Oestereich v. Selective Service System Local Board No. 11 Brief for Petitioner

    Isr the

Btiptme (Burnt ui tire Httitpfr Btutuu
Ootobee T eem, 1968

No. 46

J ames J. Oestebeich,

—v.—
Petitioner,

Selective Service System L ocal B oard N o. 11, Cheyenne, 
Wyoming, Selective Service A ppeal B oard f o r  the State 
o f  W yoming, Colonel J ack P. B rubaker, Wyoming Se­
lective Service Director,

Respondents.

ON W RIT OF CERTIORARI TO TH E  UNITED STATES COURT 

OF APPEALS FOR TH E TEN TH  CIRCUIT

BRIEF FOR PETITIONER

Melvin L. W ulf 
A lan H. L evine

156 Fifth. Avenue 
New York, N. Y. 10010

L awrence R. V elvel

University of Kansas Law School 
Lawrence, Kansas

Attorneys for Petitioner

J ohn Griffiths 
M ichael E. T igar 
Marvin M. K arpatkin 
E leanor H olmes Norton 
J ohn A. K ing 
W illiam F. R eynard 

Of Counsel



I N D E X

Opinions Below .................................................. -..... -.....  1

Jurisdiction ....................................................................... 1

Statutes and Regulations Involved ...............................  2

Questions Presented ........................................................  4

Statement of the Case ....................................................  5

Summary of Argument ....................................................  9

A rgument :

Introduction ................................ ...........................-..........  16

I. The Federal Courts have jurisdiction to hear 
and determine this suit .......................    20

A. Effective Judicial Review of the Classifica­
tion Orders of Local Boards Is Constitu­
tionally Required ........................................... 20

B. In Cases Where a Board Order Affects 
Rights Safeguarded by the First Amend­
ment, the Federal Courts Have Jurisdiction
to Protect Those Rights .............................  28

C. The “ Special Circumstances” of This Case
Require Judicial Review..............   35

D. Congress, in Enacting Section 10(b)(3),
Did Not Intend to Bar Suits Such as the 
Present One .................................................... 43

PAGE



11

II. The declaration of delinquency, punitive reclas­
sification and order to report for induction in 
this case are invalid ........................................... 45

A. Petitioner’s Reclassification Is Contrary to
an Exemption Expressly Granted by Stat­
ute .....................................................................  45

B. Punitive Reclassification Is Not Authorized
by Statute ...................................................... 46

C. Punitive Reclassification Is Not Authorized
by the Regulations ....................................... 50

D. Punitive Reclassification Is Unconstitutional 55

E. Local Board No. 11 Did Not Follow the
Procedure for Punitive Reclassification Re­
quired by the Regulations and by Due Proc­
ess ............................................................... -....  64

III. Petitioner’s act of returning his registration
certificate to Local Board No. 11 was conduct 
protected by the First Amendment ..................  68

A. Peaceful Conduct Which Is Relevant to the
Issue Giving Rise to the Protest Is Speech 
Protected by the First Amendment ........... 68

B. Under the Tests for Determining When
Speech May Be Abridged, the Surrender of 
Draft Cards Cannot Be Penalized ............... 73

1. Reg. 1642.4(a) Upon Which Petitioner’s 
Delinquency, Reclassification, and Induc­
tion Order Are Based Is Vague and 
Overbroad ..................................................  73

PAGE



Ill

2. Plaintiff Is Being Unlawfully Punished 
Under Past and Present Interpretations 
of the Balancing Test .............................  76

IV. There is in fact no independent requirement of
personal possession of registration certificates 85

Conclusion .................................................................................  93

A ppendix :
Texts of Letter and Memo on the Draft ........... la
Delinquency Notice ..................................................  2a

T able op A uthorities

Cases:
Abbott Laboratories v. Gardner, 387 U. S. 136 (1967) ..9, 20

21, 25
Abrams v. United States, 250 U. S. 616 (1919) .......14,69
Accardi v. Shaughnessy, 347 U. S. 260 (1954) ........    64
Allen v. Regents, 304 U. S. 439 (1938) ..........................  38
Aptheker v. Secretary of State, 378 U. S. 500 (1964) ..15, 75
Anderson v. Clark, Civil No. 48869 (N. D. Cal.) ....... 17
Anderson v. Hershey, No. 30729 (E. D. Mich.) ..........  17

Bartehy v. United States, 319 U. S. 484 (1943) ........ 59
Boire v. Greyhound Corp., 376 U. S. 473 (1964) ........  37
Breen v. Selective Service Local Bd. No. 16, No. 12422

(D. Conn.) ..................................................................... 17
Brothman v. Michigan, 379 Mich. 776, cert, denied, 36

U. S. L. Week 3287 (Jan. 16, 1968) .......................... 35
Brown v. Allen, 344 U. S. 443 (1953) .............................  44
Brown v. Louisiana, 383 U. S. 131 (1966) ................ . 77

PAGE



IV

Brownell v. Tom We Slmng, 352 U. S. 180 (1956) -21, 25,40 
Bucher, et al. v. Selective Service System, et al., No.

12, 26/67 (D. N. J.) ......................................................  17
Cafeteria Workers v. McElroy, 367 U. S. 886 (1961) 64
Carrington v. Rash, 380 U. S. 89 (1965) ....................15, 80
Cheff v. Schnackenberg, 384 U. S. 373 (1966) .........-....  63
Clark v. Uerbesee Finanz-Korporation, 332 U. S. 480

(1947) ..................................................... -.... -................. 5
Colfax v. Selective Service Local Bel. No. 11, Civ. Ac­

tion No. 68-432 (W . D. Pa.) ......................................  18
Collis v. Selective Service Local Bd. No. 28, No. C-67-

19-M (N. D. W. Va.) ..................................................  17
Connor v. Selective Service Local Bd., No. Civ. 1968—33

(W. D. N. Y.) ........................-.................. -....... - ...... 17-18
Cox v. Louisiana, 379 U. S. 536 (1965) ............... —15, 75, 77
Cramp v. Bd. of Public Instruction, 368 U. S. 278 (1961) 74
Crowell v. Benson, 285 U. S. 22 (1932) .........-............21, 27

Barr v. Burford, 339 U. S. 200 (1950) ...................... 44
Davis v. United States, 160 U. S. 469 (1895) .........—  62
Decker v. Selective Service Local Bd. No. 25, Civil No.

