While petitioner's I-A Selective Service classification was on
appeal from the local board's denial of his application for
exemption as a conscientious objector, petitioner surrendered his
registration certificate and classification notice by leaving them,
along with a statement against the war in Vietnam, on the steps of
the federal building. The State Board denied the exemption and
classified petitioner I-A. He was thereafter declared delinquent by
his local board for failing to retain his registration and
classification papers in his possession at all times as required by
the Selective Service regulations. Pursuant to the regulations
promulgated under the Military Selective Service Act of 1967, a
local board may declare a registrant a "delinquent" for failure to
perform duties required by the Selective Service law. A registrant
in I-A status who is declared delinquent is, under 32 CFR §
1642.13, assigned first priority in the order of induction call,
depriving him of his previous standing in the order of call.
Petitioner was ordered to report for induction about a month after
he had been declared a delinquent. In view of petitioner's age
(20), it is unlikely that he would have been called at that time
for induction had he not been declared a delinquent. Following
petitioner's refusal on the designated date to be processed for
induction, he was indicted and later convicted for willfully and
knowingly failing "to perform a duty required of him" under the
Act. His conviction was affirmed on appeal. Petitioner attacks as
invalid the Selective Service regulations accelerating the
induction of one declared to be a delinquent.
Held:
1. Petitioner's failure to appeal administratively from the
order declaring him delinquent does not deprive him of standing to
contest his conviction, as the regulations conferring hearing
rights apply to those contesting classifications made by local
boards, and not to those like petitioner whose delinquency rests on
undisputed facts, or to those whose induction has merely been
accelerated. Pp.
396 U. S.
299-301.
2. The delinquency regulations under which petitioner was
punitively deprived of the order-of-call preference accorded to
Page 396 U. S. 296
him are not authorized by the Act, and are therefore void. Pp.
301-308.
(a) Congress intended to punish delinquents through the criminal
law, and not through a delinquency procedure, which has no
statutory sanction. Pp. 302-303.
(b) Deferment of the order of call may bestow great benefits,
and its acceleration may be extremely punitive. Pp. 304-306.
(c) The power under the Selective Service regulations to declare
a registrant "delinquent" lacks statutory standards or guidelines,
without which the legality of a delinquency declaration cannot be
judged. Pp. 306-308.
406 F.2d 494, reversed.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This case presents an important question under the Military
Selective Service Act of 1967, 62 Stat. 604, as amended, 65 Stat.
75, 81 Stat. 100.
Petitioner registered with his Selective Service Local Board and
was classified I-A. Shortly thereafter, he received a II-S
(student) classification. In a little over a year, he notified the
Board that he was no longer a student, and was classified I-A.
Meanwhile he had asked for an exemption as a conscientious
objector. The
Page 396 U. S. 297
Board denied that exemption, reclassifying him as I-A, and he
appealed to the State Board. While that appeal was pending, he
surrendered his registration certificate and notice of
classification by leaving them on the steps of the Federal Building
in Minneapolis with a statement explaining he was opposed to the
war in Vietnam. That was on October 16, 1967. On November 22, 1967,
his appeal to the State Board was denied. On November 27, 1967, he
was notified that he was I-A.
On December 20, 1967, he was declared delinquent by the local
board. On December 26, 1967, he was ordered to report for induction
on January 24, 1968. He reported at the induction center, but, in
his case, the normal procedure of induction was not followed.
Rather, he signed a statement, "I refuse to take part, or all,
[
sic] of the prescribed processing." Thereafter he was
indicted for willfully and knowingly failing and neglecting "to
perform a duty required of him" under the Act. He was tried without
a jury, found guilty, and sentenced to four years' imprisonment.
283 F. Supp. 945. His conviction was affirmed by the Court of
Appeals. 406 F.2d 494. The case is here on a petition for a writ of
certiorari. 394 U.S. 997.
I
Among the defenses tendered at the trial was the legality of the
delinquency regulations which were applied to petitioner. It is
that single question which we will consider.
By the regulations promulgated under the Act, a local board may
declare a registrant to be a "delinquent" whenever he
"has failed to perform any duty or duties required of him under
the selective service law other than the duty to comply with an
Order to Report for Induction (SSS Form No. 252) or the duty to
comply
Page 396 U. S. 298
with an Order to Report for Civilian Work and Statement of
Employer (SSS Form No. 153). . . ."
32 CFR § 1642.4. In this case, petitioner was declared a
delinquent for failing to have his registration certificate (SSS
Form No. 2) and current classification notice (SSS Form No. 110) in
his personal possession at all times, as required by 32 CFR §§
1617.1 and 623.5, respectively.
