# Fein v. Selective Service System
## Dissenting Opinions

    Douglas
    Marshall
Supreme Court of the United States
405 U.S. 365
Fein v. Selective Service System Local Board No. 7 of Yonkers, New York, et al.
Certiorari to the United States Court of Appeals for the Second Circuit
No. 70-58 Argued: October 12, 1971 --- Decided: March 21, 1972
Following petitioner's classification as a conscientious objector by his local Selective Service board, the State Director requested an appeal. Petitioner was notified but was not furnished with the basis for the appeal or given an opportunity to reply. The appeal board unanimously classified petitioner I-A and rejected his conscientious objector claim, without stating any reasons therefor. Petitioner was not entitled under the regulations to appeal to the national board, but the National Director, on petitioner's request, did note an appeal. The national board unanimously classified petitioner I-A, with no reasons given. There is no outstanding induction order for petitioner, who brought this pre-induction suit challenging, on due process grounds, the constitutionality of his Selective Service appeal procedures. The District Court dismissed the complaint, finding the suit barred by § 10 (b)(3) of the Military Selective Service Act of 1967, and the Court of Appeals affirmed. That section provides that a classification decision of the local board "shall be final, except where an appeal is authorized," and that the classification decision on appeal also "shall be final." It further provides that "[n]o judicial review shall be made of the classification or processing of any registrant... except as a defense to a criminal prosecution... after the registrant has responded either affirmatively or negatively to an order to report for induction," and then the review "shall go to the question of the jurisdiction... only when there is no basis in fact for the classification." By statute enacted in September 1971, after petitioner's trial, a registrant is entitled to a personal appearance before a local or appeal board, and, on request, to a statement of reasons for any adverse decision. Ensuing changes in regulations, effective December 1971 and March 1972, provide the procedural features that petitioner complained were lacking.
Held:
    1. Section 10 (b)(3) forecloses pre-induction judicial review where the board has used its discretion and judgment in determining facts and arriving at a classification for the registrant. Clark v. Gabriel, 393 U.S. 256, followed; Oestereich v. Selective Service Board, 393 U.S. 233, distinguished. In such case the registrant's judicial review is confined to situations where he asserts his defense in a criminal prosecution or where, after induction, he seeks a writ of habeas corpus. Pp. 372-377.
    2. Petitioner's immediate induction is not assured, however, in light of the intervening statutory change, the new regulations thereunder, and a change in the Government's position, albeit in a post-induction case, to concede that some statement of reasons is necessary for "meaningful" review of the administrative decision when the registrant's claim has met the statutory criteria or has placed him prima facie within the statutory exemption. Pp. 377-381.
430 F. 2d 376, affirmed.
BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN and WHITE, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 381. MARSHALL, J., filed a dissenting opinion, in which STEWART, J., joined, post, p. 387. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.
Michael B. Standard argued the cause for petitioner. With him on the briefs was David Rosenberg.
Solicitor General Griswold argued the cause for respondents. With him on the brief were Assistant Attorney General Gray, Morton Hollander, and Robert E. Kopp.
Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.