McGee v. United States

RESPONDENT:United States
LOCATION:Edward Coolidge’s Home

DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 402 US 479 (1971)
ARGUED: Feb 23, 1971
DECIDED: May 17, 1971

Facts of the case


Audio Transcription for Oral Argument – February 23, 1971 in McGee v. United States

Warren E. Burger:

We’ll hear arguments next in Number 544, Commissioner of Internal Revenue against Lincoln Savings and Loan.

Excuse me, I’m one case off.

We’ll hear arguments in Number 362, McGee against the United States.

Mr. Levine.

Alan H. Levine:

Mr. Chief Justice and may it please the Court.

This case is before you on writ of certiorari to the Second Circuit.

The petitioner seeks to review of convictions on four counts under the Military Selective Service Act of 1967.

The chief question presented by this petition is the question left open in McKart versus United States.

It presents the pure question of whether where a registrant presents a claim for conscious objection and that claim is denied without a basis in fact as the Second Circuit concedes here it was so denied, and where therefore, the classification — I-A classification and the induction order were illegal, is he barred from challenging that classification and induction order in judicial review.

In answering that question, no, we will assert two basic propositions.

One that the exhaustion of administrative remedies doctrine is inappropriately applied, whereas McKart suggested, its effect is not merely to delay judicial review, but is to deny it completely and we will defend, secondly, the proposition that if the exhaustion of administrative remedies is to be applied so harshly.

It must be applied with congressional mandate in that the Military Selective Service Act of 1967 to the contrary, does not limit judicial review in defense to a criminal prosecution, but in fact guarantees judicial review in defense to a criminal prosecution.

Petitioner, at the time of induction was a full time student at Union Theological Seminary.

He had registered for the draft in August of 1961 in New York City.

He had advised his local board at that time that he was preparing for the ministry.

In August of 1964, he enrolled in the University of Rochester the next month was a given a II-S deferment for all practical purposes kept that deferment until September of 1967.

In February 1966 while still at the University of Rochester and still possessing at II-S classification, he applied for conscientious objector status.

Pursuant to regulations, the local board deferred consideration of that application until he was no longer entitled to a lower classification.

In March of 1966, he got a letter from the local board to that effect that they would defer consideration of CO application.

In April of 1967, still at Rochester, still possessing a II-S, the petitioner wrote the President of the United States.

He enclosed in that letter remnants of a torn and burnt draft card.

Warren E. Burger:

Was he convicted of some criminal act in connection with that draft card?

Alan H. Levine:

It was not nor was he indicted in indictments under review here.

Subsequent to the trial in this case, he was indicted on two counts of destroying a draft card.

Those cases have not come to trial, Your Honor.

Warren E. Burger:

And that question isn’t before us at all?

Alan H. Levine:

It is not Your Honor.

He wrote to President in April 1967.

He advised the President that he would probably be entitled to a theological deferment.

Nevertheless, he said, “I must sever every link with violence and war.”

Alan H. Levine:

He expressed, “the fundamental belief that man must build and not destroy, love and not hate.”

As a result, he said that he could no longer cooperate with the Selective Service system.

In June of 1967, upon his graduation from Rochester, he was sent a current information questionnaire, SSS Form 127.

He returned that questionnaire unopened and said that he would return all future correspondence unopened.

In September of 1967, he was classified I-A despite his pending CO application.

He returned that I-A classification card.

Potter Stewart:

Now, that CO application that you just characterized as pending is one that been filed when he was student at University of Rochester?

Alan H. Levine:

That’s right in March of 1966.

This is —

Potter Stewart:

Three years or three-and-a-half years earlier?

Alan H. Levine:


No, this is September 1967 that I’m talking about.

Potter Stewart:

That’s year-and-a-half?

Alan H. Levine:


Potter Stewart:


At that time, the board had indicated that since he was — had a II-S student deferment, there was no need for them to consider the CO application?

Alan H. Levine:

In March of 1966.

The board chairman testified at trial somewhat ambiguously and it is a result of his testimony as to what the board did in March 1966 and September 1967 that led Judge Feinberg to conclude that in fact the board had never considered the application on its merits.

That in September 1967, according to the board chairman’s testimony, they had just reaffirmed their earlier decision.

Byron R. White:

But why did this happen against the (Inaudible)?

Alan H. Levine:

Presumably because they were aware from his earlier request for II-S that he was going to graduate in June of 1967.

Byron R. White:

He has his father with that form, there would have been place on to talk about his current status?

Potter Stewart:

It was a current information form.

Alan H. Levine:

It was a current information form and —

Byron R. White:

And what status he was claiming or?

Alan H. Levine:

Well, the board had before his claim as to conscientious objection.

Byron R. White:


Alan H. Levine:

It was a year and a couple of months before that that’s correct Your Honor.

Byron R. White:

If he had answered it, he would have been automatically claim a CO?

Alan H. Levine:

Well, if he had told the board at that time that he was no longer entitled to II-S, presumably in the course of normal procedures, the board would have considered his CO application at that time.

