Petitioner had been classified IV-A (sole surviving son status).
When the Selective Service Board learned of the death of
petitioner's mother, it reclassified him I-A (available for
military service), on the theory that the IV-A classification
became improper when the "family unit" ceased to exist. Petitioner
did not appeal the reclassification. Upon his failure to report as
ordered for his pre-induction physical examination, he was declared
a delinquent. He failed to report for induction as ordered, and was
indicted for such failure and tried. His only defense was that he
was improperly denied a sole surviving son exemption. The District
Court held that defense unavailable because petitioner had failed
to exhaust the administrative remedies provided by the Selective
Service System. Petitioner was convicted, and the Court of Appeals
affirmed.
Held:
1. Petitioner was entitled to exemption from military service,
as the termination of the "family unit" was not intended by
Congress to warrant ending the sole surviving son exemption under §
6(
o) of the Selective Service Act. Pp.
395 U. S.
189-192.
2. Petitioner's failure to appeal his classification and his
failure to report for a pre-induction physical examination do not
foreclose his challenging the validity of his classification as a
defense to criminal prosecution for refusal to submit to induction.
Pp.
395 U. S.
192-203.
(a) Though the doctrine of exhaustion of administrative remedies
is applied in a number of different situations, it is subject to
numerous exceptions. P.
395 U. S.
193.
(b) The exhaustion doctrine must be tailored to fit the
peculiarities of the administrative system Congress created. At the
heart of the Selective Service System are the local boards which
register and classify those subject to the Selective Service Laws,
from whose action the registrant has the right of appeal. P.
395 U. S.
195.
(c) Although the Act, as it stood when petitioner was tried,
provided that local board decisions were "final," a registrant
Page 395 U. S. 186
charged with failure to report can raise the defense that there
was "no basis in fact," for his classification.
See Estep v.
United States, 327 U. S. 114,
327 U. S. 123.
P.
395 U. S.
196.
(d) This case does not involve premature resort to the courts
(since all administrative remedies are now foreclosed), but failure
to have utilized the particular administrative process of appeal.
Pp.
395 U. S.
196-197.
(e) When petitioner was reclassified, the statute did not
require the registrant to raise all his claims before an appeal
board. P.
395 U. S.
197.
(f) Determining whether petitioner is entitled to the sole
surviving son exemption (which is solely a matter of statutory
interpretation) requires no particular expertise on the appeal
board's part, as many Selective Service questions do, and judicial
review would not be significantly aided by that kind of additional
administrative decision. Pp.
395 U. S.
197-199.
(g) Failure to require exhaustion of administrative remedies in
this case will not significantly encourage registrants to bypass
available administrative remedies at the risk of criminal
prosecution. Pp.
395 U. S.
199-200.
(h) Petitioner is not being prosecuted for his failure to report
for physical examination, and such failure does not bar him from
challenging the validity of his classification as a defense to his
criminal prosecution.
Falbo v. United States, 320 U.
S. 549, distinguished. Pp.
395 U. S.
201-203.
395 F.2d 906, reversed and remanded.
MR. JUSTICE MARSHALL delivered the opinion of the Court.
Petitioner was indicted for willfully and knowingly failing to
report for and submit to induction into the
Page 395 U. S. 187
Armed Forces of the United States. [
Footnote 1] At trial, petitioner's only defense was that
he should have been exempt from military service because he was the
"sole surviving son" of a family whose father had been killed in
action while serving in the Armed Forces of the United States.
[
Footnote 2] The District Court
held that he could not raise that defense because he had failed to
exhaust the administrative remedies provided by the Selective
Service System. Accordingly, petitioner was convicted and sentenced
to three years' imprisonment. The Court of Appeals affirmed, with
one judge dissenting.
United States v. McKart, 395 F.2d
906 (C.A. 6th Cir.1968). We granted certiorari. 393 U.S. 922
(1968).
I
The facts are not in dispute. Petitioner registered with his
local Selective Service board shortly after his 18th birthday, and
thereafter completed his classification
Page 395 U. S. 188
questionnaire. On that form, he indicated that he was
"the sole surviving son of a family of which one or more sons or
daughters were killed in action . . . while serving in the Armed
Forces of the United States. . . ."
On February 25, 1963, petitioner's local board placed him in
Class I-A, available for military service; he made no attempt to
appeal that classification. [
Footnote 3]
On March 23, 1964, he was ordered to report for a pre-induction
physical, but failed to do so. He was declared a delinquent and
ordered to report for induction on May 11, 1964. He failed to
report, but instead wrote a letter to his local board indicating
that his moral beliefs prevented him from cooperating with the
Selective Service System. The local board replied by sending
petitioner the form for claiming conscientious objector status. The
board also referred to petitioner's indication in his original
questionnaire that he was a sole surviving son and requested
further information on that subject.
