Opposition — Rosenfeld v. Rumble

No. 74-1605

In the Supreme Court of the United States

OctToBerR TERM, 1975

Lt. AtviIN A. ROSENFELD, M.D., PETITIONER

v.

Rear ApmirRaAL RicHarp E. RuMBLE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

MEMORANDUM FOR THE RESPONDENTS IN OPPOSITION

ROBERT H. BORK,

Solicitor General,

Department of Justice,

Washington, D.C. 20530.

INDEX

Cases:

Bates v. Commander. First Coast Guard District, 413

~~

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rs)

e

Clay v. United States, 403 U.S. 698_..------.--------

Estep v. United States, 327 U.S, 114-----------------

Ferrand v. Seamans 488 F. 2d 1386__-.--------------

Gillette v. United States, 401 U.S. 487_--------------

Scott v. Commanding Officer, 431 F. 2d 1132___-------

United States v. Broyles, 423 F. 2d 1299__-.-.--------

United States v. Curry, 410 F. 2d 1297__------------

United States v. Orr, 474 F. 2d 1365.---.------------

United States v. Shomock, 462 F. 2d 338__..--.-------

United States ex rel. Donham v. Resor, 436 F. 2d 751_-

United States ex rel. Trainin v. Cain, 144 F. 2d 944---

Witmer v. United States, 348 U.S. 375_.--------------

Statute:

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Gu the Supreme Gourt of the Gnited States

OctroBerR TeRM, 1975

No. 74-1605

Lr. Atvin A. ROSENFELD, M.D., PETITIONER

v.

Rear ApMIRAL Ricwarp E, RUMBLE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

MEMORANDUM FOR THE RESPONDENTS IN OPPOSITION

Petitioner contends that his answer to an allegedly

tainted hypothetical question improperly constituted

the sole basis in fact for the denial of his discharge

from military service as a conscientious objector.

On February 21, 1974, petitioner filed a petition for

a writ of habeas corpus in the United States District

Court for the District of Massachusetts, seeking dis-

charge from the United States Navy Reserve as a con-

scientious objector. Upon consideration of the govern-

ment’s substitute motion to dismiss the petition, the

United States Magistrate found that “there is a serious

question as to whether there is a ‘basis in fact’ * * *

(1)

2

in view of the totality of the record * * *’’ (Pet. App.

52-53). The magistrate therefore concluded that the

issue whether there was a basis in fact for the denial

of the discharge should be determined by the district

court on the merits. On December 10, 1974, the district

court granted the government’s motion to dismiss,

finding a basis in fact for the denial of the discharge

(Pet. App. 19-30). The court of appeals affirmed (Pet.

App. 13-17).

1. The pertinent facts are not in dispute. In March,

1971, petitioner accepted a commission in the United

States Navy pursuant to the “Berry Plan,” a deferred

entrance program for physicians who enter specialty

residence training. Petitioner incurred a_ six-year

reserve and two-year active duty obligation. At the

conclusion of his residency in the summer of 1974,

petitioner was scheduled to commence active duty.

On February 28, 1973, petitioner filed an extensive

application for discharge as a conscientious objector,

reciting therein that he was ‘‘of the belief that all

warfare is amoral.” The cornerstone of petitioner’s

rejection of violence ‘‘as a means to any end, save self-

preservation” centered in large part upon his acute

awareness of the atrocities perpetrated against Jewish

people generally, and more particularly his own fam-

ily, in Nazi Germany. Petitioner stated: “I reserve

the use of violent force for self-preservation. * * *

What I * * * deny is that violence must be resorted

to as a method of resolution of conflict man to man.

Resolution must come about by an exercise of toler-

3

ance and reason and the implementation of the ethic

of charity in every conflict.” *

On March 29, 1973, petitioner was interviewed by a

Navy chaplain, who concluded that there was no reason

to doubt petitioner’s sincerity. On March 30, 1973,

petitioner was interviewed by three psychiatrists, who

found that ‘‘the mental status examination [of peti-

tioner] was within normal limits for a man of his

background and station in life.’’ (See Pet. 4.)

On May 24, 1973, a hearing was held on petitioner’s

application for discharge as a conscientious objector.

At the hearing, petitioner, who was represented by

counsel, emphasized that he was not a pacifist, in that

he would defend himself from attack if he ‘‘saw no

other means * * * available’’ (Pet App. 46). Petitioner

stated that his conscientious objection to war stemmed

from the moral and ethical teachings of the Jewish

faith.

During the course of the proceedings, petitioner

twice stated that he could not say whether or not he

would have participated in World War II.’ The hear-

1 Petitioner's application was supplemented with twenty-one

letters from rabbis, professional colleagues and close friends. All

attested to petitioner's sincerity (Pet. App. 20).

? The text of this colloquy follows (Pet. App. 47-48):

“Q. What's your—would you have participated in Worid War

II against the Nazis?

“4. T wasn't alive in World War II, so I don’t know.

“Q. Well. I'm aware of that.

