# Fein v. Selective Service System/Dissent Marshall

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* Opinion of the Court
* Dissenting Opinions Douglas Marshall
MR. JUSTICE MARSHALL, with whom MR. JUSTICE STEWART joins, dissenting.
I dissent. Today's holding reinterprets Oestereich v. Selective Service Board, 393 U.S. 233 (1968), to establish a principle that serves no sensible purpose. If Oestereich is to be preserved, it must be rooted in a principle that permits pre-induction review in this case as well.
As the majority correctly observes, our decision in Oestereich foreclosed any further argument that § 10 (b)(3) constitutes an absolute bar to pre-induction judicial review. "No one, we believe, suggests that § 10 (b)(3) can sustain a literal reading." Id., at 238. Having thus adopted in Oestereich, and reaffirmed in [p388] Breen v. Selective Service Board, 396 U.S. 460 (1970), an interpretation of the Act that permits pre-induction review in some cases, we need decide today only whether Dr. Fein raises that sort of exceptional claim appropriate for pre-induction review.
The majority apparently holds that pre-induction review is available only where a registrant's "claimed status is... factually conceded and thus [is] assured by the statute upon objective criteria." Ante, at 376. I confess that I do not altogether understand these key words in the majority's test. But I fathom enough to conclude that the test makes little sense. Although petitioner challenges only the procedures used by the Selective Service System, and does not ask this Court to decide the merits of his conscientious objector (CO) claim, he loses his lawsuit because his entitlement to a CO classification is not "factually conceded" or "objectively certain." But the merits of petitioner's CO claim are not at issue in this pre-induction litigation. I can think of no reasons for an approach that ignores the actual pre-induction claim, and that permits pre-induction review only where "objective certainty of [the registrant's] status" exists. Ibid. Oestereich should not be recast this narrowly.
The majority says that there can be pre-induction review only when the registrant's status is assured "upon objective criteria." This, by itself, might only mean that where status turns on unconceded factual claims—as opposed to more "objectively" determined legal claims—pre-induction review is barred. But the heart of the majority's test is that pre-induction review is permitted only when there is "objective certainty" of status. Obviously, this approach is not immediately suggested by the words of § 10 (b)(3), which proscribes pre-induction review "of the classification or processing of any registrant." Nor does it avoid the "unnecessary [p389] harshness" that the majority concedes Oestereich sought to prevent. Where the registrant's status is "objectively certain," or where the Government concedes that it will not prosecute the registrant if he refuses induction and will confess error if he submits to induction and brings a habeas corpus action, the registrant is "least jeopardized by the procedural limitations of § 10 (b)(3)." Oestereich v. Selective Service Board, 393 U.S., at 251 (STEWART, J., dissenting). Where there is no pre-induction review, the harsher burden falls on the registrant whose rights and ultimate status are not free from doubt or conceded. He is the one faced with the enormous uncertainties of a criminal prosecution for refusing induction; and should he submit to what he thinks is an illegal induction, anticipating relief through habeas corpus, his uncertain prospects make it unlikely that he could avoid the massive dislocations of induction itself (e.g., giving up a job, leaving school). In short, the majority's theory of pre-induction review helps the wrong people.
A viable approach to the problem of pre-induction review is to be found by comparing Oestereich with the other § 10 (b)(3) case decided on the same day, Clark v. Gabriel, 393 U.S. 256 (1968). In Clark v. Gabriel, we interpreted § 10 (b)(3) to bar pre-induction review where the challenged action "inescapably involves a [p390] determination of fact and an exercise of judgment"; thus, we refused to allow pre-induction review where the registrant claimed, on the facts, that he was entitled to a CO classification. However, we permitted pre-induction review in Oestereich, supra, where the local board's action, taken pursuant to a purportedly valid disciplinary regulation, was in claimed conflict with rights to exemption assured by statute. Cf. Breen v. Selective Service Board, supra. For reasons that will become clearer below, the crucial difference for me between the cases is that in Oestereich (and Breen) the registrant challenged a purportedly valid Selective Service rule of general application, the validity of which the administrative process could not competently adjudicate before induction.
At issue in Dr. Fein's case are Selective Service appeal procedures, general rules that are said to be invalid under the Constitution. At stake is not a board determination "processing or clarifying" an individual registrant, but general procedures prescribing the way such determinations are made. The situation here is substantially similar to Oestereich, and altogether different from the one in Clark v. Gabriel. In Oestereich, as former Chief Judge Lumbard noted in dissent below,
   "[T]he registrant challenge[d] a procedure unauthorized by statute, while claiming that the regulation [p391] deprive[d] him of a right based on higher authority. The difference, which I do not deem significant, is that in Oestereich the conflict posed was between a [Selective Service] regulation—the delinquency provision—and a statutory command, the ministerial exemption." 430 F. 2d 376, 382.
Here, Selective Service appellate procedures, implemented under Selective Service regulations 32 CFR § 1626 et seq., arguably conflict with the constitutional requirements of the Due Process Clause, "surely an a fortiori case for preinduction review." Ibid. In Oestereich, Breen, and this case, the Selective Service System relied on rules, purportedly valid, that are challenged as illegal in their general application.
In Clark v. Gabriel, the registrant challenged the factual and judgmental determination that he was not entitled to a conscientious objector classification. But Dr. Fein does not challenge that individualized judgment in his pre-induction suit. Here, the registrant's local board found him entitled to a CO classification, and then this presumptively correct classification was taken away pursuant to allegedly lawless and unconstitutional procedures. The facial validity of these procedures is the only issue here. In neither Oestereich, Breen, not this case would pre-induction inquiry look to discretionary determinations of the System, or to factual judgments of the local or appeal board. (Nor is there any dispute in [p392] our case that the challenged procedures were actually followed here.)
In my view, pre-induction judicial review should be permitted where the registrant claims that generally applied rules administered by Selective Service are invalid, and where the administrative process is not competent to decide the registrant's claim. Unlike the approach of the majority, this approach would benefit an appropriate group of registrants, without doing violence to Congress' apparent purposes in passing § 10 (b)(3). While the majority opinion in Oestereich was directed narrowly to the facts there presented, the decision may fairly be said to recognize that § 10 (b)(3) was intended to be an integral part of the complex machinery designed by Congress to raise an army fairly and expeditiously. In my view, § 10 (b)(3) reflected two related assumptions of Congress. First, Congress assumed procedural regularity in the administrative system. Where the general administrative procedures are valid—where procedural regularity is acknowledged—individual "classification or processing" determinations may be presumed correct, and pre-induction review would be an unwarranted interference with an orderly induction system. More generally, as I view § 10 (b)(3), Congress wanted to make clear that since it had provided an elaborate administrative procedure in which registrants have a full opportunity to raise their claims, they should not be allowed to have duplicative judicial review of the administrative determinations before induction. These premises justifying a ban on pre-induction review may be undercut in particular cases, and in such cases pre-induction review should be permitted. Where, as in Dr. Fein's case, the underlying procedures of the classification system are themselves challenged—where Congress' presumption of procedural regularity is called into question—pre-induction [p393] review should be permitted. And where, as here, a registrant makes a claim not suited for administrative determination even in the first instance, pre-induction judicial review would not duplicate the administrative process and therefore should be permitted. Of course, where the correctness of a particular classification is at issue, the administrative process usually has an opportunity to decide whether the claimed error exists, and pre-induction review would be inappropriate. But a Selective Service Board of laymen does not have the competence to decide Dr. Fein's claim that generally applied Selective Service procedures are unconstitutional. Without pre-induction judicial review, Dr. Fein's liberty is taken without any competent body deciding the constitutional question he raises. Cf. Oestereich v. Selective Service Board, supra, at 243 (Harlan, J., concurring in result). Section 10 (b)(3) does not require such a harsh result, at odds with the spirit, if not the letter, of so many of our constitutional decisions.
I would permit pre-induction review in this case, and would remand for consideration of the merits of petitioner's claims.