Alan H. Levine:

This current information questionnaire does not contain reference to conscientious objection.

He would have advised them I’ve graduated, I’m entitled — I’m no longer entitled to II-S and therefore, the board would have seen in his file that he had a pending CO application.

Presumably, according to the board chairman’s somewhat ambiguous testimony that is what they did in September of 1967.

They considered his entire file and to CO application.

As I said Judge Feinberg thinks that they did not consider his application on the merits at all.

The trial judge, however, found as a matter of fact at the close of trial that the application had been considered.

Byron R. White:

And rejected.

Alan H. Levine:


And rejected, that’s correct.

Petitioner did not appeal that classification.

Later that month, he enrolled in Union Theological Seminary.

In October of 1967, he was ordered to report —

Potter Stewart:

And he did — he received his I-A classification i.e. he did not send it back unopened?

Alan H. Levine:

He did send it back unopened, Your Honor.

Potter Stewart:

So, he didn’t even know that he have been classified I-A, is that — before that?

Alan H. Levine:

Presumably, he did not.

He sent back the I-A unopened, later that month enrolled in Union Theological Seminary.

In October of 1967, he was sent an order to report for physical examination, he returned that order unopened.

He was ordered to report for induction in January of 1968, he filled out a number of forms giving a variety of different kinds of information at that time.

He took a complete physical examination —

Potter Stewart:

So he did open that envelop?

Alan H. Levine:


Potter Stewart:

So he did open that envelop —

Alan H. Levine:

He did open that envelop.

He reported as ordered to report.

He gave the required information.

He took the required physical examination, passed the physical examination and refuse to submit to induction.

Potter Stewart:

Now, that was a physical examination given at the — by Selective Service or by the Military?

Alan H. Levine:

It’s given by the military for selective service.

It’s given at the arm forces entrance examination.

Potter Stewart:

But at the time of induction or quite awhile before?

Alan H. Levine:

No, this was at the time of induction.

His file was then forwarded to the United States’ attorney significantly with a recommendation of Selective Service that he be indicted only on two counts, refusal of induction and failure to possess his notice of classification.

Potter Stewart:

Is there any indication why he changed his mind regarding how he would deal with mail address to him by his draft board?

Alan H. Levine:

Why he opened the —

Potter Stewart:

He sent several of them back including his I-A classification, you said back unopened and then when there arrived other communication, one asking him — one directing him to report for a physical examination he not only opened the communication, but complied with it in part.

Is there any indication of why?

Alan H. Levine:

Not from the record, Your Honor.

I did not represent petitioner at that time.

Perhaps he spoke to legal counsel at that time.

I do not know and the record does not indicate.

Despite the recommendation of Selective Service that he be prosecuted on two counts, in February of 1968, the Government sought and obtained a four-count indictment.

The first count was the refusal of induction; the second, was for refusal to take the physical examination; the third, was the failure to possess the notice of classification and the fourth, for failure to submit the information requested on the classification from.

William J. Brennan, Jr.:

Incidentally, these notices of classification and to report for a physical, are they sealed envelops or are they post envelops?

Alan H. Levine:

They are generally envelops, I believe Your Honor.

Petitioner was found guilty in January of 1969 on all four counts and sentenced to two-year concurrent sentences on each count.

In March of 1970, the Second Circuit upheld the convictions, Judge Feinberg dissenting.

The three judges in the Second Circuit conceded that there was no basis in fact for the board to deny petitioner’s conscientious objector claim.

Nevertheless, they said that because he failed to exhaust his appeal remedies within Selective Service, they would decline to review the classification.

We point out first that the 1967 Military Selective Service Act of 1967 provides for review of classification “as a defense to a criminal prosecution.”

It does not qualify that right.

It does not condition it on exhausting administrative remedies.

It says rather that it can be raised and review can be had after a registrant has responded to an order to report for induction.

It’s important to note Your Honors that the Congress had before it the entire question of judicial review.

It is not an inadvertence that this aspect of judicial review is stated as it is.

They had it before it.

They considered the question of judicial review and limited only pre-induction review.

The question before this Court in Oestereich as a Senate Arm Services Committee said, “If the registrant does not submit to induction, he may raise as a defense to a criminal prosecution the issue of the legality of the classification.”

The effect of that Act is to guarantee judicial review in a criminal prosecution.

The Second Circuit conceded that petitioner was unlawfully classified.

Alan H. Levine:

Implicitly, it conceded that he was sent to jail for two years or it has been ordered to jail two years for violating an illegal order.

Potter Stewart:

The Court of Appeals’ theory that concession as you call it that your plan have been erroneously classified was based on his conscientious objector claim or other than on his attendance at a Theological school as I understand, right?

Alan H. Levine:

That is correct, they deal with that claim and I will touch on it briefly, but the major issue and the issue upon which Judge Feinberg relied in dissent was the conscientious objector issue.