49348 (N. D. Cal.) ........................................................ 17
Dombrowski v. Pfister, 380 IT. S. 479 (1965) -10 ,15 , 29, 30,

31, 33, 34, 35, 74, 75
Douglas v. Alabama, 380 U. S. 415 (1965) -------- ---- -----  61

Eagle v. United States ex rel. Samuels, 329 U. S. 304
(1946) ......................... ....... ............................-...... -......  58

Edwards v. South Carolina, 372 U. S. 229 (1963) —71, 77 
Estep v. United States, 327 U. S. 114 (1946) -1 2 , 21, 22, 27,

42, 46, 49, 64
Ex Parte Fabiani, 105 F. Supp. 139 (E. D. Pa. 1952) — 44

PAGE



PAGE

Ex Parte Young, 209 U. S. 123 (1908) ..................10, 23, 24,
25, 27, 29

Falbo v. United States, 320 U. S. 549 (1944) ..............  22
Fay v. Noia, 372 U. S. 391 (1963) ................ - ........ . 41
Freedman v. Maryland, 380 U. S. 51 (1965) .............. 34,35

Gabriel v. Clark, Civil No. 49419 (N. D. Cal.) ..............  28
Gideon v. Wainwright, 372 U. S. 335 (1963) -------- ------ 60
Glover v. United States, 286 F. 2d 84 (8th Cir. 1961) .... 44 
Goldsmith v. Hershey, Civil No. 49281 (N. E>. Cal.) .... 17
Gonzales v. United States, 348 U. S. 407 (1955) .......49,65
Greene v. MeElroy, 360 U. S. 474 (1959) .......... 12, 46, 49, 50

Harmon v. Brucker, 355 U. S. 579 (1958) —.11,12, 35, 38, 46
Harris v. Buss, 146 F. 2d 355 (5th Cir. 1944) ............ - 61
Heikkila v. Barber, 345 U. S. 229 (1953)   ..............21,40
Holland v. United States, 348 U. S. 121 (1954) ........... 62
Huey v. Selective Service Local Bd. No. 22, No. C-225- 

67 (C. D. Utah) .......................................- .... -.............. ^

In re Gault, 387 U. S. 1 (1967) .............. ...... ..........-.... 60,67
In re Oliver, 333 U. S. 257 (1948) ---------------- -----------  63
Inti. Ladies Garment Workers Union v. Donnelly Gar­

ment Co., 304 U. S. 243 (1938) ...................................  26
Irvin v. Dowd, 366 U. S. 717 (1959) .............................. 44

Joint Anti-Fascist Refugee Comm. v. McGrath, 341 
U. S. 124 (1951) ................................... -..... - ........42,49,50

Kennedy v. Mendoza-Martinez, 372 U. S. 144 (1963) ..13, 57,
58, 59, 63, 64

Kimball, et al. v. Selective Service Local Bd. No. 15, 
et al., No. 67/4733 (S. D. N. Y.) ................. ............17,42



VI

Knox v. United States, 200 F. 2d 398 (9th Cir. 1952) .... 65 
Kolden v. Selective Service Local Bd. No. 4, No. 6-68-64 

Civil (D. Minn.) ..........................................................17,28

Leedom v. Kyne, 358 U. S. 184 (1958) ..........11,12,21,35,
36, 37, 46

Linzer, et al. v. Selective Service Local Bd. No. 64,
et al., No. 68 C 110 (E. D. N. Y.) ............................. 17,18

Lipke v. Lederer, 259 U. S. 557 (1922) .......... 11, 21, 37, 38
Lockerty v. Phillips, 319 U. S. 182 (1943) ............ -9, 22, 23

McCulloch v. Sociedad Nacional, 372 U. S. 10 (1963) -21, 37,
46

Miller v. Standard Nut Margarine Co., 284 U. S. 498
(1932)..............................................................................  38

Milwaukee Pub. Co. v. Burleson, 255 U. S. 407 (1921) .... 50

NAACP v. Button, 371 U. S. 415 (1963) ......... -.......... - 75
Niznik v. United States, 173 P. 2d 328 (6th Cir.), cert, 

denied 337 U. S. 925 (1949) ................-...... -...... -....  63
O’Brien v. United States, 88 S. Ct. 1673 (1968) ....15, 68, 76,

77, 78, 79, 80, 
81, 82, 84

Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S.
287 (1920) ......•..............................................................  20

Oklahoma Operating Company v. Love, 252 U. S. 331
(1920)........................................................... 10, 23, 24, 25, 29

Olvera v. United States, 223 F. 2d 880 (5th Cir. 1955) .. 65 
Orloff v. Willoughby, 345 U. S. 83 (1953) ..................  38

Pacific T. & T. Co. v. Kuykendall, 265 U. S. 196 (1924) 23
Panama Refining Co. v. Ryan, 293 U. S. 388 (1935) .... 53

PAGE



V ll

PAGE

Peffers and Hess v. Selective Service Appeal Bd., No.
7469 (W. D. Wash.) ................................................ ----- 18

Peters v. Hobby, 349 U. S. 331 (1955) ........-................  46
Petersen v. Clark, et al., Civil No. 47888 (N. D. Cal.

1968) .............................................. -.............................. 1°> 25
Plummer v. Louisiana, 262 P. Supp. 1021 (D. C. La.

1967).......................................................................... -  44
Pointer v. Texas, 380 U. S. 400 (1965) .........................  61
Porter v. Investors’ Syndicate, 286 U. S. 461 (1932) .. 23

Quaid v. United States, 386 F. 2d 25 (10th Cir. 1968) -12, 46

Reisman v. Caplin, 375 U. S. 440 (1964) ...................... 25
Rinaldi v. Yeager, 384 U. S. 305 (1966) .....-............15, 80
Rusk v. Cort, 369 U. S. 367 (1962) .................. 11, 21, 25, 40

Schilling v. Rogers, 363 U. S. 666 (1960) .................. 37
School of Magnetic Healing v. McAnnulty, 187 U. S. 94

(1902)....................................................................- -9 , 20,27
Schwartz v. Strauss, 206 F. 2d 767 (2d Cir. 1953) -—42,44
Service v. Dulles, 354 U. S. 363 (1957) .........................  64
Shaughnessey v. Pedreiro, 349 U. S. 48 (1955) .........11,21

39-40
Shillitani v. United States, 384 U. S. 364 (1966) ....... 53
Simmons v. United States, 348 U. S. 397 (1955) .......65, 68
Smith v. Flinn, 261 F. 2d 781 (8th Cir. 1958) ..........  38
Speiser v. Randall, 357 U. S. 513 (1958) ...................... 32
Spevack v. Klein, 385 U. S. 511 (1967) --- -----------------  62
St. Joseph Stockyard v. United States, 298 U. S. 38

(1936)........................................................................ 9, 20, 27
Steinert v. Clark, Civil No. 48654 (N. D. Cal.) ..............  17
Stromberg v. California, 283 U. S. 359 (1931) .......14, 71, 80



vm

Tamarkin v. Selective Service System, 243 F. 2d 108
(5th Cir. 1957)  .............. ............................................ 43

Tomlinson v. Hershey, 95 F. Supp. 72 (E. D. Pa. 1949) 44
Townsend v. Zimmerman, 237 F. 2d 376 (6th Cir.

