General Hershey did so, although he made no recommendation of any kind, although he nor the Appeal Board nor the Presidential Appeal Board never stated what issues, there were present as a reason to the appeal, never stated any reasons, that is the Appeal Board never stated any reasons.

Following transmission of the file, the Presidential Appeal Board unanimously, stating no reasons, found that the registrant should be retained in a I-A classification.

It is important to remember, particularly in terms of issue of standards to raise this question that in this period, two things occurred, in a period of May though October.

Number one, the registrant was ordered to report for induction, That notice report for induction as must by regulation was postponed during the appellate process and eventually canceled.

In February of 1969, this action was brought in District Court of Southern District of New York.

Judge Tyler never reached the merits of the case at all, never reached the question of the constitutionality in due process terms of the appellate regulatory scheme.

He expressed uncertainty to be sure about the findings of this Court in its per curiam opinion in Boyd against Clark, but said Clark against Gabriel controls 10 (b) (3) is a bar.

On appeal to the Court of Appeals, there were three decisions.

Judge Blumenfeld sustained what Judge Tyler did below, namely he said 10 (b) (3) is a bar.

Judge Blumenfeld suggested that merely because issues were framed in a legal manner that that would not permit us to avoid the questions of classification by processing which he found that we were attacking.

Michael B. Standard:

Let me repeat, we are not here today nor we have been or have we been in any court, attacking the question of propriety of classification in any manner.

We are rather attacking the method used by this complex Selective Service Regulatory Body.

We are attacking the standards or the lack of standards rather in the sense that they never framed any issues, a registrant is always in the dark.

Potter Stewart:

Specifically, you are attacking the Due Process integrity of the administrative appeal process?

Michael B. Standard:

That is correct.

Now that led to be sure to ascertain result and led to a revocation, but we attack in the process only, not the finding.

We are not doing what Congress has warned us against.

We are not introducing litigious interruption into the process.

What we are trying to do in fact is to avoid litigious interruption of that process.

What we are trying to do is to say as Justice Steel (ph) said in the Wiener case where there was a similar question of the propriety of appellate review by the State Director, send it back to the local Board, let him know the reasons.

In fact, there are perhaps four or five cases in which issues of similar construction of the appellate regulatory system had been at issue.

One of them, just a year ago Mr. Justice Blackmun said in United States against Cummins, I do not know if Your Honor recalls it, in which you concurred in a finding that there was a violation of procedural Due Process.

Issue on that case was only slightly different.

In that case what had happened was that the registrant had been the subject of an appeal by the State Director and there had been a statement of reasons, but he had never been notified, never been notified of what the State Director’s position was.

Now, I think that the statements of the fact to this case effectively states the due process argument.

I do not want to burden the Court with reference to the cases which we have briefed which we feel are particularly relevant here.

I think this case can be dispose of on the merits, that is substantive merits, by referring to Simmons and Gonzales and where general cases regarding the process such as Goldberg against Kelly.

Now, we come to the procedural question which is of some importance.

It is our view that given the new statute to which I have referred, Congress has enshrined in effect the constitutional standard which we have always argued was implicit, implicit in the 1967 Act and we suggest that this case be remanded to the Appeal Board of the Selective Service System who are processing inconsistent with the standards which we now know, which we had always argued what Constitutional standards but which Congress has now set aside.

Potter Stewart:

You are not suggesting that that statute was by its term or by implication retroactive, are you?

Michael B. Standard:

Well, that is a puzzle Your Honor, I cannot pretend since the Act, and it was effective on September 28, we haven’t done any thorough search, but I can refer Your Honor to two cases, where apart from the retroactivity with regard to other Selective Service registrants who are somewhere in the process, I do not refer to them at all.

Now, with regards to find, it has been and this Court reflected in U.S. against Alabama which you’ll find in 362 U.S. and in Ziffrin against the United States which you’ll find in 318 that where there is a change in the law between the Court of original jurisdiction position and the Appeal Court’s position that the new law applies and we suggest that it applies here.

Potter Stewart:

In this case —

Michael B. Standard:

In this case —

Potter Stewart:

— even though —

Michael B. Standard:

— it applies to our reply in this petition because there has been a change between the —

Potter Stewart:

And this case is still pending?

Michael B. Standard:

That is correct.