## Notes

* ↑ The cases in which the majority would permit pre-induction review are not those in which Selective Service manpower gathering processes are "interrupted" to a distinctively minimal extent. "Litigious interruption" comes from the ordinary processes of any litigation, the delays built in the Federal Rules. These interruptive time delays are not significantly shortened in lawsuits where the Government makes crucial concessions at the appeal stage (as in Oestereich), or where the pertinent determination is whether a registrant's status is "objectively certain." A day or two of court time may be saved, but, given the duration of the entire litigation, this is insignificant.
* ↑ The majority relies on Boyd v. Clark, 287 F. Supp. 561 (SDNY 1968), which we summarily affirmed, 393 U.S. 316 (1969), with a single citation of Clark v. Gabriel, 393 U.S. 256 (1968). Although the District Court dismissed the lawsuit on two grounds—that pre-induction review was improper and that the jurisdictional amount requirement had not been met—we affirmed on the single ground that pre-induction review was improper, as our simple reference to Clark v. Gabriel was designed to indicate. That reference should not be overburdened with significance. Since those registrants, who had never received an induction notice, had not reached a position of finality within the system, pre-induction review was inappropriate.
* ↑ Section 10 (b)(3) proscribes pre-induction review "of the classification or processing of any registrant...."
* ↑ The majority notes: "It is true that in Oestereich and Breen a result favorable to the registrant was also reversed, but there the change came about only by the board's consideration of extraneous circumstances apart from the merits of the underlying claims." Ante, at 377. This distinction is indeed ironic. One of Fein's basic claims in this lawsuit is that absent a statement of reasons by the Appeal Board that took away his CO classification, there is no way of knowing whether that action was based on extraneous circumstances or whether it was lawful.