1956)   .......... ..................................................... 43-44,65
Turney v. Ohio, 273 IT. S. 510 (1927) ................ ...... . 62
Turley v. Selective Service Local Bd. No. 134, No. 68- 

290-F (C. D. Cal.) ........................................................  17

Uffleman v. United States, 230 F. 2d 297 (9th Cir. 1956) 61
United Mine Workers v. Illinois State Bar Assn., 389

U. S. 217 (1967) ............... ........ ................... ............. 77
United States v. Brown, 381 U. S. 437 (1965) ............... 59
United States v. Burlicli, 257 F. Supp. 906 (S. D. N. Y.

1966) ......................................... - ..... ..................... ....... 65
United States v. Capson, 347 F. 2d 959 (10th Cir.), cert.

denied 382 U. S. 911 (1965) .................... ....................  60
United States v. Eisdorfer, No. 67 Cr. 302 (E. D. N. Y.

June 24, 1968) _____ ____ ______________ _________ .47, 53
United States v. Hayman, 342 U. S. 205 (1952) ........... 44
United States v. Hertlein, 143 F. Supp. 742 (E. D. Wise.

1956) ........................... ........ ...................... .................. - 59
United States v. Kime, 188 F. 2d 677 (7th Cir. 1951),

cert, denied 342 U. S. 825 (1951) ....................... ......  59
United States v. Miller, 367 F. 2d 72 (2d Cir. 1966),

cert, denied 386 U. S. 911 (1967) ..............................81, 82
United States v. Stiles, 169 F. 2d 455 (3d Cir. 1948) .... 66 
United States v. Sturgis, 342 F. 2d 328 (3d Cir.), cert.

denied 382 U. S. 879 (1965) ............. .......................  60
United States v. Thompson, D. C. Mass., 1 S. S. .L. R.

3059 (1968) ...................... .................... ........................................... .................. . . . . . .66, 67
United States v. Vincelli, 215 F. 2d 210, reh. denied 216 

F. 2d 681 (2d Cir. 1954) ............................ ...............65, 66

PAGE



IX

United States v. Willard, 211 F. Supp. 643 (N. D. Ohio 
1962).................................................... -........................... 44

Vitarelli v. Seaton, 359 U. S. 535 (1959) ...........— .....  64

Watkins v. Rupert, 224 F. 2d 47 (2d Cir. 1955) ........... 43
White v. Swenson, 261 F. Supp. 42 (Wr. D. Mo. 1966) 44
Whitney v. California, 274 U. S. 357 (1927) ...............14,72
Witmer v. United States, 348 U. S. 375 (1955) ........... 43
Wolff v. Selective Service, 372 F. 2d 817 (2d Cir.

1967) .................................................. 10.11, 32, 33, 34, 39,
44, 45, 55, 73, 74

Woo v. United States, 350 F. 2d 992 (9th Cir. 1965) .... 43 
Woods, et al. v. Selective Service Local Bd. No. 3, et ah,

No. 68 C 350 (E. D. N. Y.) .................... ......................  17
Worsted v. Selective Service Local Bd. No. 7, Civ. 

Action No. 68-456 (AY. D. Pa.) ..................................... 18
Yakus v. United States, 321 U. S. 414 (194-4) .......9,22,23,

27, 30

Zemel v. Rusk, 381 U. S. 1 (1965) ................... .......... 53
Zigmond v. Selective Service Local Bd. No. 16, C. A.

No. 68-368-G (I). Mass.) .........................- .................  18

Constitutional Provisions:

United States Constitution:
First Amendment ..................4,10,14,15, 28, 29, 30, 31,

32, 34, 35, 63, 64, 68, 69, 70, 
71, 72, 73, 75, 76, 77, 78 

..4, 26, 57, 63 
.57, 61, 62, 63 
............23, 30

PAGE

Fifth Amendment .....
Sixth Amendment .......
Fourteenth Amendment



X

Statutes :

26 U. S. C. §7421 .............................................................  37
28 U. S. C. §1254(1) .....................      1
28 U. S. C. §1361 ........    93
28 IT. S. C. §2241 ......................... ..................................  44
28 IT. S. C. §2254 .......................................   41
38 IT. S. C. §693(li) ..........................................................  38

Administrative Procedure Act:
Section 10 .......    40

Immigration and Nationality Act of 1952:
Section 349(a) (10) ..................................................  40
Section 360(b) and (c) ............................................  40

Military Selective Service Act of 1967:
Section 1(c) .............................................................  65
Section 6(f) [50 App. IT. S. C. §456(f)]  ..............  42
Section 6(g) [50 App. U. S. C. §,456(g )] .......2, 4, 5, 8,

45,46
Section 6(h) [50 App. U. S. C. §456(h)] ......... 18,47
Section 6(i) [50 App. IT. S. C. §456( i ) ] ............—18,45
Section 6(j) [50 App. U. S. C. §456(j)]  ..............  26
Section 10(b)(3) [50 App. IT. S. C. §460(b)(3) -2,4,7,

8,10,11, 21, 25, 26, 27, 28, 29, 
31, 35, 36, 39, 41, 43, 44, 45

Section 10(c) [50 App. U. S. C. §460(c)] ........— 46
Section 12(a) ..........................................  58,59
Section 15(b) ...........................................................  51

Prohibition A ct:
Section 35 ................................................................. 37

3224 Revised Statutes ....................................................37, 38

PAGE



XI

PAGE

Federal Regulations:
6 Fed. Reg. 1796 (March 31, 1941), Amendment

No. 22 ....................................................................... 87
7 Fed. Reg. 2086 (Feb. 15, 1942), Amendment

No. 21, 2d Ed..........................................................  88
7 Fed. Reg. 9683 (Nov. 23, 1942), Amendment

No. 101, 2d Ed..............-....................................... 87,88
7 Fed. Reg. 9773 (Nov. 23, 1942), Amendment 

No. 102, 2d Ed.................................................88, 89, 91

Regulations Under Selective Service A ct:
Section 617.1 .......................................
Section 617.2 ............. -.........................
Section 617.11 .....................................
Section 623.61-1 ..................................
Section 623.61-2 ................................. .
Section 623.61-3 .............................

