405 U.S. 1006 (1972)

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U.S. Supreme Court

JOSEPH v. U.S. , 405 U.S. 1006 (1972)

405 U.S. 1006

Lionel Adolph JOSEPH
No. 70-251.

Supreme Court of the United States

March 27, 1972

On petition for writ of certiorari to the United States Court of Appeals for the Third Circuit.

After this Court granted the writ of certiorari in this case, the Solicitor General, in his Memorandum for the United States on the merits, took a position different from that previously asserted by the United States in the United States Court of Appeals for the Third Circuit and in his opposition to the petition for a writ of certiorari. We, therefore, vacate the judgment of the Court of Appeals and remand the case to that court for consideration in light of the position now asserted by the Solicitor General.

Mr. Justice DOUGLAS, with whom Mr. Justice MARSHALL concurs, dissenting.

While I think the judgment should be vacated and the case remanded, I would not do so on the Solicitor General's confession of error, but rather for the reason that meaningful administrative and judicial review of selective service classification decisions is impossible where the service does not state reasons for its actions.

Joseph, then classified I-A, applied for a conscientious objector exemption in April, 1967. He stated in his conscientious objector form ( SSS Form 150) that he believed in a Supreme Being, that he was a member of the Nation of Islam (Black Muslims), and that he had joined Muhammed's Mosque No. 12, in Philadelphia, in April 1965, at the age of 17. He represented the views of the Black Muslims regarding participation in war as follows:

    'We believe that we who declared ourselves to be Rightous [sic] Muslims Should not Participate in

    Page 405 U.S. 1006 , 1007

    wars which take the lives of humans. We do not believe this nation should force us to take part in such wars, for we have nothing to gain from it unless America agrees to give us the necessary territory wherein we may have something to fight for.'

Joseph's board met on June 8, 1967. Based on the information in the SSS Form 150 and in the rest of Joseph's file, but without the benefit of a meeting with Joseph, the board voted unanimously to retain him in Class I-A, and sent him a notice of classification (SSS Form 110) to this effect. No reasons were given for the classification decision.

The Solicitor General argues from the premise that when the board acted, it effectively 're-opened' Joseph's classification. According to the Solicitor General, the applicable regulations then in force prohibited a board from reopening a classification without first determining that a prima facie case had been made out. See 32 CFR 1625.2, 1625.4. '[N]ot prepared to assume' that the board violated the reopening regulations, the Solicitor General reasons that the fact of reopening must therefore mean that the board had concluded (albeit erroneously) that Joseph had made out a prima facie case, and denied the claim because it questioned his sincerity.

The first difficulty with this argument is that a local board may well have the power to reopen a classification on a lesser showing than a prima facie case. See, e.g., United States v. Stephens, 445 F.2d 192, 196 ( CA3 1971). Second, the Solicitor General's argument rests on the intent of the board. If the board did not think that it was reopening, there would have been no reason for it to worry about the prima facie case requirements allegedly contained in the re-opening regulations. And the Solicitor General concedes that 'some confusion' as to whether the June 8 action was a 'reopening' developed at trial. Memorandum for the United States, pp. 18-19. [405 U.S. 1006 , 1008]

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