# Fein v. Selective Service System/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Douglas Marshall
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
Petitioner Oliver T. Fein is a doctor of medicine. In February 1969 he filed this pre-induction suit in the United States District Court for the Southern District of New York. Jurisdiction was asserted under the federal-question statute, 28 U.S.C. § 1331, under the civil rights statute, 28 U.S.C. § 1343, and under the federal-officer statute, 28 U.S.C. § 1361. Fein challenged, on [p367] due process grounds, the constitutionality of his Selective Service appeal procedures and sought declaratory and injunctive relief that would prevent his induction into military service. The defendants are Fein's local board at Yonkers, New York, the Appeal Board for the Southern District, the State Selective Service Director, and the National Appeal Board.
In an unreported memorandum decision, the District Court dismissed the complaint for want of jurisdiction. A divided panel of the Second Circuit affirmed. 430 F. 2d 376 (1970). Certiorari was granted, 401 U.S. 953 (1971), so that this Court might consider the important question whether § 10 (b)(3) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 460 (b)(3), permits this pre-induction challenge to Selective Service appeal procedures.

## I

[p368] Fein, born May 5, 1940, registered with his Yonkers local board at age 18. He was assigned a II-S student deferment during his undergraduate years at Swarthmore College and, subsequently, during the period of his attendance at Case-Western Reserve University School of Medicine. Upon graduation from medical school, Fein was assigned a II-A occupational deferment because of his internship at Cleveland Metropolitan General Hospital.
In September 1967, while still an intern, Fein wrote his local board "to declare myself a conscientious objector to war and the institution which propagates war, the military." He requested and received SSS Form 150 for conscientious objectors. He promptly completed and returned the form to the local board.
In the form Fein stated: He believes in a Supreme Being. The beliefs from which his conscientious objection springs include the concepts that "human beings are primarily 'good,'" that this goodness "can only be realized, if human beings are allowed to fulfill their potential," and that "all human beings are fundamentally equal, in terms of their value as human beings." War violates "this essential being in all men..." It "fosters irresponsibility for inhuman and cruel acts." It "demands a style of life, which is violent and hierarchical. It curbs and extinguishes rather than expands man's potential." The "substance of my beliefs stems from this common foundation of all religions. Thus my beliefs are not merely a personal moral code, but are ideals which emanate from centuries of religious tradition." He attributes the shaping of his beliefs to four principal sources: his parents, the church he formerly belonged to (a Lutheran body), the civil rights movement, and medicine. He believes "in the power [p369] and values of moral and ethical force," but rejects "violent force" except perhaps in defense of self or of a loved one. His ideals were not articulated by age 18, but he began to formulate them at Swarthmore. Then followed a trip to the South; his break with his church; a summer in Germany where he learned of "biased American journalism about Cuba"; his helping organize a trip by students to Cuba; his interest in SNCC; his work in the slums of San Francisco; his settling in Cleveland's "Negro ghetto" during his first year at medical school; his then "full commitment to non-violence"; his contact with Students for a Democratic Society, which provided "a framework for working out my ideals about justice and equality"; and his "commitment to cooperative living and the poor community [which] stands as a mature expression of my beliefs."
Upon receiving Fein's Form 150 and letters supportive of his claim, the local board invited him to appear personally before it. He did so on November 15, 1967. After the interview the board denied him a I-O classification "at this time." Inasmuch as Fein then held his II-A classification, this action by the board was consistent with Selective Service Regulation 32 CFR § 1623.2 providing that a registrant be placed in the lowest class for which he is eligible.
In February 1968, however, Fein was reclassified I-A. He immediately asked for another personal appearance before the board. The request was granted and he appeared on May 27. The board then classified him as I-O and thus gave him his desired conscientious objector classification.
In June 4 the State Director, pursuant to 32 CFR § 1626.1, wrote the appeal board requesting an appeal and stating, "It is our opinion that the registrant would not qualify for an I-O classification as a conscientious objector." Notice of this was given Dr. Fein by mail. [p370] Fein then wrote seeking "a statement indicating the basis for the State Director's appeal" and an opportunity to reply. No explanation was forthcoming.
The local board forwarded the file to the appeal board. Accompanying the file was a so-called "brief." This, as petitioner had conceded, was merely a summary of the file prepared by a lay employee of the board. The appeal board, by a unanimous 4-0 vote on June 20, classified Dr. Fein I-A and thus rejected his claim to conscientious objector status. The board stated no reasons for its decision. Fein was notified of his reclassification.
Under 32 CFR § 1627.3 a registrant was not entitled to take an appeal to the presidential, or national, appeal board from an adverse classification by the state appeal board made by a unanimous vote. Fein was in this position. Accordingly, he wrote the National Director of Selective Service in July and asked that the Director appeal on his behalf under 32 CFR § 1627.1 (a). Fein's letter to the Director was detailed. It emphasized his above-stated beliefs and the way of life to which those beliefs had guided him. "It should be clear, that I am willing to serve my county, but only in activities consistent with my conscience." Fein outlined the administrative proceedings and listed five claimed inequities: (1) the appeal board's rejection, upon the appeal by the State Director, of the local board's classification; (2) the failure of the Director to state the basis for his challenge; (3) the absence of an opportunity to submit supplemental information before the file was forwarded; (4) the absence of an opportunity to rebut the State Director's decision to take an appeal; and (5) the absence of an opportunity for a personal appearance before the appeal board.
[p371] On July 31 Fein was ordered to report for induction September 6.
The National Director, however, complied with Fein's request and noted an appeal. Fein's outstanding induction order was canceled. He again asked the State Director for a statement of reasons. He was now advised that in the State Director's opinion he did not qualify for a Class I-O deferment and that the decision to appeal "was based upon the information contained in [his] selective service file."
On November 26, 1968, the national board, by a vote of 3-0, classified Dr. Fein I-A. No reason for this action was stated.
No new order that Fein report for induction has been issued.
Fein then instituted this suit. The complaint alleged that the statute and regulations governing Fein's classification and appeal violated the Due Process Clause of the Fifth Amendment in that they did not provide for a statement of reasons to the registrant for the State Director's decision to appeal, or for the appeal board's subsequent decision denying Fein a I-O classification. It also alleged that the defendants acted unconstitutionally by failing to provide Fein with the statements of reasons, by failing to permit him to submit additional material for consideration by the appeal boards, and by refusing him an opportunity to rebut the State Director's decision to appeal.
The District Court did not reach the merits of the constitutional claims. While expressing concern about Fein's ability to establish jurisdiction, the court assumed, arguendo, that he had done so, but then concluded that the suit was barred by § 10 (b)(3).
The Second Circuit affirmed, 430 F. 2d, at 377-380, relying, as did the District Court, upon Oestereich v. Selective Service Board, 393 U.S. 233 (1968); Clark v. [p372] Gabriel, 393 U.S. 256 (1968); and Boyd v. Clark, 287 F. Supp. 561 (SDNY 1968), aff'd, 393 U.S. 316 (1969). One judge, in separate concurrence, 430 F. 2d, at 380, also thought that Fein had failed to establish the jurisdictional amount required under 28 U.S.C. § 1331. The third judge, citing the same cases as did the majority, dissented on the statutory issue; on the merits he would have ruled in Fein's favor. 430 F. 2d, at 380-388.

