McKart v. United States

PETITIONER:McKart
RESPONDENT:United States
LOCATION:United States District Court for the Northern District of Illinois, Eastern Division

DOCKET NO.: 403
DECIDED BY: Warren Court (1969)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 395 US 185 (1969)
ARGUED: Feb 27, 1969
DECIDED: May 26, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – February 27, 1969 in McKart v. United States

Earl Warren:

Number 403, Jack Frederick McKart, petitioner versus United States.

Mr. Pontikes.

Gorge C. Pontikes:

Good morning Mr. Chief Justice, may it please the Court.

This matter comes before the Court on the writ of certiorari to the Sixth Circuit Court of Appeals which a firm a judgment on conviction for willfully and knowingly failing and neglecting to report for induction in violation of Section 462, Title 50 appendix.

The court below found that that is the trial court found the petitioner could not raise a defense of valid or invalid reclassification because he had exhausted his administrative remedies.

This position was affirmed by the Sixth Court of Appeals and when the writ of certiorari was granted as petitioner understood it there were two questions to be present before the Court.

One was, whether or not the petitioner was required to exhaust his administrative remedies under the circumstances and the other is whether or not the interpretation of Section 456 (o) of Title 50 appendix namely the sole surviving exemption provision whether that the interpretation of that provision by selected service was correct.

The facts in this case really are simple and are not in dispute.

The petitioner was born February 13, 1943.

He was first classified by local board Number 9 of public county 1 (a) on February 26, 1963.

He was ordered for a pre-induction physical examination on March 23, 1964, the examination that take place April 21, 1964.

He did not respond to that examination or didn’t show up.

He was then classified as a delinquent by his local board and on May 1, 1964 they ordered him to report for induction on May 11, 1964.

On May 10th, he wrote a letter to the board indicating that he disagreed the whole concept of Selective Service and at that point the board replied and asked him whether he wanted to apply his conscientious objector.

In later, communications he indicated that he did not — the board has also inquired as to why he checked the box on his original classification questionnaire indicating that he was a sole surviving son.

There was some additional correspondence that came to light that his father had died as a navigator in the Air Force during World War II.

Thereupon, on July 27, 1967 — the four, pardon me, he was classified 4 (a) by his local board.

That classification remained in effect until February 14 of 1966.

Now, on January 30, 1966, local board number 9 came to the information that Jack McKart’s mother had died, petitioner’s mother had died.

That left McKart without a “family unit” meaning that he had no sisters and both his parents were now deceased.

Now, on basis of that information, the local board contacted the state director for selected service of Ohio who determined that because there was no “family unit” the petitioner was no longer eligible for the sole surviving son exemption.

Therefore, he was reclassified on February 14, 1966.

On February 24, 1966, he was ordered for another pre-induction physical examination on March 17, 1966.

He did not respond and he wrote and told the board he would not respond.

Thereupon, he was again classified as a delinquent and as a delinquent on March 31, 1966 he was ordered to report for induction on April 21, 1966.

The trial of this matter was held on May 16, 1967 where he was convicted by the lower court and given a sentence of three years in the custody of the Attorney General.

Now, Your Honors before we proceed into the — I think question that is of main interest to the Court, I want to say first of all, we as petitioners understood that both the question of the exhaustion of the administrative remedies and the question of the correct interpretation of 456 is before the Court.

The respondent, United States of America has chosen not to brief the question of whether or not Selective Service’s interpretation of Section 456 is correct.

They have not argued that at all.

We would therefore maintain that they have in effect conceded our position that I will allow them to speak for themselves.

Gorge C. Pontikes:

Therefore, I will deal exclusively with the exhaustion question.

Further, I feel that this is a question of a major importance in this case.

Let me start off by saying that a contrary —

William J. Brennan, Jr.:

The Court of Appeals never reached the merits.

Gorge C. Pontikes:

They did not Your Honor and neither that the District Court because they felt that it was not necessary given the posture of the case.

We would like to make clear that we are not asking this Court to overrule its finding or its position in United States versus Falbo or Estep versus the United States.

The government — the first part of the government’s brief treats our positions if we are asking the Court to overrule Falbo and Estep and we are not.

Secondly, we do not think that the fact that the petitioner in this case was in the words of the government’s brief deliberately and flagrantly avoiding Selective Service and refusing to have anything to do with Selective Service really has any bearing on the question of whether or not he had to exhaust his administrative remedies.

I think the question of whether or not he had to exhaust his administrative remedies is questioned to be decided entirely apart from his own particular attitudes toward Selective Service.

Now, then as to the exhaustion uestion I think first we have to take up the question of whether or not the petitioner had to appeal his original reclassification and on that question we would — our position is as follows, first and foremost, if the classification or the reclassification on February 14, 1966 was based upon a completely erroneous interpretation of Section 456, we would maintain that this was an act beyond the jurisdiction of local board number 9 and on that basis as has been often said in this Court.

There is no need to exhaust; this is an act beyond jurisdiction of the board.

It is an act totally prohibited by the statute and on that basis we would maintain first of all that there was no need for him to appeal.

Secondly and concomitantly, we would say that this was a pure question of law.

That is to say the local boards both local boards and the state appeal boards are not competent to make legal judgments.

I believe as recently as the case of Oestereich versus Selective Service system number 46 in this Court, Justice Harlan very properly and very incisively pointed out that the nature of Selective Service boards are such that they are not equipped to deal with judicial questions.

Byron R. White:

What about the appellate process within the system?

Gorge C. Pontikes:

I believe Justice White that you will find that the appeal boards are made up of the same types of persons as the local boards are made up of.

In other words, if you take local boards, then the state appeal boards and finally the national Selective Service board which is made up of three members.

All three boards do not have persons who have any judicial competence.

They are not equipped to give render any kind of judicial decisions whatsoever.

