Oestereich v. Selective Service System Local Board No. 11/Concurrence Harlan

by John Marshall Harlan II

United States Supreme Court

393 U.S. 233

Oestereich  v.  Selective Service System Local Board No. 11

 Argued: Oct. 24, 1968. --- Decided: Dec 16, 1968

Mr. Justice HARLAN, concurring in the result.

I concur in the holding that pre-induction review is available in this case, but I reach this conclusion by means of a somewhat different analysis from that contained in the opinion of my Brother DOUGLAS.

At the outset, I think it is important to state what this case does and does not involve. Petitioner does not contend that the Selective Service System has improperly resolved factual questions, or wrongfully exercised its discretion, or even that it has acted without any 'basis in fact,' as that phrase is commonly used in this area of law. See Estep v. United States, 327 U.S. 114, 122-123, 66 S.Ct. 423, 427-428, 90 L.Ed. 567 (1946); ante at 238, n. 7. He asserts, rather, that the procedure pursuant to which he was reclassified and ordered to report for induction-a procedure plainly mandated by the System's self-promulgated published regulations, 32 CFR, pt. 1642-is unlawful. Specifically, he asserts that the delinquency reclassification scheme is not authorized by any statute, that it is inconsistent with his statutory exemption as a ministerial student, 50 U.S.C. App. § 456(g), and that, whether or not approved by Congress, the regulations are facially unconstitutional. ^[1]

The pivotal language of § 10(b)(3), for present purposes, is the statute's proscription of pre-induction judicial review 'of the classification or processing of any registrant * * *.' I take the phrase 'classification or processing' to encompass the numerous discretionary, factual, and mixed law-fact determinations which a Selective Service Board must make prior to issuing an order to report for induction. I do not understand that phrase to prohibit review of a claim, such as that made here by petitioner, that the very statutes or regulations which the Board administers are facially invalid.

'Classification is the key to selection,' 32 CFR § 1622.1(b), and among a local Board's most important functions is 'to decide, subject to appeal, the class in which each registrant shall be placed.' 32 CFR § 1622.1(c). Classification is a highly individualized process, in which a Board must consider all pertinent information presented to it. Ibid. Thus, a Board may be required to determine, on a conflicting record, whether a registrant is conscientiously opposed to participation in war in any form, 32 CFR § 1622.14, or whether the registrant's deferment 'is in the national interest and or paramount importance to our national security * * *.' 32 CFR § 1622.20. A Board also exercises considerable discretion in the processing of registrants-for example, in securing information relevant to classification, 32 CFR §§ 1621.9-1621.15, scheduling of physical examinations, 32 CFR, pt. 1628, and scheduling and postponement of induction itself, 32 CFR, pt. 1632.

Congress' decision to defer judicial review of such decisions by the Selective Service Boards until after induction was, I believe, responsive to two major considerations. First, because these determinations are of an individualized and discretionary nature, a reviewing court must often examine Board records and other documentary evidence, here testimony, and resolve controversies on a sizable record. Even though the scope of judicial review is narrow, see Estep v. United States, supra, at 122-123, 66 S.Ct., at 427-428 this cannot be done quickly. To stay induction pending such review would work havoc with the orderly processing of registrants into the Nation's armed forces. See 113 Cong.Rec. 15426 (Senator Russell); cf. Estep v. United States, supra, at 137, 66 S.Ct., at 434 (Mr. Justice Frankfurter, concurring in the result).

Second, the registrant has been afforded, prior to his induction, the opportunity for a hearing and administrative appeals within the Selective Service System. 32 CFR, pts. 1624 1627. It is properly presumed that a registrant's Board has fully considered all relevant information presented to it, and that it has classified and processed him regularly, and in accordance with the applicable statutes and regulations. Greer v. United States, 5 Cir., 378 F.2d 931 (1967); Storey v. United States, 9 Cir., 370 F.2d 255 (1966); cf. United States v. Chemical Foundation, 272 U.S. 1, 14-15, 47 S.Ct. 1, 6, 71 L.Ed. 131 (1926); Chin Yow v. United States, 208 U.S. 8, 12, 28 S.Ct. 201, 202, 52 L.Ed. 369 (1908); Martin v. Mott, 12 Wheat. 19, 6 L.Ed. 537 (1827).

These factors are significantly altered where the registrant contends that the procedure employed by the Board is invalid on its face.