I take no position because I do not pretend to have briefed the question of retroactivity for others.

Now, should this Court find that the new statute not apply, and I cannot find any reason why you might, but should you find that it does not apply, we are back to the laws which this Court in Oestereich and Breen placed on Section 10 (b) (3).

Michael B. Standard:

The Court will recall that in those two cases, one case of ministerial exemption, one case of student deferment, there was an explicit statutory authorization giving both of those classifications and the Local Board as this Court have found, in a majority of this Court found in an excess of its authority, that there was a Local Board which was in excess of its authority, reclassify and accelerated deduction.

Now, if we are back to the old problem of Oestereich and Breen on one hand, and Clark versus Gabriel on the other hand, I understand that we do not attack classification for processing here.

We are only attacking an appellant regulatory scheme.

Then I suggest, this is clearly within the Oestereich decision by statute, when a Local Board, it is a registrant conscientious objector status on statute that is final, unless an appeal is authorized by rules and regulations and here if you refer back to that appellant regulatory scheme, you will find no authorization except the generality, which describes just rules and regulations.

It seems to me in a case which transients so clearly in an area of personal liberty, there have to be as in (Inaudible) against Dallas.

There have and to be standards which are explicit.

Now, Congress understands that quite clearly because in the new Act, it does not merely say, there is a right to appear before an Appeal Board or you have a right to written findings or written reasons rather.

What it says is pursuant to such rules and regulations as the President may prescribe and then it creates the standards, but nowhere in the 1967 Act are there any standards which are authorized by Congress.

So I believe that we are in a classic Oestereich situation with regard to the burden of the government’s argument which has been that there really is burden here of question classification of processing.

I notice that the Solicitor General finally at page 13 of his brief agrees that this Court supports our position.

It says this Court is not now called upon to determine whether the assigned classification is wholly without factual basis.

I would point that parenthetically that while we are not asking the Court to deal with question of classification, but the government seems to suggest, although its silent as to reason that there was no prima facie case made out here or conscientious objector classification.

Now, maybe there is something that I do not know about.

Maybe, although it does not appear on the record, the record is silent in this regard, the government has unequivocally taken the position that there was no statement given by the State Director to the Appeal Board.

If that is so, I do not understand how it can, as it does in this Court, can test the validity of the CO classification.

Was there an oral communication which is not part of the record, we do not know.

That is precisely why the Due Process Standards we are urging here are as important as we feel they are.

This is not, however, merely a case of prima facie classification.

Here we had a Local Board, having come to a conclusion that a registrant was classifiable as I-0.

I would suggest the Court that it either do one of two things; that it apply the New Public Law 92-129, follow the standards there set in, refer this back to Selective Service System for review in light of those standards, that pending that the District Court reinstate finding his I-O classification, that is number one.

Alternatively, although the relief we believe should be the same that it apply the standards that it has recited as the laws in Oestereich and Breen to 10 (b) (3) of the Act, that it understand that we attacking a system of classification, not classification itself.

Warren E. Burger:

Mr. Standard?

Michael B. Standard:

Yes sir.

Warren E. Burger:

Before you sit down, I like you ask you just one question.

Is there any legislative history on this recent amendment that would suggest that the new provisions are made extra support you say was previously implicit?

Michael B. Standard:

Yes, but I confess Your Honor because of the newness of the statute that while I had begun what is now a 2000 case search to canvass both the senate hearings and the house hearings, I find only two references and in going through the senate.

The only testimony which explicitly suggested that these appellate rights, these procedural Due Process Rights, both the Appeal and the Local Board were authored by Mr. (Inaudible) of the American Civil Liberties Union.

There is however —

Warren E. Burger:

(Inaudible) Well, that wouldn’t necessarily have the same –-

Michael B. Standard:

No certainly not.

Michael B. Standard:

There is, however –-

Warren E. Burger:

As Congress adopted the view?

Michael B. Standard:

That is true and I do not pretend that the search has ended as it just begun, given the newness of the statute and I would be glad if the Court desired to brief that and ask permission to do so.

There is however, in the 91st Congress First Session, a study made of the Selective Service System with recommendation for administrative improvement.

That was submitted by the administrative practice and sub-committee on administrative practice and procedure to the Senate Judiciary Committee and there you will find and particularly on pages or it would be the Section running 9 through 11, you find precisely these recommendations, are those of course not followed.