Potter Stewart:

What then — well, I suppose — there’s some question I suppose about whether his mere attendance in the Union Theological Seminary was sufficient.

It’s not sufficient under the law, not mere attendance at the Theological Seminary, isn’t he?

Alan H. Levine:

Well, let me say briefly, Your Honor, that the congressional mandate for ministerial deferments under 6-G is I say —

Potter Stewart:

The school deferments?

Alan H. Levine:

That’s right, is mandatory.

He shall be deferred assuming he meets certain qualification.

That’s full time attendance under the direction of a recognized church.

Potter Stewart:

And studying to become a priest.

Alan H. Levine:

That is correct.

Now, McGee presented not directly to his board, but it can be inferred from the record that the board had notice, the fact that he was attending Union Theological Seminary.

He did not request the deferment.

Some cases have suggested that it’s not necessary.

We point out the difference between the language of 6-G, the language providing for student-deferments which requires an affirmative request by the registrant.

The language of 6-G is — shall be deferred.

The Second Circuit —

Potter Stewart:

Well, not for mere attendance though.

I thought you and I agreed.

We can assume a man who would just likes to go around philosophically and has plenty of time and money so he goes to various theological schools in order to increase his knowledge about comparative religion, has no intent ever become a minister of the gospel or a pastoral leader, but simply wants to increase his intellectual, philosophical and religious knowledge.

That man would be subject to statutory deferment, would he?

Alan H. Levine:

Absolutely, not Your Honor.

Potter Stewart:

And so far as the record shows that was the purpose of this fellow and your client excuse me in attending — I mean so far as the record shows, we don’t know that this was his purpose.

Alan H. Levine:

Well, the trial court found that he was in full time attendance and that he was pursuing a degree leading to study for the priesthood.

What the trial court did not find is that he was there under the direction of a recognized church since the Union Theological Seminary is not itself under the direction of a church.

It’s non-sectarian.

There was no evidence according to the trial judge in the record that he was there under the direction of a recognized church.

Potter Stewart:

And that’s the statutory requirement?

Alan H. Levine:

That is a statutory requirement.

Potter Stewart:

That’s a statutory exemption that’s necessary.

Alan H. Levine:

That’s right.

Now, we do suggest in our brief that Selective Service procedures under such circumstances authorize a board to look into the basis for a deferment and in fact, mandate that they do so when they had certain preliminary information.

The major point to which I would like to address myself on exhaustion question is that, it is a doctrine of judicial convenience to be applied flexibly that has its origin in affirmative litigation where a plaintiff comes in seeking relief and there are still administrative remedies to be exhausted.

Its — Professor Davis tells us it is a doctrine concerned with the timing of judicial review and that it is not imposed with absolutely and completely deny relief as it would here.

And even when used in affirmative litigation, there are recognized exceptions, so that it will not be applied too harshly.

We point in our brief to Justice Frankfurter’s opinion in the Public Utilities Commission versus United Fuel case, where it would in effect impose irreparable injury on a litigant.

That is a recognized exception to the exhaustion role and that is an exception which we urge would apply here.

Byron R. White:

You would take the same position I take it if he had never presented his CO claim at all?

Alan H. Levine:

No, we do not and we make a distinction in our brief —

Byron R. White:


Why not?

Alan H. Levine:

Because I believe the Act requires minimally primary jurisdiction of the local board.

We urge the distinction as does Davis in his treaty between primary jurisdiction and exhaustion.

You’re entitled to review of your classification.

If your classification is supported — is not supported by any fact then a Court could not properly go into anything that was not before the local board.

McGee here by concession of the Second Circuit did present to the local board what was necessary to support his classification.

We don’t quarrel with the fact that he has the burden of proving his classification.

We only say here that he met that burden.

Byron R. White:

But you do say that he had prove to his draft board too?

Alan H. Levine:

That’s correct and we suggest here that he did prove that to them.

Byron R. White:

But he didn’t have to prove to some appellate board?

Alan H. Levine:

That’s right that he is entitled in court to judicial review of his classification.

His classification was determined by the local board and was determined here without a basis in fact.

The effect of the application of the exhaustion rule in this case and in criminal cases generally is to work a very substantial denial of a right in a criminal prosecution.

The difference between the application of that rule in an affirmative and defense of case was elaborated on by Chief Judge McGruder in two cases cited in our brief, the Smith and McCrellis case and there, the judge said that, we do not have to apply the exhaustion rule in the defensive context.

It is a judge made rule and we only have to when it is mandated by Congress and the Court there dealt with the two major precedents in this Court upon which exhaustion has been premised, namely Yerkes and Myers versus Bethlehem Shipbuilding.

And the Court there said, “Those were specifically cases in which Congress had mandated the exhaustion prior to judicial review.”

Here as we said before, there was congressional mandate to that effect and in fact, the congressional mandate is to the contrary that it authorizes judicial review.

That brings us to McKart.

Alan H. Levine:

McKart, we submit, reflects that general suspicion of the exhaustion remedy.

