Amicus Curiae Brief — Fein v. Selective Serv. System Local Bd. No. 7 of Yonkers

Supreme Court brief1972

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scanned $$ PEROT REAVER, CLERK

Is THE

| Supreme Court nf the Wuited States

Ocropzr Team, 1970 +.

Otrver T. Fens, a a

Petitioner,

> | !

Sexectiye Service System Loos, Boarp

No. 7, Yonkers, New York, e¢al., _

. Respondents.

°°

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS. FOR [THE SECOND CIRCUIT .

BRIEF OF AMERICAN CIVIL LIBERTIES UNION,

| AMICUS CURIAE |

American Civil Liberties Union

| ~ 156 Fifth Avenue

New York, New York 10010

. | Attorney for Amicus so

Questions Presented — 3 . Si , bee

Statement of the Case

Fe eh ee oes NON oa

- Interest of- Amicus - Lae eens <<

L L: Since the statute in question should ‘be’ con-

strued fo afford petitioner those procedural .

_ rights which he sought to assert, ae.

failure to comply with his requests was a vi

lation of the statute and thus constituted

kind of “lawless” action .this’Court has held ;

~ attackable by pre-induction judicial review

| ‘IL The refusal of the State Direetor to divulge the

reasons for his appeal: of petitioner’s 1-0 clas-

' sification and thé abgdlute refusal of the State

Appeal Board to ste its reasons for denying

him classification as a conscientious objector

. deprived petitioner of due.process, and. such ac-

_ ‘tions by, the Selective Service System | were

subject to pre-induetion review

A. The Nature df the Liability Imposed on

_ Both Petitiong® and a Reviewing. Court ___:

B. See. 10(b): (3) and :the Fifth Amendment

Vislation i in iwonaerah s Case aC

sia

ioner’s claims are not ‘parred by thie’ ten .

ar requirement of 28-ES. C. §1331 26

A. ‘Patitioner’ s Induttion. Would Deprive Him

oo 3 of $10,000 in Personal Income... poe] 26

| B. If Fein. Did Not Establish an Arguable Con!

‘© troversy in Excess of $1000, the Monetary

oy page -

“

. * Requirement Is Either Inapplicable or

_ necessary“to Cases Such ad This, or It Is

; — Unconstitutional sc potoen ~

Conciusion seid Raremectennine ae Sue’ BL :

7 AUTHORITIES Crrep ;

“Cases: .

“Aptheker v. Secretary of State, 378 U.S. 500 (1964) 28

Ashwander v. Tennessee Valley painerity, 297 U. S. 288 . 6

Barker v. Hershey, 309 F. Sypp. 277- (0. Wise: 1969) .. . 25

Berk v. Laird, 429 F.28 302 (2nd Cir. 4970) 1... 26

Blalock v. United States, 247 F.2d 615: (4th Cir, 1951) 12

Bookout v. Thomas, 430, F. 2d 1343 (9th Cir. 1970) 2. 10.

Bowen v. Hershey, 410 F.2d 962. (1st Cir. 1969) Sei 10.

Boyd v. Clark; 287 F: Supp. 561, (S.D.N.Y. 1968), aff'd

_= per curiam, 393'U.S, 316 (1969) ....,..........23, 26, 27, 28°

Breen v. Selective Sérvice,-406 F.2d 636 (2d Cir. 1969), °

rew'd on other grounds, 396 U.S. 460 ( 1970) ........25 5, 8,

22-23'-28- 29 -

| Brinton < -Loeal Board, 322 F: eae 972 (D. Del1971) ae

Guess v. Level Board, 412 F. 2d 71. (2nd Cir. 1969) ...2....6, 10

Caverly v. United ‘States, 429 F.2d 92 (8th Cir. 1970) 16

ety

te "KES .s

| . page

Clade. Gabriel, 393 U.S. 256 (1968) “catch ge SB

Cortright. v. Resor, 3 SSLR 3799 (E.D.N.Y. 1971). 26, my 30.

| Crowell v. Benson, 28F°U. S. 22 (1932) Pome: 6

DeRemer v. United States, "340 F.2d 712 (8th Cir. <

195) anism ie ies AS, 20

_ Bawards ° Vv. Local Board, 313° F. © Sopp. 177 (D. Colo. ), |

aff'd 408 F.2d 944 (10th Cir. 1900) 2 10°

‘Edwards v. Local Board, 313 F. as 650 (E. D. Pa,

1970) . - oe

Edwards v. Selective Service ayvieens 432 F.2d 287 (5th |

Gir: 1970) .... 5 1.

| Evans v. Local Board, 425 F. 2d 323 (10th Cir. 1970) ao

Wilba’ v. “Selective Service, 434 F.2d 859* (3rd Cir.

1970), aff’g 319 F. Supp. 1355 (W.D. Penn. 1970)..." 8.’

Ferrel v. Selective Service, 434 F.2d 686 (2nd Cir. 1970) 10

Fifth Avenue Peace Parade Committee v. Hoover, ——

_ F. Supp. ——, 70° Civ.. 2646 pers oe 28, %

Sse | 5 3 arene eee . 26;28

Foley v: Hershey, 409 F. 2d 827. (7th.-Cir. 1969) acai. ae

Germonprez Vv. Selective Service, 318 F Supp. 829 cad

D.C. 1970) been 9

-Giancana v. J ohnson, 335. F.2d 366 (7th Sir. 1964),

cert. ~ a 379 U.S. 1001 (19§5) “aeerienmen 28

Goldsmith v. Sutherland, 426 F.2d 1395 (6th Cir. 1970),

tz cert. denied, | 39 U.S.L.W. 3526 (Dee. 14, 1970) gina 26, 28

Gonsales v. United aie = i S. 407. 7 (1955) .

3 ae

Greats v. “parr, 436 F.2d 513 (6th Cir. 1971), cert. *

“pend. No. 1129, Oct. aa 1970 7 tet oe

oe 11,16,

.~ *

PAGE

~ : Ginies v. See, of the Army,. 436 F.2d 239, wo. Cir. |

- 087.4970). 7 160

Oo ; : , : Ce

Higinson v. Schoeneman, 190 F.2d 32 (be. ce, 1951) 30

; Hunt v. mes ys Board, 438 F.2d 1128 (8rd Cir. 1971) -...7, 8, 9,

_ 10, 19, 24, 29, 30

, —

Itzeovitz v. Selective » Service, 301 F. Supp. 168. (S. D.

N.Y. 1969) ......: ene 8

? Kessler v. Bnited States, 406 F. 2d 51 (Sth Cir. 1969) 16 |

"Lane v. Local Board, 3 SLR 3759 (1st Cir. 1971) ..... 10

-Liese v. Local Board, 3 SSLR 3860 (8th Cir. 1971) .: 10

naan Blatchford, 307 F. Supp. 1038 (D. R.IL. 1969). 8, 95

Murray v. Vaughn, 300 F. Supp. 688 (D. R.I. 1969) ..8,25, =

- + qQ ; 26, 28 |

Mulloy v. Waited etre 98 U.S. 410 ) (1970) sisndcnntibsan 24-25 -

Wivestr v. . Horshey, 495 F.2d 504 (D. C.' Cir. 11969) = 10

O’Brien Vv. Resor, 423. F. 2d 504 (4th Cir. 1970) 00.0... 14°

Oestereich v. Selective Service Local Board No. 11,

393 U.S. 33, (1968) 2, 5, 6, 9, 10, 15,”

Mii 4 _ 22y28, 26, 21, 28

‘Panama Canal Co. v. Grace “Line, Inc., 356 ‘US. 309

(1958) ae 30

- Peterson v. Clark, 411 F. 2d_1217 (9th Cir. 1969), cert. :

den. 399 U.S. 928, réh. den. 400 U.S. 855 (1970) .: heats 10

, Phillips v. Rockefeller, 435 F.2d 976 (2nd Cir. 1970)...

e°

' @,

eo 5

a a eae x:

- ee aaa Ga o PAGE

- Quaker Action Groin v. Hickel, 421 F, a itil (BG iy. us

Cir: 1970) | F Es

Rheingans v. Mitchell, 438 F.2d 345 (9th Cir. 1970) ..: 10 \ |

Rose v. McNamara, 225/F. Supp. 891 (E.D, Pa. 1963), | ae

aff’d per curiam, 339 F. 2d 259 (4th Cir. _ 1964) sane. Oe =

- “Schneider v. Rusk, 377'U.8. 163 (1964) 288

. Seott v. Commanding Officer, 431 F. 2d 1132 (3rd Cir.

is :)(\) ee cocsnnecstene 6, 18, 21

Shea v. Mitchell, 421 F2a 1162 (Dc C: Cir. 1970) .. -3° -

Simmons v. United States, 348 U.S. 397 (1955) 1b + rn

‘Slettehaugh ' v. Tarr, 322 F.‘Supp. 180 (D. Minn. 1971)..8,10 ©

Swift v. Director of Selective Service, 3 SSLR 3839 -

(D.C. Cir. 1971) . ectin pene were 8, 10 ©

. Tatum v. Laird, — Kod —,. No. 24,208 (Oe. Cir.