It was followed by the Conference Report here for example.

One of the issues raised was the right to counsel at the Local Board appearance.

Congress in a Conference Report did not adopt the recommendations for administrative improvement made in the study I have just referred to, but rather took the position that it would really impede the selective service classification process, and therefore, did not adopt that.

The other four recommendations, however, of the Senate Committee were adopted at the Conference.

Potter Stewart:

Mr. Standard, there is an issue that seem to interrupt the Court of Appeals a little bit, was this problem of the jurisdictional amount requirement of a Section 1331, Title 28, you can leave that to your brief?

Michael B. Standard:

I have briefed that question, Your Honor.

I will be glad to allude to it briefly in the following ways.

First there was a classic and standard answer, there has been an allegation in this complaint of damage of $10,000.00 amount controversy and I do not think it can be gain set by anyone or is it that this petitioner can meet that statutory requirement.

I think however that they are words are here, a constitutional question of the proportion, if this action had been begun in the District of Columbia, it would be $10,000.00 jurisdiction on that as Congress does not impose that amount.

In the District unlike every other District in the United States, more importantly and I think the full answer is, full answer I choose to give was that given by Judge Angelstein (ph) in dissent below in the Three-Judge Court in Boyd against Clark.

I do not believe you can exalt a 19th Century notion of property in cases where substantial federal rights are at issue, I think the government has acknowledged that there are substantial federal rights at issue here and I do not think that 1331 should adhere to be a barred against the jurisdiction.

Potter Stewart:

You say it is unconstitutional?

Michael B. Standard:

I would say —

Potter Stewart:

You do not think you can exalt, you mean, you do not think the Congress can constitutionally exalt the 19th Century notion of property?

Michael B. Standard:

Well, I — let me amend that, I think it can.

I think it’s (Inaudible) when it does.

Harry A. Blackmun:

Mr. Standard, in the appendix on 89 (f), is reproduced an affidavit by you in which you direct comment to a so-called “brief” by Miss Jacqueline Jones intimating that this is for some kind of petition of information placed in the file by the Board.

Do you recede from that position at this point?

Michael B. Standard:

Do I recede from the position that that was in fact what occurred, no, Your Honor, not at all.

I have never seen that.

It has been characterized by the then United States Attorney Martin Solomon as merely a summary prepared by the Clerk to enable the Appeal Board to understand what the issue is.

You will find his affidavits, I believe on the pages following.

You will find on page 89 (i).

I certainly do not recede, but that is not the kind of notice which I think that both the Constitution then and always and Congress now requires.

Harry A. Blackmun:

Well I get from your affidavit that you are in insinuating that there is additional information in this brief?

Michael B. Standard:

Well, what had happened was that subsequent to the argument before Judge Tyler in this case, in reviewing the record, I found a letter which was dated June 20th from — which was then from the clerk of the Local Board to the Appeal Board and it said, “please be advised that we have already made up the brief on the above named subject and is to go into today’s meeting.”

I, therefore, submitted a post argument that is post the argument before Judge Tyler, affidavit, indicated that it was the central to the government’s position, but that nothing else had happened and now I find that indeed something else had happened, there had been some notification and the Assistant United States Attorney in response then said that there was nothing which was meritorious, something which went to the substance in that regard, but rather was merely a synopsis by the clerk to the Appeal Board in this process.

Harry A. Blackmun:

Well I gather a doubt that you are insinuating that this is a lawyer’s brief that was submitted?

Michael B. Standard:

No.

Harry A. Blackmun:

Are you receding from that position or that statement is incorrect?

Michael B. Standard:

No, I think Mr. Justice Blackmun, you have misunderstood if you thought I was insinuating.

It was a lawyer’s brief, by I used the phrase brief in a colloquial sense, that is it was a synopsis, a play stick if you will, of what was going to be presented to the Appeal Board.

It was prepared by a non-lawyer, a clerk not by anyone of the State Director’s Office, of that I am satisfied.

Harry A. Blackmun:

Well are you still then dissatisfied with the Assistant U.S. Attorney’s affidavit and I read, “it is merely a summary of the registrant’s Selective Service file?”

Michael B. Standard:

No, I am not dissatisfied with that, Your Honor.

