# Fein v. Selective Service System/Dissent Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Douglas Marshall
MR. JUSTICE DOUGLAS, dissenting.

## I

Today the Court approves a construction of § 10 (b)(3) of the Military Selective Service Act of 1967, 50 [p382] U.S.C. App. § 460 (b)(3), which raises serious questions of procedural due process. Doctor Fein was classified as a conscientious objector by his local board. The State Director appealed, but gave no reason for this extraordinary action. The appeal board then reclassified Dr. Fein I-A. It, too, gave no reasons.
We explained the nature of the "hearing" required by the Due Process Clause of the Fifth Amendment in Morgan v. United States, 304 U.S. 1, 18-19:
   "The right to a hearing embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing party and to meet them. The right to submit argument implies that opportunity; otherwise the right may be but a barren one. Those who are brought into contest with the Government in a quasi-judicial proceeding aimed at the control of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon its proposals before it issues its final command."
See Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313; Jenkins v. McKeithen, 395 U.S. 411, Greene [p383] v. McElroy, 360 U.S. 474, 493; Baltimore & Ohio R. Co. v. United States, 298 U.S. 349, 368-369.
Morgan involved property rights—rates for stockyard services. But the Due Process Clause protects "life" and "liberty" as well as "property." See Kwong Hai Chew v. Colding, 344 U.S. 590, 596-598. If a man, contrary to his scruples, is forced to go overseas to battle, he is deprived of his "liberty," if not his "life."
When administrative orders deprive a person of property without a full and fair opportunity to object, this Court has been most reluctant to defer judicial review until after those orders have taken effect. See Opp Cotton Mills v. Administrator, 312 U.S. 126, 153-153; United States v. Illinois Central R. Co., 291 U.S. 457, 463; Londoner v. City & County of Denver, 210 U.S. 373, 385. Judicial scrutiny has been particularly close where, as here, review is conditioned upon submitting to the risk of substantial penalties should the order prove to have been validly made. See Oklahoma Operating Co. v. Love, 252 U.S. 331; Ex parte Young, 209 U.S. 123. Cf. Reisman v. Caplin, 375 U.S. 440, 446-450. We should require no less when personal liberty is at stake.
How can we possibly affirm the judgment below in light of the constitutional dimension of the problem? As respects his claim to "liberty," is Fein to be relegated to the procedures of a criminal prosecution when Congress was meticulous to provide for its resolution in the administrative process? No such downgrading of rights [p384] would be tolerated in a "property" case; why are we less mindful of the requirements of due process when a man's "liberty" is at stake?