‘April 27, 1971) | S

— v. Clifford, 408 F.2d 154 (D.C. Cir. 1968) ..

~*~ ~United States v. Atherton, 480-F-24 Tar (9th Gir-1970)-16

United States v. Broyles, 25 F.2d 1299 bang Cir: 1970) 13, .

. 15, 16, 21

United States v. Cassazino, 314 FR Supp. 813 (D.

N.H. 1970) : 16

ited States v: Crowntiel, 3 SSLR 3833 (3rd Cir.

971) case 16,18, 19, 21, 22

United States v. Curry, 410 F.2d 1297. (1st Cir. 1969) _ 16

_ United States v: Deans, 436 F.2d 596 (3rd Cir. 1971) .. ie

United States v. Findley, 3 SSLR 3850 (3rd Cir. 1971) .. -- |

United States v. Haughton, 413’F.2d 736 (9th Cir. 1969) "i

| fo, PAGE

United States v. Jagla, 3 SSLR 3541 (N.D. Cal. 1970)..12,16 -

United States v. Lamberd, 315 F. Supp. 1362 (W.D. Mo. |

~ 1970) : sesssntseene 12, 16, 18

_ . United States v. Lemmens, 430 F.2d 619 (7th Cir: 1970) 16° -

United States v. Lenhard, 437 F.2d 936 (2d Cir. 1970)..16, 21 .

_ United States v. Morico, 415 F.2d 138 (2nd Cir.’ 1969), .

- vacated on other grounds, 399 U.S. 526 (1970) .........11, 22.

United States ex re]. Morton v: McBee, 310 F. Supp.

328 (N.D. Ill. 1970). a seoeeeeeLD-16, 19.

United States v. Nugen® 346 US. 1 (1953) - “tosawenetsee ae | ee

United States v. Pacheo, 433 F.2d 914 (10th Cir..1970) 16 -

United States v. Pringe, 310 F. Supp. 1161 (D.Me.1970) 16. ~

United States v. St. Clair, 293 #. Supp. 337 (E.D.N.Y.

“ 1968) ... | 12, 15, 1S, 22

United States v. Seeger, 380 US. 163 (1965) ........ jin 3, 6

United ° States v. Peer. 3 SSLR 3850 (8rd Cir.

- “1971) L 14, 15,17,18

~ United States v. Washington, 392 F.2d°37 (6th. Cir.

a - 1968) ne sete sme, 16; 20 ;.

Vasquez v. Attorney General, 433 F.2d 516 (D. C. Cir..

is eet , S78

Walsh Vv. toa ‘Board, 305 F. ‘Supp. 1274 £ (8. D. N.Y. 7

1969) 3 . 26

- 3 Walsh v. Local Board No. 10, 305 F. Supp. 12% (S.D. -

9 ‘Welsh v. United: a States, 398 U U.S. 333 (1970) 22s. 4 6

' ‘Whitmore v. Tarr, 318 -F, Supp. 1279 (D.. Neb. 1970)..

caer _ Wiener- v. Selective Service, hitz F. Supp. 266-(D. Del. |

190), es 8, 9, 25

“Wilbur v. United States ex rel. Kadri, 281 U.S. 206

(1930) , cnn

° PAGE

_ Wolff v, Selective | Service Bd, 372 F. Sd 817 (2nd Cir.

1967) | . rennedy 28

Wright v. Local Board, 319 Fr. Supp: 509 (D. Minn.. 7

“1970) - osrvesveoe : . 8

- Yoder v. Tribes of Fort Peck ieitien Reservation, 339

: F.2d 360. (9th Cir. 1964) seeceeenneee 26 ©

- Zprillo v. ‘Local Board, 3 SSLR 3861 b (Sth Cir. 1971) oa 10

“Constitutional Provisions” :

_ United States Constitution _

. First Amendment fo NORTE: : a. : 1,8

Fifth Amendment .. <aananmcemecromere A) 1S -

Statutes: ‘oe. _ | © tee pou

OB U.S20, G18 PL cane nner ie ED, 6, OT, OB

_. 28 U.S.C; §1331(8) dnc ieiecctbmbecnedceslana Ses"

28 U.S.C. §1343 Lcissesnienit a7

"28 U.S.C. §1361 oe. : emeiy 29, 30, 31

Section 10(b)(3) of the Military Selective Service Act

of 1967, 50 U.S.C. App. §460(b) (3) ined; 4; 8, 6,7, 9,

14, 155722, 23, 24

Rapsinionne 2” eg ae

82 CFR. §1623.2 -..... a es "8

32 C.F.R. §1625 ....... estos piicnncinmctins oT

32 C.F.R. §1626 ... a nine ¥

32 C.F.R. §1626.12 et CEE | Hey es

32 €.F.R. §1627 es ee, OT

32 C.F.R. §1627.8 | OR ecu ay ares

- Other Authorities :

__Winiek, Direct Judicial Bisiow of the Actions ca the

: Selective Service System, 69 Mich. I. Rev. 55 (1970) 9

; Donahue, The Supreme Court vs. Section 10(b}(3) of

the Selective Service Act: A Study in Ducking SEF

\ " _gtitutional Issues, 17 U.C.L.A. L. Rev. 908 (1970) ..

1958 U. 8. Code Cong. and admin. News 3108 . SASS _

PAGE

S. Rep. No. 1830, 85th Cong.,. 2d Sess. (1958) .. cee aT

. Ely, ‘Legislative and Administrative Motivation im °

Constitutional Law, 79 79 gre aa (1970) cesses 28° |

— ee

‘HR. Reb, No. 267, 90th Cong. Ast Sess. ‘(i9e7) ee ae

1 U.S. Code Cong. and Admin. N.S. 1348 (1967)... 12

3 Davis, ADMINISTRATIVE Law §23.09 (1965 Supp.) ....29, 30.

=. Byse Proposed Reforms in Federal “Nonstatutory” —

Judicial Review: Sovereign Immunity; ee

Parties, Mandamus, 75 Harv. L. Rev. 1479 (1962) ...

Jacoby,’ The Effect of Recent. Changep ‘in the Law of

’- “Nonste tutory” Judicial Review, 53 Gzo. .L.J. (1964) Zo

Byse, and , Section 1361 of the Mandamus ‘and .

Venue Act of 1962 and “Nonstatutory” Judicial Re-

‘view of Federal’ Administrative Action, 81 Harv. L.

° .

\ ;

(8 (1967) 995 90,81

: Wai * FepERAL Courts. {32 (2 ed. 1970) ‘ivoctncen

"1 moon, Fupenai PRACTICE 9901] (2 ed.-1964) ......30-31.

niin tle tiem alaifsienctcpebeesinsa i ainarhinntchaiismmis

_ Supe Court of the Huited States

@ _ Ocroser’ Tans, 1970 5. 6:

; Net 1129 |

| ye ;

= ° ~ oes . a3 ~~ Petitioner, -

Sg ey A a :

iB. aa Le a es, J

Sexective Service System Loca Boarp

| _. No. 7, —— New ean: et al.,

- @l

_—e : 3 | 3 “Respondents.

. >

pETiTion FOR WRIT OF . CERTIORARI - TO THE UNITED STATES

‘ en COURT oF APPEALS FOR THE ‘SECOND CIRCDIT

/ |

Sen?

BRIEF OF AMERICAN CIVIL LIBERTIES UNION,

Y —.., AMICUS CURIAE

‘ a yA

“Interest of Amicus* | : Lo

For hala century ihe American Civil Liberties Union

> has defended the fundamental protections set out in the Bill

: of Rights. In particular, it has represented those who have

asserted the rights of conscience and religious liberty ‘pro--

. tected by the First Amendment and the right to due process

a of. law as guaranteed by the Fifth Amendment, against

governmental. infringement. The ACLU \is now heavily

engaged in the 5 ate of young men charged with

= Written. eonnintas by the attorneys for ‘both farties have ‘been ,

filed Leal a Clerk.

pak 2 q a i

v. 4 -

\ : : ¥

alleged violations of the draft laws; ‘or who are seeking |

‘ redress from illegal actions of the selective service system -

through affirmative litigation. This case is closely related-

to a number of prior ciyil actions litigated by the ACLU:

Oestereich v. Selective Service, 393 U:S. 233 (1968) ; Breen .

v. Selective Service, 396 U.S. 460 (1970) ; Wolff v. ‘elective ; S

: - Service, 372 F.2d 817 (2nd. Cir: 1967). Amicus believes

that the decision of the court below is in conflict with these .

cases and if affirmed would undermine mnie of the law

announced. by those cases.

‘One Federal Court has recently: gated that “Those en- »

- trusted with the awful power of conscripting the nation’ s

: young men into the armed forces in time of. war or other.

military venture owe:a duty of the most searching examina-

tion of the facts, scrupulgus. fairness, sensitive care, com, 7

“-. passionate hearing, patient consideration,- cautious action

and deliberate and rational decision within the law. We

: afford no less to the worst criminal in our society. ” Walsh . .

