RESPONDENT: Selective Service System Local Board No. 11
LOCATION: United States District Court for the Northern District of Illinois, Eastern Division
DOCKET NO.: 46
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Tenth Circuit
CITATION: 393 US 233 (1968)
ARGUED: Oct 24, 1968
DECIDED: Dec 16, 1968
Facts of the case
Media for Oestereich v. Selective Service System Local Board No. 11
Audio Transcription for Oral Argument - October 24, 1968 in Oestereich v. Selective Service System Local Board No. 11
Number 46, James J. Oestereich versus Selective Service System Local Board No. 11, Cheyenne, Wyoming.
Melvin L. Wulf:
Mr. Chief Justice and may it please the Court.
This case is held on certiorari from the United States Court of Appeals for the Tenth Circuit which affirmed decision of the District Court for the District of Wyoming dismissing petitioner's complaint.
Now the facts are these, petitioner as a dually enrolled student preparing for the ministry at a recognized theological divinity school had been classified pursuant to the Military Selective Service Act and the regulations in class IV-D by his local board in 1966.
Class IV-D entitled him to be exempt not from registration but from training and service.
On October 16, 1967, the petitioner returned his registration certificate to the Government, "Solely for the purpose of registering his dissent from participation by the United States in the war in Vietnam and the reasons supporting his dissent were contained in an affidavit filed with the complaint."
He said that he had turned in his card as an act of collective conscience in support of our dying and suffering brothers who are presently fighting on our behalf in Vietnam and as a responsible expression of concerned citizens acting in light of the First Amendment.
He stated his belief that Vietnam situation reveals this war to be in violation of most of the criteria of the "Just War Doctrine" and as a major and threat in security and peace of the world.
Upon receipt of his registration certificate, his local board on November 7th about two weeks after he had turned in his card, mailed him a delinquency notice is a stand that selective service form notifying him that he had become delinquent for two reasons: One, for failure to have his registration certificate in his possession; and two, for a failure to advise the board of his current status.
At the same time simultaneously, a notice of classification was sent to the petitioner advising him that he had been reclassified I-A.
The petitioner appeal to the State Appeal Board which affirmed as I-A classification on December 27th and on the same day, the local board sent him a notice report for induction on January 24, 1968.
Suit was filed on January 19th the District of Wyoming to enjoin the induction and to require petitioner's reclassification back into IV-D, the exempt status.
On the 22nd of January, the District Court just grab the Government's motion to dismiss from the bench.
We took an expedite appeal to the Tenth Circuit which decided -- which affirmed the decision below on February 21st and this petition for certiorari was granted in May.
The questions on this case are all of first impression.
For the first time since the adoption of the conscription in 1940 and after some thousands of millions of people have been conscripted during the first quarter of the century, this case brings to the attention of this Court some of the low visibility machinery of the Selective Service System.
The actual operation of this Selective Service System is of coursed controlled by the design of the regulations.
And we believe that this case will reveal that the regulations involved in this case don't turns where constitutional corners.
Also involved in this case is the high visibility of the National Directors of Selective Service, for we contend and the Government has agreed the General Hershey effectively invited the local boards around the country to uses Selective Service System as a means to punish dissidents from National Policy.
And he thereby not only punished some dissidents from National Policy for expressing their political views but he also deterred many unknown numbers from expressing any views at all.
The threshold argument in this case before we get to the merits, involved Section 10 (b) (3) of the Military Selective Service Act of 1967, a new provision adopted by a Congress in 1967.
It reads its quote, "No judicial review shall be made of the classification or processing of any registrant by Local Boards, Appeal Boards or the President except this as a defense to a Criminal Prosecution Institute under Section 12 of this title after the registrant has responded either affirmatively or negatively to an order to report for induction."
Now, the government has -- the Solicitor General has agreed with us that in the circumstances of this case the revocation of petitioners for the exempt classification was without authority because it was contrary to an express grant of the exemption by statute by Congress, and that for that reason the District Court should have granted the injunction and required petitioner's classification back into IV-D.
We agree with the Solicitor General but we think that the Solicitor General's concession is too narrow.
We urged upon the Court a rather broader interpretation of 10 (b) (3) the one often described as the "special circumstances exception", a doctrine applied to statutes which have recorded either to deny or review entirely or to limited in one way or another.
The special circumstances doctrine in this case we contend that I'll come back to a more detail for the moment is that the local board acted beyond it's jurisdiction in depriving petitioner of his IV-D exemption and that to not allow petitioner to sue to regain his exempt classification will needlessly expose himself to prosecution.
The second and slightly broader ground on which we would have this Court base it's decision in reversing the court below is that the whole scheme or all of the events surrounding the withdrawal of petitioner's classification violated the First Amendment and in that respect we rely on the case of Wulf versus Selective Services decided by the Second Circuit in 1967.
Now, we think that the Ccourt without getting to the constitutional issue concerning 10 (b) (3) can decide the case on either of those two grounds.