Potter Stewart:

Of course any summary would necessarily involve editorial judgment?

Michael B. Standard:

That would have, yes Your Honor.

Harry A. Blackmun:

Or it maybe merely a listing of the docket entries?

Michael B. Standard:

I am sorry.

Harry A. Blackmun:

Or it maybe merely a listing of the docket entries?

Michael B. Standard:

Well, I think if it were a listing of the docket entries which are ordinarily attached to the coversheet and where as I understand appellate practice, that would never occur.

I think it would have been referred to as docket entries, but I think the use of English language is simple.

I mean, when the word “brief” is used it means a brief, although not necessarily in a lawyer sense, if docket entries were sent up, it would be called docket entries.

Harry A. Blackmun:

Well this suggests you say a young lady who was the clerk of the Board?

Michael B. Standard:

She was the clerk of the Board and she could have made an error.

The record is silent in that regard, we really do not know.

Warren E. Burger:

Mr. Solicitor General.

Erwin N. Griswold:

Mr. Chief Justice and may it please the Court.

This case can become quite complicated and I am going to try if I can to present it in a somewhat simple form insofar as there is a constitutional question in it.

It seems to me to be essentially one of the framework within which this Court sits, that is the separation of powers, the proper function of this Court with respect to the functions of specifically Congress in this case.

The case I believe turns on the application of two relatively simple statutory provisions which are quoted on pages 2 and 3 of our brief.

First is the jurisdictional amount provision to which Mr. Standard referred at the close of his argument and which is discussed at the close of our brief.

The District Court shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000.00.

Now, there is not trace of evidence in this case that $10,000.00 or any other amount is involved and the argument made by Mr. Standard in his brief is in essence that that provision really should not be taken seriously.

Maybe it is unconstitutional, though he was not willing to say that it was unconstitutional this morning that at any rate at 19th Century anachronism and the Court shouldn’t really pay much attention to it.

Erwin N. Griswold:

Now, it maybe wise or maybe unwise —

Potter Stewart:

There was an allegation, however, in his pleading that —

Erwin N. Griswold:

There is an allegation in the pleading, but the nature of the transaction is such that it is not susceptible to monetary evaluation.

It is like the question this Court decided a century ago that custody of a child which can be a crucially important matter is not susceptible of monetary evaluation and –-

Potter Stewart:

Two years of military pay as contrasted with two years income as a physician (Voice Overlap)?

Erwin N. Griswold:

Two years of military pay as a physician is considerably higher than two years of military pay as a first class private and this man would have gone in the service as a Commissioned Officer with pay and allowances and besides I am not sure that is the proper measure –-

Potter Stewart:

Well, I am not either.

I was just suggesting a possibility?

Erwin N. Griswold:

in a case such as this.

I merely suggest that if the District Court did not have jurisdiction, this Court does not have jurisdiction and there is something to be said for not giving advisory opinions on important and difficult questions of Constitutional Law in cases in which the jurisdiction is not established.

Thurgood Marshall:

Mr. Solicitor, how about Hague against the CIO?

Erwin N. Griswold:

How about —

Thurgood Marshall:

Hague against CIO?

Erwin N. Griswold:

In that case, the majority of the Court claimed, (Voice Overlap) they made it clear that it was not proceeding under this Section because it felt that the jurisdictional amount could not be there and it found a way to proceed under another Section which is not available here.

So I think that the Hague case rather supports the position I am taking.

I would not want to be misunderstood.

if I were a member of Congress which I am not, it seems to me that this provision might will be reconsidered with respect to cases of this type, but it is what Congress has provided and Congress has not made any change in it and I find it difficult to see why the Court should not respect it and carry it into effect.

Now, the other statutory provision is Section 10 (b) (3) of the Selective Service Act which has been before this Court in a number of cases and which is quoted at the bottom of page 3 of our brief.

No judicial review shall be made of the classification and here I emphasize the next two words “or processing.”

Mr. Standard has said he is talking about the procedures used here and I suggest that “or processing” could not be clearer expression of the intention of Congress that the procedures shall not be subject to judicial review of any registrant by Local Board, the Appeal Board or the President except as a defense to criminal prosecution after the registrant has responded either affirmatively or negatively to an order to report for induction.

The question in this case it seems to us is really the construction and application of Section 10 (b) (3) and let me point out too that the ultimate question is simply one of timing.