2 Local Board No. 10, 3054F. ape sete 1279: (DNS ,

We file this brief in order to. present to the Court our

arguments of law. which ‘support those principles.

et Questions Presented

1. Whether the Court below erred i in hélding that Sec. *

-10(b)(3) of the Military Selective Service Act of

"__ - 1967 barred the instant action?

administrative scheme, as utilized-in this case,.

violates the due aire! clause of the Fifth Amend."

ment? °

‘ “-

- 3 Whether petitioner failed” to sustain the jurisdic.

: tional peeeupicite:o of 28° U. S. C. $1331 |

Q°”

o--

- ° e

. . -“ = ° “ - —

— aa . —

. . fn . od

oy : e "e ¢

| ‘"2. “Whether the Selective Service Sy stem’ Ss. eeaass i

[ati

3 y

Se Me

Lee i

. Aftersietijoying’ dasiftation as a student (IS) ik

Statensint of the Cues

latersdeferment i in class II-A as an interii in pediatric medi-

- eine, petitiorter, while still classified II- -A, filed with his»

_ .»=%ocal board in September of 1967 an application for classi-

fication as a conscientious objector, I-0. ‘The claim fell

“prima facie within the standards set down by'this Couet i in

United States v. Seeger, 380 U.S. 163 (1965), and Welsh v.

-— United States, 398 U.S. 333.(1970).* On November 15, 1967, .

petitioner was retained in class#II-A, 1 the lowest classifica

tion for which ‘he wi eligible. . See’ 32 C.F.R. §1623.2. hey

Subsequently, at flie” “expir tion of* petitioner’ se eligibility BN 1S

.for a II-A classification, the local board: sid agama _ te,

LO in May, 1968. ro ee. en

‘On: June 4, 1968 petitioner reovived letters Prion both his

- Joeal. board: and the State Director advising him that the |

latter intended to appeal the Local ‘Board’s determination, -

that he was a conscientious. objector. «Immediately ‘upon

‘notification: petitioner wrote both to the-Local Board’ and ee

to the Appeal Board, requestifig:

(a) a statement of reasons for the StatedDjpoctor S

appeal, =. |. *. = Ns

(b) notification of the standards to be ‘applied on ap- P

~ peal, ae oh ee

(c). iaviee as to whether dny additiorial information .

other than that contained in his selective service file

_ was » berg os to the es en Board,

a og

1 Petitioner had cuss ibihitted letters from persons who knew

him attesting to 7” sincerity. .

’

¢°U”

(d) - ‘an opportunity ‘to rebut any. statement of rea- |

sons or findings by the State Director as to the pro- ?

7 prioty , of his conscientious objector classification. . |

Although the tequested this information. on a least two.

~ occasions petitioner never received a meaningful response. * _ <<

‘Rather, on June 20, 1968, the State Appeal Board merely

| reclassified him I-A \ by vote of 4-0 without any statement of ©

‘ ‘Yeasons. . a cs

= On. July. 31, 1968, Petitioner was ordered to report for

induction. However, on September 16, 1968, the National i

Director of Selective Service took an’ appeal, on ‘petitioner’s ss -

Sh pais to the Presidential Appeal Board;: thus effectively

“x cancelling Defjajoner’e i induction order. 32 C.F.R. §1627. B.'s

On November 26, 1961, the Presidential: Appeal Board,

without a statement of reasons, upheld the action of the

State Appeal Board and retained petitioner i in class I-A.

-On February 10, 1969, petitioner filed suit i in the District

Court, seeking a judgment declaring the Selective Service

appellate regulatory scheme unconstitutional as- violative

of due process and sought an order enjoining respondents

‘from ordering petitioner’ 8 induction and cnnae his aed

~ ‘status. Gy. -;

Respondents moved to anion the complaint on April 8, >

1969, on the grounds, infer Gta, that the District Court had

no jurisdiction pursuant to Section 10(b) (3) of: the. Selec- :

tive Service Act of 1967; 50 U.S.C. App. §460(b)(3). Fol: +

“lowing briefing and oral argument, the District Court de--

nied petitioner’s: application on ‘the grounds that Section —

~~ 10(b)(8) was a bar to.'the assumption of jurisdiction. -—

a‘

o~.:”

tae

aiotiqn.. 430 F.2d at 380.

- o Ge - . e: : . °

: 2). > . : . .

s- : ‘ ‘ . “ .

. e ®

On: July 23, 1970, the United States’ Court of -Appeale

for the Second. Cire it affirmed. 430 F.2d 376. The- ma-

jority sustained the District Court’s finding of the ‘applica-

bility of: Section 10(b) (3) as a bar to: pre-induction, review.

J udge Hays concurred, finding i in addition that petitioner’s |

failure to establish the jurisdictional amount under 28. |

US.C §1331(a) deprived the court of a, matter- -juris-

* Chief J udge Lumbard, in dissent, found that the excep:

‘ tion to $10(b) (3) carved out by this Court in Oestereich

_v. Selective Service Local Board No. 11 and Breen v. Selec-

" twe Service . was applicable and. that the jurisdictional

o &.

amount was satisfied by petitioner’s allegations and further

that the actions of the State Director and the ‘Appeal Board

and the Selectiye Service System’s appellate regulatory

_ scheme failed to meet minimum standards-of fairness. 430 _

F.2d 380-388. J udge Luimbard further ‘hoted tlie. possibility

that the Appeal*Board had utilized information outside of — |

‘the record in petitioner’s Selective Service file and might

have indulged in an unwarranted political inference that.

. petitioner’ s activities as a doctor in’a clinic sponsored by |

the Students for a Democratic Society disqualified him from

status as a conscientious objector. 430 F.2d at 386-387,

fn. 10.

ARGUMENT

_. Sinee the statute in question should be construed to

- afford petitioner these procedural rights which he sought

to assert; respondents’ failure to comply with his re-

quests was a violation of the statute and thus constituted —

the.kind of “lawless” action this Court has held attack-

_ able by preinduction judicial review.

‘As this Court has repeatedly ytiidinded litigants, “it is

.a@ cardinal principle” to construe statutes in such a way as

to avoid striking them down due to constitutional infirmi- .

ties.~ Crowell v. Bensen, 285 U. S. 22, 62 (1932); Umted ©

States v. Seeger, 380 U.S. 163 (1965); Welsh v. United

States, 398 U.S. 333 (1970) ; Ashwander v. ewegis Val-

ley Authority, 297 U.S. 288, 341 (1936) (Brawdeis, J., con-

curring). Thus, if it can be shown that respondents were |

under a statutory or regulatory obligation to supply peti-.

tioner with the réquested information, we need not reach

_ the question of whether §10(b) (3) bars pre-induction re-

view of the constitutional arguments presented by this case,

since under the majority: opinion in Oestereich v. Selecttve -

Service, 393 U.S. 233 (1968), blatant disregard. of a statu-

* tory mandate is clearly attackable by a pre-induction suit.

E.g. see Carey v. Local Board, 412 F.2d 71 (2nd Cir. 1969).

Sec. 10(b) (3) of the Military Selective Service Act of

1967, is the statutory warrant for. the establishment of

_ appeal boards (as well as’ the ow pve which ©

circumscribes judicial review) : ,

The President is authorized’ to onpate. and establish . .

within the Selective Service System civilian local .

boards, civilian sppeat boards, and such other ci

agencies, including agencies of appeal, as may’ be

' necessary. to carry out its functions with respect to

the ~ Chisaifiention: . of persons régistered under

- this title | . local atin dr. separate . panels ‘thereof

... Shall, vieitad sy¢h@rules and regulations prescribed |

by the President, have the: power within the respective |

jurisdictions of such local hoards to hear and determine

subject to the right of appeal to the appeal boards ©

herein authorized, all questions or/claims with respect

to inclusion for, or exemption or deferment from, ~’

training and service under this title of all individuals

. The decisions of such local, board shall be final,

except where an appeal is authorized and is taken in

accordance.with such rules and regulatidns as'the Presi-_

dent may prescribe ..: The decision of such appeal

_boards shall be final. i in cases before them on appeal .

unless modified of changed by. the President>. .

determination of the. President pope be ree &

aa added.) Aik

| “Thus, it is ae: that local and sripeal ‘boards liane ¢ crea-.

tures of the Selective . Service Act.”? The perimeters of

their jurisdiction are confined and their operating , pro-

cedures defined by “such rules and Yegulations as thé Presi- os

dent may proscribe.” §10(b)(3). See 32 C.F.R. §§1624,

1625, 1626 and 1627. It follows that activities engaged in,

_ or précedures followed by appeal boards which exceed their

statutory warrant or which are in conflict with or are at .

variance with’ the statute or the regulations promulgated -

for their operation by the President, are’ egal nullities

2 Hunt v. Local Board 438 F.2d 1128, 1131 (8rd Cir. - 1971) ;

‘(en banc) Sais fe ceneene) ie

* dad ‘without legal basis, and therefore ‘basically law-

“less.” “As the District of Columbia Court of Appeals has

stated in Swift v. Selective Service, 3 SSLR 3839 (D.C.. Cir.