It draws the distinctions between affirmative and defensive context.

It points out that in a defensive context, it is an exceedingly harsh doctrine and it should be imposed there only where it clearly out ways the interests of the registrant in having a right to assert a defense to a criminal prosecution.

The major interest to be served here is whether or not other registrants are going to be led by the relaxation of the exhaustion rule in this case to forgo their administrative remedies and come into court in defense of a criminal prosecution.

The McKart, court suggested that maybe there’s a difference between the legal issue presented there in the CO claim.

The CO claim we submit is a legal issue.

You take as the court does in any basis in fact case before it, an undisputed set of facts and apply them to a legal standard.

It is the same issue which confronts this Court whether or not there is exhaustion, there is no different burden.

The question then is are other registrants going to do what McGee did.

Recognizing as we must that what McGee did, he did for out of reasons of moral scruples, but will other registrants do it for tactical reasons and the Government’s response to this is crucial and I think deserves special attention.

The Government says, “If we let McGee decline to appear before his local board as he did here, decline to appeal his administrative remedies, then the well counseled registrant is going to submit a bare Form 150, will provide on its face no basis in fact for denial.

It will not have a great deal of documentation.

It will simply be the Form 150.”

Potter Stewart:

The Form 150 is the conscientious objectors form?

Alan H. Levine:

It is Your Honor, right.

At that point, he will be classified, presumably, I-A by his board, told that he has a right to a personal appearance not that he must personally appear, McGee was not told, he must personally appear, only that he had right to appear, refuse to appear, told that he has a right to appeal and refuse to appeal, he will then refuse induction and have perfect defense before the Court.

There will be no basis in fact upon which a Court could uphold the I-A classification.

We suggest to couple of things; one, McGee didn’t just make out of prima facie case before his local board —

Potter Stewart:

I am just thinking in your hypothetical case there will be plenty of bases of in fact to support a I-A classification, if the man had not submitted anything to support a conscientious objector —

Alan H. Levine:

Well, the Government’s thesis is that he would simply submit a Form 150 perhaps with supporting letters if they could be obtained.

Of course, there one has to assume perhaps certain impropriety in obtaining those letters if it was not bona fide claim, but the Government’s thesis in any case is as bare a submission as possible and —

Potter Stewart:

Then that wouldn’t, if the submission was at that minimal materials submitted with it, there would be plenty of basis in fact for I-A classification, wouldn’t he, if there wasn’t enough to support a conscientious objector classification?

Alan H. Levine:

I submit there would be and we submit in our brief that there would be substantial basis, in fact, for denying his claim and if the Form 150 was considered by the board to be inadequate, it left them in doubt, we have a pretty well stated claim here but we want to see him to test his sincerity.

The remedy is simple, we are attach in our reply brief, New York City Form 44 which says, call in the registrant and there is a space there for the local board to check off, send it to a registrant, and say, you are ordered to appear before the local board to discuss your claim.

That is the simple remedy available to the board in cases where they find themselves in doubt.

If they are not in doubt, their obligation is to classify I-O.

They can’t simply have vague doubt.

Dickinson, Witmer teach us that there must be affirmative evidence.

Now, it might be affirmative evidence that he fails to present a clear and accurate picture and if the board has doubts as I suggest, he can be called in.

Warren E. Burger:

Well, are you suggesting board has an obligation to call him in, before they rule if he has submitted all the material which he wishes to submit?

Alan H. Levine:

No, we suggest that under current Selective Service procedures, the board has put it self or the system has put itself in the position of classifying without a personal appearance. The sequence is that you submit your claim, you are classified, then you have your right to personal appearance.

Now, if that’s the way the Selective System — Selective Services System wants to classify, they can and when you submit your Form 150, if it’s a good claim, they’re obliged to give you your classification.

If it is inadequate claim, then either you have not met your burden of proving your entitlement to the claim and the board then is obliged to state its reasons why you have not met your claim or if the board then is left in doubt, then since the registrants has made out his prima facie case, it’s up to the board then to find some affirmative evidence and that if it needs a personal appearance then it can order that personal appearance.

Warren E. Burger:

I lost Mr. Levine to understand the point that I thought you were going at but a well counseled registrant could play games with the board.

Alan H. Levine:

That’s the Government’s point.

Warren E. Burger:

Oh, you are merely referring to the Government’s point?

Alan H. Levine:

I’m sorry Your Honor.

That is the major response to which the Government had advance us to our suggestion that registrants will not look at this Court’s decision in McGee, assuming it’s favorable to McGee and say, “hey, there’s a good out force, we’ll simply fail to appear, fail to exhaust and defend in a criminal prosecution.”

We submit that the best way still to get a classification is to go through the Selective Service System and that the only people who don’t and if one looks through the exhaustion cases the only ones who don’t are the very rare people like McGee and there seems to have been in the reported cases only one other, conscientiously disassociated themselves from the system or those who are ignorant.

Warren E. Burger:

We’ll resume after lunch counsel.

