Petitioner, an undergraduate student with a student deferment,
surrendered his draft registration card, solely to protest the war
in Vietnam, at a public gathering. His local draft board declared
him "delinquent" for failing to have the card in his possession,
and reclassified him I-A (available for military service). He filed
this suit in the District Court seeking to enjoin possible
induction into the Armed Forces, on the ground that his delinquency
reclassification was invalid. The respondent local board moved to
dismiss for want of jurisdiction, relying on § 10(b)(3) of the
Military Selective Service Act of 1967, which provides that there
shall be no pre-induction judicial review of a registrant's
classification or processing, such review being limited to a
defense in a criminal prosecution. The District Court granted the
motion to dismiss, and the Court of Appeals affirmed.
Held:
1. Section 10(b)(3) of the Act does not bar pre-induction
judicial review of petitioner's delinquency reclassification which
deprived him of a deferment to which he was entitled under the Act.
Oestereich v. Selective Service Board, 393 U.
S. 233. Pp.
396 U. S.
463-468.
2. Section 6(h)(1) of the Act makes undergraduate student
deferments mandatory where the student, as here, has met the
statutory criteria, and the reference in that section to "rules and
regulations" only authorizes such additional administrative
procedures as necessary to ensure that qualified students are given
deferment. P.
396 U. S.
464.
3. Congress did not authorize induction by local boards as a
penalty for violations of administrative regulations.
Gutknecht
v. United States, ante, p.
396 U. S. 295. Pp.
396 U. S.
465-466.
4. In the context of this case, there is no meaningful
distinction between "exemption" and "deferment," and a registrant
with either type of classification cannot be inducted. Pp.
396 U. S.
466-467. 406 F.2d 636, reversed and remanded.
Page 396 U. S. 461
MR. JUSTICE BLACK delivered the opinion the Court.
This case raises a question concerning the right of a young man
ordered to report for induction into the Armed Forces to challenge
the legality of that order prior to reporting for duty. Petitioner
Breen, while enrolled in the Berklee School of Music in Boston,
Massachusetts, was given a II-S student classification by his local
draft board, and deferred from military service pursuant to the
provisions of the Military Selective Service Act of 1967, 81 Stat.
100, 50 U.S.C.App. § 451
et seq. (1964 ed. and Supp. IV).
According to an agreed stipulation of facts, in November, 1967, he
surrendered his draft registration card to a minister at a public
gathering "for the sole purpose of protesting United States
involvement in the war in Vietnam." Shortly thereafter, his local
draft board declared he was "delinquent" for failing to have his
draft card in his possession, and at the same time reclassified him
I-A -- available for military service. [
Footnote 1] He appealed this reclassification to the
appropriate Selective Service Appeal Board, and, while that appeal
was pending, filed this suit
Page 396 U. S. 462
in the United States District Court in February, 1968, seeking
an injunction against any possible induction into the Armed Forces
on the ground that his delinquency reclassification was invalid.
The respondent local board moved to dismiss the suit for want of
jurisdiction, relying on § 10(b)(3) of the Act, which provides
that:
"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 instituted
under section 12 of this title, after the registrant has responded
either affirmatively or negatively to an order to report for
induction. . . . [
Footnote
2]"
50 U.S.C.App. § 460(b)(3) (1964 ed., Supp. IV). The District
Court granted the motion to dismiss, and Breen appealed that
decision to the Court of Appeals. [
Footnote 3] While the appeal was pending, we rendered our
decision in
Oestereich v. Selective Service Bd.,
393 U. S. 233
(1968), holding that § 10(b)(3) did not bar pre-induction judicial
review in the circumstances presented in that case. Although Breen
argued that
Oestereich controlled his own case, the Court
of Appeals affirmed the District Court's dismissal of the suit,
with one judge dissenting, holding that
Oestereich did not
cover this case, and § 10(b)(3) therefore required dismissal of the
suit. 406 F.2d 636 (C.A.2d Cir.1969). We granted
Page 396 U. S. 463
a petition for certiorari, 394 U.S. 997 (1969), and, because we
conclude that
Oestereich does control this case, we
reverse the judgment of the Court of Appeals.