1971) “. .. courts have pre-induction jurisdiction over

a.claim that a local board acted im plain contravention of

the governing law...” 3 SSLR at 3843.* This rationale °

has been applied in a number of cases. See Hunt v. Local

Board, supra (J.J. Gibbons and ‘Hastie, concurring).

| Walsh v. Selective Service, 305 F. Supp. 1274 (S.D.N.Y.

1969); Murray v. Blatchford, 307 F. Supp. .1088 (D.R.I. .

1969) ; Murray v. Vaughn, 300 F. Supp. 688 (D.R.I. 1969)

(deprivation of. entitlement to occupatiorial deferment: in-

volving First and Fifth Amendment violations held attack-

able on pre-induction review) ; Wiener v. Selective Service,

302 F. Supp. 266 (D.Del. 1969) (denial of interview with —

government appeal agent and right to State djrector’s rea-

sons for adverse appeal); J tecovitz.y. Selective Service, .

301 F. Supp. 168 (S.D.N.Y. 1969) ( eit to treaty exemp-

tion) ; Vasquez v. Attorney General, 433 F.2d $16 - (D.C.

' Cir. 1970) ; Brinton v. Local Board, 322 F.Sapp.-972 {(D.

Del. 1971) (pre-induetion attack on assignment of lottery’

number) ; Falcon v. Selective Service, 434 F.2d 859 (3rd

Cir. 1976) <agf’g 319 F. Supp. 1355 (W.D.Penn. 1970) (pre-_

induetion ‘attack on allegedly statutorily invalid induction .

order) ; Wright v. Local’ Board, 319 F. ‘Supp. 509 (D.Minn.

1970) {denial of statutorily niandated fatherhood defer-

ment) ; ‘Slettehaugh v. Tarr; 322-F. Supp. 180 (D.Minn. -

~ 1971) (failure of appeal board to consider deferment ap-

| plication) ; Whitmore v. Tarr, 318 F. Supp. 1279 (D.Neb.

‘3 Within this cantante » . whether law invilives statute.

or Bhan Fay is as eae as whether it involves an ‘exemption’ .

or a ‘deferment’ ”. Shea v. Mitchell,-421 F.2d 1162, 1165-1166 (D.C.

om. 1970) ; ‘Breen v. Bdlactine Service, 396. U. S. 460 (1970).

893 US. at 239 (Harlan, J., ee

z ‘9 |

0 \r . :

1970) ; Germonpres v. Selective Service, 318 F. Supp. 829

(D.D.C..1970). 2

- Judge Freedman of the Third Circuit, concurring in Hu ait, |

supra, phrased the nature.of “lawless” conduct which mrs

rise to’ a pre-induction attack this way:

The characterization in Oestereich of the conduct of a

board which justifies pre-induction judicial interven: ',

tion as “blatantly lawless” [cite omitted] is intended

as a description of a clear cut error of law. It does ©

not require an intentional defiance of the law. 438 F. 2d

‘at 1156. eS | 7 ;

‘These cases may therefore be characterized as represen-

tative of those classes of cases which old that pre-induction °

review is always-available when the Selective Service Sys- °

tem acts beyond or contrary to the statyte which gives it |

“life and/or the regulations which. make’ it function.‘

The question tl} then 1 becomes:-ene—of sta ory analysis. -

If the Military Selective Service Act of 1967 required peti-

tioner, to be afforded those dye process’ rights which he

requested, the appeal board’s failure to supply them, per-

mits pre-induction review. -H unt v. Local Board, supra;

rues : mniekihe supra; — v. Local Board, ‘supra;

pn ae

* See gesiergtiy: Winick. Direct Judicial Rectne of the Actions

of the Selective Service System, 69.Mich. L. Rev. 55 (1970);

Donahue, The Supreme Court vs. Section 10(b)(3) of the Selective

Service Act: A Study in Ducking Constitutional Issues, 17. U.C.L.A.

L. Rev. 908 (1970% See also Sec. II, infra, for a discussion of the

multitude of additional cases discussing the applicability of 10(b)

(3) where a purely legal or constitutional question other than a

statutory or regulatory violation is alleged. Cf. ae, supra,

“s

FO. -

‘statute and regulations. oa

100

408 F.2d 944 Gith Cir. 1969) ;* faaasiinee da v. Tarr, supra.

B ‘The Statute’s Requirement.

. ‘Every judicial circuit in the United States save one has

“held that local boards and appeal. boards are required to

‘state the reasons for rejecting a registrant’s prima facie

claim for deferment.’ While. the circuit courts of appeal

have differed somewhaj.in their basis for the formulation °

of this rule, at least tw6 circuits and several district’ courts |

have held that-such a ae is mandated by the

6 S

“8

“8 There are a large number of cases. | holding ‘that the ques- «

tion of ‘pre-induction judicial review “is inextricably inter- ©

with the merits of the controversy.” Zertllo v. Loeal Board,

8 SSLR 3861 (8th Cir. 1971). “See also Lane v. Local Board, 3

SSLR 3759 (1st Cir. 1971); Bowen v. Hershey,’ 410 F.2d 962

‘(1st Cir. 1969) ; Ferrel v. Selective Service, 434 F.2d 686, 687 (2nd

Cir. 1970) (“the issues have a‘tendency to mierge”) ; : Carey v. Local

Board, 412 F.2d.71 (2nd Cir. 1969); Hunt, supra (J: Aldisert, :

dissenting) ; ; Nestor v. Hershey, 425 F.2d 504, 511 (D.C. Cir. 1969) ;

Swift v. Director of Selective Service, 3 SSLR 3839 (D.C. Cir.

1971) ; Edwards v. Selective Service System, 432 F.2d 287, 293

(5th Cir. 1970); Gregory v-Warr, 436 F.2d 513 (6th Cir. 1971)

- eert. pending ‘No. , 1129, ‘Oct. Ferm 1970; Foley v. Hershey, 409 .

- F.2d 827 (7th Cigg,1969); Léese v. Local Board, 3.SSLR 3860-

> (8th Cir. 1971) ;#vans v. "Local Board, 425 F.2d 323 (16th Cir.

©. 1970).. Only the Ninth Circuit appears to have steadfastly’ re- -

frained from any examination of the merits in pre-induction suits.

See Peterson v. Clark, 411 F.2d 1217 (9th Cir. 1969), cert. den. -

399 U.S. 928, ‘Teh. den. 400 U.S. 855 (1970) ; Bookout v. Thomas,

430 F.2d 1343 (9th Cir. 1970). These cases, excepting the Ninth

Circuits appear to strongly support the thesis put forth by Justice

Harlan :in his concurretice in Oestereich. Compare, Hunt, supra

‘ and the later opinion of the Third Circuit in Morgan v. Melcher,

— F.2d —, No. 18,697 (8rd Cir.; May 5, ~ted See also

_ Bheingans v. Mitchell, 438 F.2d 345 (9th Cir. 1970).

- ©§See Section II, pp.. 15-16, ‘infra. be

32 C.F.R. $1626. 12 permits | a remiteint to file a rebuttal

Statement addressed” to the appeal board directing the

j, board’s attention to any information in the file “ . . . which

~ he believes the local Board“his failed. to a oy or givé —

_ Sufficient weight”. ‘Hf, as here, | the file is barren of ‘any

- reason. other than a conclusory - statement such as that -

contained in the State Director’s letter to Fein (see ps 6,

‘fn. 2, Petitioner’s Brief), devoid: of an ted factual basis

’ for the: local ‘board’s negative: cision," it is virtually im- .

; possible for trant to take meaningful pene of

_— = pivsions of 22 CFR. $1626.12... -

In Gonzales v. United States, 348 U.S. 407, this Court’

recognized that the failure of the Selective Service. System

~ to supply a registrant with a copy. of ‘the Department of .

Justice’s recommendation to ‘his appeal board regarding: |

his claim for a conscientious objector deferment, unconsti-

tutionally deprived him of an opportunity to rebut any ad-'

verse evidence contained: therein. The Court, relying on

_ its two prior decisions in Simmons Vv. United States, 348° |

i ™ This case is clearly distinguishable from the Second Cireuit’s .

“prior decision in United States v. Morico, 415 F.2d 138 (2nd-Cir. &

1969) vacated on other grounds, 399 US: ih 79), where the.*

Court found that: |

&There was sufficient evidence in the file for appellant to “deter- °

dae the basis forthe denial of his claim for conscientious _.

objector status both on the local board level and on+ke appeal

board level . .°. in effect appellant had at his disposal the.

reasons and. bases. for the denial of his claim.” : 415 P.2d at 143.

The Court of Appeals further found that he in fact did, write

a response to the Department of Justice- recommendation “which

was considered by the Appeal Board. Cf. Symmons, supra at- 405:

“The remarks of the hearing officer at, most amounted to vague

'* hints .. . Congress in providing for a hearing did not intend.

for it to be conducted on the level of a game of blindman’s ..

«buff: The summary was inadequate ard the -hearing .

Was thgrefore ace in: basic fairnem.”.

* .

"- U.S. 397 (1955) ° and United States v. Nugent, 346 US. :

" (1953), held that,

The right to file a statement . imeindes the right: to -

_ file a meaningful statement . with awareness of the

, -arguments to be countered. 348 US. at 415.