These are persons who are uncompensated, they hold no formal hearings, they require no legal briefs as again as Justice Harlan pointed out in his concurring opinion in Oestereich that no lawyers are allowed.

In fact, they are specifically prohibited by Selective Service regulation to appear before the local boards.

On this basis, we would maintain that this boards both cannot in fact make any judicial decisions and furthermore because they cannot they generally do not and follow —

Byron R. White:

Well, judicial decisions include findings of fact.

Gorge C. Pontikes:

Quite correct.

Byron R. White:

It’s a judicial function, isn’t it?

Gorge C. Pontikes:

That is a judicial function, I would agree and perhaps the word “judicial” is a little bit too broad for our position.

I would say they are not qualified to make interpretations of law, statutory constructions or constitutional decisions.

I would say that those are the types of judicial functions that they are not competent to engage —

Byron R. White:

What makes these boards — the presidential boards for example different from them from an ordinary administrative agency?

Byron R. White:

I suppose in ordinary administrative agency you would say that the agency might, should have first shot at the — even a pure question of interpretation of the statute.

Gorge C. Pontikes:

Oh, I would say so Your Honor but I think there, you have an entirely different apparatus.

You have for example an adversary process which you do not have in Selective Service.

The Selective Service system is not intended to be an adversary process and the reason is not intended to be an adversary process is because it is geared to mobilize manpower in a short period of time.

So, it is not, it’s simply is not equipped on that basis.

Secondly, as part of the adversary process, you have lawyers appearing for both parties before administrative — for a number of parties before an administrative agency.

You don’t have that in Selective Service.

I don’t understand the difference between the first aspect of your argument in your statement.

They didn’t have jurisdiction, the second were incompetent because there was question of law.

Gorge C. Pontikes:

Well, I would say that the — what we are saying is that the act, the decision on their part to reclassify in February 14, 1966 was an act beyond their jurisdiction because we contend that the petitioner was entitled to his sole surviving son exemption even though his mother had died.

Our contention is to the statutory construction question Justice Harlan is that that was a completely erroneous interpretation of the law and therefore that reclassification was an act beyond their jurisdiction, that’s our position.

That’s the reason posed inside the statutory construction.

Gorge C. Pontikes:

That’s correct.

Byron R. White:

What if — what would you say if the statute said expressly that before one may raise a matter in a criminal case, he has to exhaust that his appellate remedy is within the Selective Service system?

Gorge C. Pontikes:

You mean if the statute made that requirement?

Byron R. White:

Yes.

Gorge C. Pontikes:

I would say that —

Byron R. White:

Are you making a constitutional argument?

Gorge C. Pontikes:

No, I’m not making a constitutional argument here Justice White.

Byron R. White:

Do you think the statutory construction aren’t —

Gorge C. Pontikes:

We certainly are as to 456 and we are arguing that —

Byron R. White:

Yes, but you’re making a statutory construction argument that the statute does not require exhaustion?

Gorge C. Pontikes:

Well, and but we are further saying no we’re not saying —

Byron R. White:

What do you think the Court was doing in Falbo just saying you have to exhaust or the statute required you to exhaust?

Gorge C. Pontikes:

No, I think the decision in Falbo was based if I may say on two points.

One was the fact that in Falbo if the Court will recall, Nick Falbo was seeking a 4 (d) classification as a minister and this is essentially a factual question within the competency —

Byron R. White:

Do you think this was just a judicial imposed the exhaustion doctrine or was it a statutory construction case?

Gorge C. Pontikes:

I would say that It’s a — myself that it’s a judicially imposed doctrine.

The Selective Service law says that the decisions of the boards of Selective Service shall be final and that was the law up until July 1 of 1967 at which time was added the now Section 10 (b) (3) which this Court had occasion to construe recently where it said that there will be no review until there has been either — there’s going to response to an order to report for induction either affirmatively or negatively and then only the review will only encompass the question whether the board had jurisdiction as a matter of basis and fact.

But there is no requirement to my knowledge within Selective Service law that requires the exhaustion.

Gorge C. Pontikes:

I would say that Falbo if you will judicially impose the exhaustion principle on the grounds that — on the general grounds applying to all administrative agencies.

I don’t think at that point that is as to the appeal process they were drawing a distinction between Selective Service and other agencies.

Byron R. White:

Do you mean you don’t think the Court was saying that Congress intended the registrant first to exhaust his remedies and —

Gorge C. Pontikes:

I don’t think it ever — in my recollection of the reading of the Falbo decision, Your Honor, I don’t think that question specifically as to the intent of Congress was ever raised.

I do feel that in Falbo the primary motivation of the Court and a primary thinking of the Court was based upon its conception of the reason for Selective Service and theory being that because there was a mobilization that this was a system to mobilize manpower that was necessary that you require an exhaustion and further that you require a completion of the administrative process before there could be a defense raise in a criminal prosecution.

You will recall Justice White that prior to Falbo and Estep the courts throughout the nation read Selective Service as to allow no defense whatsoever to criminal prosecutions.

There was — so that this was a — at that time, an opening up of the original statutory scheme.

Now, our position as to the exhaustion is based —

Byron R. White:

Do you mean what was thought to be the statutory?

Gorge C. Pontikes:

What was thought to be – correct, Your Honor.

What was thought to be the statutory scheme, I stand corrected.

Our position as to exhaustion is really based on the fact that number one, this is a pure question of law and coupled with the fact that the appellate exercise here would be a pure futility.

The national director had already indicated his construction of statute 456.

The state director of Ohio had indicated his position.

The local board had adopted these positions and for the petitioner to be required under these circumstances to engage in these appeals would have been pure futility.

The Government makes or attempts to make the argument that the state appeal board does have the duty under the requisite regulations and statutes to classify de novo.

Now, that is a theoretical duty, there’s no question about that but I would say as we said in our reply brief that would be a departure from reality for the Government to contend that as a practical matter.

This occurs when the issue is one of statutory construction.