First, such a claim does not invite the court to review the factual and discretionary decisions inherent in the 'classification or processing' of registrants, and does not, therefore, present opportunity for protracted delay. To be sure, collateral factual determinations-for example, whether the registrant was subjected to the statute or regulation drawn in question (in this case, the delinquency reclassification procedure)-may sometimes be necessary. But, in general, a court may dispose of a challenge to the validity of the procedure on the pleadings. Insubstantial claims can usually be weeded out with dispatch. ^[2]

Second, a challenge to the validity of the administrative procedure itself not only renders irrelevant the presumption of regularity, ^[3] but also presents an issue beyond the competence of the Selective Service Boards to hear and determine. Adjudication of the constitutionality of congressional enactments ^[4] has generally been thought beyond the jurisdiction of administrative agencies. See Public Utilities Comm'n of State of California v. United States, 355 U.S. 534, 539, 78 S.Ct. 446, 450, 2 L.Ed.2d 470 (1958); Engineers Public Service Co. v. SEC, 78 U.S.App.D.C. 199, 215-216, 138 F.2d 936, 952-953 (1943), dismissed as moot, 332 U.S. 788, 68 S.Ct. 96, 92 L.Ed. 370. The Boards have no power to promulgate regulations, and are not expressly delegated any authority to pass on the validity of regulations or statutes. Such authority cannot readily be inferred, for the composition of the boards, and their administrative procedures, render them wholly unsuitable forums for the adjudication of these matters: local and appeal Boards consist of part-time, uncompensated members, chosen ideally to be representative of the registrants' communities; ^[5] the fact that a registrant may not be represented by counsel in Selective Service proceedings, 32 CFR § 1624.1(b), seems incompatible with the Boards' serious consideration of such purely legal claims. Indeed, the denial of counsel has been justified on the ground that the proceedings are nonjudicial. United States v. Sturgis, 3 Cir., 342 F.2d 328, 332 (1965), cert. denied, 382 U.S. 879, 86 S.Ct. 164, 15 L.Ed.2d 120; cf. United States v. Capehart, D.C., 141 F.Supp. 708, 719 (1956), aff'd, 237 F.2d 388 (1956), cert. denied, 352 U.S. 971, 77 S.Ct. 363, 1 L.Ed.2d 324.

To withhold pre-induction review in this case would thus deprive petitioner of his liberty without the prior opportunity to present to any competent forum-agency or court-his substantial claim that he was ordered inducted pursuant to an unlawful procedure. Such an interpretation of § 10(b)(3) would raise serious constitutional problems, ^[6] and is not indicated by the statute's history, ^[7] language, or purpose. On the foregoing basis I agree that § 10(b)(3) does not forbid pre-induction review in this instance.

Because both the District Court and the Court of Appeals passed on the merits of petitioner's challenge to the delinquency reclassification regulations, this issue is ripe for our consideration. Whatever validity the procedure may have under other circumstances, I agree that the delinquency reclassification of petitioner for failure to possess his registration certificate is inconsistent with petitioner's conceded statutory exemption as a student of the ministry.

Mr. Justice STEWART, with whom Mr. BRENNAN and Mr. Justice WHITE join, dissenting.