Prior to the pnseittinent of the Act in 1967, the Depart-

ment of Justice investigation and compilation of an im-_

- partial dossier provided “a special protection for conscien-

tious objectors. ” Blalock v. United States, 247 F.2d 615, -

_ 619 (4th’Cir. 1957). In 1967 however; the Act was amended |

' to eliminate this procedure, to. reduce -delays in the proc-: -

- essing of conscientious objector claims. H.R. Rep. No..

- 267, 90th Cong., ist Sess. (1967); 1 U.S. Code Cong. and |

Admin. N.S. 1348 (1967). However, as Judge Weinstein —

has pointed out in United States v. St. Clair, 293 F. Supp.

337, 342 (E-D.N.¥. 1968) > | ;

There ‘was. no- intention to élinimate protections for

Wes those claiming conscientious objector status. - ‘ *

Judge Weinstein then went on to declare: ~~

No advocate can ’ persuasively assert ainls for re-

versal when the bases for the decision below are un- |

- known. The right of appeal from an administrative

~ decision, guaranteed by the regulations, [1626.12] was

. in effect denied. Jd. at 345 (( emphasis added). |

Bavteds U. S. v. Leanberd, 315. F. Supp. 1362 (W.D. Mo.

1970). Cf. United States v. Jagla, 3 SSLE 3541, 3542 2 (ND.

Cal. 1970)...

Following Judge Weinstein’ 8 lead i in St. | Clair, both the \. +-

Third and Fourth Cireuits have _Feoognized, that both the >

. ° o” -

; “3

_ statute and regulations, despite the elimination of the De-’ .

_ partment of Justice hearing procedures, continue to re-

- quire a board to inform a registrant of the reasons for its oe

denial of his prima facie claim.*

In United States v. Broyles,, 423 F. 2d 1299, 1306 (4th Cir.

1970), the Court- rejected the government’s contention that ,

the Act nd longer requires statements of reasons to the:

, registrant:

~ It is drgued that i in revising 50 U.S.C.A. App. §456(j)

Congress gave full consideration to the reported recom-

~ mendations of the: President’s National Advisory. Com-—

mission on Selective Service, chaired by Mr. Burke os

‘Marshall, and published March 6, 1967. 1 U- S. Code

. Congressional and Administrative News, 90th Cong., _

First Sess. (1967) pp. 1308, 1309; 1348...It is said that

this report suggested that in’ conscientious objector -

eases local boards be required to disclose the basis

for a decision adverse to the registrant. This sug-

gestion was not enacted into law, but we are referred ©

to ho legislative proceedings explaining the rejection.

3 «The argument concludes that Congress intended that a.

C2" local board not be required to articulate its basis of

decision. oe .

' Absent a complete explanation of why the Marshall

, suggestion was not adopted, inaction is weak evidence

of legislative intent, - With equal persuasiveness, it

8 We agree with the Adejaion of the First Circuit i in United States -

v. Findley, 3 SSLR 3836 (1971) that’to be entitled to a statement

of reasons one must at | make. out @ prime facie case. Or,

as Judge Aldrich has phr it, “. .-. if the defendant. did

not even have opénefs we clearly wonder how of why he could

get into the play. See Mulloy v. United — 398 U.S. 410, 416.”

Findley; supra at n. 1.

. ob ~ ".

a di

y be stgusd ccinveitsely that Gees did sek aici a

_ the suggestion because it was deemed superfluous. Sec-

tion 10 of the Act, 50 U.S.C.A. App. §460,.grants to.

local boards the’ power “to hear and determine” all

claims of exemption ; it permits. the’ establishment of

. administrative appeals; “and it authorizes judicial -re-

_* view to determiné if there i is “no basis in fact” for ‘the

_ classification ‘assigned a. registrant. Implicit in the

concept of a “hearing” granted by the statute, and the °

- -yight, albeit limited, of . _Jadicial review is the oppor-

’

tunity to know the issues, so that these procedures are

not ‘empty gestures. Indeed, once judicial review is’. |

granted, basic fair play requires that the parties and

. the reviewing court ‘haye disclosed to them that which |

" iseto be reviewed: United States v. Nugent, supra;..

Gonzales v: United States, supra; Wnited States v. .

: Owen, 415 F.2d 383 (8th Cir. 1969); Brewer v. United

States, 211 F.2d 864 (4 Cir. 1954). We are unpersuaded :

AS by the argument of negative legislative intent and con-

“@lude that the Act requires the result ‘we have reached.

, (Emphasis added.):. *

- Accord, United. Shates'y v. Speicher, 3 SSLR 3850, 9851

(8rd Cir: 1971). See also O’Brien v. Resor, 423, F.2d 598, son

598-599 (4th Cir. 1970). Compare United States v. tamed

436 F.2d 596 (3rd Cir. 1971).

‘Thus, dinge See. 10(b) (3) and 32 CFR. $1626.12 a are

properly construed as continuing to require protections —

eqhivalent to those provided prior tf 1967, it follows that .

the failure to afford these protections to Fein was a patent |

violation of the statute zeke. this, c&8e clearly subject to

IF ‘ ; Are d Peer.

GF .

Nee ae (athe

“oe «

piediestion review ander Scien. Phis * analysis

* makes: it unnecessary to reach the question whether §10

(b) (3). bars pre-induction review of purély constitutional or

. legal questions which. are beyond the pees of the Belec- |

tive Service System to resolve. ~~ gous

_ The refusal of the State! Director to divulge the rea-

sons for. lils appeal of petitioner’s I-O classification and :

the absolute refusal of the State’ Appeal Board to state

its reasons for denying him classification as a conscien-

tious objector. deprived petitioner of due process, and

. such actions by the Selective Service ey weré sub-. -

; ject to presinduction review. Peg Mee es ee

It i is now a well settled principle of easdiive service ‘law

that. boards. must state thé reasons ‘for refusing ‘ to grant a

registrant classification as a congcientious objector. once he:

has made out a prima.facie claim. Indeed, each of the eleven -

eircuits have spoken on the i issue though they have differed

somewhat in their formulation of the Yeasons, for such.

a* requirement. The “need for ae of reasons is

; threefold.

* First, registrants must be afforded, as a stapaloey 4 Te-' ‘°-

quirement or as a matter of due process, the basic oppor: |

. tunity to know the grounds‘upon ‘which his claim is denied.

‘ United ‘States v. Speicher, 3 SSLR 3850 (3rd Cir. 1971);

United States v. Broyles, 423 F.2d 1299 (4th Cir. 1970)

(en banc) ; United: States v> Washington, 392 F.2d ‘37, 39.

(6th Cir. 1968) ; DeRemer-v. Unitld States, 340 F.2d 712,

- 718 (8ty Cir. arb also United States v. St. ‘Clair, |

293 F. Supp. ae N :

Y. + 1868); ane States ex rel.

-° : oo bf é ; + .

ee ee , . » ; : ; j

* es /

% . : ‘ s ; ;

| Morton v. McBee, 310 F. Supp. 328, 332 (N.D. Ill. 1970);

United States v. Lamberd, 315 F. Supp.: 1362 (D. Mo. 1970) ;

United States v. Jagla, 3 SSLR 3541, 3543, (N.D. Cal. 1970).

See generally, Gonzales v. United States, 348 U. S. 407, 415

(1955).

- Second, it is virtually impossible for an anpesl board to

pass intelligently upon the decision of a local board when

it cannot be sure of the basis for the. lower board’s action.

| Speicher, supra. Cf. United States v. - Crownfield, 3 3 as

3833 (3rd. Cir. 1971).

Third, as the majority of Cireuits have held, it it is impos-

sible for a court to engage in meaningful judicial: review .

if no reasons are stated by the board. United States v.

- Lenhard, 437 F.2d 936 (2nd Cir. 1970) ; Scott v. Command-

. ng Officer, 431 F.2d 1132, 1137 (3rd_ Cir. 1970); Broyles,

supra;.cf. K-&sler vz United States, 406 F.2d 151, 156 (5th

Cir. 1969).; Washington, supra; United States v- Lemmens,

430 F.2d 619 (7th Cir. 1970) ; Caverly v. United States, 429

. “F.2d 92 (8th Cir. 1970); United States v. Haughton; : ‘413°

F.2d 736 (9th Cir. 1969) ;. ef. Umited States v. Pacheo, 433

F.2d: 914 (10th ‘Cir. 1970). See also United States v. Cas: |

sarino, 314 F. Supp. 813 (D. N.H.: 1970) ; United States v.

Prince, 310 F. Supp. 1161 (D. Me. 1970) ; and see also United

. States v. Atherton, 430 Kj2d 741 (9th Cir. 1970).. Compare

Unitéd States v. Curry, 410 F.2d 1297 (1st Cir. 1969) ;

Gruca v. Sec. of the Army, 436 F.2d 239, 245 casas Cir. 5

. 1970). ,.* ; =

Having discussed the statutory requirement in Point I,

supra, we turn to an examination of the due process issue

both as it relates to the registrant and the reviewing courts.