On May 20, 1964, petitioner returned the blank form, stating
that he did not wish to be a conscientious objector. In response to
the board's request for information about his claim to be a sole
surviving son, petitioner indicated that his father had been killed
in World War II. The local board, after consulting the State
Director, again wrote petitioner requesting more information about
his father. Petitioner supplied some of the information. The local
board forwarded this information to the State
Page 395 U. S. 189
Director, who requested the local board to reopen petitioner's
classification. [
Footnote 4]
The board canceled his induction order and reclassified him IV-A,
the appropriate classification for a registrant exempted as a sole
surviving son. Petitioner remained in that classification until
February 14, 1966.
Early in 1966, the local board learned of the death of
petitioner's mother. After checking with the State Director, the
board returned petitioner to Class I-A. The board rested this
decision on the theory that a IV-A classification became improper
when petitioner's "family unit" ceased to exist on the death of his
mother. Petitioner was ordered to report for a pre-induction
physical. He failed to report and was declared a delinquent and
ordered to report for induction. He again failed to report and,
after further investigation, his criminal prosecution followed.
[
Footnote 5]
II
We think it clear that petitioner was exempt from military
service as a sole surviving son. The sole surviving son exemption
originated in the Selective Service Act of 1948, c. 625, §
6(
o), 62 Stat. 613. As originally enacted, that section
provided exemption for the sole surviving son only
"[w]here one or more sons or daughters of a family were killed
in action . . . while
Page 395 U. S. 190
serving in the armed forces of the United States."
In 1964, the section was amended to extend the exemption to sole
surviving sons whose fathers were killed in action. 78 Stat. 296.
The section now reads in relevant part as follows:
"[W]here the father or one or more sons or daughters of a family
were killed in action or died in line of duty while serving in the
Armed Forces . . . , the sole surviving son of such family shall
not be inducted for service. . . ."
50 U.S.C.App. § 456(
o). There is no question that
petitioner was entitled to an exemption before the death of his
mother. The issue is whether her death, and the end of the
immediate "family unit," ended that exemption.
We have found no cases discussing this aspect of §
6(
o). [
Footnote 6] The
applicable Selective Service System Regulation, 32 CFR §
1622.40(a)(10) (1969), merely repeats the language of the statute.
The System's administrative interpretations have not been uniform,
[
Footnote 7] although, in the
present case, the National Director took the position that
"inasmuch as there is no family, it is not believed that
[petitioner] would qualify for sole surviving son status." We must,
therefore, decide what is essentially a question of first
impression. Our examination of the language and legislative history
of § 6(
o) indicates that the Selective Service System's
interpretation fails to effectuate fully the purposes Congress had
in mind in providing the exemption.
Page 395 U. S. 191
The language of the statute provides only three conditions, two
explicit and one implicit, upon which the exemption should
terminate. The registrant may volunteer for service, a national
emergency or war may be declared, or, implicitly, the registrant
may cease to be the sole surviving son by the birth of a brother.
The section says nothing about the continuing existence of a family
unit, even though other provisions of the Selective Service laws
make similar conditions explicit in other contexts. [
Footnote 8]
The argument for conditioning the exemption upon the continued
existence of a family unit is based not upon the language or
structure of the statute but upon certain references in the
legislative history. These comments indicate that one purpose of
the exemption was to provide "solace and consolation" to the
remaining family members by guaranteeing the presence of the sole
surviving son.
See S.Rep. No. 1119, 88th Cong., 2d Sess.,
3 (1964); Hearings before Subcommittee No. 1 of the House Committee
on Armed Services on H.R. 2664, 88th Cong., 1st Sess., 3442-3443
(1963). When there is no one left to comfort, it is argued, the
sole surviving son may be drafted. However, our examination of the
sparse legislative history discloses that Congress
Page 395 U. S. 192
had not one, but several, purposes in mind in providing the
exemption, only some of which depend upon the existence of a family
unit.
Perhaps chief among these other purposes was a desire to avoid
extinguishing the male line of a family through the death in action
of the only surviving son.
See S.Rep. No. 1119,
supra; Hearing before the Senate Committee on Armed
Services on H.R. 2664, 88th Cong., 1st Sess., 30-31 (1963); 110
Cong.Rec. 15218 (1964) (remarks of Senator Keating). Other purposes
mentioned were providing financial support for the remaining family
members, fairness to the registrant who has lost his father in the
service of his country, and the feeling that there is, under normal
circumstances, a limit to the sacrifice that one family must make
in the service of the country.
See Hearing before the
Senate Committee on Armed Services on H.R. 2664,
supra, at
30-31; Hearings before Subcommittee No. 1 of the House Committee on
Armed Services on H.R. 2664,
supra, at 3442-3443; 109
Cong.Rec. 24889 (1963).
Perhaps the most that can be said in these circumstances is that
Congress had multiple purposes in mind in providing an exemption
for a sole surviving son. Depriving petitioner of an exemption
might not frustrate one of these purposes, but it certainly would
frustrate several of the others. Therefore, given the beneficent
basis for § 6(
o), we cannot believe that Congress intended
to make one factor, the existence of a "family unit," crucial.