The consequences of being declared a delinquent under § 1642.4
are of two types: (1) Registrants who have deferments or exemptions
may be reclassified in one of the classes available for service,
I-A, I-A-O, or I-O, whichever is deemed applicable. 32 CFR §
1642.12. (2) Registrants who are already classified I-A, I-A-O, or
I-O, and those who are reclassified to such a status, will be given
first priority in the order of call for induction, requiring them
to be called even ahead of volunteers for induction. 32 CFR §
1642.13. The latter consequence deprives the registrant of his
previous standing in the order of call as set out in 32 CFR §
1631.7. [
Footnote 1]
The order-of-call provision in use when petitioner was declared
"delinquent" [
Footnote 2] is
set out in 32 CFR § 1631.7(a). The provision lists, in order, six
categories of registrants, and provides that the registrants shall
be selected and ordered to report for induction according to the
order of those categories. The first category is delinquents; the
next category is volunteers; the other four categories consist of
nonvolunteers.
Page 396 U. S. 299
In this case, the petitioner was in the third of the six
categories at the time he was declared to be a "delinquent." By
virtue of the declaration of delinquency, he was moved to the first
of the categories which meant, according to the brief of the
Department of Justice, that
"it is unlikely that petitioner, who was 20 years of age when
ordered to report for induction, would have been called at such an
early date had he not been declared a delinquent."
If a person who is ordered to report for induction or
alternative civilian service refuses to comply with that order, he
subjects himself to criminal prosecution.
See 32 CFR §§
1642.41, 1660.30.
There is no doubt concerning the propriety of the latter
criminal sanction, for Congress has specifically provided for the
punishment of those who disobey selective service statutes and
regulations in § 12 of the Military Selective Service Act of 1967,
50 U.S.C.App. § 462 (1964 ed., Supp. IV). The question posed by
this case concerns the legitimacy of the delinquency regulations,
which were applied to the petitioner, so as to deprive him of his
previous standing in the order of call.
II
There is a preliminary point which must be mentioned, and that
is the suggestion that petitioner should have taken an
administrative appeal from the order declaring him "delinquent,"
and that his failure to do so bars the defense in the criminal
prosecution.
The pertinent regulation is 32 CFR § 1642.14, which gives a
delinquent who "is classified in or reclassified into Class I-A,
Class I-A-O or Class I-O" three rights:
(a) the right to a personal appearance, upon request, "
under
the same circumstances as in any other case";
(b) the right to have his classification reopened "
in the
discretion of the local board"; and
Page 396 U. S. 300
(c) the right to an appeal "
under the same circumstances and
by the same persons as in any other case." (Emphasis
added.)
The right to a personal appearance "in any other case" is
covered by 32 CFR § 1624.1(a). That section gives the right to
"[e]very registrant
after his classification is determined by
the local board," provided a request is made therefor within
30 days. (Emphasis added.) The action taken against this
petitioner, however, did not involve classification. The term
"classification" is used exclusively in the regulations to refer to
classification in one of the classes determining availability for
service,
e.g., I-A, I-O.
See 32 CFR pt.s.
1621-1623. "Delinquency" is not such a classification, and a
registrant is "declared" a delinquent,
not "classified" as
a delinquent.
See 32 CFR pt. 1642.
The right to reopen his classification is also irrelevant to
petitioner, as he is not attacking his classification, but only his
accelerated induction.
The right to appeal "as in any other case" is covered by 32 CFR
§ 1626.2(a). That section provides that "[t]he registrant . . . may
appeal to an appeal board
from the classification of a
registrant by the local board." (Emphasis added.)
Again, since petitioner was not classified in conjunction with
his delinquency, but only had his induction accelerated, it would
mean that he did not have the right to an appeal under the
regulations. [
Footnote 3] We
are not advised in
Page 396 U. S. 301
any authoritative way that this interpretation of the
regulations is contrary to the administrative construction of them
or to the accepted practice. [
Footnote 4]
III
We come then to the merits. The problem of "delinquency" goes
back to the 1917 Act, 40 Stat. 76, as shown in the
396
U.S. 295app|>Appendix to this opinion. The present
"delinquency" regulations with which we are concerned stem from the
1948 Act, 62 Stat. 604.
The regulations issued under the 1948 Act were substantially
identical to the present delinquency regulations, 32 CFR pt. 1642.
Nothing in the 1948 Act or in any prior Act makes reference to
delinquency or delinquents. The regulations purport to issue under
the authority of § 10 of the 1948 Act. Section 10, however, relates
neither to selection (§ 5) nor to deferments and exemptions (§ 6),
but simply to the administration of the Act as delegated to the
President: "The President is authorized -- (1) to prescribe the
necessary rules and regulations to carry out the provisions of this
title." 62 Stat. 619.
Page 396 U. S. 302
The delinquency provisions of 32 CFR pt. 1642 survived the
Military Selective Service Act of 1967 largely intact. Again,
however, there is nothing to indicate that Congress authorized the
Selective Service System to reclassify exempt or deferred
registrants for punitive purposes and to provide for accelerated
induction of delinquents. Rather, the Congress reaffirmed its
intention under § 12 (50 U.S.C.App. § 462 (1964 ed., Supp. IV)), to
punish delinquents through the criminal law.