That is, whether the failure of, the State Director and the

"State oo Board to o supply petitioner with reasons and

. &

a statement of *the-standards to be.used by the board

in reviewing his case after the state director’s appeal,

coupled with the National Appeal Board’s failure to state —

its reasons for affirming the State Board’s equally silent — | i

decision, was a deprivation of due process mangock to pre- 5

induction review. +

A The Nature of the Liability Imposed on Both

Petitioner and a Reviewing Court.

In Gonzales v. United States, 348 U.S. “407 (1955) ¢ this

‘Court stated that:

- Just as the right to adeabias. means the right ‘to a

meaningful hearing, United States v. Nuyent, supra; .

‘Stmmons v. United States, supra, so ‘the right to file

a statement before the Appeal Board includes the right .

to file a meaningful. statement, one based on all the

facts in the file tad made with awareness of the rec-

ommendations and eps to be countered. 348 U. Ss.

at 415.

In United States ¥. Speicher, 3 SSLR 3850, the Third

Circuit stated: : ,

[k]nowledgé of the hedis for the Local Board's’ action

is as essential today for the filing of a meaningful state-

ment with the Appeal Board as knowledge of the Jus- .

_° tice Department’s recommendation was before the 1967"

- ‘amendments. Recently the unanimous Court said:

“Because of the narrowly limited scope of judicial re-

view available to a registrant, the opportunity for ,

full administrative review is indispensable to the fair. -

operation of the - Selective Service System.” Mulloy

v. United States, 398 U.S. 410, 416 (1970).:3 SSLR at

"3851. See also’ United States ¥. Lamberd, supra at .

1372, 1874.

‘Additionally, unless a Local Board gives reasons for its -

decision, | it will not be possible for the Appeal Board. in-

2. telligently to review the Local Board’s decision. — the

Court i in Speicher recognized that:

Fall administrative review in 1955 included the oppor-

tunity to respond to written. recommendations.‘ Gon-

‘ales v. United States, supra. In 1970 it can mean no_—

less than that the Appeal Board be informed of the

basis for the Local Board’s action . . . The Appeal

| «Boards are no-more entitled to speculate as to the .

~ basis for Local Board action than are reviewing courts.

Farthermore, i in order for there _to be judicial review, ‘a

court must be able to ascertain the reasons u mpen which an ©

Appeal ‘ ‘Board has denied a prima facie claim for defer-

ment. See Scott v. Commanding Officer, 431 F. 21132 (3rd

’ Cir. 1970) and United States v. Crownfield, 3 SSLR at

3854,.n. 2.

_ In Crownfield, supra, the Third Circuit held:

The purpose of our holding i in Scott, supra [that the.

.. Tejection of a. registrant’s prima facie case for con-

~ scientious objector.status without any statement of rea-

sons vitiates the legality of his induction order. Id.

- 3833], as stated in that opinion, is to ensure meaning-

ful judicial review of administrative action by requir-

ing that the court have some ‘idea of the basis:for the

19 | C

decision of a local or appeal board. . . thé ‘requirements

of Scott go to the very ‘essence of judicial review.

3 SSLR 3834-5. ..., *. |

In United States" v. St. Clair, 293 F. Supp. 337 (E. DN % A

— 1968), Judge Weinstein found that a file’devoid of any in-

dication for the board’s ities I would panes a regis

trant of due process: s

: In permitting an- appeal: from the decisions of a local »

_ board, the regulations governing the selective service

| system provide that the'registrant may specify claimed .

errors. 32 C.F.R. 616 12. The opportunity to-rebut

" dilegedly incorrect conclusions . . . is essential. to a

meaningful appeal. See United States v. Purvis, 403

. F.2d 555 [at 562] (2nd Cir. 1968). Where no facts or

"inferences upon which the. local board’s conclusion is ?

based are stated effective. rebuttal is impossible. No

advocate can persuasively assert grounds for reversal

when the bases for the decision below are unknown. |

The right of appeal from an administrative decision, |

guaranteed by the regulations was in effect denied. ~

~ [Emphasis added. ] 293 F. Supp. at 345. :

Th United States, ex rel. Morton v. McBee, 310:F. Supp.

328, 332 (N- D. Til. 1970) the Court stated:

The constitutional requirement of some specificity in| |

a selective service record -is clear. A registrant is at

least entitled to be told i in what way his case is defec-

® Cf. Hunt v. . Loval Board, 438 F.2d 1128, 1131 (3rd Cir. 1971)

‘ (en banc): “Plaintiff complains that the Local Board . . . denied

[him] the procedural opportunity to [even] carry the burden.of

establishing his entitlement to a. deferment.’ 4 (Gibbons, . dy con-

curring). e gy

nea

90 . . | ’ . . 2 4

. 7 : >

tive so that he has a reasenable opportunity to obtain

. evidence to support it. The local board should endeavor

_ to point out exactly what items influenged its: opinion

thereby: providing the registrant-appe t_a fair op-

portunity to attack those conclusions. It is “arguedby

_ the government, as it has been in other selective service

cases, that Congress did not require the -local boards

to be judicial tribunals and make specific findings. The

point is made that local boards are lay organizations,

consisting of untrained and unpaid members who are

_ not. equipped: to make complete factual determinations Lo

of the evidence. But the mere fact that a decision |

_@paking body is unpaid and untrained does not empower

it to make blind judgments. It is inconsistent not only

with the historic development of our legal system, but/

with constitutional principles of due process and fair-

~ ness: .It-is true that Congress did not specifically re-

quire factual findings to be made’ by the local board.

but board decisions are reviewable, and absent some

‘ indication of ‘the underlying basis for the local board’s - -

epnclusion, intelligent review is impossible. This does |

not necessarily mean detailed findifigs of fact and con- . =

clusions of law such as.a court would enter, but some _

specific suggestion of the local board’s determination

’ ‘of the reasons for the board’s action other than a gen- -

eral conclusion that the registrant failed”to meet ‘the

requirements for 3 a I-O classification.

Accord, United States v. Washington, 392 F.2d 37, 39 (6th

- Cir. 1968) (“... the board should supply. the statements

it " disbelieves. This will allow the registrant to prepare an

. effective appeal.”) ; and in DeRemer v. United States, 340

‘F.2d ai 718 (8th Cir. 1965) the Eighth Circuit indicated: -

ry ra) © . 21

that a board should act faitly, “. . “ endgavoring’ in good

faith to point out exactly what items influenced its opinion

' and thus to-give appellant a fair change, to attack + these

conclusions.” -_

- dn Scott v. Commonding Officer, supra; and Orownfeid,

= supra, ‘the Third Circuit, relying on United Statesv.

Broyles, supra, joined virtually every other ci circuit, in’ hold-

ing that boards must state their basis for a negative de-

cision and why that negative decision was reached i in order

to permit effective Judicial review. .

In Scott, the Court relied upon the following language i in

Broyles, supra, which is indicative of the stringent require-

| ments in each of the circuits mentioned at pp. 15-16, supra:

In any case where the beard fails to diecdoes the. basis”

for its decision we risk blind endorsement of a mistake

of law. Where it is clear that a prima-facie case Was

established, we. conclude that in conscientious’ objector

7 eases, it is essential to the validity of an order to re- 7

port that the board state its basis of decision and. the

reasons therefor, i.e., whether it has found the regis-.

trant incredible, or seers or of bad faith, and ni

431 F. 2d at 1137.

‘The Second Cireuit, i in Lenhard, supra, has adopted the

test that a Court, upon reviewing a decision of. the Selec- 7

_ tive Service System, must be provided with,

. & record from which a Couyt can determine 1)?

whether there was a basis in fact for decision, [2] what.

‘that basis was and [3] whether the board applied oe

correct legal s standard. 437 Fd * 937.

assailable.. The only question remaining is whether a vio- :

Today Zampano, the trial judge” in United States v.

Morico, 415 F.2d'138 {2nd Cir. 1970), stated:

___I think it. would be appropriate, let m me say, a and helpful -

to everyone concerned if in this limited area where wé eee &

have very delicate rights in balance that the Court ...

; ‘not just be given ‘the entire record and in effect {told] _

“you go through it to see ‘what we [the local or appeal —

- board?*] were thinking and justify ‘our Position if you:

can. 416 F.2d at 143..

The. requirement of specificity set forth above is un-

lation of the requirement is a due process | claim subject to

pfe-induction review...

B. Sec. 10(b) (3) ‘tha the Fifth Aznendment

Violation in Petitioner’s Case.

Judge Lumbard, in dissent below, 430 F.2d 380-388, found

_ that petitioner’s pre-induction claim that the Selective Serv-

ice appeal procedures violated due process," was unaffected

by §10(b){8):~ He also concluded that his analysis was

Clearly consistent with this Court’s decisions in Oestereich

@>°

ate Service, 393 U.S. 233 (1968), and Breen v.

10 In Crownfield, supra, the court noted that:

Where a local board has in fact reopened and the registrant

has proceeded to exhaust his administgative remedies, however,

-it is the decision of the appeal board which must be supported

by a statement of reasons. 3 SSLR at 3834, n. 2.

Accord St. Clair, supra at 341. a2

11 We assume that the court in dealing with this instant issue _

has rejected our argument that the procedure followed by the

Selective Service System in this case involved “a clear departure

ahs Board from its statutory mandate, ” A aiabian supra, ate

See Point I supra.