Accordingly, the death of petitioner's mother did not operate to
deprive him of his right to be exempt from military service. The
local board erred in classifying petitioner I-A and ordering him to
report for induction.
III
The Government maintains, however, that petitioner cannot raise
the invalidity of his I-A classification and
Page 395 U. S. 193
subsequent induction order as a defense to a criminal
prosecution for refusal to report for induction. According to the
Government, petitioner's failure to appeal his reclassification
after the death of his mother constitutes a failure to exhaust
available administrative remedies, and therefore should bar all
judicial review. For the reasons set out below, we cannot
agree.
The doctrine of exhaustion of administrative remedies is well
established in the jurisprudence of administrative law.
See
generally 3 K. Davis, Administrative Law Treatise § 20.01
et seq. (1958 ed., 1965 Supp.); L. Jaffe, Judicial Control
of Administrative Action 42 158 (1965). The doctrine provides
"that no one is entitled to judicial relief for a supposed or
threatened injury until the prescribed administrative remedy has
been exhausted."
Myers v. Bethlehem Shipbuilding Corp., 303 U. S.
41,
303 U. S. 551
(1938). The doctrine is applied in a number of different
situations, and is, like most judicial doctrines, subject to
numerous exceptions. [
Footnote
9] Application of the doctrine to specific cases requires an
understanding of its purposes and of the particular administrative
scheme involved.
Perhaps the most common application of the exhaustion doctrine
is in cases where the relevant statute provides that certain
administrative procedures shall be exclusive.
See Myers v.
Bethlehem Shipbuilding Corp., 303 U. S.
41 (1938) (National Labor Relations Act). The reasons
for making such procedures exclusive, and for the judicial
application of the exhaustion doctrine in cases where the statutory
requirement of exclusivity is not so explicit, are not difficult to
understand. A primary purpose is, of course, the avoidance of
premature interruption of the administrative process. The agency,
like
Page 395 U. S. 194
a trial court, is created for the purpose of applying a statute
in the first instance. Accordingly, it is normally desirable to let
the agency develop the necessary factual background upon which
decisions should be based. And since agency decisions are
frequently of a discretionary nature or frequently require
expertise, the agency should be given the first chance to exercise
that discretion or to apply that expertise. And, of course, it is
generally more efficient for the administrative process to go
forward without interruption than it is to permit the parties to
seek aid from the courts at various intermediate stages. The very
same reasons lie behind judicial rules sharply limiting
interlocutory appeals.
Closely related to the above reasons is a notion peculiar to
administrative law. The administrative agency is created as a
separate entity, and invested with certain powers and duties. The
courts ordinarily should not interfere with an agency until it has
completed its action, or else has clearly exceeded its
jurisdiction. As Professor Jaffe puts it, "[t]he exhaustion
doctrine is, therefore, an expression of executive and
administrative autonomy." [
Footnote 10] This reason is particularly pertinent where
the function of the agency and the particular decision sought to be
reviewed involve exercise of discretionary powers granted the
agency by Congress, or require application of special
expertise.
Some of these reasons apply equally to cases like the present
one, where the administrative process is at an end and a party
seeks judicial review of a decision that was not appealed through
the administrative process. Particularly, judicial review may be
hindered by the failure of the litigant to allow the agency to make
a factual record, or to exercise its discretion or apply its
expertise. In addition, other justifications for requiring
exhaustion in cases of this sort have nothing to do with the
dangers
Page 395 U. S. 195
of interruption of the administrative process. Certain very
practical notions of judicial efficiency come into play as well. A
complaining party may be successful in vindicating his rights in
the administrative process. If he is required to pursue his
administrative remedies, the courts may never have to intervene.
And notions of administrative autonomy require that the agency be
given a chance to discover and correct its own errors. Finally, it
is possible that frequent and deliberate flouting of administrative
processes could weaken the effectiveness of an agency by
encouraging people to ignore its procedures.
In Selective Service cases, the exhaustion doctrine must be
tailored to fit the peculiarities of the administrative system
Congress has created. At the heart of the Selective Service System
are the local boards, which are charged in the first instance with
registering and classifying those subject to the Selective Service
laws. 32 CFR § 1613.1
et seq., §§ 1621.1-1623.10 (1969).
Upon being classified by the local board, the registrant has a
right of appeal to a state appeal board, 32 CFR § 1626.2 (1969),
and, in some instances, to the President, 32 CFR § 1627.3 (1969).
No registrant is required to appeal. [
Footnote 11] A registrant cannot be ordered to report for
induction while his classification is being considered by the local
board or by an appeal board. 32 CFR §§ 1624.3, 1625.14, 1626.41,
1627.8 (1969).
At some stage during this process, normally shortly before he is
expected to be ordered to report for induction,
see 32 CFR
§ 1628.11 (1969), the registrant is required to complete a
pre-induction physical examination. If he passes this examination,
he ordinarily will be ordered to
Page 395 U. S. 196
report for induction. The next, and last, step is to report to
the induction center and submit to induction. At this point, the
administrative process is at an end.