If for the issue were one of a factual determination, there might be grounds for disagreement between the national director and the appellate processes but where the local board or the state appeal board or even the national appeal board is faced with a question of pure statutory construction was this case involved.

Then there’s no question in my mind that in 99 out of a hundred cases they will follow the national director.

As a matter of fact, this was recognized by the Court in Sicurella versus the United States where a state appeal board had before it a determination not by the national director but by the justice department in its conscientious objector section, an opinion that Sicurella was not a conscientious objector because he was not opposed to theocratic war.

And at that time, the Court found that this was an error of law in the determination by the justice department and then concluded that the appeal board probably followed this recommendation because there was an authoritative source and thereby reversed the conviction.

Certainly, if a state appeal board is going to follow the justice department.

It will most certainly follow the legal opinions of national director.

Thurgood Marshall:

Is there any law regulation that requires any of these boards to follow, anybody else as directive other than their own?

Gorge C. Pontikes:

No, there is not.

As a matter of fact, the theory of the law Justice Marshall is —

Thurgood Marshall:

And the second question is, is it not true that on these boards there are lawyers?

Gorge C. Pontikes:

There may or may not be lawyers.

Thurgood Marshall:

What do you mean that may or may not, they are?

Gorge C. Pontikes:

Not as a members necessarily.

Thurgood Marshall:

I mean there are some.

Gorge C. Pontikes:

Well, on some depending on who in the community.

Thurgood Marshall:

Well, I mean well, in this one, who is on this board in Ohio?

What was the make up of it?

Gorge C. Pontikes:

I have absolutely no idea.

Thurgood Marshall:

Well, how can you assume that none of them are trained in the law?

Gorge C. Pontikes:

Well, I can’t assume that none —

Thurgood Marshall:

(Voice Overlap) your theory?

Huh?

Gorge C. Pontikes:

I can’t assume that none of them are Justice Marshall.

Thurgood Marshall:

That’s right.

Gorge C. Pontikes:

I can say however though that on the basis of the way in which the boards operate and on the fact that they are required by regulation statute to be broadly representative of the entire community that —

Thurgood Marshall:

Well, aren’t lawyers part of the community?

Gorge C. Pontikes:

Oh, yes I would very definitely say so.

Byron R. White:

Do you mean the law just doesn’t require lawyers on —

Gorge C. Pontikes:

That’s correct.

Thurgood Marshall:

But it doesn’t involve?

Gorge C. Pontikes:

It certainly doesn’t involve.

No.

Byron R. White:

Well, what is the statutory required additionally?

Gorge C. Pontikes:

Pardon me.

Justice White.

Thurgood Marshall:

This talking involved the (Inaudible)

Gorge C. Pontikes:

You mean the in terms of what, the appeal?

Thurgood Marshall:

Yes.

Gorge C. Pontikes:

By the registrant?

Thurgood Marshall:

Yes.

Gorge C. Pontikes:

That’s right.

That’s correct.

Thurgood Marshall:

And he didn’t want to do that?

Gorge C. Pontikes:

No, he felt his moral convictions were such that he felt that he could not.

Thurgood Marshall:

Well, what more of conviction is this?

I thought you’re talking illegal now you’re talking moral?

Gorge C. Pontikes:

Well, what I’m saying you asked me the reason why he didn’t file his appeal and he felt that this would be cooperating with the system that he felt was evil.

Thurgood Marshall:

Oh, so that — if you consider the system evil you don’t have the exhaustion administrative remedy.

Gorge C. Pontikes:

Oh, no we’re not saying that at all.

We’re saying you do not have to exhaust you’re administrative remedies because as we have pointed out this is a pure question of law.

The agency had already made its determination and there was no question that the appeal process would be a futility.

Thurgood Marshall:

Sought after thought, isn’t it?

Gorge C. Pontikes:

Pardon me.

Thurgood Marshall:

Sought after thought, isn’t it?

Gorge C. Pontikes:

No.

I would say it’s the reality of the experience of the agencies.

Thurgood Marshall:

Well, if there’s been a fact decision he still wouldn’t appeal, would it?

Gorge C. Pontikes:

No.

That’s true.

But the fact decision is a different matter as we have pointed out and that’s really our — the point at which this case is distinguished from the Falbo and Estep kind of rational, the doctrines embodied in those cases.

In those cases, both of them, the boards had to determine whether or not a person was a minister and this is essentially a factual determination to be made upon the evidence presented by the individual registrant.

Here, in the case of McKart, the matter is one of strictly one of the interpretation of Section 456 namely, was McKart to be deprived of his 4 (a) exemption because he had no family unit left and we would maintain that where that is the issue and where the agency in this case Selective Service had already made up its mind that McKart was not entitled to the exemption that for him to be required to go through the appeal’s process would’ve been a complete futility.

Now, we go to the other aspect of the Government’s position which is that independent of McKart having failed to exhaust his administrative remedies he ought at least to have been required to take physical examination.

Now, as to that I call this Court’s attention respectfully to its recent decision in Oestereich versus the Selective Service System where in a case very similar to this one the Court did not require Oestereich to take a physical examination.

If the Court will read the record carefully in the Oestereich decision you will see that there Oestereich was not told that before he could obtain his remedy by way of civil relief that he was required to go in and either fail or pass a physical examination.

Now, as a matter of fact as far as we can determine and I’ve read, checked the appendix in Oestereich, I may able to read the complete record but as far as I can determine in the Oestereich decision Oestereich never did take physical examination.

And I would say that if Oestereich is not required to take a physical examination as a precondition for giving him civil relief then certainly I do not think that Jack McKart ought to be required to take a physical examination where it would otherwise be futile for him to exhaust his administrative remedies.

And that’s the case we had here.

Secondly, I think the requirement in Selective Service law that a physical examination be taken loses its force in this kind of case, I think it has great force in the cases involving men like Falbo and Estep where there are essentially factual determinations to be made by the boards.