It is true, of course, that Congress referred to "delinquents"
in § 6(h)(1), 81 Stat. 102, 50 U.S.C.App. § 456(h)(1) (1964 ed.,
Supp. IV):
"As used in this subsection, the term 'prime age group' means
the age group which has been designated by the President as the age
group from which selections for induction into the Armed Forces are
first to be made
after delinquents and volunteers."
(Emphasis added.) This reference concerns only an order-of-call
provision which institutes a call by age groups, 32 CFR §
1631.7(b), a provision which has never been used. This casual
mention of the term "delinquents," moreover, must be measured
against the explicit congressional provision for criminal
punishment of those who violate the selective service laws, 50
U.S.C.App. § 462 (1964 ed., Supp. IV), the congressional provision
for exemptions and deferments, 50 U.S.C.App. § 456 (1964 ed., Supp.
IV), and congressional expressions emphasizing the importance of an
impartial order of call, 50 U.S.C.App. § 455 (1964 ed., Supp. IV);
H.R.Conf.Rep. No. 346, 90th Cong., 1st Sess., 9-10. Thus it was
that the Solicitor General stated in his brief in
Oestereich v.
Selective Service Board, No. 46, O.T. 1968,
393 U.
S. 233:
"It is difficult to believe that Congress intended the local
boards to have the unfettered discretion
Page 396 U. S. 303
to decide that any violation of the Act or regulations warrants
a declaration of delinquency, reclassification and induction. . .
."
Brief for the United States 54. Judge Dooling stated in
United States v. Eisdorfer, 299 F.
Supp. 975, 989:
"The delinquency procedure has no statutory authorization and no
Congressional support except what can be spelled out of the 1967
amendment of 50 U.S.C.App. § 456(h)(1). . . . The delinquency
regulations, moreover, disregard the structure of the Act;
deferments and priorities of induction, adopted in the public
interest, are treated as if they were forfeitable personal
privileges."
Oestereich involved a case where a divinity school
student with a statutory exemption and a IV-D classification was
declared "delinquent" for turning in his registration certificate
to the Government in protest against the war in Vietnam. His Board
thereupon reclassified him as I-A. After he exhausted his
administrative remedies, he was ordered to report for induction. At
that point, he brought suit in the District Court for judicial
review of the action by the Board. We held that, under the unusual
circumstances of the case, pre-induction judicial review was
permissible prior to induction, and that there was no statutory
authorization to use the "delinquency" procedure to deprive a
registrant of a statutory exemption. We said:
"There is no suggestion in the Legislative history that, when
Congress has granted an exemption and a registrant meets its terms
and conditions, a Board can nonetheless withhold it from him for
activities or conduct not material to the grant or withdrawal
Page 396 U. S. 304
of the exemption. So to hold would make the Boards free-wheeling
agencies meting out their brand of justice in a vindictive
manner."
"Once a person registers and qualifies for a statutory
exemption, we find no legislative authority to deprive him of that
exemption because of conduct or activities unrelated to the merits
of granting or continuing that exemption."
393 U.S. at
393 U. S.
237.
The question in the instant case is different, because no
"exemption," no "deferment," no "classification" in the statutory
sense, is involved. "Delinquency" was used here not to change a
classification, but to accelerate petitioner's induction from the
third category to the first, and it was that difference which led
the Court of Appeals to conclude that what we said in
Oestereich was not controlling here.
Deferment of the order of call may be the bestowal of great
benefits, and its acceleration may be extremely punitive. As
already indicated, the statutory policy is the selection of persons
for training and service "in an impartial manner." 50 U.S.C.App. §
455(a)(1) (1964 ed., Supp. IV). That is the only express statutory
provision which gives specific content to that phrase. That section
does permit people registered at one time to be selected "before,
together with, or after" persons registered at a prior time.
Moreover, those who have not reached the age of 19 are given a
deferred position in the order of call. But those variations in the
phrase "in an impartial manner" are of no particular help in the
instant case, except to underline the concern of Congress with the
integrity of that phrase.
We know from the legislative history that, while Congress did
not address itself specifically to the "delinquency"
Page 396 U. S. 305
issue, it was vitally concerned with the order of selection, as
well as with exemptions and deferments. Thus, in 1967, a Conference
Report brought House and Senate together against the grant of power
to the President to initiate "a random system of selection" -- a
grant which, it was felt, would preclude Congress from "playing an
affirmative role" in the constitutional task of "raising armies."
H.R.Conf.Rep. No. 346,
supra, at 9-10. It is difficult to
believe that, with that show of resistance to a grant of a more
limited power, there was acquiescence in the delegation of a broad,
sweeping power to Selective Service to discipline registrants
through the "delinquency" device.
The problem of the order of induction was once more before the
Congress late in 1969. Section 5(a)(2) of the 1967 Act, 50
U.S.C.App. § 455(a)(2) (1964 ed., Supp. IV), provided:
"Notwithstanding the provisions of paragraph (1) of this
subsection, the President in establishing the order of induction
for registrants within the various age groups found qualified for
induction shall not effect any change in the method of determining
the relative order of induction for such registrants within such
age groups as has been heretofore established and in effect on the
date of enactment of this paragraph, unless authorized by law
enacted after the date of enactment of the Military Selective
Service Act of 1967."