“A. It’s—yes—I mean at this point I wouldn't participate in

any war anywhere unless——

“Q. Would you answer my question? Would you have par-

ticipated in World War II in an attempt to stop the expansion

4

ing officer thereupon posited the following hypotheti-

eal question (Pet. App. 48):

Q. Well, let’s assume that Russia commenced a

policy of a violent, forceful, external, geograph-

ica] expansion which involves the use of arms. All

right? And let’s assume that in this policy of

forceful expansion they embark upon a policy of

extermination of all Jews. Would you bear arms

against that aggressor?

A. If Russian troops landed on the shores of

San Francisco—I am an American and, if at-

tacked and—by a clear, definite enemy where

there is no choice and no question that another

human being is threatening me, my family, I

would then bear arms.

Petitioner stated further: “I would bear arms only if

I were personally—my family or my country were

definitely threatened by an obvious human aggressor”

(Pet. App. 48). The hearing officer subsequently in-

quired whether the use of force was limited to inva-

sions which were physically proximate to petitioner

and his family, or whether petitioner would bear arms

to resist an invasion of any physical boundary of the

country. Petitioner responded: “Well, I believe that

I can only bear arms when myself or my family is

physically put in danger; and I think that is at the terri-

torial boundaries of my country’’ (Pet. App. 50).

On July 11, 1973, the hearing officer issued his

report recommending denial of petitioner’s applica-

and the infliction of policies, which are well known and evidenced

in your application, which the Nazis followed ?

“A. I wasn't alive then. I can’t say what I would have done.”

5

tion for a discharge as a conscientious objector. He

concluded that petitioner was not opposed to partic-

ipation in war in any form under all circumstances.*

The Commandant of the First Naval District con-

curred in the recommendation to deny the applica-

tion,‘ and on September 28, 1973, the Chief of Naval

Personnel rejected petitioner’s application and found

that petitioner “[is] not opposed to participation of

any kind in war in any form” (Pet. App. 23).

The petition for a writ of habeas corpus was filed to

review this final administrative determination.

2. Petitioner is incorrect in contending that his

answer to a question that he believes was improper

provided the sole basis in fact for denial of his appli-

cation for discharge as a conscientious objector.

One seeking classification as a conscientious objector

is required to satisfy three basic tests. He must

° The hearing officer stated:

“IT am unpersuaded by the preponderance of the credible evi-

dence that there were any developments which oceurred subse-

quent to the applicant’s acceptance of his commission and tak-

ing of the oath which can reasonably explain and be a basis for

the existence of a true conscientious objector which did not exist

prior to his entry into the service. It is my conclusion that, even

if it were to be assumed that the applicant is a true conscien-

tious objector within the meaning of 50 U.S.C., Section 6(j), it

existed prior to his entering the military service” (from Com-

mander Copeland’s Report to the Commandant, contain-

ing his findings regarding petitioner's applicaton, dated 11

July 1973, p. 3).

*The Commandant upheld the hearing officer’s view that

petitioner “does not hold a sincere objection to participation in

war in any form or to the bearing of arms” (Pet. App. 23).

6

demonstrate (1) sincere opposition (2) to participa-

tion in war in any form, (3) based upon religious

training and belief, as the term has been construed in

this Court's decisions. Clay v. United States, 403 U.S.

698, 700 See also Witmer v. United States, 348 U.S.

375: Un ted States v. Shomock, 462 F. 2d 338 (C.A.

3); Scott v. Commanding Officer, 431 F. 2d 1132 (C.A.

3); United States v. Breyles, 423 F. 2d 1299 (C.A. 4).

As the district court observed (Pet. App. 25), there is

no question that petitioner is sincere or that his oppo-

sition to war is based upon his religious beliefs. The

only question is whether those beliefs truly constitute

an opposition to participation in “war in any form.”

In resolving this question, the hearing officer relied

upon petitioner’s refusal to answer whether he would

have participated in World War II. See note 2,

supra. Petitioner’s candid inability to state whether,

consistent with his beliefs, he would have participated

in World War IJ—an inability to respond, not to a

hypothetical question, but to definite and known cir-

cumstances of obvious relevance to the question of his

classification—is wholly inconsistent with the oppo-

sition to participation in war in any form that peti-

tioner was required to demonstrate. One actually op-

posed to participation in war in any form could have

answered the question. This factor, relied upon by the

hearing officer, constitutes a sufficient basis in fact

for the conclusion that petitioner was not a consci-

entious objector within the meaning of the statute, 50

-.- —=s...0

7

U.S.C. App. 456(j).2 See, eg., United States *.

Curry, 410 F, 2d 1297 (C.A. 1). Thus, contrary to pe-

titioner’s assertion, his answers to the allegedly taint-

- ed hypothetical question (see supra, p. 4) did not con-

stitute the sole basis in fact for the denial of his applica-

tion for discharge as a conscientious objector.

The courts below concluded that petitioner’s will-

ingness to bear arms in the event of an attack by a

foreign aggressor within the territorial boundaries of

the United States was a sufficient basis in fact for the

denial of his application for discharge as a conscien-

* Judicial review in Selective Service classification cases gen-

erally (Estep v. United States, 327 U.S. 114. 122-123; United

States ex rel. Trainin v. Cain, 144 F. 2d 944 (C.A. 2) ), and con-

scientious objector cases in particular (Ferrand v. Seamans, 488 F.