There, I think the Court in the interest of maintaining the speed and mobility of Selective Service and in the interest of not flooding the courts with litigation.

There, there is good reason for this Court to require the taking of physical examination but in the case like McKart’s where the issue is one of statutory interpretation I think there is a greater interest in having this Court determined the correct interpretation of the federal law.

We’re dealing here with the interpretation of federal law and I would say that there’s a greater interest in having this Court determine the correct interpretation of the federal law and also the fact because these cases will occur less often.

Gorge C. Pontikes:

And there is less danger having the flood gates of litigation opened.

I would say finally on connection with this point that is as we pointed out in our brief an irony that Jack McKart should be ordered for a physical examination on the basis of a reclassification that we consider faintly invalid because without that reclassification under the existing Selective Service regulations he could not be required to take a physical examination.

He was not 1 (a) and he was not shortly to be inducted which are the only two grounds upon which a physical examination can be required.

So, on that basis it would strike us as being the most anomalous situation that he ought to be barred from raising the statutory — the incorrect statutory interpretation by the fact that he did not take a physical examination which in itself could not have been required had the reclassification not been made.

I want to reserve some time for rebuttal.

Thank you for your kind attention.

Earl Warren:

You may.

Mr. Beytagh.

Francis X. Beytagh, Jr.:

Mr. Chief Justice and may it please the Court.

At the outset, petitioner’s argument strikes us as a somewhat curious one because he wants us to assume as I understand it that a question of statutory construction either has been or will be or should be necessarily decided in his favor and then he builds upon that assumption.

I should state that as we pointed out in our brief, footnote 10 of the Government’s brief, it was not out intention to concede as petitioner suggested anything regarding the construction of the sole surviving son exemption rather as we pointed out neither the courts below reached this issue and it seems to us that in light of that fact and in light of the fact that it is a question of first impression on which no other court has passed that it’s not an appropriate issue that petitioner can ascertain raise here.

Both of the courts below as petitioner has noted found it unnecessary to reach that issue because they decided the case on exhaustion question.

I think that it’s apparent despite petitioner’s strenuous efforts to avoid it that what he really seeks here is an overruling of Falbo.

He says that’s not what he wants that he has points in his case that are distinguishable from the situation involved in Falbo and Estep and that therefore the Court doesn’t have to reach the question of whether the Falbo doctrine is still good law.

Well, it seems does that at the outset that the grounds of petitioner seeks as making his case a peculiar or unique one or readily answer, these grounds as we understand it are two.

One is that the question involved here as a matter of law or statutory interpretation and that the agencies of the Selective Service System as I take it from the local board through the state appeal board all the way up to the national appeal board are either incompetent, unqualified or for some other reason unable to pass on such question.

Well, it seems to us this is simply not reflective of the fact.

Question was raised about whether there are any lawyers on Selective Service appeal boards.

The answer to that is that the regulations themselves require that one member of each state appeal board be a lawyer.

And as a matter or fact as to the national appeal board, the chairman himself is a lawyer.

He’s a probate judge.

Moreover, it’s a little bit difficult to understand how you can say that certain issues are simply matters of the law.

Every question of classification involves questions of law what the boards are seeking to do is to pursuant to the regulations in the statute as they interpret and construe them, give each registrant the appropriate classifications that Congress has determined that he should have.

They worked against the background and in the framework of the Selective Service Act in the pertinent regulations.

There’s no other way that they can operate.

Insofar as the statute itself is concern, it is silent on this subject.

It says that local boards shall have the power with their respect to jurisdictions to hear and determine subject to the right of appeal to the appeal boards here unauthorized all questions or claims with respect to the inclusion for or exemption or deferment from training and service of all individuals within the jurisdiction of these boards and the similar provisions that relate to the de novo a classification by the appeal board and the national board.

So, it seems to us that for several reasons petitioner is not on sound ground when he suggests that matters of law are wholly without the competence of these boards.

As a matter of fact, this Court in Cox versus United States in 332 U.S. noted that questions of classification are matters of the law for the courts decide not for the jury.

It seems to us that it’s logical to conclude from that that when these local boards and state appeal board, the national board of passing on these questions that necessarily they’re involved in legal issues.

Francis X. Beytagh, Jr.:

I realize that there’s a continuum that exists here.

Some questions are more peculiarly factual in nature and some questions more appropriately legal in nature.

Now, what I’m seeking to point out is that as a local board faces a question of classification it has to face that issue against the backdrop of the Selective Service Act in a pertinent regulations.

Those are laws insofar as I know and can determine.

And therefore to say that they can’t — that they had no confidence to pass on these matters, it seems to me is simply wrong.

Petitioner also suggest that — well, on that point as was noted by Mr. Justice White in conclusion on that point of passing on statutory — question of statutory interpretation or law, it does seem to us that it’s not an appropriate here to give the administrative agency charged with the administration of this act.

A first opportunity to pass on an important statutory question, petitioner can see as this question is one of first impression, the act was amended in 1964 as a great dearth of authority on the whole meaning of the sole surviving son exemption.

Byron R. White:

But it isn’t the question of first impression with respect to other administrative agencies I gather?

Francis X. Beytagh, Jr.:

I’m unclear what you mean by that?

Byron R. White:

Well, it may be a question of first impression vis-à-vis the Selective Service System?

Francis X. Beytagh, Jr.:

Yes.

Byron R. White:

But certainly another context is the usual rule that the administrative agency view should be obtained?

Francis X. Beytagh, Jr.:

Well, that’s what I’m suggesting should obtain here.

Yes, Your Honor.

And what the question of first impression that I refer to is the statutory question of the proper construction of the sole surviving son exemption which for the first time in 1964 included the reference to fathers which it had not concluded before.

We — in order we see anything in the cases that indicates any distinction in this regard and we submit that therefore it’s not inappropriate that the Falbo doctrine be construed to require that on all matters of classification, the administrative agencies and the administrative process be given an opportunity to consider these questions in the first instance.