If the registrant fails to report for induction, he is, like
petitioner in the present case, subject to criminal prosecution.
Although the Universal Military Training and Service Act, as it
stood at the time of petitioner's trial, provided that the
decisions of the local boards were "final," it was long ago
established that a registrant charged with failure to report can
raise the defense that there was "no basis in fact," for his
classification.
See Estep v. United States, 327 U.
S. 114,
327 U. S. 123
(1946). It is also established that there can be no judicial review
at all, with some exceptions, until the registrant has refused to
submit to induction and is prosecuted, or else has submitted to
induction and seeks release by habeas corpus. [
Footnote 12]
This case raises a different question. We are not here faced
with a premature resort to the courts -- all administrative
Page 395 U. S. 197
remedies are now closed to petitioner. We are asked instead to
hold that petitioner's failure to utilize a particular
administrative process -- an appeal -- bars him from defending a
criminal prosecution on grounds which could have been raised on
that appeal. We cannot agree that application of the exhaustion
doctrine would be proper in the circumstances of the present
case.
First of all, it is well to remember that use of the exhaustion
doctrine in criminal cases can be exceedingly harsh. The defendant
is often stripped of his only defense; he must go to jail without
having any judicial review of an assertedly invalid order. This
deprivation of judicial review occurs not when the affected person
is affirmatively asking for assistance from the courts, but when
the Government is attempting to impose criminal sanctions on him.
Such a result should not be tolerated unless the interests
underlying the exhaustion rule clearly outweigh the severe burden
imposed upon the registrant if he is denied judicial review.
[
Footnote 13] The statute as
it stood when petitioner was reclassified said nothing which would
require registrants to raise all their claims before the appeal
boards. [
Footnote 14] We
must ask, then, whether there is in this case a governmental
interest compelling enough to outweigh the severe burden placed on
petitioner. Even if there is no such compelling interest when
petitioner's case is viewed in isolation, we must also ask whether
allowing all similarly situated registrants to bypass
administrative appeal procedures would seriously impair the
Selective Service System's ability to perform its functions.
The question of whether petitioner is entitled to exemption as a
sole surviving son is, as we have seen, solely
Page 395 U. S. 198
one of statutory interpretation. The resolution of that issue
does not require any particular expertise on the part of the appeal
board; the proper interpretation is certainly not a matter of
discretion. [
Footnote 15] In
this sense, the issue is different from many Selective Service
classification questions which do involve expertise or the exercise
of discretion, both by the local boards and the appeal boards.
[
Footnote 16] Petitioner's
failure to take his claim through all available administrative
appeals only deprived the Selective Service System of the
opportunity of having
Page 395 U. S. 199
its appellate boards resolve a question of statutory
interpretation. Since judicial review would not be significantly
aided by an additional administrative decision of this sort, we
cannot see any compelling reason why petitioner's failure to appeal
should bar his only defense to a criminal prosecution. [
Footnote 17] There is simply no
overwhelming need for the court to have the agency finally resolve
this question in the first instance, at least not where the
administrative process is at an end and the registrant is faced
with criminal prosecution. [
Footnote 18]
We are thus left with the Government's argument that failure to
require exhaustion in the present case will induce registrants to
bypass available administrative remedies. The Government fears an
increase in litigation and a consequent danger of thwarting the
primary function of the Selective Service System, the rapid
mobilization of manpower. This argument is based upon the
proposition that the Selective Service System will, through its own
processes, correct most errors, and thus avoid much litigation. The
exhaustion doctrine is assertedly necessary to compel resort to
these processes. The Government also speculates that many more
registrants will risk criminal prosecution if their claims need not
carry into court the stigma of denial not only by their local
boards, but also by at least one appeal board.
We do not, however, take such a dire view of the likely
consequences of today's decision. At the outset, we
Page 395 U. S. 200
doubt whether many registrants will be foolhardy enough to deny
the Selective Service System the opportunity to correct its own
errors by taking their chances with a criminal prosecution and a
possibility of five years in jail. The very presence of the
criminal sanction is sufficient to ensure that the great majority
of registrants will exhaust all administrative remedies before
deciding whether or not to continue the challenge to their
classifications. And, today's holding does not apply to every
registrant who fails to take advantage of the administrative
remedies provided by the Selective Service System. For, as we have
said, many classifications require exercise of discretion or
application of expertise; in these cases, it may be proper to
require a registrant to carry his case through the administrative
process before he comes into court. Moreover, we are not convinced
that many in this rather small class of registrants will bypass the
Selective Service System with the thought that their ultimate
chances of success in the courts are enhanced thereby. In short, we
simply do not think that the exhaustion doctrine contributes
significantly to the fairly low number of registrants who decide to
subject themselves to criminal prosecution for failure to submit to
induction. Accordingly, in the present case, where there appears no
significant interest to be served in having the System decide the
issue before it reaches the courts, we do not believe that
petitioner's failure to appeal his classification should foreclose
all judicial review.