Alan H. Levine:

Thank you.

Warren E. Burger:

Mr. Levine, you have three minutes remaining, you wish to use it now?

Alan H. Levine:

I will try to be brief in saving a minute or two for rebuttal if I may.

Mr. Justice White asked prior to the luncheon break. What was the statutory requirement for the claim initially to be presented to the local board?

I’ve quote from Section 10 (b) (3) of the Act, which says that a local board “shall hear and determine all questions or claims with respect to inclusion for or exemption or deferment from training and service under this title.”

I think pursuant to that requirement, the registrant has the burden of going forward with his claim to the local board.

The major deterrent to any other registrant —

Byron R. White:

Where does the statute says that court trying a criminal case, is it entitled to consider whether a man is a conscientious objector —

Alan H. Levine:

The statute only said — the statute says that the court shall only review a basis in fact and presumably that is the limitation on this Court’s review or on any court’s review.

That they cannot consider the whole claim on it merits, but only whether or not there was a basis in fact for denial.

Byron R. White:

You apply for that — it can only review the board —

Alan H. Levine:

That’s right, Your Honor.

The major deterrent though, for another registrant to do what McGee did here is a simple fact that if he wants his classification, the best place to do it is before the Selective Service System.

He only has to convince the Selective Service System on the merits that he is entitled to the classification, whereas a court in review would only be determining whether or not there was a basis in fact for denial of that claim.

We cite this — a long line of cases in this Court, Green versus McCoroy, Kent versus Dallas would suggest that substantial rights, here the right to defend yourself in a criminal prosecution should not be abrogated without explicit congressional authorization.

Potter Stewart:

Of course, the points you just made, if the Selective Service System in its administrative review should deny his claim for conscientious objector status then that finding, that denial would have to be accepted by the Court, if there were a basis in fact for that denial, whereas if somebody proceeded along the lines that your client did and somebody well counseled to use your phrase, then, he would get up in brand new judicial de novo determination if you’re right as to the validity of his conscientious objector claim which might be more beneficial than the very, very limited review that the court would be confined to if the claim had been denied, the Selective Service Administrative procedure?

Alan H. Levine:

I did not mean to suggest that there would be a different standard of judicial review applicable to McGee’s claim and there would be to a claim where in fact the classification was appealed.

I think the standard from McGee’s claim the one used by the Second Circuit was a basis, in fact ,the claim has well has it would be if he had appealed.

Thank you, Your Honors.

Warren E. Burger:

That consumes all of your time Mr. Levine.

Warren E. Burger:

Mr. Reynolds.

William Bradford Reynolds:

Mr. Chief Justice and may it please the Court.

I think that the cases of Falbo and Estep, read together fairly established that the principle of exhaustion of administrative remedies does have a place in criminal actions brought under the Selective Service laws and that general concept was not under attack in the recent McKart and Duvernay cases.

They involve instead, exceptional circumstances, set to warrant a relaxation of the doctrine on particular facts presented.

Petitioner seeks to have this Court overrule Falbo, Estep and their progeny, primarily because as I understand the argument, he come before the courts not as a plaintiff seeking affirmative relief, but as a defendant charged with a criminal offense.

At the outset, it seems that if an application of the exhaustion doctrine were to turn on such a distinction, the effect would be in essence to penalize the registrant who after failing to exercise his administrative remedies decides to obey the law and submit to induction, seeking affirmative relief in the courts through a habeas corpus action.

He would, under petitioner’s theory, be precluded by the exhaustion doctrine from challenging his classification.

On the other hand, if the same registrant had decided to violate the law and he then been criminally prosecuted, petitioner maintains that he cannot similarly be barred from raising the same claim as a defense.

Potter Stewart:

Do you mean by violating the law, you mean refuse to submit for induction?

William Bradford Reynolds:

Yes, Your Honor.

Potter Stewart:

Because his claim is, he is not violating the law because he is entitled to conscientious objector?

William Bradford Reynolds:

That’s correct, Your Honor, assuming the — if a criminal prosecution filed and he did (Inaudible).

We do not think the exhaustion doctrine was ever intended to be applied in a manner which would encourage registrants to refuse induction and discourage them from complying with the law and testing their classification in habeas corpus proceedings.

Moreover, to insist that the exhaustion doctrine cannot be invoked under any circumstances in criminal prosecutions under the Selective Service laws, is to ignore the statutory scheme on which this Court has based its earlier decisions in this area.

Congress and the President have carefully constructed a very comprehensive and fair administrative appeal process within the Selective Service System.

At the time a local board classifies a registrant, it is required to notify him that he has 30 days within which to request a personal appearance before his local board or to take an appeal to the state appeal board and that there is a Government appeal agent available to advice him fully of his appeal rights and assist him in the appeal process.

At a personal appearance, the registrant may discuss his classification with the local board members and present both orally and in writing any new information, he believes maybe relevant to his claim and a written record of the appearance is placed in his Selective Service file.