In
Oestereich, a student preparing for the ministry
surrendered his draft registration card in protest against the war
in Vietnam, and was reclassified as a "delinquent." He then filed
suit seeking to enjoin his induction, claiming that he was being
inducted contrary to the clear statutory requirement that students
preparing for the ministry "shall be exempt from training and
service" under the Act, 50 U.S.C.App. § 456(g). We held in that
case that, since Congress had unambiguously said that students
preparing for the ministry were not to be drafted and, since there
was no indication in the statute that such exemptions could be
denied for "delinquency," Oestereich's induction was unlawful, and,
in such a case, § 10(b)(3) would not be interpreted to bar
pre-induction judicial review, and thereby force the registrant to
submit to an illegal induction or risk the possibility of a
criminal prosecution to regain his exempt status.
In the present case, petitioner Breen argues that he, like
Oestereich, should not be inducted, and he relies on § 6(h)(1) of
the Act, which provides that:
"Except as otherwise provided in this paragraph, the President
shall, under such rules and regulations as he may prescribe,
provide for the deferment from training and service in the Armed
Forces of persons satisfactorily pursuing a full-time course of
instruction at a college, university, or similar institution of
learning and who request such deferment."
50 U.S.C.App. § 456(h)(1) (1964 ed., Supp. IV). In his
complaint, Breen alleged that he was a 20-year-old student, and
argued that he was clearly qualified for a student deferment. The
Government has never contested
Page 396 U. S. 464
Breen's factual allegations concerning his student status, nor
has it argued that he is not qualified for such a deferment for any
reason except the alleged "delinquency." As in
Oestereich,
we do not find any indication that Congress intended to allow the
draft boards to deprive otherwise qualified students of their
deferments for the reasons relied upon in this case.
In concluding that
Oestereich did not control this
case, the Court of Appeals felt that the reference in § 6(h)(1) to
"such rules and regulations as [the President] may prescribe" was
an indication that Congress authorized revocation of student
deferments for violations of the delinquency regulations. 406 F.2d
at 638. That conclusion must be rejected for several reasons. The
explicit language of the Act provides that the President "shall"
provide for the deferment of undergraduate students except as
otherwise provided by the terms of the Act itself, and Congress
then set forth the specific conditions that a student must meet to
qualify for such a deferment. [
Footnote 4] The reference to "rules and regulations" is
clearly intended only to authorize such additional administrative
procedures as the President may find necessary to insure that all
qualified students are given the deferment that Congress provided
in § 6. There is nothing in the language of the Act itself that
indicates a congressional desire to allow the President to add to
or subtract from the factors specified in the statute
Page 396 U. S. 465
for determining when students would be deferred. [
Footnote 5] The legislative history of §
6(h)(1) clearly indicates that Congress intended that only the
conditions specified in that section need be met to warrant a
student deferment. Prior to the 1967 Act, the draft law stated that
student deferments were provided only according to presidential
regulation, and, in practice, such deferments were subject to the
discretion of the local draft boards. [
Footnote 6] The committee reports and floor debates on the
1967 Act show that a primary purpose of the amendments was to
eliminate this local option and provide clear, uniform standards
for undergraduate student deferments. [
Footnote 7] When Congress thus acted to replace
discretionary standards with explicit requirements for student
deferments, it did not specifically provide or in any way indicate
that such deferred status could be denied because the registrant
failed to possess his registration certificate. [
Footnote 8] Finally, any contention that
"delinquency" induction is proper in this case must be
Page 396 U. S. 466
rejected for the reasons set forth in our decision in
Gutknecht v. United States, ante, p.
396 U. S. 295,
holding that induction pursuant to the delinquency regulations has
not been authorized by Congress.
The Attorney General advances another argument for
distinguishing this case from
Oestereich, supra. He points
out that Oestereich met the requirements for a statutory
"exemption" from military service, while Breen is, at best,
qualified only for a statutory "deferment." On the basis of this
observation, he urges that the provisions of § 10(b)(3) preclude
pre-induction judicial review in all cases of deferments, and that
Oestereich provides an exception only in certain cases
where an exemption is claimed. We fail to see any relevant
practical or legal differences between exemptions and deferments.
The effect of either type of classification is that the registrant
cannot be inducted as long as he remains so classified. Congress
has specifically said that the only persons who may be inducted
into the Armed Forces are those
"who are liable for such training and service and who, at the
time of selection, are registered and classified,
but not
deferred or exempted."