While § 5(a)(2) gave the President authority to designate a
prime age group for induction, it required him to select from the
oldest first within the group. S.Rep. No. 91-531, 91st Cong., 1st
Sess., 1. The Act of November 26, 1969, 83 Stat. 220, repealed §
5(a)(2)
Page 396 U. S. 306
pursuant to a request of the President that a random system of
selection be authorized.
See S.Rep. No. 91531,
supra, at 3-4; H.R.Rep. No.91-577, 91st Cong., 1st Sess.,
2, 9. [
Footnote 5] The random
system has now been put in force. [
Footnote 6] It applies, of course, only prospectively. But
its legislative history, as well as the concern of the Congress
that the order in which registrants are inducted be achieved "in an
impartial manner," emphasizes a deep concern by Congress with the
problems of the order of induction, as well as with those of
exemptions, deferments, and classifications.
While § 5(a)(1) provides that "there shall be no discrimination
against any person on account of race or color," 50 U.S.C.App. §
455(a)(1) (1964 ed., Supp. IV), there is no suggestion that, as
respects other types of discrimination, the Selective Service has
freewheeling authority to ride herd on the registrants using
immediate induction as a disciplinary or vindictive measure.
The power under the regulations to declare a registrant
"delinquent" has no statutory standard, or even guidelines. The
power is exercised entirely at the discretion of the local board.
It is a broad, roving authority, a type of administrative
absolutism not congenial to our law-making traditions. In
Kent
v. Dulles, 357 U. S. 116,
357 U. S.
128-129, we refused to impute to Congress the grant of
"unbridled discretion" to the Secretary of State to issue or
withhold a passport from a citizen "for any substantive reason he
may choose."
Id. at
357 U. S. 128.
Where the
Page 396 U. S. 307
liberties of the citizen are involved, we said that "we will
construe narrowly all delegated powers that curtail or dilute
them."
Id. at
357 U. S. 129.
The Director of selective Service described the "delinquency"
regulations as designed "to prevent, wherever possible,
prosecutions for minor infractions of rules" during the selective
service processing. [
Footnote
7] We search the Act in vain for any clues that Congress
desired the Act to have punitive sanctions apart from the criminal
prosecutions specifically authorized. Nor do we read it as granting
personal privileges that may be forfeited for transgressions that
affront the local board. If federal or state laws are violated by
registrants, they can be prosecuted. If induction is to be
substituted for these prosecutions, a vast rewriting of the Act is
needed. Standards would be needed by which the legality of a
declaration of "delinquency" could be judged. And the regulations,
when written, would be subject to the customary inquiries as to
infirmities on their face or in their application, including
the
Page 396 U. S. 308
question whether they were used to penalize or punish the free
exercise of constitutional rights.
Reversed.
MR. CHIEF JUSTICE BURGER concurs in the result reached by the
Court generally for the reasons set out in the separate opinion of
MR. JUSTICE STEWART.
MR. JUSTICE WHITE joins the opinion of the Court insofar as it
holds that Congress has not delegated to the President the
authority to promulgate the delinquency regulations involved in
this case.
|
396
U.S. 295app|
APPENDIX TO OPINION OF THE COURT
Under the Selective Service Act of 1917, 40 Stat. 76, if a
registrant failed to return his questionnaire or to report for
physical examination, he was mailed a special order directing him
to report for military service at a specified time. The registrant
became a member of the service on the date specified in his order;
any refusal to obey that order subjected him to prosecution under
military law for desertion.
"Since, in most instances, the delinquent registrant would never
receive the order, due to not being in contact with his local
board, he would normally acquire the status of a deserter without
having any actual knowledge of his induction."
Selective Service System, Enforcement of the Selective Service
Law 13 (Special Monograph No. 14, 1950). Thus, enforcement of the
1917 Act rested principally with the military, with court-martial
being the main weapon of enforcement.
In passing the Selective Training and Service Act of 1940, 54
Stat. 885, Congress specifically ended the practice of subjecting
delinquent registrants to military jurisdiction immediately upon
receipt of their orders to report. Rather, § 11 of the Act provided
that no registrant should be tried in a military court for
disobeying
Page 396 U. S. 309
selective service laws until he had been actually inducted,
vesting criminal jurisdiction until such time in the United States
district courts.
No mention was made in the 1940 Act of "delinquency" or
"delinquents." These terms were first introduced by the Selective
Service regulations issued under the Act, 32 CFR, c. VI (Supp.
1940), which prescribed various duties for registrants and defined
a "delinquent" as one who failed to perform them:
"A 'delinquent' is . . . (b) any registrant who prior to his
induction into the military service fails to perform at the
required time, or within the allowed period of given time, any duty
imposed upon him by the selective service law, and directions given
pursuant thereto, and has no valid reason for having failed to
perform that duty."