,87, 88, 91 
.87, 88, 91
.......  91
......91, 92
.88, 91, 92 
.......  91

1917 Regulations: 
Section 57 .. 90

1918 Regulations:
Section 279 ...............................................................  90

Selective Service Regulations, Second Edition, First 
Printing 437 (1944) ...................................................... 89

Selective Service Regulations:
Regulation 1604.55 [32 C. F. R. §1604.55] ...........  62
Regulation 1604.62 [32 C. F. R. §1604.62] .............  62
Regulation 1604.71 [32 C. F. R. §1604.71] - ............  60
Regulation 1617.1 [32 C. F. R. §1617.1] -.3 , 4, 5,12,13,

16, 50, 85, 90, 91
Regulation 1621.10 [32 C. F. R. §1621.10] .......... 73, 91
Regulation 1621.13 [32 C. F. R. §1621.13] ..............  73



Regulation 1621.14 [32 C. F. R. §1621.14] ............  52
Regulation 1621.15 [32 C. F. R. §1621.15] ............. 61
Regulation 1622.1 [32 C. F. R. §1622.1] ..............51, 61
Regulation 1622.10 [32 C. F. R. §1622.10] ..............6, 61
Regulation 1622.17 [32 C. F. R. §1622.17] ............ -  18
Regulation 1622.25 [32 C. F. R, §1622.25] ............  18
Regulation 1622.26 [32 C. F. R. §1622.26] ............. 18
Regulation 1622.30 [32 C. F. R. §1622.30] .....    18
Regulation 1622.40 [32 C. F. R. §1622.40] _______ 19
Regulation 1622.43(a)(4) [32 C. F. R. §1622.43

(a )(4 )] ......................................-............................ 5
Regulation 1622.50 [32 C. F. R. §1622.50] .......... 18,19
Regulation 1623.1 [32 C. F. R. §1623.1] ..................  52
Regulation 1623.2 [32 C. F. R, §1623.2] ............... 61
Regulation 1623.5 [32 C. F. R. §1623.5] ...............  90
Regulation 1623.6 [32 C. F. R. §1623.6] ..................  88
Regulation 1624.1 [32 C. F. R. §1624.1] ...........60,61
Regulation 1625.1 [32 C. F. R. §1625.1] ....... -.52, 62
Regulation 1628.16 [32 C. F. R. §1628.16] ..............  73
Regulation 1631.7 [32 C. F. R. §1631.7] .............. 17, 47
Regulation 1632.9 [32 C. F. R. §1632.9] ...............  6
Regulation 1641.3 [32 C. F. R. §1641.3] ............  91
Regulation 1641.7 [32 C. F. R. §1641.7] ............... 51
Regulation 1642 :[32 C. F. R. §1642] ...................... 52
Regulation 1642.4 [32 C. F. R, §1642.4] .......3, 4,14, 53,

62, 63, 66, 
67, 73, 75

Regulation 1642.10 [32 C. F. R. §1642.10]  53, 66, 67
Regulation 1642.12 [32 C. F. R. §1642.12] .17,19, 62, 63
Regulation 1642.13 [32 C. F. R. §1642.13] .17, 55, 62, 67
Regulation 1642.14 [32 C. F. R. §1642.14] ........... 54, 62

xii

PAGE



X l l l

PAGE

Miscellaneous:

Amsterdam, The Void-For-Vagueness Doctrine in the 
Supreme Court, 109 U. of Pa. L. Rev. 67 (1960) ....... 74

Byse and Fiocca, Section 1361 of the Mandamus and 
Venue Act of 1962 and “Nonstatutory” Judicial Re­
view of Federal Administrative Action, 81 Harv.
L. Rev. 308 (1967) .......................................................- 93

Cong. Record, Vol. 113 (June 12, 1967):
S. 8052 .............. ................................................ - ....  43

4 Davis Administrative Law Treatise:
§28.18 (1958) ................ ..... .......................................  21
§30 .................... ................... -.....................................  38

Dranitzke, The Possession of Registration Certificates 
and Notices of Classification by Registrants Under 
the Selective Service System, 1 S. S. L. R. 4029 
(1968) ....................................................................... 85

Enforcement of the Selective Service Law, Selective 
Service System Special Monograph No. 14, 56 
(1951) .......................................................... 56,86,87,92

Enforcement of the Selective Service Law, Selective 
Service System Special Monograph No. 18, 122 
(1967) ........................................................................... - 90

Finman & Macaulay, Freedom to Dissent: The Viet 
Nam Protests and the Words of Public Officials, 1966 
Wis. L. Rev. 632 ............................................................  70

Griffiths, Some Notes on the Solicitor General’s Memo­
randum in Oestereich, 1 Selective Service Law Re­
porter 4012 (1968) ..........................................................  39



PAGE

Hart and Wechsler, The Federal Courts and the Fed­
eral System 312 (1953) .............................................. 21,

House Report No. 267, Committee on Armed Services 7

“ In Pursuit of Equity: Who Serves When Not All 
Serve?,” Report of the National Advisory Commis­
sion on Selective Service 29 (1967) .............................

Jaffe, Judicial Control of Administrative Action 587
(1956) .............................................................................

Jaffe, The Right to Judicial Review I, 71 Harvard Law
Review 401 (1958) ........................................................

Jaffe, The Right to Judicial Review II, 71 Harvard 
Law Review 769 (1958) ................................................

Kamin, Residential Picketing and the First Amend­
ment, 61 Northwestern U. L. Rev. 177 (1966) ..........

Layton and Fine, “ The Draft and Exhaustion of Ad­
ministrative Remedies,” 56 Geo. L. J. 315 (1967) ....

N. Y. Times, December 30, 1967, p. 2 .............................
Note, Fairness and Due Process Under the Selective

Service System, 114 U. Pa. L. Rev. 1014 (1966) .......
Note, 81 Harv. L. Rev. 685 (1967) ............................... 34,
Note, 114 U. Pa. L. Rev. 1014 (1966) .............................

Selective Service System, Legal Aspects of Selective
Service 7 (1963) ..........................................................55,

Supp. No. 18, Justice Department Circular No. 3421 
to United States Attorneys, dated October 18, 1943 ..