____ Plicability of Ogstereich and Breen

egg 4 ee e

|. Selective Service, 396 U.S. 460 (1970), and was supported.

by decisions of other. district and circuit. courts.” | a

In dissent, Judge Lumbard: succinctly analyzed. the ap- —

In Oestereich, Breen and this case, the registrant chal-

lenges a procedure. unauthorized by statute, while

claiming that the regulation deprives him of a Tight .

based on higher authority. * * * Here, the regulation’

establishing appellate procedures arguably conflicts

with the due process clause of the Constitution, surely.

an a fortiori case for preinduction review. In neither =83 3 = ——

Oestereich, Breen, nor this ease are there. any dis- mace

cretionary determinations of the system involved nor

are there any factual inquiries required. See Bucher

v. Selective Service System, 421 F.2d. 24, 27 (3 Cir.

_ 1970). (“The Section bars pre-induction judicial re-

’ view \pnly-where tifére is a challenge to the System’s

- resolution of factual questions in the classification or

processing of a draft registrant”). In all these cases,

the System acted in reliance on a purportedly valid |

regulation, in such a way as to deny the registrant a Bek

firmly established right. Since I would find that the: —

__}* This case is clearly distinguishable from.Glark v. Gabriel, 393

_ US..256 (1968) and Boyd v. Clark, 287 F. Supp. 561 (S.D.N.Y.

1968), aff’d per curiam 393 U.S. 316 (1969). The former, a pre-

induction attack on the denial of Gabriel’s conscientious objector’

claim by his local board, was a clear attempt to litigate the “basis —

in fact” issue in a pre-induction civil suit—exactly the kind of . 4

issue §10(b).(3) was enacted to bar.: Oestereich, supra 393 U.S.

. &t 241 (Harlan, J.; concurring). Boyd on the other hand, is more

properly anal asa “standing” case rather than a holding —

based on §10(b)(3) for there, unlike this case and Breen and

Oestereich, the plaintiffs had not received induction orders. Fein, .

supra at 383 (Lumbard, C.J., dissenting). See, Donahue, The

' * Supreme Court v. Section 10(b)(3),: supra at 914-915, acta Ee :

tl:

+ Oestereich veiseaiiiadh reaches Kein’ s case, I. would ane, |

_ it not barred by Section 10(b) (3). .

If the Oestereich exception is te be read narrowly,

[citing Justice Harlan’s concurrence in. Breen at 396

US. 468], I would recognize a third exception ‘into

the section. This exception would permit preinduction

review of. claims, such | BS. Fein’ s, that “the _very stat- ‘

utes or regulations which the Board inister are

. facially invalid” Oestereich v. Selective’Service Sys- ’

- tem, 393 U.S! 240, 89 S. Ct. at 418, 21 L.. Ed.2d 402 7

(Harlan, J., concurring). In Oestereich the. Court.

_ showed itself willing: creatively to construe ‘Section

10(b) (3) ; I think that the facts of this case require

another exercise of. construction here. |

I do not believe that Congress, even if it so ininaided, .

could by a provision such as Section 10(b) (3) deprive ~

the: federal courts of their power to hear allegations

that a governmental agency has denied a citizen pro-

cedural due process before the registrant is in custody.

See 393 U.S. at 243 n. 6,.89 S. Ct. 414. My reading .

>" of the section and of its legislative history convinces

me that congress had no such intention : . . So, faced

with a difficult inquiry into the section’s coustitution- |

ality or a saving construction consistent with Con-

gress’ intent and the statute’s’ clear wording I would

- recognize another exception to the section to permit

: claims that an authorizing statute or board regulation? —

~” is ‘invalid because it is rane | to the constitution. ad

-F. 2d 382-383. .

a Hunt v. Local Board, 438 F.2d 1128; 1135 (3rd Cir.

1971) (en banc), J udge Gibbons, in concurrence, held ‘that

§10(b)(3) did not bar a pré-induction attack upon a vio-

lation of this: Court’s decision in Mulloy,v. United States,

‘ 398 U. " 410 0 tia), Seianhe while “Administrative a

late réview may be a sufficient due process substitute for

pre-induction judicial review . . . discretionary elimination

by the original administrative | agency of any administra-

tive review, coupled with postponement of judicial oe.

until a criminal ‘trial or... post-induction habeas corpus”

: may be unconstitutional.: Ia. It is to be recognized that

‘Fein’s claim of deprivation of the right to a meaningful

“Pe is virtually. indistinguishable from Hunt’s allega-

on ® the failure to grant him, any appeal at all. ‘Gonzales,

supra at 415. See also fn. 9, p. 19, supra; Barker’ v. Hershey,

309 F. Supp. ,277 (D. Wise, 1969).

Fein’ i isis save the difference i in the particular clansiii ,

cation involved, is similar ‘to Wiener v. Local ‘Board, 302

F. Supp. 266 (D. Del. 1969). There, Judge Steel ‘held

that where ‘on an appeal by the state director of ‘Selec-

tive Service from a local board’s assignment of a TI-A

. classification (occupational deferment) to a registrant, the

failure of the clerk of ‘the board to afford the plaintiff an

interview with a government appeal agent coupled with the |

state director ’gsrefusal to state the reasons for his appeal

deprived the registrant of due process as contemplated.

by this Court in Gonzales. See glso the exhaustive. opinions

of Judge Pettine in Murray v. Vaughn, 300 F. Supp. 688

(D. RI. 1969) and Murray | v. Blatchford, 307 F. ‘Supp:

1038 (D. R.I. 1969). See also Edwards v. Local Board; 313 d

'. F. Supp. 650 (E.D. Pa. 9970). In all of these cases it was

recognized that the actions of the Selective Service System’

were inconsistent with the most basi¢ notions of due process .

and further that ‘they were not violations suscep ible to

' “eure” save by judicial intervention.” Seen in this light,

_ the actions. of these courts ae ‘with Congress’ overall -

» &

ae . ae bas Om *s ; - bed

“ty : i 38. i ;

2 ‘tateation to insure o the ‘smooth fineticning of the Act. Ct.

a avers bamrieme J. ene

Petitioner’ 8 claimis t are not barred byt the t ten thousand .

dollar eo of 28 U.S.C. Seige wet 7

Income.

Wee ‘ing vindicatio of, stdatitational rights. Some courts have |

_adopted‘a strict interpretation of the statute’s language*’ = = --

ie as did Judge Hays below.» 430: F.2d at 380. The analysis . —

'-. of othercourts have been more liberal.* The Second Cir-

cuit and the district courts within its jurisdiction have

en been, at the least; inconsistent in. their treatment of the .

« issue in cases “involving constitutional rights. Compare

- Boyd v. Clark, 287 F.Supp. 561 (S.D.N.Y. 1968); and

Judge Hays’ concurring opinion ‘here, with the cases cited

in fn. 14, infra. One thing, however, remains clear within

this morass.** -As Judge Weinstein observed i in .Cortright

Ms ‘Resor, 3 pat BODE: : :

‘Eg Goldsmith v. Sutherland, 426 F.2d 1395 (6th. Cir. 1970),

ee denied 39 U.S, W. 3526 (Dec. 24, 1970); Yoder v. Tribes of

Fort. Peck Indian Reservation, 339 F.2d 360 (9th Cir. 1964); “Cee

Gancana v. Johnson, 335 F.2d 366 (7th Cir. 1964),

~ 34 See Berk v. Laird, 429 F.2d 302, 306. (2nd Cir. 1970) ; Phillips

: v. Rockefeller, 435 F.2d 976, 978, n, 5. (2nd Cir. 1970 ; Murray .

ae es Supp . 688, 694-96 (D. R.I. 1969) ; ortright Vv.

3 SSLR 3799, 3804 (E:D.N.Y. 1971) (Weinstein, D.J.);

Fifth Avenue Peace Parade Committee v. Hoover, —— F. Supp.