32 CFR § 601.106 (Supp. 1940).
Furthermore, the regulations provided definite procedures for
processing delinquents: after giving them notice of their suspected
delinquency, 32 CFR § 603.389 (Supp. 1940), and after investigating
those suspected charges, 32 CFR § 603.390 (Supp. 1940), the
Selective Service System provided for two possible
dispositions:
On the one hand --
"If the local board is convinced that a delinquent is not
innocent of wrongful intent, or if a suspected delinquent does not
report to the board within 5 days after the mailing of the Notice
of Delinquency . . . , the board should report him to a United
States District Attorney for prosecution under section 11 of the
Selective Service Act."
32 CFR § 603.391(a) (Supp. 1940).
On the other hand --
"If the board finds that the suspected delinquent is innocent of
any wrongful intent, the board shall
Page 396 U. S. 310
proceed with him just as if he were never suspected of being a
delinquent."
32 CFR § 603.390(a) (Supp. 1940).
The February 1942 amendments to the regulations added a
provision by which local boards would advise the United States
Attorney in the exercise of his discretion not to prosecute those
who had violated the selective service laws:
"If it is determined that the delinquency is not willful, or
that substantial justice will result, the local board should
encourage the delinquent to comply with his obligations under the
law and, if he does so or offers to do so, should urge that any
charge of delinquency against him or any prosecution of him for
delinquency be dropped."
32 CFR § 642.5 (Cum.Supp. 1938-1943).
This process was called the "enforcement procedure of education
and persuasion." Selective Service System, Enforcement of the
Selective Service Law,
supra, at 1-3.
"The first steps of the board were to try educating and
persuading [the delinquent] to comply, but if such failed his case
was referred to the United States attorney for further education
and persuasion or if such also failed, for prosecution."
Selective Service System, Organization and Administration of the
System 241 (Special Monograph No. 3, 1951). If it was determined
that the delinquency was "willful" or that for any reason the
United States Attorney should not exercise his discretion not to
prosecute, the registrant was given an opportunity to avoid
prosecution by "volunteering" for induction.
"[T]he registrant could volunteer for induction from any
classification, not just I-A, any time he so desired,
Page 396 U. S. 311
and if he was a delinquent under prosecution such volunteering
was often allowed from any stage of the proceedings."
Ibid. This procedure made it possible for the boards to
siphon into military service some delinquents who might otherwise
have traveled to jail:
"Since the purpose of the [selective service] law is to provide
men for the military establishment, rather than for the
penitentiaries, it would seem that, when a registrant is willing to
be inducted, he should not be prosecuted for minor offenses
committed during his processing."
Selective Service System, Legal Aspects of Selective Service 47
(Rev.1969). In November, 1943, a new and substantially different
set of regulations was issued. These regulations did not rely upon
a delinquent's "volunteering" for induction; instead they provided
for reclassification of deferred or exempted delinquents into
classes available for service, 32 CFR § 642.12(a) (Supp. 1943), and
provided for their priority induction without regard to the order
of call established elsewhere in the regulations, 32 CFR §
642.13(a) (Supp. 1943).
A deferred or exempted registrant who was reclassified into a
class available for service was accorded the procedural rights of
personal appearance and appeal to which he would otherwise have
been entitled. 32 CFR § 642.14(a) (Supp. 1943). In the case of a
registrant who was not reclassified as a result of his delinquency,
the local board could "reopen" the classification and accord rights
of personal appearance and appeal "at any time before induction."
32 CFR § 642.14(b) (Supp. 1943). If the local board determined that
the registrant "knowingly became a delinquent," however,
Page 396 U. S. 312
it was directed to decline to reopen the registrant's
classification.
Ibid.
With respect to those registrants who were given appeal rights
under § 642.14, the appeal board would determine if they had
"knowingly" become delinquents. If they had, they were to be
retained in a class available for service. If they had not, they
were to be "classified on appeal in the usual manner," and their
status as delinquents was to be "disregarded." 32 CFR § 642.14(c)
(Supp. 1943).
The purpose of these regulations was "
to prevent delay
in the induction of apprehended delinquent registrants." Selective
Service System, Enforcement of the Selective Service Law,
supra, at 56 (emphasis added). More important, the Service
recognized that the procedure had little to do with the statutory
exemptions delineated by Congress but, rather, was punitive in
nature:
"[T]he Selective Service Regulations concerning delinquents . .
. were amended again on November 1, 1943. . . . The purposes of
these changes were . . .
to provide for the administrative
penalty to a delinquent of prompt classification into Classes
I-A, I-A-O or IV-E as available for service,
in addition to the
existing criminal sanction."
(
Ibid.) (Emphasis added.)
The regulation of November 1, 1943, purportedly drew its
authority from § 3 of the 1940 Act, 54 Stat. 885. Nothing in that
section, however, gives the Service powers of punitive
reclassification and accelerated induction. Moreover, to the extent
that § 3 has been so construed, it would conflict with the spirit
of § 4(a):
"The selection of men for training and service under section 3 .