## II

Section 10 (b)(3) purports to defer judicial review of Selective Service System classification decisions to the defense of a criminal prosecution for failure to report for induction. It represents a congressional response to the concern that widespread pre-induction review of Selective Service classification decisions would seriously impede the ability of the System to process manpower for the Armed Forces. See remarks of Senator Russell, 113 Cong. Rec. 15426. We held in Oestereich v. Selective Service Board, 393 U.S. 233, however, that the statute cannot be read literally. "For while it purports on its face to suspend the writ of habeas corpus as a vehicle for reviewing a criminal conviction under the Act, everyone agrees that such was not its intent." Id., at 238. We held that it must be interpreted to permit pre-induction review in that exceptional class of cases involving "a clear departure by the Board from its statutory mandate." 393 U.S., at 238. Because Oestereich's local board had employed unauthorized and "lawless" procedures to deprive him of an exemption to which he was entitled by statute, we further held that § 10 (b)(3) was no bar to the suit. See also Breen v. Selective Service Board, 396 U.S. 460.
The courts below, relying on Clark v. Gabriel, 393 U.S. 256, held that, unlike the ministerial exemption (IV-D) at issue in Oestereich and the student deferment (II-S) in Breen, the conscientious objector exemption (I-O) is committed to the discretion of the board, and contemplates the complex evidentiary and factual determinations which § 10 (b)(3) primarily intended to insulate from pre-induction review. Were Fein [p385] complaining that his appeal board had no basis in fact to discontinue his conscientious objector exemption, this distinction would be significant.
The fact that Fein was classified I-O by his local board (rather than IV-D or II-S) before being stripped of his exemption does not, however, distinguish his case from Oestereich. Indeed, it is Clark v. Gabriel, supra, on which the majority and lower court placed such heavy reliance for the opposite proposition, that demonstrates the applicability of Oestereich to the present situation.
Gabriel's conscientious objector claim had been rejected by his local board, after "evaluating evidence and... determining whether a claimed exemption is deserved." Oestereich, supra, at 238. His basic argument was that there was no basis in fact to deny him his exemption. As the Court said, however, there was
   "no doubt of the Board's statutory authority to take action which appellee challenges, and that action inescapably involves a determination of fact and an exercise of judgment. By statute, classification as a conscientious objector is expressly conditioned on the registrant's claim being 'sustained by the local board.'" 393 U.S., at 258 (emphasis supplied).
But Fein's claim, unlike that of Gabriel, has been "sustained by the local board." Thus, by statute, it is mandatory that the exemption be awarded him—subject, of course, to subsequent action in accordance with lawful, authorized procedures. But this is the situation which obtained in Oestereich. The exemption at issue in that case could also have been removed in accord with lawful procedures. The crucial similarity is that both Oestereich and Fein have met the preliminary hurdle of demonstrating to the local board their statutory fitness for a given exemption.
[p386] The nature of Dr. Fein's claim is that the Selective Service has been "blatantly lawless," not in taking away his exemption per se, but in doing so in a manner which violates the mandate of § 1 (c) of the Act, 50 U.S.C. App. § 451 (c), that the system be administered in a way "which is fair and just...."
It should by now be undisputed that an essential of a "fair and just" procedure is the registrant's right to be heard by the agency in the system that deprives him of his liberty. To be meaningful, that hearing must include the right to appear, and to be apprised of and given a chance to reply to adverse information contained in one's file. Dr. Fein was afforded none of these rights. The regulations did not permit a personal appearance before the appeal board. Dr. Fein was not informed of the reasons for the appeal. He had no right to submit a statement of his own, as the State Director, the person appealing, had not submitted a statement. 32 CFR § 1626.12. Dr. Fein never even received a statement of reasons for the appeal board's reclassification, a defalcation which the Solicitor General has conceded to be error in a similar context. Memorandum for the United States, Joseph v. United States, No. 70-251. See also Memorandum for the United States, Lenhard v. United States, No. 71-5840.
Like Oestereich's, therefore, Fein's complaint is "unrelated to the merits of granting or continuing that exemption," 393 U.S., at 237. It is instead a challenge to the [p387] basic fairness of the administrative process itself. And, while Fein himself characterizes his attack as a "constitutional" one, the procedural guarantees which he says were denied him are implicit in the Act itself. It is as unlawful to employ the regulations governing the appeal procedure to deny fundamental procedural rights implicit in the statutory scheme as it was in Oestereich and Breen to use the regulations governing delinquency to work a similar deprivation.
The literalness with which the Court treats Dr. Fein's claim "does violence to the clear mandate of" § 1 (c) of the Act, and misconstrues the thrust of Oestereich, Gabriel, and Breen. Fein's claim presents a clear case for pre-induction review. As in Oestereich, we have here a case where the Selective Service System is itself "basically lawless." On the admittedly extraordinary facts of this case, Fein has been effectively deprived of the entire panoply of appellate remedies guaranteed to him by the Act, and put in a position wherein meaningful judicial review of the underlying classification decision has become a virtual impossibility.

## Notes

* ↑ Section 10 (b)(3) reads in pertinent part as follows: "No judicial review shall be made of the classification of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, 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."
* ↑ Except the somewhat cryptic statement that "[i]t is our opinion that the registrant would not qualify for an I-O classification as a conscientious objector."
* ↑ Some courts, however, have been more zealous in their exaltation of property rights than they have of constitutionally safeguarded individual liberties. See, e.g., Poole v. State, 244 Ark. 1222, 1225, 428 S.W. 2d 628, 630: "The right of an individual to acquire and possess and protect property is inherent and inalienable and declared higher than any constitutional sanction in Arkansas..."
* ↑ See, e.g., Clay v. United States, 403 U.S. 698; Mulloy v. United States, 398 U.S. 410, 416; Gonzales v. United States, 348 U.S. 407, 417; Simmons v. United States, 348 U.S. 397, 405. See also Greene v. McElroy, 360 U.S. 474, 493; Morgan v. United States, 304 U.S. 1, 18-19; Baltimore & Ohio R. Co. v. United States, 298 U.S. 349, 368-369; United States v. Thompson, 431 F. 2d 1265, 1271; United States v. Cabbage, 430 F. 2d 1037, 1039-1041; United States v. Cummins, 425 F. 2d 646; United States v. Owen, 415 F. 2d 383, 388-389; Wiener v. Local Bd. No. 4, 302 F. Supp. 266, 270.