On appeal to the state appeal board, the registrant may specify in writing the matters in which he believes the local board erred or which he believes it failed to consider.

The state appeal board’s consideration is de novo based on its independent review of the registrant Selective Service file.

It’s classification is one of first instance, not a mere affirmance or reversal of the local board.

Moreover, if the information in the registrant selective service file is not sufficient to unable the appeal board to determine the proper classification.

The appeal board is required by the regulations to return the file to the local board for additional information or action.

From the final decision by the state appeal board an appeal maybe taken to the national board if one, the state appeal board had been divided or two, even had not it been divided, if the national or state director is asked by the registrant to take the case to the national board on his behalf and a question of some importance appears to be involved.

No registrant can be ordered to report for induction while his classification is being considered by the local and appeal boards.

Now, while a registrant is nowhere required in the statute or regulations to seek an administrative review of his local board classification, the exhaustion of administrative remedy’s principle seems implicit in the entire statutory scheme.

When Congress in 1967 added to Section 10 (b) (3), the provision generally prohibiting judicial review of classification and processing questions until after the registrant has responded either affirmatively or negatively to an order to report for induction.

The legislative history reflects clearly that the intent was to commit the resolution of such questions in the first instance to the discretion and expertise of the local and appeal boards.

And this intent, it seems to us was underscored in this Court’s recent decisions in Oestereich and Clark v, Gabriel, defining the narrow scope of pre-induction judicial review under Section 10 (b) (3) that is available to registrants who have exhausted their administrative appeal remedies and it seem to be central to the unanimous decision of the Court on a last term in Malloy.

Of course, as stated in the McKart case, the exhaustion doctrine must be tailored to fit the peculiarities of the administrative system which Congress and the President have created and thus where, as in McKart, the classification is not one requiring administrative discretion and expertise, but turns instead on statutory interpretation, there is generally good reason to exhaust the exhaustion principle, to require further resort to local and appeal boards which are concededly ill-suited to the task of coping with such pure questions of law which serve no real purpose.

Similarly, if the local board’s action is challenged on strict constitutional grounds as was the situation in the Wolff case in the Second Circuit, exhaustion of administrative remedies might not be necessary.

William Bradford Reynolds:

In that case the Second Circuit declined to invoke the doctrine, to preclude judicial review of delinquency re-classifications assigned to registrants for sitting in at their draft boards.

And the reason given was that the action by the local board raises significant First Amendment questions under this Court’s decision in Dombrowski.

Nor would it seem is the doctrine, so wouldn’t as to require its application where a registrant he can show he was physically unable to exhaust or he can show some other special or unusual circumstances which justified his failure to exhaust.

And I think in this connection it’s instructed to point out that the case McNeel v. United States, a conscientious objector case which was remanded to the District Court after McKart for a further consideration in light of this Court’s decision in McKart.

In that case, Judge Merrick of the eastern district of Virginia, he relaxed the exhaustion principle on the ground that there were in that case special circumstances in his words, that is that the registrant was apparently — that the registrant apparently lacked any comprehension of his administrative rights under the administrative appeal procedure.

However, we do not consider the instant case to be within any of these exceptions.

At the outset, petitioner’s efforts to bring the case within the McKart rational on the ground that the local board failed to consider his conscientious objector claim is simply not supported by this record.

While there’s some ambiguity in the board chairman’s testimony as to whether the claim was in March 1966 at the time petitioner held the student-deferment whether it was considered at that time, the record clearly establishes that petitioner’s entire file was reviewed and considered by the full board prior to reclassification in September 1967, that’s when he got his I-A classification from the II-S classification and the District Court found as a fact that the claim had been fully considered as did the majority below.

But I think the essential point here is that even had the local board failed to consider the claim, in the circumstances of this case, McKart would not be controlling.

It is undisputed that the local board’s action in September 1967 was not in response to the letter petitioner wrote to the President on April 15, 1967.

That is, we do not have here in instance of unlawful reclassification by the local board in the Oestereich and Breen sense.

At most, we have a situation where the board, in March of 1966, did not actually consider the claim because petitioner at that time had a lower II-S classification.

And then in September 1967, the board mistakenly believing that it earlier considered the claim and finding no new information in the file relating to the claim, based its denial on what it thought to be a prior determination on the merits.

It is our view that is precisely the type of procedural error, had then in fact been the case, which Congress and the President anticipated at the time they constructed the elaborate appeal machinery within the system.

Plainly, a personal appearance would have corrected such a mistake.

An appeal to the state appeal board which is required to consider petitioner’s file de novo would certainly have cured the mistake.

Nothing here, suggests that such as a course would have been a futile exercise.

Unlike McKart, the administrative determination to petitioner’s conscientious objector claim was not a matter solely a statutory interpretation.

There was no statement here by the state director as there was in the McKart that he was predisposed to deny petitioner’s claim.

Moreover, we are not here dealing with a classification question where this Court can determine with any certainty as it could in the McKart that petitioner is entitled to an exemption as a matter of law.

