MCGARVA v. U. S., 406 U.S. 953 (1972)
U.S. Supreme Court
MCGARVA v. U. S. , 406 U.S. 953 (1972)406 U.S. 953
Donald Bruce McGARVA
v.
UNITED STATES.
No. 71-6274.
Supreme Court of the United States
May 30, 1972
On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted.
On the representation of the Solicitor General set forth in his memorandum for the United States, filed April 26, 1972, the judgment is vacated and the case is remanded to the Court of Appeals for reconsideration in light of the position presently asserted by the Government.
Mr. Justice DOUGLAS, whom Mr. Justice BRENNAN joins.
This case involves a Selective Service registrant whose local board denied him a conscientious objector exemption. In order to aid him with his appeal, the registrant met with a Government appeals agent. The agent made out a report which was placed in the registrant's file, and which was before the appeal board when it considered petitioner's claim. The report was unfavorable, and the Solicitor General also concedes that because of the appeal agent's special position in the Selective Service System, his views probably carried substantial weight with the appeal board. Yet, this crucial report was not shown to the registrant, so that he might have attempted to rebut the unfavorable statements contained therein. THE CHIEF JUSTICE, Mr. Justice POWELL, and Mr. Justice REHNQUIST would deny. It is clear from the decision of this Court over the past two decades that the failure to show this report to the registrant was a violation of the statutory mandate that the 'system of selection' be 'fair and just.' 50 U.S.C. App. 451(c). Thus, this Court has held that where provisions were
made in the Act for FBI reports on claimants for conscientious objector exemptions,
And, when the Act contemplated that the Department of Justice should recommend to a registrant's appeal board whether a conscientious objector exemption should be granted or denied, this Court held that
In 1967, the provisions relating to Justice Department hearings and recommendations were deleted from the Act. The statutory mandate of 451( c), however, remains unchanged. And, '[v]iewed against our underlying concepts of procedural regularity and basic fair play,' Gonzales, supra, the appellate procedures employed in this case cannot stand. 'It is procedure that marks the difference between rule by law and rule by fiat.' Wisconsin v. Constantineau, 400 U.S. 433, 436.
The use of adverse information not disclosed to the registrant
is exactly analogous to the FBI report summary not disclosed to the
registrant in Simmons, and the Justice Department recommendation
kept from the registrant in Gonzales. The failure to disclose the
use of such material vitiates petitioner's statutory right of
appeal. For no appeal procedure can be 'fair' where only one side
has had an opportunity to present its case. [406 U.S. 953 , 955]
U.S. Supreme Court
MCGARVA v. U. S. , 406 U.S. 953 (1972) 406 U.S. 953 Donald Bruce McGARVAv.
UNITED STATES.
No. 71-6274. Supreme Court of the United States May 30, 1972 On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit. The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. On the representation of the Solicitor General set forth in his memorandum for the United States, filed April 26, 1972, the judgment is vacated and the case is remanded to the Court of Appeals for reconsideration in light of the position presently asserted by the Government. Mr. Justice DOUGLAS, whom Mr. Justice BRENNAN joins. This case involves a Selective Service registrant whose local board denied him a conscientious objector exemption. In order to aid him with his appeal, the registrant met with a Government appeals agent. The agent made out a report which was placed in the registrant's file, and which was before the appeal board when it considered petitioner's claim. The report was unfavorable, and the Solicitor General also concedes that because of the appeal agent's special position in the Selective Service System, his views probably carried substantial weight with the appeal board. Yet, this crucial report was not shown to the registrant, so that he might have attempted to rebut the unfavorable statements contained therein. THE CHIEF JUSTICE, Mr. Justice POWELL, and Mr. Justice REHNQUIST would deny. It is clear from the decision of this Court over the past two decades that the failure to show this report to the registrant was a violation of the statutory mandate that the 'system of selection' be 'fair and just.' 50 U.S.C. App. 451(c). Thus, this Court has held that where provisions were Page 406 U.S. 953 , 954 made in the Act for FBI reports on claimants for conscientious objector exemptions,