. . shall be made in an impartial manner, under such rules and
regulations as the President
Page 396 U. S. 313
may prescribe, from the men
who are liable for such training
and service and who at the time of selection are registered
and classified
but not deferred or exempted."
54 Stat. 887 (emphasis added).
The delinquency provisions under the 1940 Act expired on March
31, 1947. The provisions issued under the 1948 Act are discussed in
the text,
supra.
[
Footnote 1]
Under the terms of 32 CFR § 1631.7(a)(1) in effect at the time
of petitioner's trial, the first in line for induction were
"[d]elinquents who have attained the age of 19 years in the order
of their dates of birth, with the oldest being selected first."
That provision has been included in the new § 1631.7(a) promulgated
after the random system of selection, discussed hereafter, was
adopted.
[
Footnote 2]
The order of call provided for by 32 CFR § 1631.7(b) concerned
calls of a designated "age group or groups," a system never
used.
[
Footnote 3]
Cf. McKart v. United States, 395 U.
S. 185. In
McKart, the petitioner, who
challenged his I-A classification, was given a right to appeal
under the regulations, but failed to exercise it. This Court held
that this failure did not preclude the petitioner from raising the
invalidity of his I-A classification as a defense to his
prosecution for refusal to report for induction. The doctrine of
exhaustion of remedies, we held, was inapplicable where the
question sought to be raised was solely one of statutory
interpretation,
id., at
395 U. S.
197-199, and where application of the doctrine would
serve to deprive a criminal defendant of a defense to his
prosecution,
id. at
395 U. S.
197.
[
Footnote 4]
The Department of Justice does not suggest that a registrant who
has been declared a "delinquent" has administrative remedies for a
review of that action. It points out, however, that the
regulations, 32 CFR § 1642.4(c), provide that: "A registrant who
has been declared to be a delinquent may be removed from that
status by the local board at any time." It suggests that,
"at least up to the time of the issuance of the order to report
for priority induction, it would be an abuse of discretion for a
board to refuse removal in the case of a registrant who sought in
good faith to correct his breach of duty."
Whatever may be the ultimate reach of 32 CFR § 1642.4(c), it
seems to be conceded that it has little relevance to the present
case, where, the Department states, "the local board had solid
evidence that petitioner had dispossessed himself of his draft
cards."
[
Footnote 5]
And see 115 Cong.Rec. H 10255
et seq. (Oct.
29, 1969).
Id. at H 10301
et seq., H 10313
et
seq. (Oct. 30, 1969).
Id. at S 14632
et seq.
(Nov.19, 1969).
[
Footnote 6]
The random selection was established by the President through
Proclamation 3945, on November 26, 1969. 34 Fed.Reg.19017 (Nov. 29,
1969).
[
Footnote 7]
Selective Service System, Legal Aspects of Selective Service 46
(Rev.1969).
"The escalation of the United States military involvement in
Vietnam increased the draft calls, and there was an upsurge of
public demonstrations in protest. Some of these protests took the
form of turning 'draft' cards in to various public officials of the
Department of Justice, the State or National Headquarters of
Selective Service System, or directly to local boards. By agreement
with the Department of Justice, registrants who turned in cards (as
contrasted to those who burned cards) were not prosecuted under
section 12(a) of the Military Selective Service Law of 1967, but
were processed administratively by the local boards. In many
instances, the local boards determined that a deferment of such
registrant was no longer in the national interest, and he was
reclassified I-A delinquent for failure to perform a duty required
of him under the Act, namely retaining in his possession the
Registration Card and current Notice of Classification card."
Id. at 47.
MR. JUSTICE HARLAN, concurring.
I join the Court's opinion with the following observations.
First, as I see it, nothing in the Court's opinion prevents a
selective service board, under the present statute and existing
regulations, from classifying as I-A a registrant who fails to
provide his board with information essential to the determination
of whether he qualifies for a requested exemption or deferment.
Section 1622.10 of 32 CFR provides that:
"In Class I-A shall be placed every registrant who has failed to
establish to the satisfaction of the local board, subject to appeal
hereinafter provided, that he is eligible for classification in
another class."
I assume, of course, that under this regulation a board has no
authority to keep a registrant classified I-A once it has
information that justifies some lower classification.
Second, I think it entirely possible that consistently with our
opinion today the President might promulgate new regulations,
restricted in application to cases in which a registrant fails to
comply with a duty essential to the classification process itself,
that provide for accelerated induction under the existing statute.
However, in order to avoid those punitive features now found to be
unauthorized under existing legislation, any new regulations would
have to give to a registrant being subjected to accelerated
induction the right (like a person held in civil contempt) to avoid
any sanction by future compliance.
Page 396 U. S. 314
In other words, while existing legislation does not authorize
the use of accelerated induction to punish past transgressions, it
may well authorize acceleration to encourage a registrant to bring
himself into compliance with rules essential to the operation of
the classification process.
MR. JUSTICE STEWART, concurring in the judgment.