They weren’t given this opportunity here, petitioner’s position are simply that he didn’t want anything to do with the Selective Service System.

The record makes this clear.

He repeatedly said he just didn’t want everything to do it and wrote the board and told them so.

He didn’t claim sole surviving son exemption himself.

The board conferred it upon him —

Potter Stewart:

That he did just perhaps an advertently mentioned that his father (Voice Overlap) —

Francis X. Beytagh, Jr.:

He mentioned this Your Honor and the board then responded and sent him a conscientious objector form because he had also indicated that perhaps he had some reasons for filing that sort of claim.

He wrote back and said no he didn’t and then wrote back and also said that that he didn’t even know if he was a sole surviving son by his father had been killed at World War II.

The board then proceeded to quite a further and obtained information that confirm the fact that he was a sole surviving son and his because his father had been killed —

Potter Stewart:

His mother was still then alive?

Francis X. Beytagh, Jr.:

And his mother was still then alive.

Yes, Your Honor.

Potter Stewart:

And then the — his suggestion that the statutory — the construction of the statute might depend upon whether or not there are other relatives are alive, grandmothers, grandfathers is that — is it clear what the facts are in that respect?

Francis X. Beytagh, Jr.:

It’s not wholly clear, it’s clear as I recall that one set of grandparents is alive and at least one grandparent on the other side is alive.

Francis X. Beytagh, Jr.:

I have no knowledge of the relevance of this and have no way of knowing what relevance the appeal boards might —

Potter Stewart:

Might give to it.

Where is that information come from?

Francis X. Beytagh, Jr.:

Well, there is an information in the record there is a testimony in this regard that it was taken at trial —

Potter Stewart:

At the criminal trial?

Francis X. Beytagh, Jr.:

— at his trial and it appears that pages 15 and 16 of the appendix of the testimony was as I recall by his uncle to criminal crime.

The other aspect of petitioner’s position that there’s no need to reach the validity of the Falbo doctrine here is that it would’ve been futile in any event to pursue his administrative remedies.

Well, we think that that’s simply not accurate on the facts.

The administrative remedies that were available to him were in the first instance an appeal to the state appeal board.

And further, from that decision an appeal to the national appeal board if one, the state appeal board had been divided or two, even had it not been divided.

He could have asked the national or the state director to take the case to the national board upon his behalf.

As the Court may recall this is a situation that existed in Clay case and there has been a consistent position taken by the national and state directors that questions of importance in the system will be taken to the national board on behalf of registrant even though they don’t have appeals as right.

It seems to us that it would’ve been futile here for petitioner to seek to exhaust his administrative remedies.

He refers to the fact that advice was given by the national director and the state director to his local board in response to an inquiry to the effect that the pertinent section of the Act Section 6 (o) should be construed as not allowing his statutory exemption under the circumstances.

Well, that’s true but it’s also true that the national director and the state director are different people and the state appeal board and certainly for the national appeal board.

It’s clear by statute that the national appeal board is an independent body responsible only to the president and exercising the powers given at the president under the Act as his direct delegate.

It’s not responsible to the Selective Service System or to the director in any way.

The state appeal board similarly are not required to follow a bulletin’s advice whatever given by the national director or the state director.

They are required under the law to consider de novo of propriety of an individual’s classification.

So, it seems to us that the fact that in form of advice was given by the national director and the state director on this matter is not convincing.

There’s one other aspect that petitioner seeks to rely upon the national director promulgated an operations bulletin in August of 1964 shortly after the enactment of the amendment which included for the first time fathers within the category of those persons whose death may trigger the sole surviving son exemption.

And that operations bulletin essentially took the position the petitioner here argues as to the substantive issue.

Potter Stewart:

The petitioner here what?

Francis X. Beytagh, Jr.:

That he argues on the substantive issue —

Potter Stewart:

I see.

Francis X. Beytagh, Jr.:

— i.e. that the basic theory is one of preservation of lineage rather than compassion or comfort whatever.

It seems to us that this is not convincing either.

The very fact that the bulletin was withdrawn so promptly indicates there was considerable uncertainty on the part of the national director and moreover all of the considerations that I mentioned to just previously regarding the role — respective roles of the national state directors and the state appeal board, the national appeal board are applicable here as well.

Potter Stewart:

This indictment in this conviction were for failure to report for induction or failure to report for preinduction physical?

Francis X. Beytagh, Jr.:

Failure to report for induction.

Potter Stewart:

With respect to the physical exams the system is changed since the days of Estep and Falbo, has it not?

That’s correct.

In those days, you don’t have any — get any physical until you were went down to report for induction, isn’t that correct?

Francis X. Beytagh, Jr.:

That’s correct.

The system was changed as I recall late in World War II but shortly after Falbo’s, it may have been prior to Estep.

It became clear that it just wasn’t workable because you would get all these men down at the induction center and then —

Potter Stewart:

Half of would be —

Francis X. Beytagh, Jr.:

Half of would be.

Potter Stewart:

— unqualified.

Francis X. Beytagh, Jr.:

So the system since that time with only minor changes has been the one that they adopted then of preinduction physical is roughly 60 to 90 days prior to the proposed induction day and then if the man passes it he’s given an order to report for induction if he fails because he’s classified for (Voice Overlap).

Potter Stewart:

And then the time of induction there’s another physical I suppose.

Francis X. Beytagh, Jr.:

That’s correct.

Potter Stewart:

See if there’s any change.

Francis X. Beytagh, Jr.:

That’s pursuant to army regulations not Selective Service —

Potter Stewart:

That’s an army?

Francis X. Beytagh, Jr.:

— at the induction station, yes Your Honor.

Petitioner here received two orders to report for preinduction physical.

He reported for neither one of them.

We point out that one aspect at least to the Falbo doctrine is that an individual potentially subject to the draft is required to appear for physical examination simply because the result of that examination may be to preclude his induction.