## II

The case pivots, of course, upon the meaning and reach of § 10 (b)(3), and this Court's decisions in Oestereich, Gabriel, and Boyd, all supra, and in Breen v. Selective Service Board, 396 U.S. 460 (1970).
Section 10 (b)(3) states flatly 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, "No 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..." Even then, the review "shall go to the question of the jurisdiction... only when there is no basis in fact for the classification..."
The finality language appeared in conscription statutes prior to the 1967 Act. See Selective Draft Act of May 18, 1917, § 4, 40 Stat. 80; Selective Training and Service Act of 1940, § 10 (a)(2), 54 Stat. 893; and Selective Service Act of 1948, § 10 (b)(3), 62 Stat. 619. The Court construed this finality language, however, as indicating a congressional intent to restrict only the scope of judicial review and not to deprive the registrant of all access to the courts. See, for example, Estep v. United States, 327 U.S. 114 (1946), and McKart v. [p373] United States, 395 U.S. 185 (1969). But judicial relief was confined to the "no basis in fact" situation. Estep, supra, at 122-123; McKart, supra, at 196.
The "except" clause and the "no basis in fact" language came into § 10 (b)(3) with the 1967 statute by way of prompt congressional reaction provoked by the Second Circuit's decision in Wolff v. Selective Service Local Bd., 372 F. 2d 817 (1967). See H.R. Rep. No. 267, 90th Cong., 1st Sess., 30-31; 113 Cong. Rec. 15426.
Section 10 (b)(3), as so amended, was promptly challenged. In Oestereich the Court refrained from striking down the statute on constitutional grounds. It held, however, that pre-induction judicial review was available to that petitioner who, as a divinity student, claimed his local board had wrongfully denied him a statutory exemption from military service. To rule otherwise "is to construe the Act with unnecessary harshness." And, "No one, we believe, suggests that § 10 (b)(3) can sustain a literal reading." This construction, it was said, leaves the section "unimpaired in the normal operations of the Act." 393 U.S., at 238. See Gutknecht v. United States, 396 U.S. 295, 303 (1970), where reference was made to the "unusual circumstances" of Oestereich.
In the companion Gabriel case, on the other hand, the registrant was asserting a conscientious objector claim. The Court said:
   "Oestereich, as a divinity student, was by statute unconditionally entitled to exemption. Here, by contrast, there is no doubt of the Board's statutory authority to take action which appellee challenges, and that action inescapably involves a [p374] determination of fact and an exercise of judgment... To allow pre-induction judicial review of such determinations would be to permit precisely the kind of 'litigious interruptions of procedures to provide necessary military manpower' (113 Cong. Rec. 15426 (report by Senator Russell on Conference Committee action)) which Congress sought to prevent when it enacted § 10 (b)(3)." 393 U.S., at 258-259.
The constitutionality of the statute again was upheld. Id., at 259. MR. JUSTICE DOUGLAS, separately concurring, noted hypothetical fact situations as to which he might take a different view and then observed:
   "But in my view it takes the extreme case where the Board can be said to flout the law, aas it did in Oestereich v. Selective Service Bd., (393 U.S. 233), to warrant pre-induction review of its actions." 393 U.S., at 260.
Oestereich was complemented by Breen a year later with respect to a registrant statutorily entitled to a deferment rather than to an exemption. See also Kolden v. Selective Service Board, 397 U.S. 47 (1970).
Finally, pre-induction review was denied under § 10 (b)(3) in Boyd v. Clark, 287 F. Supp. 561 (SDNY 1968), a decision affirmed here, 393 U.S. 316 (1969), with only a single reference to Gabriel, decided just four weeks before. In Boyd, four registrants, each classified I-A, challenged student deferment on the ground that it discriminated against those financially unable to attend college. They did not otherwise contest their own I-A classifications.
Thus Oestereich, Gabriel, Breen, and Boyd together establish the principles (a) that § 10 (b)(3) does not foreclose pre-induction judicial review in that rather rare instance where administrative action, based on reasons unrelated to the merits of the claim to exemption or [p375] deferment, deprives the registrant of the classification to which, otherwise and concededly, he is entitled by statute, and (b) that § 10 (b)(3) does foreclose pre-induction judicial review in the more common situation where the board, authoritatively, has used its discretion and judgment in determining facts and in arriving at a classification for the registrant. In the latter case the registrant's judicial review is confined—and constitutionally so—to the situations where he asserts his defense in a criminal prosecution or where, after induction, he seeks a writ of habeas corpus. By these cases the Court accommodated constitutional commands with the several provisions of the Military Selective Service Act and the expressed congressional intent to prevent litigious interruption of the Selective Service process.