50 U.S.C.App. § 455(a)(1) (1964 ed., Supp. IV). [
Footnote 9] (Emphasis added.) Thus, it is
clear that the crucial distinction in draft classifications is
between individuals presently subject to induction and those who
are not so subject, either because of deferment or exemption.
The Attorney General also argues that a rational distinction
exists in the statutory scheme between deferments which merely
postpone the time when a registrant will serve and exemptions which
place the registrant "outside the manpower pool." Brief for the
Respondents 20-21. A careful reading of the entire Act indicates
that no such consistent distinction is preserved. Congress
Page 396 U. S. 467
has provided that "[n]o . . . exemption or deferment . . . shall
continue after the cause therefor ceases to exist." 50 U.S.C.App. §
456(k). Many of the "exemptions" are not absolute, as the Attorney
General implies, but conditioned on certain factors. Thus, an
exempt ministerial student like Oestereich will lose that exempt
status if he withdraws from study in preparation for the ministry.
Similarly, exempt veterans can be inducted into the Armed Forces if
Congress declares a war or national emergency. 50 U.S.C.App. §
456(b). On the other hand, there is absolutely no assurance that an
individual who is simply deferred will only have his military
obligation postponed. So long as a registrant remains in a deferred
classification, he cannot be inducted, and deferment past the
maximum age of draft liability would effectively exempt the
registrant from compulsory military service. Although a registrant
like Breen cannot be deferred as an undergraduate student past his
24th birthday, [
Footnote 10]
he may continue to be deferred on the basis of extreme hardship to
dependents or employment in the national interest. 50 U.S.C.App. §
456(h)(1) (1964 ed., Supp. IV). There is thus no statutory scheme
to permanently exempt certain individuals while only deferring
service for others. Both deferments and exemptions accomplish the
same congressional purpose, that of not inducting certain
registrants at a particular time.
We are consequently unable to distinguish this case from
Oestereich. In both situations, a draft registrant who was
required by the relevant law not to be inducted was, in fact,
ordered to report for military service. In both cases, the order
for induction involved a "clear departure by the Board from its
statutory mandate,"
Oestereich, supra, at
393 U. S. 238,
and in both cases, § 10(b)(3)
Page 396 U. S. 468
of the Act should not have been construed to require the
registrants to submit to induction or risk criminal prosecution to
test the legality of the induction order. The judgment below is
reversed, and the case remanded for further proceedings in
conformity with this opinion.
Reversed and remanded.
[
Footnote 1]
This reclassification was undertaken pursuant to 32 CFR §
1642.12.
[
Footnote 2]
Although this provision would appear to preclude judicial review
by habeas corpus after the registrant submitted to induction, we
have already construed the statute to allow such review.
Oestereich v. Selective Service Bd., 393 U.
S. 233,
393 U. S. 235,
393 U. S. 238
(1968).
[
Footnote 3]
During the pendency of that appeal, the Appeal Board upheld the
reclassification, and the local board then ordered Breen to report
for induction. The induction order has been stayed pending decision
in this case.
[
Footnote 4]
The Act also provides that student deferment status may be lost
under certain conditions.
"A deferment granted to any person under [this provision] shall
continue until such person completes the requirements for his
baccalaureate degree, fails to pursue satisfactorily a full-time
course of instruction, or attains the twenty-fourth anniversary of
the date of his birth, whichever first occurs."
50 U.S.C.App. § 456(h)(1) (1964 ed., Supp. IV). There is no
contention raised here that Breen has lost his deferred status for
any of these statutory reasons.
[
Footnote 5]
The Act does allow the President to restrict student deferments
on a finding that the needs of the Armed Forces require such
action, 50 U.S.C.App. § 456(h)(1) (1964 ed., Supp. IV), but he has
not made any such finding at this time.
[
Footnote 6]
See Selective Service Act of 1948, § 6(h), 62 Stat.
611, as amended. The regulations promulgated pursuant to this
authority permitted student deferments in the discretion of the
local boards with certain suggested guidelines.
See 32 CFR
§§ 1622.25, 1622.25a (1967 ed.).
[
Footnote 7]
H.R.Rep. No. 267, 90th Cong., 1st Sess., 25-26 (1967);
H.R.Conf.Rep. No. 346, 90th Cong., 1st Sess., reprinted in U.S.Code
Cong. & Admin. News, 90th Cong., 1st Sess., 1352, 1356-1359
(1967); 113 Cong.Rec. 14093, 14095, 16434 (1967).