Petitioner by failing to report, failing to complete the administrative processing that is required, precluded any possibility of that aspect to the Falbo doctrine being irrelevant here.

We think then that petitioner’s challenge has to be to the Falbo doctrine itself and that doctrine is the Court well knows.

It referred to that doctrine with as we understand apparent approval in the Oestereich case and Mr. Justice Harlan also referred to it in his concurring opinion in Oestereich.

Falbo and Estep were also cited in the recent Gabriel decision.

That doctrine essentially is that administrative remedies provided within the Selective Service System must be exhausted by a registrant in order for him to be in a position to challenge his classification in court should he fails subsequently to report for induction.

The premise on which this doctrine is grounded is not one foreign to the administrative law generally.

It seems to us that it has peculiar applicability in the Selective Service context because the basic underlying notion of the Selective Service System is the Court recently in O’Brien noted is the prompt mobilization of men when necessary in time of war a national emergency to serve the country.

Now, we recognize that if Falbo was overruled, each and every registrant is not going to simply defy the system as petitioner did here and wait until he’s prosecuted criminally in order to raise whatever a claims he has as to the validity of his classification but there will be some incentive in that regard provided and in a time of national emergency, in a time of war, it seems to us that if Falbo is overruled there’s some real hazards presented to the effective operation of the system.

Byron R. White:

Didn’t Falbo proceed on the assumption or this is what Congress intended by saying by providing some finality to Selective Service decisions —

Francis X. Beytagh, Jr.:

I think it’s —

Byron R. White:

— at least Congress intended to require exhaustion?

Francis X. Beytagh, Jr.:

I think it’s clear from a reading of Falbo that that’s exactly what the Court was doing —

Byron R. White:

What section was that, is that 11?

Francis X. Beytagh, Jr.:

It was attempted to construe.

I think rather the over all act because that the reference is —

Byron R. White:

But isn’t there — is there some specific provision in the Act that says which you refer —

Francis X. Beytagh, Jr.:

Well, under —

Byron R. White:

— to finality?

Francis X. Beytagh, Jr.:

Under Section 10 (b) (3) is amended the Congress provided that such review, judicial review shall go to the question of the jurisdiction here in reserve to local boards, appeal boards and the president only when there is no basis in fact for the classification assigned to such registrant.

Now, Section 10 (b) (3) as the Court noted in Oestereich and Gabriel also contemplates that review should occur at that point in time in the process where it would be — would avoid as far as possible the interruption of the processing of the system.

Now, in Oestereich, the Court found that the Congress didn’t intend that the preclusion on preinduction review be applicable in all situations.

It said that where a specific statutory exemption that was clear and unequivocal and undisputed existed that it read the act is not requiring the registrant to go through the entire process for asserting his claim and therefore found that preinduction review was available.

Petitioner suggests that the position we take here is somehow inconsistent with Oestereich.

We take exception with that as I noted previously the Court did refer in Oestereich with apparent approval to the exhaustion doctrine.

The Court noted that the outset of the Oestereich opinion that Oestereich had taken his administrative appeals and lost.

Petitioner says that Oestereich was not required to take a physical.

Well, it seems to us that when you have a situation where preinduction review is available somewhat different approach necessarily has to be taken as to what remedies need be exhausted.

Oestereich exhausted those remedies that were relevant to the question of whether his entitlement to the statutory exemption existed or not.

On the point that —

Potter Stewart:

Exhaustion really means or can mean two rather separate things in this area, can it?

Francis X. Beytagh, Jr.:

I think that’s right.

The exhaustion that we are referring to is the pursuit of administrative remedies prior to —

Potter Stewart:

Which Oestereich did do?

Francis X. Beytagh, Jr.:

Which Oestereich did do.

Potter Stewart:

At least get its administrative remedies?

And the other side of exhaustion is that you can’t get preinduction review?

Francis X. Beytagh, Jr.:

That’s correct.

It seems to us that the Court in Oestereich was simply construing the intendment of Congress regarding provisions that were and apparently in some conflict.

In Gabriel, the Court made clear that the general preclusion on preinduction review was applicable that there are only certain exceptions that would be permitted.

We recognized that there are certain limited exemptions that have been noted over the years to the exhaustion doctrine.

Petitioner refers to a variety of these and of the cases in which they have been considered.

Francis X. Beytagh, Jr.:

And I’d like just to refer quickly to what these are.

One notion is that you don’t have to exhaust when it’s simply infeasible or impracticable to do so.

One individual in the Donato case was off on fire fighting duty during the period in time and which he had to take his administrative appeal and the Court there said it should be excused because it just wasn’t possible that the practicable for him to do so.

Another relates to a serious procedural irregularity within the system itself.

In the Will’s case, the petitioner refers to a some link as we read it that’s the basic ground on which the Court of Appeals said that it could excuse exhaustion.

In the Will’s case and the notice of delinquency was not sent to the registrant of the appropriate time.

And therefore, he was in a disadvantage situation with respect to his classification because he wasn’t apprise in the timely fashion that sort of procedural or irregularity has been also allowed to excuse the exhaustion of administrative remedy.

In the Wolf case, the Court of Appeals, the Second Circuit discussed at some length the Falbo doctrine, the exhaustion of remedies doctrine and the Selective Service context found it inapplicable where First Amendment issues were a series of First Amendment questions were involved.

That involved and attempted delinquency reclassification of registrants for sitting in a draft board in Arbor Michigan.

And the Court there found that the questions they raised under the First Amendment were comprehended under this Court’s doctrine of — in Dombrowski versus Pfister and therefore an appropriate exception to the exhaustion rule could be permitted.

The — another exception that’s been noted has to do with whether the individual is aware of his administrative remedies as will be developed at greater length in the subsequent case to Burney.

The procedure that’s established here is one that seeks to make registrants amply aware of what rights they have.