## III

These principles do not automatically decide Fein's case. The doctor, unlike Oestereich and unlike Breen, cannot and does not claim a statutory exemption or a statutory deferment on the basis of objectively established and conceded status. On the other hand, while Gabriel focuses on the administrative and discretionary process, it does not necessarily foreclose Fein's claim. This is so because Fein challenges the constitutionality of the very administrative procedures by which, he claims, the presentation of his case was adversely affected.
This was the aspect of the Oestereich and Breen decisions that concerned Mr. Justice Harlan. 393 U.S., at 239; 396 U.S., at 468-469. He would have allowed pre-induction judicial review of a procedural challenge on constitutional grounds if it presented no "opportunity for protracted delay" in the system's operations, and if the issue was beyond the competence of the board to hear and determine. This view, however, commanded the vote of no other member of the Court.
[p376] We again conclude that the line drawn by the Court between Oestereich and Breen, on the one hand, and Gabriel and, inferentially, Boyd, on the other, is the appropriate place at which, in the face of the bar of § 10 (b)(3), to distinguish between availability and unavailability of pre-induction review. We therefore adhere to the principles established by those cases.
We further conclude that, as measured against the facts of Fein's case, it is Gabriel, and not Oestereich and Breen, that is controlling. Unlike the registrants in Oestereich and Breen, Fein's claimed status is not one that was factually conceded and thus was assured by the statute upon objective criteria. His administrative classification action was, in contrast, a product of the "process" and the "system of classification," as the petitioner stressed at oral argument. It turned "on the weight and credibility of the testimony," as MR. JUSTICE DOUGLAS noted in his concurrence in Gabriel, 393 U.S., at 259. And it was "dependent upon an act of judgment by the Board." Gabriel, 393 U.S., at 259.
The case strikes us, as did Gabriel, as representative of a category that, if allowed pre-induction review, would tend to promote the "litigious interruptions of procedures to provide necessary military manpower" that Congress intended to prevent. 113 Cong. Rec. 15426. The conscientious objector claim is one ideally fit for administrative determination.
We are not persuaded, as has been suggested, that the local board's grant of the I-O classification equates with the conceded exemption and deferment involved in Oestereich and Breen. Objective certainty of status is lacking; in addition, the respective rulings of the two appeal boards were themselves based on an evaluation of the same file and yet were opposite to that of the [p377] local board. 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.
Finally, we find no merit in the petitioner's argument, apparently asserted for the first time in this Court, that a local board's determination, on a conscientious objector claim, favorable to the registrant is not amenable to the appeal procedures prescribed by the Act. Section 10 (b)(3), by its terms, makes a board's decision final subject to appeal and we see no confinement of that right of appeal to the registrant alone so as to nullify the regulations' express grant of appellate power to the State Director as well as to the registrant. The statute, furthermore, is specific as to the President's right to review.
The conclusion we have reached makes it unnecessary to consider in any detail the propositions, urged by the respondents, that the petitioner has not demonstrated the presence of the jurisdictional amount required under 28 U.S.C. § 1331, and that his arguments are premature because he is presently not the subject of an outstanding induction order.

## IV

All this does not mean, however, that this decision assures Dr. Fein's immediate induction into military service. Events since the inception and trial of the case indicate otherwise:
    A. The 1971 Statute. By Pub. L. 92-129, § 101 (a)(36), 85 Stat. 353, approved September 28, 1971, the following new section, 50 U.S.C. App. § 471a (1970 ed. Supp. I), was added to the 1967 Act, now renamed the Military Selective Service Act:
   "Procedural Rights
   "SEC. 22. (a) It is hereby declared to be the purpose of this section to guarantee to each [p378] registrant asserting a claim before a local or appeal board, a fair hearing consistent with the informal and expeditious processing which is required by selective service cases.
   "(b) Pursuant to such rules and regulations as the President may prescribe—
       "(1) Each registrant shall be afforded the opportunity to appear in person before the local or any appeal board of the Selective Service System to testify and present evidence regarding his status.
       "(4) In the event of a decision adverse to the claim of a registrant, the local or appeal board making such decision shall, upon request, furnish to such registrant a brief written statement of the reasons for its decision."
    A registrant thus is not statutorily entitled to a personal appearance before a local or appeal board and, on request, to a statement of reasons for any decision of the board adverse to him. This 1971 addition to the statute does not, by its terms, purport to be retroactive.