We do not view the cases of
Falbo v. United States,
320 U. S. 549
(1944), and
Estep v. United States, 327 U.
S. 114 (1943), insofar as they concern the exhaustion
doctrine, as a bar to today's holding. Neither those two cases, nor
any of the other cases decided by this Court, [
Footnote 19]
Page 395 U. S. 201
stand for the proposition that the exhaustion doctrine must be
applied blindly in every case. Indeed, those cases all involved
ministerial or conscientious objector claims, claims that may well
have to be pursued through the administrative procedures provided
by the Selective Service laws. [
Footnote 20]
IV
Finally, we are faced with the argument that petitioner's
challenge to the validity of his classification is barred by his
failure to report for and pass his pre-induction physical, thus
giving the System one last chance to reject him. The Government
points to the fact that large numbers of registrants are rejected
for physical and mental reasons, and asserts that many criminal
trials would be rendered unnecessary if registrants were required
to report for a physical before being allowed to challenge their
classifications.
We think there are several answers to this argument. First, as
we said above, we doubt very much whether very many registrants
would pass up the chance to escape service by reason of physical or
mental defects and leap immediately at the chance to defend a
criminal prosecution. But more importantly, a registrant is under a
duty to comply with the order to report for a physical examination,
[
Footnote 21] and may be
criminally prosecuted for failure to comply. [
Footnote 22] If the Government deems it
important enough to the smooth functioning of the System to have
unfit registrants weeded out at the earliest possible moment, it
can enforce the duty to report for pre-induction examinations by
criminal sanctions. In the present case, it has not chosen to do
so. Petitioner has not been prosecuted for failure to report for
his examination; he has been prosecuted for failure to report for
induction, a duty
Page 395 U. S. 202
he claims he did not have. Therefore, we hold that petitioner's
failure to report for his examination should not bar him from
challenging the validity of his classification as a defense to his
criminal prosecution.
We do not regard
Falbo v. United States, supra, as a
bar to this holding.
Falbo involved an attempt to raise
the invalidity of a registrant's classification as a defense to a
criminal prosecution for failure to report to a civilian work camp.
The Court noted that the defendant had not reported to the work
camp, and thus had not given the Selective Service System the
opportunity to reject him for physical or mental reasons. According
to the Court, the
"narrow question . . . presented . . . [was] whether Congress
has authorized judicial review of the propriety of a board's
classification in a criminal prosecution for willful violation of
an order directing a registrant to report for the last step in the
selective process."
320 U.S. at
320 U. S. 554.
The Court held that Congress had not authorized such review.
Falbo was limited by
Estep v. United States,
supra, which held that a registrant could secure limited
judicial review of his classification in a criminal prosecution for
failure to report if he had pursued his administrative remedies to
an end. In
Estep, the registrant had reported, had been
accepted for induction, but had refused to be inducted.
The holding of the Court in
Falbo was based in part on
a fear of litigious interruption of the Selective Service System.
We have dealt with that problem in other cases.
See Clark v.
Gabriel, 393 U. S. 256
(1968);
Oestereich v. Selective Service Board,
393 U. S. 233
(1968). It is not presented here. As noted above, the
administrative process in this case is at an end.
Finally, the Court in
Falbo was concerned with the
possibility that a registrant might be rejected for physical or
mental reasons, thus making a criminal prosecution
Page 395 U. S. 203
unnecessary. But, as we have seen, the Selective Service System
has ample means to ensure that the great majority of registrants
will report for their pre-induction examinations. At the time
Falbo was decided, the regulations provided that the
pre-induction examination was to be given at the time the
registrant responded to the order to report for induction or to the
work camp.
See Gibson v. United States, 329 U.
S. 338 (1946). Accordingly, the Selective Service System
had no way to enforce the duty to report for an examination other
than by a prosecution for failure to report for induction. An
invalid classification, if allowed to be raised, would have been a
complete defense to that prosecution; it would not be a defense
today to a prosecution for failure to report for a pre-induction
examination.
We hold that petitioner's failure to appeal his classification
and failure to report for his pre-induction physical do not bar a
challenge to the validity of his classification as a defense to his
criminal prosecution for refusal to submit to induction. We also
hold that petitioner was entitled to exemption from military
service as a sole surviving son. Accordingly, we reverse the
judgment of the court below, and remand the case for entry of a
judgment of acquittal.
It is so ordered.
[
Footnote 1]
"Any . . . person . . . who in any manner shall knowingly fail
or neglect or refuse to perform any duty required of him under or
in the execution of this title . . or rules, regulations, or
directions made pursuant to this title . . . shall, upon conviction
in any district court of the United States of competent
jurisdiction, be punished by imprisonment for not more than five
years or a fine of not more than $10,000, or by both such fine and
imprisonment. . . ."
Selective Service Act of 1948, § 12, 62 Stat. 622, as amended,
now § 12 of the Military Selective Service Act of 1967
(
see 81 Stat. 100, § 1(a)), 50 U.S.C.App. § 462 (1964 ed.,
Supp. III).