If Mr. Standards has substantial questions to raise on behalf of his client, we do not contend that there is not a place where they can be raised.

We are not contending that these questions are forever foreclosed from judicial review.

Our position is simply that they cannot consistently with the enactment by Congress, an enactment properly made by Congress in its judgment, both with respect to its power to control the procedures in the Lower Federal Courts and with respect to its powers to raise and maintain armies.

That Congress has provided that no judicial review shall be had of the classification or processes except after either an affirmative or negative response to an order to report for induction.

Now obviously of course this turns on several cases which have recently been before the Court.

The first of which and the one I suppose most relied on by Mr. Standard is the Oestereich case and I would point out that that case is markedly different from this case.

I would point out too that Justice Stewart wrote a dissenting opinion in that case in which Justices Brennan and White concurred, in which they said that there was no inherent or inevitable conflict between the statutory provisions which were before the Court.

The position which was taken by the government there was that 10 (b) (3) said no judicial review shall be had, but there was another provision in the statute which said the students of theology “shall be exempt from training and service under this Act.”

And then they struggled in my mind which went on in connection with that case, I found those two provisions, though not necessarily, inherently inconsistent, so close to inconsistent that I found it impossible to support the literal construction of Section 10 (b) (3) in that situation.

Erwin N. Griswold:

The then Director of the Selective Service System was unhappy about that and he may well have been more farseeing to see cases such as this over the horizon.

I recognized that the conflict was not absolute or literal as was pointed out by Mr. Justice Stewart’s opinion, but I ascertained that if this case went forward, that the criminal division of Department of Justice would not institute a criminal prosecution against the man where the statute provided that he shall be exempt from service or training under this Act.

It was perfectly clear in my mind that if one, if such a prosecution that were instituted and if that is true to the Solicitor General’s Office, that I would confess there in such case and I had little doubt with the Court would support such a confession in view of the express provision of the statute.

And referring to an opinion of this Court in a grab case some 20 years ago where it was said that it was unnecessary to walk-up the hill then march down again.

I felt that the conflict was so close that a construction of Section 10 (b) (3) was called upon and I point out that that problem arose only because there were two statutory provisions, at least nearly in conflict with each other, there is nothing of that sort here.

Now, that —

William O. Douglas:

In the 1971 Amendment, was any effort made to change the rule in that case?

Erwin N. Griswold:

No Mr. Justice, the only substantive amendment in the Draft Act that was made or at least the only one that is anywhere near that, near this case is the addition of Section 22 at end which contains these provisions which Mr. Standard referred to and to which I plan to make a reference a little later in my argument.

Potter Stewart:

But 10 (b) (3) was the statutory enactment —

Erwin N. Griswold:

10 (b) (3) is an unchanged.

It is entirely unchanged, no reference to it in the statute.

Now on the same day, that Oestereich was decided, there was also decided Clark against Gabriel which it seems to me clearly supports the position that I have taken that Oestereich turns on the clash on the presence of two virtually inconsistent provisions, shall I say practically inconsistent provisions with respect, that I fully agree they were not literally inconsistent, that I felt that they were practically so and the majority of the Court and took that position.

Clark against Gabriel involved a pre-induction effort to enjoin inductions with respect to a claim of conscientious objector and the Court held that 10 (b) (3) barred that position.

I might also point out in the Oestereich case itself, Mr. Justice Harlan concurs in the judgment on ground which are very close to the position of Mr. Standard today.

I think perhaps over simplifying it, it was on the ground that if it was a question of fact, there couldn’t be an injunction, but if there was a question of law, it could be.

But that view, so he repeated it in the Gutknecht and Breen or particularly the Breen case, was not adopted by any other member of the Court and then the case which I think is the closest to this case, was decided only a few week later than Clark against Gabriel and that is Boyd against Clark.

That is a per curiam opinion of the Court, two to three lines long, bypassing the jurisdictional amount question, but otherwise simply affirming the judgment of the Court below.

But Boyd against Clark was a pure question of law.

There was a question and it was suggested there for enjoining inductions that there was unconstitutional discrimination against non-college students in that they perhaps because of inadequate financial support were subjected to the draft while college students were deferred.

That contention was denied by a three-judge District Court which also dismissed for want of jurisdiction on the jurisdictional amount question.