    B. The Emerging Regulations. In implementation of the new statute, the administrative regulations have been undergoing change. Some amendments were promulgated effective December 10, 1971. 36 Fed. Reg. 23374-23385. Others were promulgated effective March 11, 1972. 37 Fed. Reg. 5120-5127. From these it appear that all, or nearly all, the procedural features about which Dr. Fein complains in the present case have been changed administratively. Specifically:
       (1) When an appeal is taken by the State Director "he shall place in the registrant's file a written statement of his reasons for taking such appeal." The local board shall notify the registrant in writing of the action and the reasons therefor, and advise him that the registrant may [p379] request a personal appearance before the appeal board. §§ 1626.3 (a) and (b).
       (2) At such personal appearance the registrant may present evidence, discuss his classification, point out the class or classes in which he thinks he should have been placed, and may direct attention to any information in his file that he believes the local board has overlooked or to which it has given insufficient weight. He may present such further information as he believes will assist the board. The registrant, however, may not be represented before an appeal board by anyone acting as an attorney and he shall not be entitled to present witnesses. §§ 1624.4 (e) and (d).
       (3) If the appeal board classifies the registrant in a class other than the one he requested, it shall record its reasons therefor in his file. The local board shall inform the registrant of such reasons in writing at the time it mails his notice of classification. § 1626.4 (i).
       (4) On the director's appeal to the national board the registrant may request an appearance. § 1627.3 (d). At that appearance the registrant may present evidence, other than witnesses, bearing on his classification. There, too, he may discuss his classification, point out the class or classes in which he thinks he should have been placed, and direct attention to any information in his file that he believes the local board overlooked or to which it has given insufficient weight. He may also present such further information as he believes will assist the national board in determining his proper classification. §§ 1627.4 (c) and (e).
       (5) If the national board classifies the registrant in a class other than the one he requested it shall record its reasons therefor in his file and on request by the registrant it shall furnish him a brief statement of the reasons for its decision. § 1627.4 (h).
    Thus, under present procedure effective in part since December 10, 1971, and in part since March 11, 1972, [p380] complaints about one's inability to appear before appeal boards, about not being given reasons for adverse classifications, and about inability to present additional material at the appellate stages are all alleviated and, indeed, eliminated.
    C. The Change in the Government's Position. In their brief filed prior to the adoption of the 1971 Act, the respondents acknowledged the appearance of "a relatively recent line of authority" exemplified by United States v. Haughton, 413 F. 2d 736 (CA9 1969), to the effect that the failure of a local board to articulate in writing the reason for its denial of a conscientious objector classification is a fatal procedural flaw when the registrant has made a prima facie case for such status. Brief 52-53. The rationale is 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, and his veracity is the principal issue.
    The respondents appropriately noted, however, that these decisions were all so-called post-induction cases in the sense that they were appeals from convictions under § 12 (a), 50 U.S.C. App. § 462 (a). The respondents accordingly took the position that this line of authority, however appropriate it might be for post-induction review, did not support or justify an exception [p381] to the bar of § 10 (b)(3) against pre-induction review of the processing or classifying of registrants.
    In a memorandum filed here since the 1971 Act in No. 70-251, Joseph v. United States, cert. granted, 404 U.S. 820 (1971), the Government has now taken the position that "[a]lthough this judicial rule [of Haughton and its progeny] finds little support in early precedent... we do not think it appropriate to contend that it is erroneous." The Government also notes that the requirement for an administrative statement of reasons "seems fully consistent with the new statutory... and regulatory... provisions on this point." Memo 13, 14.
    While Joseph also is a conviction case and is not one on pre-induction review, its obvious significance of Fein is that if the doctor is ever again called for induction, the rule of Haughton will provide a defense for him unless and until the requirements of the new statute and regulations are fulfilled. Whether this necessitates a complete reprocessing of Fein's case is a matter we leave in the first instance to the administrative authorities.
The judgment of the Court of Appeals is therefore to be affirmed. We express no view upon the merits of Dr. Fein's conscientious objector claim other than to observe the obvious, namely, that his claim is not frivolous.
Affirmed.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.