[
Footnote 8]
The suggestion that the fleeting reference to "delinquent" in §
6(h)(1) of the Act, 50 U.S.C.App. § 456(h)(1) (1964 ed., Supp. IV),
authorizes delinquency inductions must be rejected for the reasons
set forth in
Oestereich, supra, at
393 U. S.
236-237, and in
Gutknecht v. United States,
ante at
396 U. S.
302.
[
Footnote 9]
This statutory directive is implemented by 32 CFR § 1631.7.
[
Footnote 10]
See n 4,
supra.
MR. JUSTICE: HARLAN, concurring.
While I fully agree with today's holding that pre-induction
review is available to the petitioner here, and subscribe to much
of the Court's opinion, I would ret the holding on a different
footing.
The Court's opinion here, as in
Oestereich v. Selective
Service Bd., 393 U. S. 233
(1968), appears to make the availability of pre-induction review
turn on the lawfulness of the draft board's action or, to put it
another way, on the certainty with which the reviewing court can
determine that the registrant would prevail on the merits if there
were such judicial review of his classification. On the other hand,
under the test put forward in my separate opinion in
Oestereich, 393 U.S. at
393 U. S.
239-245, the availability of pre-induction review turns
not on what amounts to an advance decision on the merits, but
rather on the nature of the challenge being made.
In
Oestereich, the registrant sought pre-induction
review of claims that the delinquency procedure employed by the
board was "not authorized by any statute," was "inconsistent with
his statutory exemption," and was "facially unconstitutional," 393
U.S. at
393 U. S. 239.
I pointed out that judicial scrutiny of such legal contentions,
unlike the review of "factual and discretionary decisions"
pertaining to a board's classification of a particular registrant,
presented no "opportunity for protracted delay" in the operations
of the Selective Service
Page 396 U. S. 469
System -- the primary Congressional concern in enacting §
10(b)(3), 393 U.S. at
393 U. S. 241.
To avoid the "serious constitutional problems" implicit in
depriving a registrant of "his liberty without the prior
opportunity to present to any competent forum" his claims that the
delinquency procedure was invalid, 393 U.S. at
393 U. S. 243,
I therefore interpreted § 10(b)(3) not to preclude pre-induction
judicial review. Viewed from the perspective of my opinion in
Oestereich, this case is indistinguishable, for the
petitioner here, as in
Oestereich, makes legal challenges
to the delinquency procedure that do not require review of a
factual and discretionary decision of a board.
As to the merits of petitioner's challenges, I agree, for the
reasons stated by the majority, that it makes no difference that,
through the operation of the delinquency regulations, Breen lost a
II-S student deferment, whereas Oestereich lost a I-D exemption as
a divinity student preparing for the ministry. More generally, the
delinquency regulations used here have now been held to be
unauthorized by statute,
Gutknecht v. United States, ante,
p.
396 U. S. 295.
On this basis, I concur in the reversal of the judgment
below.
MR. JUSTICE BRENNAN, concurring.
In
Oestereich v. Selective Service Board, 393 U.
S. 233 (1968), I joined MR. JUSTICE STEWART's dissent
expressing the view that § 10(b)(3) was designed to permit judicial
review of draft classifications only in connection with criminal
prosecutions or habeas corpus proceedings. 393 U.S. at
393 U. S. 245.
But continued adherence to that construction is foreclosed by the
Court's holding in that case that § 10(b)(3) did not preclude
pre-induction judicial review of the case of a registrant entitled
to a statutory
Page 396 U. S. 470
exemption. Therefore, because I too "fail to see any relevant
practical or legal differences between exemptions and deferments,"
I join the opinion of the Court.
MR. JUSTICE STEWART, with whom THE CHIEF JUSTICE joins,
concurring in part.
For the reasons expressed by MR. JUSTICE BRENNAN, I join the
opinion of the Court insofar as it holds that the District Court
had jurisdiction to entertain the petitioner's suit and should have
granted him the injunction he sought. I do not, however, join the
Court's opinion insofar as it holds that the delinquency
regulations have not been authorized by Congress.
See Gutknecht
v. United States, ante, p.
396 U. S. 314
(concurring in judgment).