[
Footnote 2]
"Except during the period of a war or a national emergency
declared by the Congress after the date of the enactment of the
1964 amendment to this subsection [July 7, 1964], where the father
or one or more sons or daughters of a family were killed in action
or died in line of duty while serving in the Armed Forces of the
United States, or subsequently died as a result of injuries
received or disease incurred during such service, the sole
surviving son of such family shall not be inducted for service
under the terms of this title . . . unless he volunteers for
induction."
Selective Service Act of 1948, § 6(
o), 62 Stat. 613, as
amended, 50 U.S.C.App. § 456(
o).
[
Footnote 3]
A registrant has the light to appear before his local board to
contest his classification or to present new information to the
board. 32 CFR §§ 1624.1, 1624.2 (1969). The board then determines
whether or not to reconsider the registrant's classification. 32
CFR §§ 1624.2(c)(d) (1969). Following the local board's decision,
the registrant has the right to appeal to the state appeal board.
32 CFR §§ 1624.2(e), 1525.13 (1969). A further appeal may be taken
by the registrant to the National Selective Service Appeal Board
only if one or more members of the state appeal board dissent from
the board's decision. 32 CFR § 1627.3 (1969).
[
Footnote 4]
The Selective Service System Regulations require the local board
to reopen a registrant's classification upon the written request of
the State or National Director. 32 CFR § 1625.3(a) (1969).
[
Footnote 5]
After petitioner failed to report for induction the second time
the State Director confirmed that petitioner's father had been
killed in action and then requested advice of the National
Director. The latter replied that "inasmuch as there is no family,
it is not believed that [petitioner] would qualify for sole
surviving son status." This information was then communicated to
the local board and the case referred to the local United States
Attorney. Petitioner's indictment followed.
[
Footnote 6]
Cf. Pickens v. Cox, 282 F.2d 784 (C.A. 10th
Cir.1960).
[
Footnote 7]
Shortly after the 1964 amendment, the Selective Service System
took the position that a sole surviving son exemption would not be
affected by any change in the status of the family, other than the
birth of a full brother. Selective Service System Operations
Bulletin No. 263 (August 14, 1964). That position was later
rescinded and the System has issued no further instructions
concerning § 6(
o).
[
Footnote 8]
Section 6(h) of the Military Selective Service Act of 1967, 81
Stat. 102, authorizes the President to provide for the deferment of
"persons who have children, or wives and children, with whom they
maintain a bona fide family relationship in their homes." Section
6(h) of the Selective Service Act of 1948, 62 Stat. 611, was to the
same general effect.
Had Congress wished to condition the exemption on the existence
of a family unit, it would also seem logical for it to have defined
that "family unit." For example, the trial in the present case
disclosed that both of petitioner's maternal grandparents and his
paternal grandmother were still living. Nothing in the statute
indicates whether these relatives should be considered part of the
"family."
[
Footnote 9]
See, e.g., Layton & Fine, The Draft and Exhaustion
of Administrative Remedies, 56 Geo.L.J. 315, 32331 (1967).
[
Footnote 10]
L. Jaffe, Judicial Control of Administrative Action 425
(1965).
[
Footnote 11]
The Notice of Classification form, SSS Form 110, informs the
registrant of his right to appeal, but does not inform him that
failure to appeal may bar a subsequent challenge to the validity of
his classification.
[
Footnote 12]
These judicially created doctrines were recently enacted as §
10(b)(3) of the Military Selective Service Act of 1967, 81 Stat.
104. Section 10(b)(3) provides in pertinent part:
"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. . . .
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) (1964 ed., Supp. III)."
We have recently had occasion to interpret this section in the
context of pre-induction challenges to classifications.
See
Clark v. Gabriel, 393 U. S. 256
(1968);
Oestereich v. Selective Service Board,
393 U. S. 233
(1968). We have granted certiorari in
Breen v. Selective
Service Board, No. 1144,
cert. granted, 394 U.S. 997,
to consider the applicability of § 10(b)(3) to pre-induction
challenges to allegedly "punitive" reclassifications.
[
Footnote 13]
See Yakus v. United States, 321 U.
S. 414 (1944).
[
Footnote 14]
The 1967 amendment,
see n 12,
supra, makes no reference to exhaustion of
administrative remedies as a prerequisite to challenging the
validity of a classification as a defense to a criminal prosecution
for refusal to submit to induction. The legislative history of that
amendment indicates that Congress was concerned with certain
judicial decisions allowing pre-induction review of selective
service classifications and the possibility that such "litigious
interruption" might seriously affect the administration of the
Selective Service System.
See Oestereich v. Selective Service
Board, 393 U. S. 233,
393 U. S.
245-252 (1968) (dissenting opinion).