## Notes

* ↑ "The decisions of such local board shall be final, except where an appeal is authorized and is taken in accordance with such rules and regulations as the President may prescribe... The decision of such appeal boards shall be final in cases before them on appeal unless modified or changed by the President. The President, upon appeal or upon his own motion, shall have powers to determine all claims or questions with respect to inclusion for, or exemption or deferment from training and service under this title... and the determination of the President shall be final. No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution... after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant..." 50 U.S.C. App. § 460 (b)(3). Section 10 (b)(3) of the 1967 Act was amended by Pub. L. 92-129, § 101 (a)(26), 85 Stat. 351, approved Sept. 28, 1971. The amendment, however, did not change that portion of § 10 (b)(3) quoted above.
* ↑ Tr. of Oral. Arg. 22.
* ↑ The provision is now 32 CFR § 1627.1 (b).
* ↑ S. Rep. No. 209, 90th Cong., 1st Sess., 10, contained the observation that a registrant may also challenge his classification by post-induction habeas corpus. See Witmer v. United States, 348 U.S. 375, 377 (1955).
* ↑ Tr. of Oral Arg. 13, 18.
* ↑ Id., at 16-18.
* ↑ See also United States v. Edwards, 450 F. 2d 49 (CA1 1971); United States v. Lenhard, 437 F. 2d 936 (CA2 1970); Scott v. Commanding Officer, 431 F. 2d 1132 (CA3 1970); United States v. Broyles, 423 F. 2d 1299 (CA4 1970); United States v. Stetter, 445 F. 2d 472 (CA5 1971); United States v. Washington, 392 F. 2d 37 (CA6 1968); United States vs Lemmens, 430 F. 2d 619 (CA7 1970); United States v. Cummins, 425 F. 2d 646 (CA8 1970); United States v. Pacheco, 433 F. 2d 914 (CA10 1970).
* ↑ See Gonzales v. United States, 348 U.S. 407, 415 (1955).