An appeal was taken to this Court and this Court affirmed per curiam without reaching the question under Section 1331 which is the jurisdictional amount cases.

And then finally, the construction of 10 (b) (3) which I am urging here, it seems to me is confirmed by the Breen case in 396 U.S.

Both the Oestereich and the Breen case grow out of delinquency reclassification.

Oestereich case involved a statutory provision which said that the individual shall be exempt.

Breen case involved a situation where there was no doubt, no contention that the individual was a bona fide full time student and the statute as then said, then read that, that such students shall be deferred and the contention was made before this Court that there was a difference between a deferral and in exemption.

Formally, I think one can make that difference.

Potter Stewart:

But the Court of Appeals had held so?

Erwin N. Griswold:

And the Court of Appeals not in the Breen case, yes, Mr. Justice in the course of the Breen case, the Court of Appeals had made that —

Potter Stewart:

Had finally —

Erwin N. Griswold:

— had made that distinction.

Erwin N. Griswold:

I find it little confusing to put Gutknecht and Breen separate, but Gutknecht has nothing directly to do with this because it was a criminal case, not a 10 (b) (3) case and the Court held that there was no difference between an express statutory provision by Congress that Oestereich should be exempted and that Breen could be deferred.

I think perhaps some of the trouble in latter cases as come from, shall I say somewhat broad language in the Oestereich case.

The Lower Courts have at sometimes quoted the words “blatantly lawless” from the Oestereich case and we find occasionally that anything that anybody finds that he can argue was not in accordance with law becomes “blatantly lawless” in order that it can be brought within the Oestereich case.

But the result of these decisions it seems to me is that Section 10 (b) (3) means what it says.

It should be read to mean what it says, except in situations where the Court finds conflicting provisions in the enactments of Congress.

Such conflicting provisions were found in Oestereich, such conflicting provisions were found in Breen.

They were not found in Clark against Gabriel where the issue underlying issue was one of the facts.

They were not found in Boyd against Clark where the underlying issue is one of laws and so I suggest that the issue in this case has in fact been decided by this Court in Boyd against Clark.

Potter Stewart:

Can you tell us again briefly Mr. Solicitor General what was the underlying legal issue in that case, I have the (Voice Overlap)?

Erwin N. Griswold:

In Boyd against Clark?

Potter Stewart:

Yes, in Boyd against Clark?

Erwin N. Griswold:

It was the question with respect to discrimination against non-student with economic undertones involved in it which is a question of due process and equal protection which is not unrelated to the procedural due process which is referred to as hearing.

Potter Stewart:

Now do I understand that as of today, if the State Director took an appeal as happened this case that there would be notice and an opportunity where personal appearance before the State Appeal Board under the new statute?

Erwin N. Griswold:

Under the new statute there would.

I hesitated only for a moment because the President has nurtured his regulation under the new Selective Service System.

Potter Stewart:

Alright, but let us assume that he would have a right to a personal appearance before the State Appeal Board and then let us assume that today a case come up like this one where he was denied a personal appearance.

He would not given notice and he was not given a personal appearance and his classification was changed to I-A as it was in this case and then he brought pre-induction review.

Would you say that 10 (b) (3) in that situation would bar pre-induction review where a statute expressly called for a personal appearance, but he was expressly denied it?

Erwin N. Griswold:

Well Mr. Justice, I have not had any chance to think about this in advance, but I think I would.

I think I would say that it was barred by 10 (b) (3) and you might say well, why isn’t this also a case of inconsistent statutory provisions and I think I would say, well, this is a — the inconsistency here relates to procedures, to the processed and 10 (b) (3) has expressly precluded.

Potter Stewart:

But if it weren’t barred by 10 (b) (3) then it probably would not be barred in this case either if there was unconstitutional requirement?

Erwin N. Griswold:

I agree Mr. Justice and let me reiterate that we are not suggesting that Mr. Fein cannot present his issues before a proper court at a proper time, in a completely impartial court at a proper time.

We simply say that 10 (b) (3) says that it cannot present it now.

It leaves them a difficult alternative, I agree, but that is the –-

William J. Brennan, Jr.:

You mean a proper court at a proper time, I gather (Inaudible) the suggestion can either be 8 (b) (4) (Voice Overlap)

Erwin N. Griswold:

Or in defense of a criminal prosecution and I agree that’s a difficult place, but it is a full day in Court before an impartial judicial tribunal.