2d 1386 (C.A. 2): Bates v. Commander, First Coast Guard Dis-

trict, 413 F. 2d 475, 477 (C.A. 1)), is limited to the question

whether there is a “basis in fact” for the decision reached by the

draft board or, as in this case, the commanding officer. As the dis-

trict court noted, some courts “have referred to this type of review

as the ‘narrowest known to the law.’ Blalock vy. United States,

247 F. 2d 615, 619 (4th Cir., 1957). See, Cohen v. Laird, 315

F. Supp. 1265, 1271 (D.S.C., 1970), aff’d., 439 F. 2d 866 (4th

Cir., 1971)” (Pet. App. 24). While this standard permits courts

to strike down unsupported and conclusory determinations of

an Official or board, at the same time it serves the salutary pur-

pose of precluding the courts from sitting as de novo tribunals.

United States v. Orr, 474 F. 2d 1365, 1368 (C.A. 2). Accord-

ingly, if there is objective evidence in the administrative ree-

ord showing that the applicant has not met all of the require-

ments that would establish a conscientious objector claim, even

though this evidence is not preponderant or substantial, the

finding must be sustained. United States ex rel. Donham v.

Resor, 436 F. 2d 751, 753 (C.A. 2). See Pet. App. 24.

8

tious objector.’ Petitioner assails this reliance upon his

responses to a hypothetical question which he believes

was improper because it added to the question of a ter-

ritorial attack by a foreign aggressor the element of

extermination of Jews as an object of the aggression.

Since the nature of the hypothetical question derived

**“Willingness to use force in self-defense. in defense of home

and family, or in defense against immediate acts of aggressive

violence toward other persons in the community, has not been

regarded as inconsistent with a claim of conscientious objection

to war as such.” Gillette v. United States, 401 U.S. 437, 448.

The district court, on whose opinion the court of appeals prin-

cipally relied (Pet. App. 14), recognized this principle, but

concluded that petitioner’s willingness to bear arms was not

dependent upon geographical proximity or the imminent threat

of violence (Pet. App. 26-27). Petitioner had stated that he

would bear arms to protect himself, his family and his country

if an obvious human aggressor attacked the United States. In

this regard, the court of appeals observed (Pet. App. 15-16):

“We are not insensitive to the genuineness of appellant's feel-

ing that he would look upon an invader bent on extinguish-

ing his co-religionists in this country as an immediate threat

to his ‘family.’ extended and nuclear. There is recent history

to back him up. But if exemption is given appellant for this

reason, must not it also be given a Mormon, a Seventh Day

Adventist, or to hark back to the Crusades, any professed

Christian, if the invader be ‘infidel’? These hypothetical cases

are of course quickly distinguished by their lack of verisimili-

tude—they are fantasies. whereas the holocaust was real. The

existence of such an historical background is highly relevant

on the issue of sincerity. But to allow it to be used to define

the parameters of a person’s family or community, so that

fighting in defense of the country can be equated with defense

of self and family, seems to us an irrational basis or distinc-

tion. For example, a patriotic humanist, believing in no God

but deeply believing that the nation is his ‘family’, would not,

despite the intensity of his view of community, be entitled

to his definition for purposes of qualifying as a conscientious

objector.” (Footnote omitted.)

9

from petitioner’s inability to state whether he would

have participated in World War II, it was not im-

proper. The court of appeals rejected petitioner’s

claim, stating (Pet. App. 16-17) :

The contention is that the injection into

hypothetical questions of the assumption that

a foreign invader would be bent on extermina-

tion of all Jews placed an unfair burden on

appellant. Appellant calls these ‘‘loaded” ques-

tions. While we are not obligated to deal with

this new issue, we do so in view of its nature.

For if we were convinced that appellant had

been lured by trickery on to treacherous

ground, we would not take refuge in a pro-

cedural shelter. And it may well be that the

effort to imagine honestly one’s response to the

hypothetical situation described is unique for

a group that had in recent history a real ex-

perience. Had the hearing officer devised the

question out of thin air, that is, just because

appellant was of Jewish background and faith,

we would be troubled. But a substantial, if not

the major, thrust of appellant’s seventy-page

application for discharge was directed to his

reflections over the enormity of the Nazi perse-

cutions. Under these circumstances it was nat-

ural for the hearing officer to refer to this

background in exploring the position of appel-

lant. We are aware of the atmosphere of un-

reality created by hypothetical questions. Yet

the Congressional mandate of “participation in

war in any form”’ leaves no alternative to prob-

ing. Our view of the record reveals no indica-

tion of perverse imagination or exploitation by

a

10

the hearing officer. Indeed, counsel for appel-

lant pursued the same line of inquiry, obviously

deeming it both relevant and fair at the time.

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

Rosert H. Bork,

Solicitor General.

SEPTEMBER 1975.

Us SOVERNMENT PRINTING OFFICE. 1875

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