I do not reach the question whether Congress has authorized the
delinquency regulations, because even under the regulations the
petitioner's conviction cannot stand. After the petitioner's local
board declared him delinquent, he had 30 days as a matter of right
to seek a personal appearance before the board and to take an
appeal from its ruling. Yet the board gave him no chance to assert
either of those rights. Instead, it ordered him to report for
induction only five days after it had mailed him a notice of the
delinquency declaration.
The local board thus violated the very regulations it purported
to enforce. Those provisions seek to induce Selective Service
registrants to satisfy their legal obligations by presenting them
with the alternative prospect of induction into the armed forces.
The personal appearance and appeal are critical stages in the
delinquency process. They enable the registrant declared delinquent
by his local board to contest the factual premises on which the
delinquency declaration rests, to correct his oversight if the
breach of duty has arisen merely from neglect, or to purge himself
of his delinquency if his violation has been willful. In any event,
the regulatory objective is remedial. The board's authority to
reclassify a registrant based on his delinquency and to accelerate
his induction is analogous to the age-old power of the courts to
pronounce judgments of civil contempt. In each case, the subject of
the order carries "the keys . . .
Page 396 U. S. 315
in [his] on pocket" to the termination of the order's effect.
[
Footnote 2/1]
The Government has advanced the civil-contempt analogy, not only
in this case, but also in others before the Court both this Term
and last. [
Footnote 2/2] Such an
interpretation of the delinquency regulations comports with the
view of the agency charged with their administration -- that their
purpose is to provide young men for the armed services, not the
penitentiaries. [
Footnote 2/3] It
comports, as well, with the regulatory scheme itself, under which
the local board may reopen its classification of a delinquent
registrant without regard to the usual restrictions against such
action, [
Footnote 2/4] and remove
the registrant from delinquency status at any time, even after it
has ordered him to report for induction. [
Footnote 2/5]
Page 396 U. S. 316
Accordingly, even though the regulations seem to say that such
reopening and removal lie within the discretion of the local board,
[
Footnote 2/6] the Government
agrees that the board would abuse its discretion if it refused such
remedial relief to a registrant who breached his duty inadvertently
or carelessly, or who sought to correct the breach, even if
originally willful, and to return to compliance with his
obligations. [
Footnote 2/7] But the
Government
Page 396 U. S. 317
argues that, in this case the petitioner cannot avail himself of
these provisions in the delinquency regulations, because he made no
effort to correct his delinquency. The fact is that the
petitioner's local board never gave him a chance to purge his
delinquency. It declared him a delinquent on December 20, 1967,
sent him a notice to that effect the next day, and, five days
later, ordered him to report for induction, more than two weeks
before the expiration of the petitioner's time to seek a personal
appearance or take an appeal. [
Footnote
2/8] In these circumstances, the petitioner's failure to seek
his local board's advice on what he should do, as suggested by the
delinquency notice, does not detract from the force of his attack
upon the validity of his criminal conviction. [
Footnote 2/9]
The Government also argues that the petitioner was not
prejudiced by the local board's departure from the prescribed
regulatory routine because when he was declared delinquent he was
already classified I-A. But the Court of Appeals noted that the
petitioner's induction date was advanced as a result of the
declaration, [
Footnote 2/10] and
the Government concedes that, since the petitioner was only 20
years old at the time, it is unlikely that he would
Page 396 U. S. 318
have been called at such an early date had he not been declared
a delinquent. That the petitioner might eventually have been called
-- by no means a certainty, given the variations in draft calls and
the possibility that he might subsequently have qualified for a
deferment or exemption -- does not mean he cannot complain that he
was ordered to report for induction earlier than he should have
been. [
Footnote 2/11]
Finally, it is said that the petitioner had no right to a
personal appearance before the local board and an appeal from its
ruling because its delinquency declaration did not entail his
removed into Class I-A from some other category. Since the
petitioner was already I-A, the argument runs, his local board
never "reclassified" him; it just shifted him from a lower to the
highest category within the I-A order of call. [
Footnote 2/12] Neither logic nor policy supports
such a narrow reading of the regulations. Section 1642.14
specifically provides for a personal appearance and appeal not only
upon a "reclassification into" I-A, but also upon a "classification
in" that category. [
Footnote
2/13] The regulation thus covers precisely those registrants
who are already "classified in" Class I-A, and whose declaration of
delinquency automatically elevates them to the head of the order of
call, as well as those registrants who are not yet in I-A, and who
must be "reclassified into" that category before they can be put at
the top of the list. The regulation, recognizing that the status of
the registrant prior to his being declared delinquent and placed at
the head of the order of call is
Page 396 U. S. 319
irrelevant to the delinquency process, ensures that all
registrants declared delinquent will enjoy the same rights of
personal appearance and appeal without regard to their previous
status.
Because the challenged regulations afford the petitioner
procedural rights that his local board never gave him a chance to
exercise, I would reverse the judgment of conviction.
[
Footnote 2/1]
Cf. Shillitani v. United States, 384 U.