Velvet, Freedom of Speech and The Draft Card Burn­
ing Cases, 16 Kan. L. Rev. 149 (1968) ......................70,

22
43

63

64

21

21

70

34

16

65
45
61

62

56

81



Ik the

§>uprTUt£ Court of tfyr i ’totro
October T eem, 1968 

No. 46

J ames J. Oesteeeich,

- y .

Petitioner,

Selective Service System L ocal B oard N o. 11, Cheyenne, 
"Wyoming, Selective Service A ppeal B oard for the State 
oe W yoming, Colonel Jack P. B rubaker, Wyoming Se­
lective Service Director,

Respondents.

ON W RIT OF CERTIORARI TO TH E UNITED STATES COURT 

OE APPEALS FOR TH E TEN TH  CIRCUIT

BRIEF FOR PETITIONER

Opinions Below

The Order of the United States District Court, District 
of Wyoming (A. 13-18), is reported at 280 F. Supp. 78. 
The opinion of the Court of Appeals for the Tenth Circuit 
(A. 20) is reported at 390 F. 2d 100.

Jurisdiction

The judgment of the Court of Appeals was entered on 
February 21, 1968. The petition for certiorari was filed 
on March 19, 1968 and was granted on May 20, 1968. The 
jurisdiction of this Court rests on 28 U. S. C. §1254(1).



2

Statutes and Regulations Involved

"’"""Section 10(b) (3), Military Selective Service Act of 1967; 
50 App. U. S. C. §460(b) (3):

“No judicial review stall 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 affirma­
tively or negatively to an order to report for induction, 
or for civilian work in the case of a registrant deter­
mined to be opposed to participation in war in any 
form : Provided, That such review shall go to the ques­
tion 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.”

Section 6(g), Military Selective Service Act of 1967; 
50 App. U. S. C. §456(g ):

“Ministers of religion.—Regular or duly ordained min­
isters of religion, as defined in this title, and students 
preparing for the ministry under the direction of rec­
ognized churches or religious organizations, who are 
satisfactorily pursuing full-time courses of instruction 
in recognized theological or divinity schools, or who 
are satisfactorily pursuing full-time courses of instruc­
tion leading to their entrance into recognized theolog­
ical or divinity schools in which they have been pre­
enrolled shall be exempt from training and service (but 
not from registration) under this title.”



3

Selective Service Regulation 1617.1; 32 C. F. R. §1617.1:

“Effect of failure to have unaltered registration certifi­
cate in personal possession.—Every person required 
to present himself for and submit to registration must, 
after he has registered, have in his personal possession 
at all times his Registration Certificate (SSS Form 2) 
prepared by his local board which has not been altered 
and on which no notation duly and validly inscribed 
thereon has been changed in any manner after its 
preparation by the local board. The failure of any per­
son to have his Registration Certificate (SSS Form 2) 
in his personal possession shall be prima facie evidence 
of his failure to register. When a registrant is in­
ducted into the armed forces or enters upon active 
duty in the armed forces, other than active duty for 
training only or active duty for the sole purpose of 
undergoing a physical examination, he shall surrender 
his Registration Certificate (SSS Form 2) to the com­
manding officer of the joint examining and induction 
station or to the responsible officer at the place to 
which he reports for active duty, and such certificate 
shall be destroyed by the officer to whom it is sur­
rendered.”

Selective Service Regulation 1642.4(a); 32 C. F. R.
§1642.4(a):

“Declaration of Delinquency Status and Removal There­
from.— (a) Whenever a registrant has failed to per­
form 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 252) 
or the duty to comply with an Order to Report for



4

Civilian Work and Statement of Employer (SSS Form 
153), the local board may declare him to be a delin­
quent.”

Questions Presented

Petitioner, a student preparing for the ministry, was 
exempt from training and service in the Armed Forces 
under Section 6(g) of the Military Selective Service Act 
of 1967 [50 App. U. S. C. §456 (g )]. Upon returning his 
Selective Service Registration Certificate to the govern­
ment as a statement of protest against the war in Vietnam, 
petitioner was declared delinquent under the Selective 
Service regulations, stripped of his exemption, reclassified 
I-A and ordered to report for induction. Under these 
circumstances:

1. Does Section 10(b)(3) of the Military Selective Ser­
vice Act of 1967 [50 App. U. S. C. §460(b)(3)] preclude 
judicial review of petitioner’s punitive reclassification and 
order to report for induction!

2. Does the declaration of delinquency, punitive reclas­
sification, and induction of petitioner for failure to have 
his Registration Certificate in his personal possession, vio­
late the due process clause of the Fifth Amendment, the 
Military Selective Service Act of 1967, and the Selective 
Service Regulations!

3. Does Selective Service Regulation 1617.1 [32 C. F. R. 
§1617.1], as construed and applied in this case, and Selec­
tive Service Regulation 1642.4(a) [32 O. F. R. §1642.4(a)] 
on its face, violate the First Amendment!



5

4. Does a registrant in fact violate Regulation 1617.1 if 
he does not have his Registration Certificate in his personal 
possession?

Statement of the Case1

Petitioner is a duly enrolled student “preparing for the 
ministry” at And over-Newton Theological School, Newton 
Centre, Massachusetts, a “ recognized theological or divinity 
school.” Military Selective Service Act of 1967, Sec. 6(g), 
50 App. U. S. C. Sec. 456(g) [hereinafter “Act” ] ; 32
C. F. R. Sec. 1622.43(a)(4) [hereinafter “Regs.” ]. As 
such, he was classified IV-D by Local Board No. 11 on June 
20,1966 and thus exempt from military service (A. 3).

On October 16, 1967, together with numerous other 
persons, petitioner returned his Selective Service registra­
tion certificate (.SSLSJiAim.21. to the United States Govern - 
ment solely for the purpose of registering his dissent from 
participation by the United States in the war in Vietnam 
(A. 3). Petitioner, by affidavit, explained in detail his rea­
sons for returning his registration certificate. He described 
it as “ an act of collective conscience in support of our dy­
ing and suffering brothers who are presently fighting on 
our behalf in Vietnam,” and “ a responsible expression of 
concerned citizens, acting in light of the first amendment.” 
His act was based upon his “understanding of the claims 
which the Christian faith brings to bear on the human 
situation” including the belief that “man responds to God’s 
revelation by concrete participation in the structures and

1 The Statement of the Case is based upon the allegations in the 
complaint, taken as admitted upon the government’s motion to dis­
miss. Clark v. Vebersee Finanz-Korporation, 332 U. S. 480 (1947).