Notes

1. Petitioner makes several other arguments which I do not find necessary to discuss.
2. Moreover, a court should be hesitant to grant a preliminary injunction staying induction except upon a strong showing that the registrant is likely to succeed on the merits.
3. A suggestive analogy may be found in the Court's construction of the civil rights removal statute, 28 U.S.C. § 1443. Where state statutory procedure is valid on its face, it is presumed that the state courts will treat a defendant fairly, and removal is not permitted. Georgia v. Rachel, 384 U.S. 780, 803 804, 86 S.Ct. 1783, 1796, 16 L.Ed.2d 925 (1966); Virginia v. Rives, 100 U.S. 313, 321-323, 25 L.Ed. 667 (1880). But, subject to qualifications not here pertinent, a defendant may remove the cause when the state statutory procedure is facially invalid: 'When a statute of the State denies his right, or interposes a bar to his enforcing it, in the judicial tribunals, the presumption is fair that they will be controlled by it in their decisions * * *.' Id., at 321. See also Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966).
4. It may be noted that the Selective Service System urges that the delinquency reclassification provisions have been approved by Congress. Brief for the Respondents 71.
5. See 32 CFR §§ 1603.3, 1604.22; Memorandum from General Hereshey, S.Doc. No. 82, 89th Cong., 2d Sess., 4; Weekly Compilation of Presidential Documents, March 13, 1967, p. 395; Report of the National Advisory Commission on Selective Service 74 79 (1967).
6. It is doubtful whether a person may be deprived of his personal liberty without the prior opportunity to be heard by some tribunal competent fully to adjudicate his claims. Cf. Kwong Hai Chew v. Colding, 344 U.S. 590, 596-598, 73 S.Ct. 472, 477-478, 97 L.Ed. 576 (1953); Opp Cotton Mills, Inc. v. Administrator, etc., 312 U.S. 126, 152-153, 61 S.Ct. 524, 535-536, 85 L.Ed. 624 (1941); United States v. Illinois Central R. Co., 291 U.S. 457, 463, 54 S.Ct. 471, 473, 78 L.Ed. 909 (1934); Londoner v. City and County of Denver, 210 U.S. 373, 385, 28 S.T. 708, 713, 52 L.Ed. 1103 (1908); Dixon v. Alabama State Board of Education, 5 Cir., 294 F.2d 150 (1961). But cf. Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950); Bowles v. Willingham, 321 U.S. 503, 520, 64 S.Ct. 641, 650, 88 L.Ed. 892 (1944); North American Cold Storage Co. v. City of Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908). The validity of summary administrative deprivation of liberty without a full hearing may turn on the availability of a prompt subsequent hearing, cf. U.S.Const., Amdt. VI; United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) something not made meaningfully available to petitioner here, either by the option of defending a criminal prosecution for refusing to report for induction, see Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Oklahoma Operating Co. v. Love, 252 U.S. 331, 40 S.Ct. 338, 64 L.Ed. 596 (1920); cf. Reisman v. Caplin, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964), or by filing a petition for a writ of habeas corpus after induction. See ante, at 235-236; Estep v. United States, supra, 327 U.S., at 129-130, 66 S.Ct., at 430-431 (concurring opinion of Mr. Justice Murphy).
7. The salient parts of the statute's sparse legislative history are set out in my Brother STEWART'S dissenting opinion, post, at 247-248. Both the House and Senate committees were 'disturbed by the apparent inclination of some courts to review the classification action of local or appeal Boards before the registrant had exhausted his administrative remedies.' H.R.Rep.No. 267, 90th Cong., 1st Sess., 30 (1967); U.S.Code Cong. & Admin.News 1967, p. 1333; S.Rep.No. 209, 90th Cong., 1st Sess., 10 (1967). As I have discussed in the preceding text, the Boards can provide no remedy for a registrant's claim that the regulations or statutes are themselves invalid. (This is not to say that a registrant making such a claim may come into court before he has exhausted his administrative appeals, for the System may decide in his favor on other grounds, obviating the need for further review. Cf. my dissent in Public Utilities Comm'n of State of California v. United States, supra, 355 U.S., at 549-550, 78 S.Ct., at 455-456; Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 772, 67 S.Ct. 1493, 1503, 91 L.Ed. 1796 (1947). Petitioner here has exhausted available remedies. Appendix 4.)

Section 10(b)(3) was likely precipitated by the Second Circuit's well-publicized decision in Wolff v. Selective Service Local Bd. No. 16, 2 Cir., 372 F.2d 817 (1967). See dissenting opinion of Mr. Justice STEWART, post, at 247; Brief for Respondent 18 n. 4, 69, n. 32. Wolff, as well as the other 'recent cases' to which the committee reports probably referred, and this Court's decisions construing the antecedent to § 10(b)(3), all involved claims that the Selective Service Boards had maladministered or misapplied the applicable statutes or regulations, and not challenges to the validity of the laws themselves. Wolff v. Selective Service Local Bd. No. 16, supra (loss of deferment for participating in demonstration); Townsend v. Zimmerman, 6 Cir., 237 F.2d 376 (1956) (failure to follow proper appeal procedure); Schwartz v. Strauss, 2 Cir., 206 F.2d 767 (1953) (concurring opinion) (misclassification); Ex parte Fabiani, D.C., 105 F.Supp. 139 (1952) (refusal to recognize foreign medical school for deferment); Tomlinson v. Hershey, D.C., 95 F.Supp. 72 (1949) (refusal to hear request for deferment); Estep v. United States, supra (entitlement to ministerial exemption); Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305 (1944) (entitlement to conscientious objector status).