The Selective Service classification certificate itself has we have reprinted in the appendix pages 62 and 63 sets out all the detail procedures that need to be taken and the time within which these procedures need to be followed.

I should note that subsequent to the operative facts in this case the pertinent regulations have been amended so that now the registrant has 30 days instead of 10 days within which to take an appeal to the state appeal board the feeling being that some of these cases relating to exceptional circumstances had perhaps resulted because of the short period of time that had previously been given.

We make a separate point of his failure to report for preinduction physicals as I noted that is a precise aspect of the Falbo holding itself.

Falbo of course was clarified and confirmed in Estep those cases bracketed together stand for the exhaustion doctrine that we here rely upon and the courts below relied upon but it seems to us that it is a somewhat separate in different thing is the Court of Appeals in the Iron’s case recently noted as we pointed out in our brief large numbers of registrants are unfortunately found not to be physically fit when they take a physical.

Had petitioner taken a physical, we have no way of knowing what is physical condition is but he may well have been found not to be physically fit and therefore they would have been no occasion to reach any of their question that is now seeks to present.

Did he get due notice of the (Inaudible)

Francis X. Beytagh, Jr.:

Yes Your Honor.

The record clearly reflects that.

He would notify on each occasion where to report, when to report and he simply responded by saying he didn’t want to have anything to deal with the system.

Hugo L. Black:

Is it necessary to the proper functioning of the system that the government do make actual getting into the army of conditions that take physical examination?

Francis X. Beytagh, Jr.:

I think it’s important that as Justice Stewart pointed out subsequent to shortly after Falbo the system was changed so that preinduction physicals are now required.

The purpose of that is so that each board will know ahead of time what individuals it has available physically qualified individuals available to meet each monthly call as it occurs.

So, it seems to us that it is an important aspect to the system otherwise the board has no way of knowing what this individual’s situation or status is.

And so therefore, we think that there’s an independent ground here as petitioner notes he wasn’t charged with failure to report for physical exam.

And we realize that but in the context of the applicability of the exhaustion doctrine our point simply is that this is another aspect that we think should be taken into account.

Hugo L. Black:

What is the chief disadvantage that you see would result should the petitioner here prevail?

Francis X. Beytagh, Jr.:

Well, if petitioner prevails on the broad ground that the Falbo doctrine should be overruled and therefore that exhaustion of administrative remedy is no longer required.

It seems to me that there are at least two principal disadvantages that would result.

Francis X. Beytagh, Jr.:

One, operation of the Selective Service System itself would be subject to serious disruption because individuals would not be required to pursue remedies through the system as elaborate machinery that Congress in the present have established to consider and pass upon claims to classification would — could be deliberately and effectively bypass.

Indeed, that’s what petitioner sought to do here we think simply deliberately bypass this whole system.

Hugo L. Black:

Would that greatly delay either?

Francis X. Beytagh, Jr.:

It seems to us it could well create very serious delays and disruptions because there would be no way of knowing if individuals did not pursue their administrative remedies and if individuals did not report for preinduction physicals, no way of knowing from month to month.

Those individuals that were available that the system is set up not to put people in jail and to prosecute them but for violations of the act but to properly classify and induct them into the service and it seems to us that the whole administrative machinery is directed toward that purpose insuring a proper classification and insuring that there is a steady continuous flow of manpower when needed for the armed services.

And it seems to us that if the exhaustion doctrine is abandoned that will be interfered way.

The other aspect it seems to us of this is simply that when the administrative agencies are bypassed the load of litigation in the courts is commensurately will increased and the courts are going to be forced to pass on these questions without any gloss of administrative interpretation or construction and without screening and reading out of cases that would be taken care of through following the administrative process.

Byron R. White:

Mr. Beytagh, the — in Falbo and Estep they were dealing with a section of the statute which is quoted in Estep 10 (a) (2) which says that decisions of local boards would be final —

Francis X. Beytagh, Jr.:

Yes, Your Honor.

Byron R. White:

— except where an appeal is authorized in accordance with such rules and regulations are presently prescribed and would you say that Estep and Falbo really construe this language to mean that the very least before you get judicial review you should exhaust these appellate procedures that are prescribed by the president?

Francis X. Beytagh, Jr.:

I think that’s essentially what the Court did (Voice Overlap) —

Byron R. White:

Would that section still on the statute?

Francis X. Beytagh, Jr.:

That section is —

Byron R. White:

Remains unchanged?

Francis X. Beytagh, Jr.:

— is as I recall that section is —

Byron R. White:

It’s part of a long provision (Voice Overlap) —

Francis X. Beytagh, Jr.:

–part of a long —

Byron R. White:

— 10 (b) (2).

Francis X. Beytagh, Jr.:

provision that —

Byron R. White:

But still those — that language is still in the statute?

Francis X. Beytagh, Jr.:

That’s correct.

It was of course amended the whole long provision 460 (b) (3).

Byron R. White:

But this language is left identical.

Francis X. Beytagh, Jr.:

Yes, Your Honor and the — as a matter of fact the Congress ratified this Court’s construction of that language in the Falbo and Estep cases by providing that no basis in fact standard should be the one that’s applied in judicial review here.

That of course is the provision that the language that Estep adopted in delineating the stand —

Harry A. Blackmun:

What would you say if that suggest that the exhaustion doctrine that Falbo and Estep was simply an interpretation the affection that Justice White referred to, why is that to be end of this case?

Ordinarily we don’t overrule cases that turn on statutory and our interpretation statutes that Congress can change over night.

Francis X. Beytagh, Jr.:

Well I would like to think that that’s the end of the case and it seem —

Harry A. Blackmun:

Why isn’t at the end of the case?

Francis X. Beytagh, Jr.:

As I understand it it’s not the end of the case because over the years certain exceptions have been carved out to this doctrine and petitioner suggests that his case fits within some of this exception.