6

decisions of life, with a transcending loyalty to the will 
of God, the authority of the scriptures, and the community 
of interpretation which is the church,” and in his belief 
in the doctrine of the “Just War” . He stated his belief 
that “ the Yiet Nam situation reveals this war to be in 
violation of most of the criteria of the just war doctrine and 
is a major threat to the security and peace of the world” 
(A. 7-11).

On November 7, 1967, Local Board No. 11 mailed peti­
tioner a Delinquency Notice (SSS Form 304) informing 
him that he “became delinquent” on October 20, 1967. The 
Delinquency Notice advised petitioner that he was delin­
quent for the following reasons: (1) “ Failure to have in 
his possession a duly authorized Registration Certificate 
(SSS Form 2)” and (2) “Failure to provide the local board 
of his current status” (A. 4).2

Simultaneously, on November 7,1967, Local Board No. 11 
mailed petitioner a Notice of Classification (SSS Form 110) 
reclassifying him I-A (A. 4).3 Petitioner duly appealed his 
I-A reclassification to the Selective Service Appeal Board 
for the State of Wyoming which unanimously affirmed the 
classification on December 27, 1967.4 On the same day, 
December 27th, Local Board No. 11 mailed petitioner an 
order to report forJuidncfion in Cheyenne, Wyoming, at 
3:00 P.M. on January 24, 1968 (A. 4).5

2 The Delinquency Notice is reproduced in the Appendix, infra, 
p. 2a.

3 Class I-A indicates that a registrant is “Available for Military 
Service.” Reg. 1622.10.

4 Thereby exhausting administrative remedies (A. 4).
5 Petitioner’s place of induction was subsequently transferred, 

pursuant to Reg. 1632.9, to Dorchester, Massachusetts, and post­
poned to February 26, 1968.



7

On January 19, 1968, suit was filed in the United States 
District Court for the District of Wyoming to enjoin peti­
tioner’s induction into the armed forces. Oral argument 
was heard on January 22, 1968, on petitioner’s application 
for a temporary restraining order. After oral argument, 
respondents’ Motion to Dismiss was granted from the 
bench. An order dismissing the action was entered that 
day (E. 23-24), a subsequent nunc pro tunc order was en­
tered on January 23, 1968 (E. 25), and an Order Setting 
Aside Prior Orders and Dismissing Plaintiff’s Action was 
entered on February 6, 1968 (A . 13-18).

The District Court’s February 6th order found, among 
other things, that the action did “not arise under the Con­
stitution, laws or treaties of the United States” (A. 14), 
that the matter in controversy did not exceed $10,000 
(ibid.), that there was no diversity of citizenship (A. 15), 
that it was divested of jurisdiction because of Sec. 10(b)(3) 
of the Act (A. 15-16), that “ to assume jurisdiction over 
plaintiff’s action would violate the fundamental constitu­
tional precept of separation of powers . . . ” (A. 16), that 
petitioner knew that he was required to have his registra­
tion certificate in Ms possession at all times (ibid.), that 
“ exemptions and classifications are a privilege, not an in­
alienable right conferred by the Constitution or statute” 
(A. 16-17), and that the action complained of “does not 
constitute penal action” (A. 17).

Uotice of Appeal was filed on February 6, 1968 (E. 34), 
and an expedited appeal was heard by the Tenth Circuit 
on February 19, 1968. On February 21, 1968, the Court of 
Appeals affirmed the decision below in a per curiam de­
cision which reads in its entirety as follows:



8

“ The judgment is affirmed for the reasons set forth in 
the memorandum decision of the trial court and par­
ticularly in view of the jurisdictional restrictions con­
tained in 50 App. U. S. C. §460(b)(3). Orderly classi­
fication of a registrant for military service is not puni­
tive in nature. Compare United States v. Capson, 10 
Cir., 347 P. 2d 958. Appellant is not denied his right 
to ultimate judicial review of his claimed rights. Wit- 
mer v. United States, 348 U. S. 375, 377.”

An application for a stay was denied by the Tenth Cir­
cuit on February 23, 1968. On the same day an application 
to stay petitioner’s induction was presented to Mr. Justice 
White. On March 5, 1968, after the government had agreed 
to the postponement of petitioner’s induction to allow time 
for consideration of the stay application, Mr. Justice White 
issued an order staying “ the execution and enforcement 
of the judgment of the United States District Court for 
the District of Wyoming, as affirmed by the United States 
Court of Appeals for the Tenth Circuit . . . ” on the condi­
tion that this petition for certiorari be filed on or before 
March 19, 1968. The petition was filed on that date.

In his Memorandum for Respondents, the Solicitor Gen­
eral took the position that the Court should reverse the 
judgment below and, subject to establishment of the requi­
site jurisdictional amount, direct that a decree be en­
tered in petitioner’s favor. The position was based on the 
Solicitor General’s acknowledgement that the Local Board 
had deprived petitioner of a mandatory exemption granted 
by Congress in Sec. 6(g) of the Act and that the Sec. 10 
(b)(3) prohibition of pre-induction judicial review ought 
to be construed “to exclude purported action of a board



9

which is in fact contrary to an exemption which has been 
expressly granted by statute” (Memorandum for Respon­
dents, p. 12),6

Summary of Argument

I. The Federal Courts Have Jurisdiction to Hear and Deter­
mine This Suit,

A. Effective Judicial Review of the Classification Orders of 
Local Boards Is Constitutionally Required.

The Constitution requires judicial review of the orders 
and actions of administrative agencies. School of Magnetic 
Healing v. McAnnulty, 187 U. S. 94 (1902); Abbott Labora­
tories v. Gardner, 387 U. S. 136 (1967); St. Joseph’s Stock- 
yard v. United States, 298 U. S. 38 (1936). Lockerty v. 
Phillips, 319 U. S. 182 (1943); and Yakus v. United States, 
321 U. S. 414 (1944), which are often cited as examples of 
extreme judicial deference to congressional efforts to pre­
clude judicial review of agency action, in fact stand for the

6 The Memorandum for Respondents also adverts to the fact 
that petitioner was declared delinquent and reclassified I-A not only 
for turning in his Registration Certificate but also for his “Fail­
ure to provide the local board of his current status,”  and says that 
“ to overturn the administrative action, [petitioner] is under the 
burden of showing that all grounds of decision are invalid” (pp. 
10-11). Beyond the fact that it is improbable that this case would 
have gone as far as it has simply because of petitioner’s failure 
to notify his Local Board that he was enrolled in a recognized 
divinity school, Local Board No. 11 was advised of petitioner’s 
current status as a divinity student when it was served with 
the complaint in this case and again when, by letter dated April 
17, 1968, petitioner’s school so informed the Board. Furthermore, 
the Solicitor General, Attorney for Respondents, personally “ con­
firmed” the fact that petitioner “ is a full-time student in good 
standing at . . .  a ‘recognized theological or divinity school’ ” 
(Memorandum for Respondents, p. 11), thus purging that aspect 
of petitioner’s delinquency.