[
Footnote 15]
Of course, it is necessary that the local board, which has the
responsibility of classifying registrants in the first instance, be
given the information necessary to perform its function. However,
the present case does not present an instance where a registrant is
trying to challenge a classification on the basis of facts not
presented to the local board. In such a case, the smooth
functioning of the system may well require that challenges to
classifications based upon facts not properly presented to the
board be barred. In the case before us, the board was aware of the
relevant facts when it made its decision to reclassify petitioner
I-A; no further factual inquiry would have been at all useful.
[
Footnote 16]
Conscientious objector claims, Military Selective Service Act of
1967, § 6(j), 81 Stat. 104, 50 U.S.C.App. § 456(j) (1964 ed., Supp.
III), or deferments for those engaged in activities deemed
"necessary to the maintenance of the national health, safety, or
interest,"
id. § 6(h)(2), 81 Stat. 102, 50 U.S.C.App. §
456(h)(2) (1964 ed., Supp. III), would appear to be examples of
questions requiring the application of expertise or the exercise of
discretion. In such cases, the Selective Service System and the
courts may have a stronger interest in having the question decided
in the first instance by the local board and then by the appeal
board, which considers the question anew. 32 CFR § 1626.26. The
Selective Service System is empowered by Congress to make such
discretionary determinations, and only the local and appeal boards
have the necessary expertise.
See Thompson v. United
States, 380 F.2d 86 (C.A. 10th Cir.1967).
[
Footnote 17]
As noted above, the Selective Service System is not without
power to correct its own errors without the intervention of the
registrant.
See nn.
4
and |
4 and S.
185fn5|>5,
supra.
[
Footnote 18]
It is true that we recently made specific reference to the
exhaustion doctrine in
Oestereich v. Selective Service
Board, 393 U. S. 233,
393 U. S.
235-236, n. 5 (1968), a case where all administrative
appeals had been exhausted. However, that case involved an attempt
to challenge the validity of a classification before receipt of a
notice of induction. A registrant's failure to appeal may have
different implications if raised in a suit for pre-induction
review.
[
Footnote 19]
See Billings v. Truesdell, 321 U.
S. 542,
321 U. S. 558
(1944);
Gibson v. United States, 329 U.
S. 338,
329 U. S.
349-350 (1946);
Sunal v. Large, 332 U.
S. 174,
332 U. S. 176
(1947);
Cox v. United States, 332 U.
S. 442,
332 U. S. 445,
332 U. S. 448
(1947).
[
Footnote 20]
See n 16,
supra.
[
Footnote 21]
See 32 CFR §§ 1628.10, 1628.11 (1969).
[
Footnote 22]
See n 1,
supra.
MR. JUSTICE DOUGLAS, concurring.
The principle of
Oestereich v. Selective Service Board,
393 U. S. 233,
should dispose of this case. There, a registrant was plainly
entitled to a statutory exemption from service because he was a.
divinity student. Yet he was denied the exemption because, having
burned his draft card, he was classified as a "delinquent" by
Selective Service. He challenged that action in a civil suit for
pre-induction review, and we granted relief.
This is not a suit for pre-induction review, but a defense
tendered in a criminal prosecution. This statutory
Page 395 U. S. 204
exemption is as clear as the one in
Oestereich. The
"sole surviving" son of a family whose father had been killed in
action is exempt, and there can hardly be any argument that
petitioner is such a "son," though both his father and mother are
dead. He is indeed the last male heir of the line, and therefore
one who Congress charitably decided should not be exposed to the
chance of death in warfare.
If Oestereich could raise his claim to statutory exemption in a
civil suit at a pre-induction stage, it follows
a fortiori
that petitioner can do so in a criminal prosecution for failure to
obey the Act's mandate.
The truth of the matter is that it was the Selective Service
Board that acted in a "lawless manner,"
* and, when its
error is so egregious, it would be a travesty of justice to require
a registrant -- whether or not sophisticated -- to pursue the
administrative remedies that are designed for quite different
categories of cases.
* While questions of law are usually routed through the
available administrative machinery (
see Udall v. Tallman,
380 U. S. 1,
380 U. S. 16),
that principle evolved under regulatory schemes where agencies had
general oversight and supervision over companies or other groups of
individuals.
See Myers v. Bethlehem Shipbuilding Corp.,
303 U. S. 41,
303 U. S. 51.
Arguably, these Selective Service boards have no claim to that kind
of expertise. But assuming that they do, the present "legal"
question is too transparent to be dignified in that manner.
MR. JUSTICE WHITE, concurring in the result.
The Court's opinion, as I understand it, does not dispense with
the necessity of presenting an issue under the draft laws to the
registrant's local board for consideration in the first instance.
Petitioner did exactly this, and, by its decision, the Court
provides no avenue for totally bypassing the Selective Service
System and using the courts as an alternative to the local draft
boards. Any decision to the contrary would be inconsistent with the
well established principle that the responsible administrative
Page 395 U. S. 205
agency must be given "an opportunity to consider the matter,
make its ruling, and state the reasons for its action."
Unemployment Compensation Commission of Alaska v. Aragon,
329 U. S. 143,
329 U. S. 155
(1946).