Here, the claim is to conscientious objector status.

Such a claim by its very nature calls for the type of factual determinations which Congress has said, should in the first instance, be left to the discretion and special expertise of local and appeal boards.

Moreover, it is one of the few claims that does not turn exclusively on the registrant’s written submissions.

It is undisputed that petitioner made out a prima facie case for exemption in his special conscientious objector form.

But as this Court recognized in the Witmer case and again in Seeger, there is also the substantial question of petitioner’s sincerity.

Here, the local board which did consider the claim may have thought the petitioner was insincere perhaps because he claimed to have always then a religious conscientious objector and yet in August 1964, at the time when he held the I-A classification, he expressed some willingness to submit to induction or perhaps because his letter to the President was read by the local board as reflecting an objection to the Government’s policies in Vietnam and the board might have thought that this was the real basis for his claim.

Whatever the basis for the local board’s denial in this case, we think it is clear that the administrative system never had an opportunity to examine the sincerity of petitioner’s professed beliefs.

Perhaps as petitioner suggests, if the local board doubted his sincerity, the better approach would have been to call him in for an interview prior to reclassification, but the law does not require local boards to do this.

Moreover, in view of petitioner’s letter to the President and his subsequent statement to the local board that he would return all correspondence from the system unopened, both of which took place prior to the time that the local board considered his claim in September 1967.

It seems to us unlikely, that the petitioner would’ve appeared even if the local board had made such a request.

Potter Stewart:

Did he send to the local board a copy of this letter to the President?

William Bradford Reynolds:

He did not send himself a copy, but it was routed to the local board, Your Honor, yes.

The local board did receive it but it did not come directly from the petitioner, yes sir.

Is the notice report of the physical examination, postcard or sealed letter?

William Bradford Reynolds:

I believe that that was a sealed letter.

I believe that the Selective Service System sends all their orders in sealed envelops with their stamp on the corner in a window.

The essential point Your Honor is that the Selective Service laws place the burden on the registrant to prove his sincerity.

Had petitioner requested a personal interview, perhaps, he could have lay to rest any doubts that the local board might if have in this regard. Had he taken an appeal to the state appeal board, perhaps it would’ve read petitioner’s file differently than the local board and granted the exemption or it might have found the information in the file insufficient and send it back to the local board with instructions to call petitioner for an interview.

What we are saying is, if the local board did in fact commit error in the classification of the petitioner, it was precisely the type of error within the competence of the administrative agency to correct, but petitioner has chosen deliberately to bypass the administrative appeal machinery.

Whatever his reasons, he is willfully adopted a position of total non-cooperation with the system, a choice he made prior to the time that the board gave final consideration to his claim on the merits.

Thus, there has been no opportunity for the local and appeal board to consider fully the sincerity of his professed beliefs.

If the exhaustion of administrative remedies is not required in this case, it seems to us that the operation of a selective service system could be seriously and effectively disrupted by others who might choose deliberately to bypass this elaborate administrative machinery that Congress and the President have established.

They would then be able to submit to their local board’s well-drafted conscientious objector claims, followed shortly by a letter, advising the board that their opposition is so strong that they no longer can cooperate with the system.

Their cases then come to the courts in the same posture as the instant case without anyone having an opportunity to pass directly on the sincerity of their professed beliefs.

Since the courts are not permitted under this Court’s ruling in Gibson to receive additional evidence on this question, it seems to us they would have no choice, following the Estep standard which is now in statute but to dismiss a criminal prosecution for refusal to submit on the ground that the registrant selective service file, that is the documents which were before the board shows no basis in fact for denial of the prime facie written claim.

We are not suggesting that the sincere registrants who are genuinely opposed to participation in war in any form are likely to run to this procedure.

As pointed out in McKart, it seems unlikely that they will risk criminal conviction before taking all possible steps within the system to obtain an exemption or deferment.

But in our view the exhaustion requirement is not need for such registrants.

It is needed instead to cope with the recusant registrant who refuses for reasons best known to him to cooperate with the system in any way, who quite often is more intent on disrupting the operation of the system than obtaining an exemption?

It seems to us that he should not be allowed to sit back and ignore the administrative processes with impunity while others are being called up to serve in his place.

What bearing you got the (Inaudible)

William Bradford Reynolds:

That’s —

But it’s something of which the board is aware of that?

William Bradford Reynolds:

Well, Your Honor in our view, the board was not on constructive notice of the claim.

I think our principle response is that with respect to the divinity claim, petitioner not only failed to exhaust his administrative remedies, he did not even invoke them in the first place and courts do not have under the statute, plenary review of classification questions, but are explicitly limited to determining whether the action of the administrative agency is without any basis in fact.

But even if we assume that the board had constructive notice and even if we assume that the facts that petitioner rely on a trial because the District Court did except evidence on this point, even —

Judge Friendly dealt with it, this footnote that Judge Feinberg was talking about —

William Bradford Reynolds:

Except that Judge Feinberg did state Your Honor that his position would be entirely different even with respect to the conscientious objector claim if there have been no tendering of a claim in the first instance to the local board.