10

proposition that there must be a preliminary opportunity to 
contest the constitutionality of an administrative order 
in civil proceedings prior to facing criminal charges for its 
violation.

Ex Parte Young, 209 U. S. 123 (1908); and Oklahoma 
Operating Company v. Love, 252 U. S. 331 (1920), both 
require judicial review at an earlier stage than as a defense 
to a criminal prosecution where the penalty for being wrong 
is so great as to deter challenge to the validity of agency 
action.

Petersen v. Clark, et al., Civil No. 47888 (N. D. Cal. 
1968), held Section 10(b)(3) unconstitutional on the ground 
that “judicial review cannot be conditioned on the risk of 
incurring a substantial penalty or complying with an in­
valid order.” The case also holds that “allowing civil review 
in advance of criminal prosecution would not disrupt the 
Selective Service System.”

5. In Cases Where a Board Order Affects Rights Safe­
guarded by the , the Federal Courts
Have Jurisdiction to Protect Those Rights.

Even if Section 10(b)(3) is not unconstitutional in the 
generality of cases, it should be held inapplicable in the 
present case where it is the interest of the First Amend­
ment which is at stake. Petitioner having been punitively 
reclassified because of his protest against the war, to allow 
him to raise his claims only in a criminal prosecution, effec­
tively nullifies his First Amendment rights and deters the 
exercise of those rights by others. Dombrowski v. Pfister, 
380 U. S. 479 (1965); Wolff v. Selective Service, 372 F. 2d 
817 (2d Cir. 1967).



11

C. The “Special Circumstances”  of This Case Require 
Judicial Review.

Notwithstanding legislative efforts to preclude or defer 
judicial review of administrative orders, the “ special cir­
cumstances” rule has been applied to allow review where 
an administrative agency has exceeded its jurisdiction or 
where strict application of the statutory limitations on ju­
dicial review will result in needless detention or prosecution. 
The application of that rule is appropriate here where the 
local board exceeded its jurisdiction. To require that peti­
tioner needlessly run the risk of criminal prosecution or 
detention Jn order to establish that the Local Board ex­
ceeded its jurisdiction warrants applicatjp^JlLtJlBJlsjiecial 
circumstance” rule. Leedom v. Kyne, 358 U. S. 184 (1958); 
LipJce v. Lederer, 259 U. S. 557 (1922); Harmon v. 
Brucker, 355 U. S. 579 (1958); Wolff v. Selective Service, 
supra; Shaughnessey v. Pedreiro, 349 U. S. 48 (1955); 
Rusk v. Cort, 369 IT. S. 367 (1962).

D. Congress, in Enacting Section 1 0 ( b ) ( 3 ) ,  Did Not Intend 
to Bar Suit Such as the Present One.

In adopting Section 10(b) (3), Congress intended only to 
codify existing law including cases like Wolff v. Selective 
Service, supra, and others which recognize a broader scope 
of judicial review in the Selective Service area. The argu­
ment that Section 10(b)(3) reflects displeasure with Wolff 
v. Selective Service and the intent to overrule it, can be 
found to be consistent with the exhaustion and justiciability 
aspects of Wolff rather than with the repudiation of its 
constitutional base.



12

II. The Declaration of Delinquency, Punitive Reclassification 
and Order to Report for Induction in This Case Are 
Invalid.

A. Petitioner’s Reclassification Is Contrary to an Exemp­
tion Expressly Granted by Statute.

A dministrative agency action which flies in the face of 
explicit statutory language is a nullity. Estep v. United 
States, 327 U. S. 114 (1946); Leedom v. Kyne, supra; 
Harmon v. Brucker, supra; Quaid v. United States, 386
F. 2d 25 (10th Cir. 1968). Consequently, withdrawal of 
petitioner’s IV-D classification, conferred by statute, is 
invalid.

B. Punitive Reclassification Is Not Authorized by Statute.

The Act makes no provision for induction as a summary 
punishment for breach of duties under Selective Service 
law. “Without exclusive action by lawmakers, decisions of 
great constitutional import and effects would be relegated 
by default to administrative suits . . . and not endowed with 
authority to decide them.” Greene v. McElroy, 360 U. S. 
474 (1959).

C. Punitive Reclassification Is Not Authorized by the 
Regulations.

Selective Service Regulations do not provide for reclassi­
fication and induction as a punishment for the breach of 
duties under Selective Service law. The sole function of 
the delinquency procedure is to secure information re­
quired by local boards to enable them intelligently to per­
form their classification function. Delinquency is analogous 
to civil contempt. Regulation 1617.1 cannot be enforced 
through the delinquency procedure because the possession



13

requirement does not serve the information gathering func­
tion of the delinquency procedure. Application of the de­
linquency procedure to enforce Reg. 1617.1 is to use that 
procedure as a form of criminal contempt designed to pun­
ish for past acts, rather than as civil contempt to secure 
compliance with the Regulations.

D. Punitive Reclassification Is Unconstitutional.

The use of the delinquency Regulation in this case 
and petitioner’s subsequent reclassification and induction 
is punishment. Kennedy v. Mendoza-Martines, 372 U. S. 
144 (1963). Consequently, the procedures leading up to peti­
tioner’s order to report for induction are unconstitutional 
because punishment cannot be imposed without procedural 
due process of law including the right to counsel, confron­
tation and cross-examination, compulsory process, privilege 
against self-incrimination, an impartial tribunal, a public 
trial, and a jury trial, none of which were available to 
petitioner.

E. Local Board 11 Did Not Follow the Procedure for 
Punitive Reclassification Required by the Regulations 
and by Due Process.

By concurrently declaring petitioner to ho--.a. delinquent, 
and reclassifying him I-A, Local Board 11 violated S.elec- 
tive Service Regulations and due process of law. The pur- 
pose'dfa’Tfelinquency notice is to afford a registrant rea­
sonable time to clear up his delinquency status and to avoid 
reclassification into I-A. But simultaneous reclassification 
deprives the delinquency notice of any function whatsoever. 
The opportunity to have a I-A classification removed is not 
the same as the right to show in advance that there is no 
occasion to reclassify to I-A.