These provisions in the statute which was enacted on September 28th, there is nothing in the statute to indicate that Congress intended that they should be in anyway retroactive.

The effective date of the statute is September 28th.

The only provision which varies from that is that the extension of the draft from July 1, 1971 to July 1, 1973 is expressly provided to take effect from July 2, 1971.

Apparently July 1 was included in the previous statute.

Erwin N. Griswold:

I might give the reference.

I have here the Conference Report which is Report Number 92-432, House Report Number 92-433, these Amendments were made in the Senate.

They were not included in the House of Bill and the Senate included a fifth provision which provided for counsel before the Draft Board.

The Conference Committee, the report reads after extensive discussion, the House contraries agreed to accept the Senate Amendment with regard to items 1, 2, 3 and 4 and items 1 and 4 are the ones to which Mr. Standard refers.

(Inaudible)

Erwin N. Griswold:

I have found them to be very prompt, but —

Are the (Inaudible)

Erwin N. Griswold:

I have not tried to find it in your library.

Mr. Reynolds found it for me with a considerable amount of difficulty, but found it.

The Senate contraries pointed out that under the language of their Amendment, these rights would be granted pursuant to such rules and regulations as the President may prescribe and the regulations under which the rights were granted should be drafted in such away as the preclude abuses and obvious delay in taxes.

The Senate contraries pointed out further that the right to present witnesses is specifically subject under their Amendment to reasonable limitations on the number of witnesses and the total time allotted.

With the understanding, therefore, that the regulations implementing these provisions will be drafted in such away as to protect the orderly and the efficient functioning of the Selective Service System and not result in an unreasonable burden on Local Draft Board, the House accepted the Senate position on items 1 to 4 and then the Report goes to say that the Senate receded from its position was respect to counsel because of concern about two things that it would impose a serious procedural burden on civilian draft boards and that it might provide inequity in that some people with economic status which enable them to have to counsel or more effective counsel than others would have.

William J. Brennan, Jr.:

(Inaudible) the new law I gather is not very different from (Inaudible)

Erwin N. Griswold:

Well, he may attach — the person appealing may attach to his appeal.

In this case, was the State Director of Selective Service who appeared and we agree that if he had attached a statement of —

How can he review without a statement?

Erwin N. Griswold:

He simply sent a letter to the Court saying “I appeal.”

Without proceeding?

Erwin N. Griswold:

Without proceeding any position whatever which is the way it is usually done.

What that means is that the file is then transmitted to the Appeal Board and the Appeal Board treats the file as we lawyers would say as trial de novo and considers the whole thing as —

There is no argument?

Erwin N. Griswold:

No argument, no appearance before either the –-

No statement of the position?

Erwin N. Griswold:

No statement of position.

That is rather almost beyond (Inaudible)?

Erwin N. Griswold:

Well, Mr. Justice I am afraid I cannot accept that as it must have been done in hundreds of thousands of cases over the past 25 years and on the whole it has worked pretty well.

Not even in the position (inaudible)?

Erwin N. Griswold:

Well, I take it that the effect of the appeal does indicate that somebody thinks that it ought to be looked into.

I may say it does not necessarily mean that they wanted to reverse in this particular case.

After mystifying laws in the State Appeal Board, he lost unanimously and under the regulation he had no right to appeal to the Presidential Board.

Erwin N. Griswold:

He wrote to the Director of Selective Service and the Director Selective Service took an appeal for him.

I have no reason to believe that the Director of Selective Service thought that it ought to be reversed.

He apparently thought that it ought to be reviewed and it seems to me entirely appropriate for the administrative officer and say to the tribunal and we think this is a matter which ought to be reviewed without putting any weight as to which way it ought to go and I think that that is juxtaposition here.

In any event, it is a part of the procedure.

It is a part of processing of the registrant’s case and that is precisely what Section 10 (b) (3) says that it should not be subject to a judicial review and we submit that is in effect what this Court decided in Boyd against Clark and that this is fully consistent with the Court’s decisions in Oestereich and Breen.

Warren E. Burger:

Thank you, Mr. Solicitor General.

Thank you, Mr. Standard.

The case is submitted.