Francis X. Beytagh, Jr.:

Our position is twofold, one, these exceptions are not applicable here and in any event the Falbo doctrine should be upheld.Thank you.

Earl Warren:

Very well.

Mr. Pontikes.

Gorge C. Pontikes:

Thank you.

May it please the Court.

I just want to cover some of the matters that were raised by the Government.

Again, I must insist to the Court that we are not seeking to overrule the position taken by this Court in Falbo and Estep.

It seems to us fundamental that there is a crucial distinction to be drawn between the Falbo-Estep situation where a local board makes certain factual determinations comes to conclusion and then there is a requirement that there will be an exhaustion and the taking away physical.

Now, in that particular case, you do not have a pure statutory question of pure statutory construction that you have in this case.

There’s no factual dispute in this case whatsoever.

There is no fact — factual decision that the system had to make at all.

It was a pure question of law.

Further, as the courts have recognized where an administrative process or the taking of administrative appeals would be futile then the aggrieved party is not required to take those administrative processes.

Now, for the Government to tell us here that the state appeal board is going to operate independently of the directions of the national director is really to find the face of reality.

I call your attention your attention to the Wolf case specifically in Wolf the Second Circuit Court of Appeals found that the national as you recall in that case the registrants who filed the suit asking for preinduction relief had not exhausted any administrative remedies whatsoever.

They have been reclassified by their local boards and thereupon when and asking for a declaratory judgment to declare that their classifications were invalid and based upon unconstitutional considerations.

In Wolf, the Court found that the national director had clearly stated his position and they found other conditions to indicate that the system had already made up its mind and we would say the same conditions apply here.

The system had made up its mind and for the Government to tell us now —

Potter Stewart:

That is with respect to who was a sole surviving son?

Gorge C. Pontikes:

Correct.

Very much so Justice Stewart.

There was — I would say that the possibilities of a state appeal board overturning or flying in the face of this construction of the statute would be if not impossible certainly practically impossible.

Secondly, I would point as far as the case reaching the National Selective Service Appeal Board, I would point out to the Court that by the statistics of the Government itself there were only 479 split decisions heard by the National Selective Service Appeal Board.

The split decision is a decision where there’s a dissent on state appeal board.

This is in the first six months of 1968.

In fiscal 1967, the state appeal boards heard 119,167 cases.

So, if you take those two figures and put them together you’ll get an idea of how possible it is first of all for this case ever to have reached the national appeal board.

Secondly, even though the cases indicates some disagreement with the national state director, there’s no showing that the cases decided by the national board were decided on questions of legal interpretation of the statute.

We would rather assume that there were questions and which facts — they were factual determinations made in disagreement with the national director and the state director.

Does it have any bearing that all of the points that are being argued now the actuality of the situation of course (Inaudible) —

Gorge C. Pontikes:

Well, that’s the point I made at the outset Justice Harlan.

I realize that.

Is that just an odd comment of argument —

Gorge C. Pontikes:

I would, I think —

— or isn’t some bearing on that?

Gorge C. Pontikes:

I don’t think the fact that the petitioner dislike Selective Service and therefore or had more convictions about its operations and felt compelled not to cooperate with it but that fact has any bearing whether he had to exhaust his administrative remedies because it seems to me that the question of exhaustion is depended on issues that are wholly unrelated to his particular attitude.

Furthermore as far as forcing some kind of compliance by not upholding the petitioner’s position to this case.

Petitioner was not reading Supreme Court decision.

His decision not to cooperate was based wholly upon his own moral considerations.

It had nothing to do with what might happen to him.

So, that’s the reason I don’t think the two are related at all in any sense either practically illegally.

Now, briefly to cover this question of the grandparents —

Byron R. White:

Well, let’s assume that his mother was still alive but he didn’t just do anything didn’t even inadvertently inform his local board that his father have been killed and there (Voice Overlap) —

Gorge C. Pontikes:

Oh, I think there we have the Pickens versus Cox situation.

Byron R. White:

What is that?

Gorge C. Pontikes:

Which is a sole surviving son drafted into the army without giving any information to his board whatsoever and thereupon after court martial seeking by way of habeas corpus to be released on the grounds that there was no jurisdiction that taken to the army the first place and there, the Pickens court quietly held that under those circumstances he had waived his right.

I point out to the Court here —

Byron R. White:

Well, let’s here if and if he refused to not gotten so far as Mr. Pickens or Mr. Cox which are alleged but had simply refused to be inducted and refuse to induction order and then for criminally prosecuted is your client was and then it said, well, look I’m a sole surviving son and the government would respond him what you didn’t pursue any administrative remedies.

Now, what are the story been there?

Gorge C. Pontikes:

Well, I think there wouldn’t be a question so much of exhaustion but on the fact that he had complete waived his right to even claim that exemption because he had not supplied the information at all.

Byron R. White:

Well, isn’t this pretty close to that kind of case in light of my brother Harlan’s question?

Gorge C. Pontikes:

Well, I would say no for the following reasons.

When he was asked to supply this information he did not feel that this was a violation of his moral principles.

So, he did supply the information.

If you will look — I don’t have the exhibit number handy but you will note when he was asked simply specific questionnaire asking for the name of his father, the date of death and other relevant information all of this he readily supplied because he felt this was not a form of cooperation — I see the red light is flashing — a form of cooperation which violate his moral position.

So, on that sense he did not waive it and therefore I don’t think the issue is the case here.

Thurgood Marshall:

What — where isn’t he as you say that you absolutely certain that the appeal would be futile?

Do you also say that it’s absolutely certain that the examining doctors will find and physically fit?

Gorge C. Pontikes:

Certainly not but we say — this Court faced that same position in Oestereich Justice Marshall and there they did not require Oestereich (Voice Overlap).

Thurgood Marshall:

I just want to know why you were going to go that far.

Gorge C. Pontikes:

No.

Thank you my time is over.

Thank you.