See generally 3 K. Davis, Administrative Law
Treatise § 20.06 (1958). But presentation of the issue to the
agency for consideration in the first instance does not complete
the litigant's task under the exhaustion doctrine if he would seek
resolution of that same issue in the courts. On the contrary, he
must resort to appellate remedies available within the agency, and
only after those remedies have been exhausted can he turn to the
courts for review.
See, e.g., United States v. Sing Tuck,
194 U. S. 161
(1904);
Chicago, M., St. P. & P. R. Co. v. Risty,
276 U. S. 567,
276 U. S. 575
(1928).
It is petitioner's failure to exhaust appellate remedies
available within the Selective Service System which presents the
obstacle to the challenge of his classification in the courts. And
while this facet of the exhaustion doctrine, like its other facets,
admits of exceptions when special circumstances warrant,
see,
e.g., Donato v. United States, 302 F.2d 468 (C.A. 9th
Cir.1962), I cannot agree with the Court's apparent conclusion that
petitioner's failure to exhaust appellate remedies within the
System can be disregarded on the broader ground that only a
question of law is involved. Questions of law have not, in the
past, been thought to be immune from exhaustion requirements.
See, e.g., Myers v. Bethlehem Shipbuilding Corp.,
303 U. S. 41
(1938). Indeed, this Court has often emphasized that the expertise
of the responsible agency is entitled to great deference in matters
of statutory construction, [
Footnote
2/1]
see, e.g., 380 U. S.
Tallman,
Page 395 U. S. 206
380 U. S. 1,
380 U. S. 16
(1965), thus refuting any contention that questions of law are
somehow beyond the expertise of the agency and do not give rise to
the considerations which underlie the exhaustion doctrine.
Although I would stop far short of the broad strokes used by the
Court in this respect, I do agree that petitioner's failure to
exhaust appellate remedies does not bar review of his
classification on the facts of this case. Undoubtedly, Congress
could require such exhaustion as a prerequisite to judicial review,
see, e.g., Yakus v. United States, 321 U.
S. 414 (1944), but Congress has not chosen to do so.
[
Footnote 2/2] In the absence of
any such requirement, I do
Page 395 U. S. 207
not think review of petitioner's classification is an
impermissible encroachment upon the bailiwick of the Selective
Service System. We are not faced with a situation in which
consideration of the issue involved has stopped at the first level
of the administrative machinery. Rather, petitioner's case and the
scope of the § 6(
o) exemption for sole surviving sons have
received the attention of both the State and the National Directors
of the Selective Service System. Petitioner has not exhausted the
channels for formal appellate review within the System, but the
informal review given petitioner's case and the ratification by the
State and National Directors of the position taken by petitioner's
local board are sufficient justification to permit the courts to
entertain petitioner's defense that his classification is improper
under § 6(
o).
[
Footnote 2/1]
The fact that the relevant statute is ambiguous or uncertain,
e.g., Logan v. Davis, 233 U. S. 613,
233 U. S. 627
(1914), or that the agency's interpretation of a statute comes
while its interrelationship with the other parts of the regulatory
scheme is as yet "untried and new,"
Norwegian Nitrogen Prods.
Co. v. United States, 288 U. S. 294,
288 U. S. 315
(1933), may accord the agency interpretation of the statute
additional significance. And since the construction of the sole
surviving son exemption is "essentially a question of first
impression,"
ante at
395 U. S. 190,
the importance of exhaustion -- or of a failure to exhaust -- is,
perhaps, accentuated in this case. Any ambiguity in the language
and legislative history of the statute, or any question as to the
role which § 6(
o) must play in the statutory scheme would
be well suited to resolution by the Selective Service System in the
first instance. Exhaustion of appellate remedies within the System
would have afforded that agency full opportunity to apply its
expertise to these and other questions, thereby facilitating the
disclosure of factors which, although germane, are not highly
visible to tribunals less familiar with the regulatory scheme.
[
Footnote 2/2]
Compare Falbo v. United States, 320 U.
S. 549 (1944). Section 10(b)(3) of the Military
Selective Service Act of 1967, 81 Stat. 104, prescribes the timing
of judicial review -- "after the registrant has responded either
affirmatively or negatively to an order to report for induction" --
but does not speak to the exhaustion question.
It should be noted that, where agency orders are not suspended
during the pendency of an administrative appeal, Congress has seen
fit to permit judicial review without exhaustion of appellate
remedies. Administrative Procedure Act § 10(c), 5 U.S.C. § 704
(1964 ed., Supp. III). Under that section, however, if the agency
action is inoperative during administrative review, the agency may
require exhaustion by its own rules. Since induction may not be
ordered during a registrant's appeal, 32 CFR §§ 1626.41, 1627.8
(1969), the Selective Service System could require exhaustion even
if subject to § 10(c) of the APA. The administration of the draft
laws, however, is not covered by the APA, and the necessity for
exhausting appellate remedies would seem to rest on the general
doctrine developed by the courts.