S. 364,
384 U. S.
36372;
Green v. United States, 356 U.
S. 165,
356 U. S.
197-198 (BLACK, J., dissenting);
Penfield Co. v.
SEC, 330 U. S. 585,
330 U. S. 590;
United States v. United Mine Workers, 330 U.
S. 258,
330 U. S.
330-332 (BLACK and DOUGLAS, JJ., concurring in part and
dissenting in part).
[
Footnote 2/2]
The Government has spelled out the analogy in its briefs in
Oestereich v. Selective Service Local Bd. No. 11,
393 U. S. 233;
Breen v. Selective Service Board, No. 65, O.T. 1969,
awaiting decision;
Troutman v. United States, No. 623,
O.T. 1969,
cert. pending; and the present case.
See
also Griffiths, Punitive Reclassification of Registrants Who
Turn in Their Draft Cards, 1 Sel.Serv.L.Rep. 4001, 4010-4012.
[
Footnote 2/3]
Selective Service System, Legal Aspects of Selective Service 47
(Rev.1969).
[
Footnote 2/4]
32 CFR § 164.14(b);
cf. 32 CFR § 1625.2.
[
Footnote 2/5]
32 CFR § 1642.4(c). Of similar import is the board's authority,
before notifying the local United States Attorney that a registrant
has failed to report for induction, to wait 30 days if it believes
it may be able to locate the registrant and secure his compliance.
32 CFR § 1642.41(a).
The civil-contempt interpretation draws further support from the
historical development of the law of Selective Service delinquency.
In the First World War, one who failed to fill out his
questionnaire was imply inducted into the military, and his failure
to report for duty led to a court-martial for desertion.
See
United States ex rel. Bergdoll v. Drum, 107 F.2d 897, 899. By
the Second World War, when the precursor of the present delinquency
regulations first appeared, 32 CFR §§ 601.106, 603.389-603.393
(Supp. 1940), the law provided compliance procedures for
registrants who offered to satisfy their obligations, even after
their boards had referred their cases to the United States
Attorneys for prosecution. 32 CFR § 642.5 (Cum.Supp. 1938-1943).
However, from 1943 on, the regulations required denial of
reopenings for knowingly delinquent registrants. 32 CFR § 642.4(b)
(Supp. 1943). Under the present regulations, even a registrant
whose delinquency is willful may redeem himself before his local
board. Surely this historical progression demonstrates that
whatever may have been the punitive nature of the draft law's
initial response to the delinquency problem, its present character
is remedial: recalcitrant registrants are handled in civilian,
rather than military, proceedings, and receive an opportunity to
recant even where their dereliction has been deliberate.
Such an understanding of the delinquency regulations underlies
recent decisions in the federal courts,
e.g., Wills v. United
States, 384 F.2d 943, 945-946,
cert. denied, 392 U.S.
908;
United States v. Bruinier, 293 F.
Supp. 666, including those upholding the constitutionality of
the regulations,
e.g., Anderson v. Hershey, 410 F.2d 492,
495-496 n. 10, 498 nn. 15-16, 499, No. 449,
cert. pending; cf.
United States v. Branigan, 299 F.
Supp. 225, 236-237;
but see United States v.
Eisdorfer, 299 F.
Supp. 975, 984-989,
app. docketed, No. 330, O.T.
1969.
[
Footnote 2/6]
See 32 CFR §§ 1642.4(c) 1642.14(b).
[
Footnote 2/7]
The Government qualifies its interpretation by implying that a
local board might not abuse its discretion in refusing removal in
the case of a registrant who sought in good faith to correct his
breach of duty
after the board had issued its order to
report for induction. But that limitation has no application in the
present case, where the local board improperly issued the order to
report before the petitioner had a chance to bring himself into
compliance. In
Troutman v. United States, supra, where the
Solicitor General has conceded that the local board erred in
refusing to remove the petitioner's delinquency after he sought to
bring himself into compliance with his Selective Service duties,
nearly six months intervened between the board's declaration of
delinquency that the petitioner sought to cure and its order to
report for induction that gave rise to the prosecution for failure
to submit to induction.
[
Footnote 2/8]
32 CFR §§ 1612.14, 1624.1(a), 1624.2(d), 1626.2(c)(1).
[
Footnote 2/9]
Cf. McKart v. United States, 395 U.
S. 185,
395 U. S.
197.
[
Footnote 2/10]
406 F.2d 494, 496.
[
Footnote 2/11]
United States v. Baker, 416 F.2d 202, 204-205;
Yates v. United States, 404 F.2d 462, 465-466,
rehearing denied, 407 F.2d 50,
cert. denied, 395
U.S. 925;
United States v. Smith, 291 F. Supp.
63, 67-68;
United States v. Lybrand, 279 F. Supp.
74, 77-83.
[
Footnote 2/12]
See 32 CFR § 1631.7(a)
[
Footnote 2/13]
Cf. 32 CFR §§ 1642.12, 1642.13.