, 10 Civ. 2646 (SQALY. April 28, 1971). ,

Iie, Résolption of the issue has not been aided by th the reluctance of

, nape ie AG eee Fret, Somts 10 pata'on, the’ Sees. _

‘

pt ae ‘Dismissal for lack of jurisdiction i is ina Br un-

* Jess it appears to be a legal certainty that léss than’ 7

‘, $10, 000 is at issue [citations eee: « :

eee Since it can be arguably maintainéd that the “differential -

_ between Fein’s civilian’ and military income would exceed... ;

oar $10, 000, J udge Hays’ additional ground -for dininionnt oS

2 is. ‘ianpreper:

: B. Hf Fein Did Not Establish an Arguable Controversy “ie

- s,m Exeéss of $10,000, the Monetary ,Requirement _

Is‘ Either Thapplicable or Unnecessary to Cases Such _

- as This, or It t Is Facialty a er seroma

@ The jitrisdictional’ amount requirement of Sec. 1331 is @

- inapplicable to suits brought upon claims that federal laws GA

- , and federal officials have violated personal liberties guar-

anteed under the Constitution. Any other. result#would be

- inconsistent with Congress’: purpose in adopting the juris- |

dictional, amount requirement. It was repeatedly asserted -. -

_ *4 +, in Congress when the juridictional amount was raised to *

‘ $10,000 in 1958, that “the only significant .categories of

| {Federal question’ cases subject to the jurisdictional amount _

_ are suits under the J ones Act and suits contesting the ‘con- - -

stitutionality of State statutes.” 1958 U. 8. Code.Cong. and

_ Admin. News 3103. See also S. Rev. No. 1830, 85th Cong.,

_ 2d Sess. (1958) ; 1958 U. 8. Code Cong. ‘and Admin. News —

stitutionally protected rights by, state officials’ are’ ‘hdidest ‘A eae

- to plenary judicial power (see 28. U.S.C. $1343), federal ee,

Oestereich v. Selective Service, 393 US. 239 (2968) ; Boyd. ;

-. VW. Clark, 393 U.S. 316 (1969) ; Tatum v. nga F.2d ——;

a 24,208 wots Cir. shape i971). i c

‘9g .

officers in cases like the one at bar, would be immune from

judicial sanction in equitable eases for precisely the same -

illegal conduct. Any other: result would render. Seetion

* 1331 constitutionally suspect. See Cortright v. Resor, su-_

‘pra; Fifth Avenue Peace Parade Committee, supra; Wolff .

v. Selective Service, Bd., 372 F.2d 817, 826 (2d Cir. 1967) :

(Senior Judge Medina); Giancana v. Johnson, 335 F.2d

366; 371 (7th Cir. 1964) (dissenting opinion of Judge Swy-

gert), cert. denied, 379 U.S. 1001 (1965); Boyd v. Clark,

287 F. Supp. 561 (S.D.N.Y. 1968) (dissenting opinion of

Judge Edelstein), afd on othér grounds, 393 U.S. 316

(1969) ; Murray v. Vaughn, 300 F. Supp. 388 (D. R.I. 1969)

wation: é in Constitutional Law, 79 Yae L. J. 1205, 1306-08

(1970) ; but see, Goldsmith v. Sutherland, 426 F.2d 1395,

cert. denied, 39 U.S.L.W. 3256 (Dec. 14, 1970).

_ As pre vi usly stated, this Court has ‘not passed directly

- upon this question. E.g., Oestereich v. Selective Seruice

Bd., supra. How er, this Court and other federal courts

-have frequently dealt-qn the merits with cases conceptu-

- ally similar to the present.one without inquiring whether

- the jurisdictional. amount requited, by Sec. 1331 was satis-

‘

v fied: See, eg., Aptheker v. seat Ea 378 US.

y 500 (1964) (right to a passport); Sch v.. Rusk, 377 |

" US. 163 (1964) (right to citizenship at issue); Quaker Ac-.

' “, tion Group. v. Hickel, 421 F.2d 1111 (D.C: Cir. 1970) (suit.

: “. for declaratory judgment. against the Department of In-

terior’s regulations, restricting picketing. in front of the —

. . White House); Thompson:v. Clifford, 408. F.2d 154. (D.C.

Cir. 1968) (right to burial in Arlington National Ceme-

tery). On some occasions, judges recognize but gloss over

the question as, for example, in Breen v. Selective Service. -

——— Q . ek

: >

\ (Judge Pettine) ; Ely, Legislative and Administrative Mo-'

- Bd., 406 F.2d 636, 637 .n. 1 (2d Cir, 1969), rev’d on other

grounds, 396 US. 460 (1970), where the Second Circuit,

referring to the jurisdictional amount said “(T]he Govern-

ment has made no point about this nor shall we.” |

-This Court would also have plenary jurisdiction, over

-the respondents without regard to the ainount in contro- —

-versy, under 28 U.S.C. §1361, if the argument set forth

in Point I of our brief is adopted by the Court.’ See Hunt .

v. Local Board, 438 F.2d 1128, 1138 (3rd Cir. 1971) (en

banc) (Hastie, J. concurring). This statute gives the Dis-

trict Courts “original jurisdiction of any action in the

nature of mandamus to compel an officer employee of the

United States or.any agency thereof to perform a duty.

owed to the plaintiff.” Section 1361 was enacted by Con-

gress in 1962 “to make it possible to bring actions against

.government officials and agencies in the U. S. - District

Courts outside the District of Columbia, which, because of

certain existing limitations on jurisdiction, and ° venue, may’ -

‘now be brought only in the U. S. District Court for the

‘District of: Columbia.” S. Rep. No. 1992, ‘87th Cong., 2d

4 Sess. (1962); 1962 U. S. Code Cong. and Admin. News, ..

2784, 2785, 2788. See also, 3 Davis, ApMrinistraTIve Law

§23.09, at 85 (1965 Supp.); ‘Byse, Proposed Reforms in

Federal “Nonstatutory” Judicial Review: Sovereign Im- -

| munity, Indispensable Parties, Mandamus, 75 Harv. L. |

~ >. . Rev. 1479 (1962) ; Jacoby, The Effect of Recent Changes |

|. —s im the Law of “Nonstatutory” Judicial. Review, 53 Gro.

LJ. (1964) ; Byse and Fiocca, Section. 1361 of the Man-

_damus and Venue Act of 1962 and “Nonstatutory” Judicial .

Review of Federal Administrative Action, 81 Harv. L. Rev.

308 (1967). pea. ees ta es

“The instant — suit ends windy tnjunélive relief

against unconstitutional or ulira vires actions of. the re- -

spondents. As Byse and Fiocca have observed, even “[b]e-

fore. enactment of seat er, some federal courts had

issued mandatory injunction’ which granted the same re-

” lief as writs of mandamus . . .” 81 Harv. L. Rev. at 319,

312-313. Further, Section 1361 “should be interpreted as

. authorizing mandatory injunctive relief in original actions

even though the relief. awarded is essentially the same as,

or identical to, that which would be granted by a writ of

mandamus, thus developing the equity, rather than man-

damus tradition.” 81 Harv..L. Rev. at 320, 355. This suit

does not invite the Court to review an exercise of discre- |

tion by the defendant members of the Selective Service |

System. See Points I and II, supra: (Petitioner claims

_ that the Respondents acted unconstitutionally or wtra

vires their. authority.) In fact, this suit prays the enforce-

_ ment of a ministerial duty..See Point I, supra. It is, there-_

‘ fore, in the nature of an action for mandamus under 28

U.S.C. §1361, Hunt, supra at 438 F.2d 1138-40 (J. Hastie |

* concurring) ; Cortright v. Resor, supra at 3 SSLR at 3806;

Rose v. McNamara,.225 F. Supp. 891, 894 (E.D. Pa. 1963),

aff’d per curiam, 339 F.2d 259 (4th Cir.’ 1964) ; see gener-

ally, Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309,

* 317-18 (1958) ; Wubur v. United States ex rel. Kadrie, 281.

U.S. 206, 218-19 (1930) ; Hiyinson v. Schoeneman, 190 F.2d

32, 34-35 (D.C. Cir. 1951); 3 Davis, ADMINISTRATIVE Law

$§23.09-23.12 (1958, Supp. 1965).

Section 1361 is one of that group of: statutes santis |

characterized by Professor Wright as grantings“jurisdic-

tion, without regard to the amount in controversy, in vir-

tually all the areas that otherwise would fall under the gen-~

eral federal question statute.” Waricxt, FEpEraL Courts

§32, at 108 (2 ed. 1970). See also, 1 Moorz Feprrat Prac-

a8,

_ ace {.90[1] (2 ed. 1964). (As Byse and Fiocea observed,

“from the very beginning section 1361 was intended to be

| jurisdictional. . .” 81 Harv. L. Rev. at 351.) Thus, assum-

' ing arguendo that the amount any of the named plaintiffs:

~ has in controversy is less than $10,000,.the federal courts _

still have jurisdiction over the respondent members of the ~

Selective Service System. The courts’ jurisdictien over the _

defendants other than the United States is plenary under

section 1361. “ {iit can. provide the independent basis of .

jurisdiction necessary to sustain an action for a declara-

_ tory judgment.” Byse and Fiocea, 81 Harv. L. Rev. at 351. -

- Moreover, it provides the independent basis of jurisdiction |

' necessary to issue the complete injunctive relief requested

by petitioner, for the mandamus and mandatory injunctive

"remedies tended to merge even before enactment of Sec-

_ tion 1361 and surely have merged §ince. See generally,

Byse and Fiocca, supra, 1,81 Harv. L. Rev. 308 passim. Since -

the ‘relief requested and properly available under ‘Section

1361, includes an order in the nature of mandamus, juris-

ae is valid notwithstanding §1831. |

CONCLUSION:

For the icvcesbik reasons — ) soon below —

_ be reversed.

Beapectfally submitted,

‘Metvin L. Wow

American Civil Liberties Union

156 Fifth Avenue

New York, New York: 10010 -

Attorney for. Amicus*

* Attorney for Auiions acknowledges the indispénssble assistance

of Mr. Edwin J. Oppenheimer, Jr., Coordinator, New York Civil

. Liberties Union Selective Service and Military Law Panel. ;

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.