And I would also add that even on the facts presented, this petitioner was not entitled to such an exemption, that’s the factual question.

The courts looked at that and there was no showing that he met the statutory standard, that his studies, that he himself as student studies were under the direction of a recognized church or theological institution.

William Bradford Reynolds:

He was attending Union Theological Seminary, but there is no evidence that he was there under the direction of a church or religious organization.

Do the record show whether or not he got any degree?

William Bradford Reynolds:

I don’t believe at the time that the case in the District Court that he had completed his studies, whether he now has one or not I don’t know.

Byron R. White:

You are going to deal with the other issues, if you lose this one, aren’t you?

William Bradford Reynolds:

If we lose this one, Your Honor, I do think that as to the other counts the petitioner was properly convicted for the deliberate non-performance of duties recently imposed on him under the laws.

Byron R. White:

Now, did the Court of Appeals pass on those issues?

William Bradford Reynolds:

No Your Honor, they did not.

Byron R. White:

None of them?

William Bradford Reynolds:

Not on the other counts, no Your Honor.

They were discussed by the dissenting —

Byron R. White:

Well, do if any of them wash out, if you lose this issue, do any of the other issues automatically wash out?

William Bradford Reynolds:

No, they do not.

In our view, they don’t.

As to the —

Byron R. White:

The Court of Appeals thought they might, didn’t they?

William Bradford Reynolds:

I believe the —

Byron R. White:

That one or two or the other counts automatically hinged on this one?

William Bradford Reynolds:

Well, they — one or two — the argument in one or two or the other counts hinged on the fact that he had been classified I-A.

Byron R. White:


William Bradford Reynolds:

But I don’t believe that the Court of Appeals addressed itself to the other issues because they found that he was guilty on the first count and under concurrent sentence doctrine in his discretion it is permitted.

Byron R. White:

It’s only failure to furnish information count, that is unrelated wholly to accurate or inaccurate classification?

William Bradford Reynolds:

That’s correct on that count but they did not reach that question.

Byron R. White:

So, if you lose this — if you — we must remand it to the Court of Appeals to pass on the remainder of the case?

William Bradford Reynolds:

I believe if we lose on a first issue you could properly remand to the Court of Appeals to pass on.

Byron R. White:

You don’t urge that we make independent examination of any those other issues?

William Bradford Reynolds:

I don’t think that this Court needs to do that.

I will address a comment or two to each of the other ones.

I believe that they were —

Byron R. White:

Oh, I’m sorry.

I didn’t mean that —

William Bradford Reynolds:

They were proper, but the Court of Appeals did not itself address its attention to that.

Thurgood Marshall:

We are to assume that the district judge would give two years for failure to present a piece of paper?

William Bradford Reynolds:

No, Your Honor.

I think that the two-year sentence was based primarily on the first count and I do —

Thurgood Marshall:

So, if you lose on that would the proper way be for to go into District Court and ask for reduction of sentence?

William Bradford Reynolds:

That is our position in our brief Your Honor and I believe that is appropriate.

Thurgood Marshall:


William Bradford Reynolds:

That’s correct.

But at the same time —

Thurgood Marshall:

So far that I’m concerned I have a great difficultly with the two-year sentence —

William Bradford Reynolds:

We are not urging a two-year sentence if we —

Thurgood Marshall:

That’s why I am not sure.

William Bradford Reynolds:

No, Your Honor that’s not what we are urging.

But the other counts are briefed and before the Court.

I think that conviction on those points was proper.

The failure to report to his pre-induction physical examination, petitioner justified that on the fact that because he was classified I-A improperly, he was under no obligation to obey the intermediate directives of a local board.

I don’t believe that this argument can be sustained.

The pre-induction physical examination is for the purpose of assuring the local board that a registrant is physically qualified and available for induction prior to the time that it issues its induction order in order to fill its call.

The induction which petitioner under went at the station is a much more — a much shorter examination and it is merely to determine the changes in his physical status from the time of his earlier pre-induction physical.

And therefore, it’s our view that does not absolve his failure to report to the selective service pre-induction physical.

He argues that his notice of classification was invalid because his assigned classification was invalid, in our view, to qualify or valid and the regulation relates to anything to — does not relate to anything other than the certificate itself, that it be authentic and properly executed and petitioner does not contest the fact that his notice of classification fully met these requirements and finally on the information questionnaire, the categorical language of the regulation violated, provides that each registrant shall submit to his local board in writing all information which the local board may at any time request from him.

Petitioner concedes that his failure to respond to the current information questionnaire undoubtedly violated this language and we believe there is no good excuse, no good reason to excuse the violation.

We are not dealing here with a minor lapse, but with a flat defiance of a reasonable request for information not readily available to the local board otherwise in which petitioner never provided to it.

Warren E. Burger:

Thank you Mr. Reynolds.

Thank you, Mr. Levine.

The case is submitted.