14

III. Petitioner’s Act of Returning His Registration Certificate 
to Local Board No. 11 Was Conduct Protected by the 
First Amendment.

A. Peaceful Conduct Which Is Relevant to the Issue 
Giving Rise to the Protest Is Speech Protected by 
the First Amendment.

Symbolic conduct must be considered speech if it is peace­
ful and if it is relevant to the issue giving rise to the sym­
bolic protest. The proposed rule permits courts to draw a 
sensible balance between the need for an ordered society 
and a need to serve the vital functions of the First Amend­
ment. Those functions consist of insuring that there is a 
free market place of ideas, Abrams v. United States, 250 
U. S. 616 (1919), to insure that the government will be re­
sponsive to the wishes of the people, Stromberg v. Cali­
fornia, 283 U. S. 359 (1931), and to preserve a stable and 
just society by enabling citizens to express their grievances 
in a peaceable way. Whitney v. California, 274 U. S. 357 
(1927).

B. Under the Tests for Determining When Speech May 
Be Abridged, the Surrender of Draft Cards Cannot 
Be Penalized.

1. Reg. 1642.4(a) Upon Which Petitioner’s Delin­
quency, Reclassification, and Induction Order 
Are Based Is Vague and Overbroad.

Reg. 1642.4(a) upon which petitioner’s delinquency, re­
classification, and induction order are based is vague and 
overbroad. Under Reg. 1642.4(a), not only petitioner’s con­
duct, but other conduct unarguably protected by the First 
Amendment, has been the basis for delinquency and re­
classification. The Regulation, therefore, runs afoul of the



15

rule which condemns statutes or regulations with an “ over­
broad sweep . . . [which] lend themselves too readily to 
denial of [First Amendment] rights.” Dombrowski v. Pfis- 
ter, 380 U. S. 479, 486 (1965); Aptheker v. Secretary of 
State, 378 U. S. 500 (1964); Cox v. Louisiana, 379 U. S. 536 
(1965).

2. Plaintiff Is Being Unlawfully Punished Under 
Past and Present Interpretations of the Balanc­
ing Test.

O’Brien v. United States, 88 S. Ct. 1673 (1968), appears 
to indicate that, although First Amendment conduct can­
not be regulated unless it poses some danger to a compelling 
government interest, the degree of danger need not be 
substantial in order for the government to have the right 
to regulate the conduct. Application of this standard to 
peaceful symbolic conduct opens the door to government 
repression of many kinds of speech—pure and symbolic. 
However, O’Brien v. United States also held that a restric­
tion on speech can be no greater than is essential to further 
a legitimate government interest. The restriction on speech 
at issue in the case at bar is greater than necessary because 
the government can run an effective Selective Service Sys­
tem even though a few registrants have surrendered their 
Registration Certificates. Though the administrative bene­
fits flowing from enforcement of the possession regulation 
are inconsequential [Carrington v. Rash, 380 TJ. S. 89 
(1965); Rinaldi v. Yeager, 384 XJ. S. 305 (1966)], the “ con­
tinuing availability” of surrendered cards leaves those bene­
fits undisturbed.



16

IV. There Is in Fact No Independent Requirement of Per­
sonal Possession of Registration Certificates.

Tracking the history of Selective Service Regulation 
1617.1 to World War I, establishes that non-possession of a 
Registration Certificate is not a violation of the Regula­
tions in itself, but is only prima facie evidence of another 
act which is a violation of the Regulations and of the Act, 
i.e., non-registration.

A R G U M E N T

Introduction

Petitioner’s registration certificate was one of 357 draft 
cards which were returned to the government at a demon­
stration at the Department of Justice on October 20, 1967 
(Washington Post, January 25, 1968), and an additional 
297 draft cards returned the next day during a demonstra­
tion at the Pentagon (N. Y. Times, December 30, 1967,
p. 2).

On October 24, 1967, General Lewis B. Hershey, the Di­
rector of Selective Service, issued a memorandum to all 
local draft boards recommending the reclassification and 
induction of registrants who abandon their Selective Ser­
vice registration certificates or notices of classification. 
Appendix, infra, p. la. Two days later, General Hershey, 
in a letter addressed to all draft boards, encouraged the re­
classification and induction of any registrant who, among 
many other things, “violates the military Selective Service 
Act or the Regulations, or the related processes . . . ” . Ibid.

The local boards responded promptly and affirmatively. 
Though counsel cannot say precisely how many registrants



17

have been declared delinquent, stripped of their defer­
ments or exemptions, reclassified I-A, and ordered for 
priority induction into the armed forces, we have personal 
knowledge of no less than seventy-six plaintiffs in eighteen 
lawsuits who, having either been declared delinquent, or de­
clared delinquent and reclassified I-A, are subject to prior­
ity induction or have received induction orders.7 8 Linger, 
et al. v. Selective Service System Local Board No. 64, et al., 
No. 68 C 110 (E. D. N. T .) ; Woods et al. v. Selective Service 
Board No. 3 et al., No. 68 C 350 (E. D. N. Y .) ; Kimball, 
et al. v. Selective Service Local Board No. 15, et al., 
No. 67/4733 (S. D. N. Y .) ; Bucher, et al. v. Selective Ser­
vice System, et al., No. 12, 26/67 (D. N. J .) ; Collis v. Selec­
tive Service Local Board No. 28, No. C-67-19-M (N. D. 
W. Va.); Anderson, et al. v. Hershey, et al., No. 30729 
(E. D. Mich.); Steinert, et al. v. Clark, et al., Civil No. 48654 
(N. D. Cal.); Decker, et al. v. Selective Service Board No. 
25, Civil No. 49348 (N. D. Cal.); Anderson v. Clark, et al., 
Civil No. 48869 (N. D. Cal.); Goldsmith v. Hershey, et al., 
Civil No. 49281 (N. D. Cal.); Kolden v. Selective Service 
Local Board No. 4, No. 6-68-64 Civil (D. Minn.); Breen v. 
Selective Service Local Board No. 16, No. 12422 (D. Conn.); 
Turley v. Selective Service System Local Board No. 134, 
No. 68-290-F (C. D. Cal.); Huey v. Selective Service Local 
Board No. 22, et al., No. C-225-67 (C. D. Utah) ;s Connor,

7 A  “ delinquent” may be classified I-A. Reg. 1642.12. If a de­
linquent is reclassified I-A, he shall be ordered to report for induc­
tion. Reg. 1642.13. I-A delinquents stand at the top of the order of 
call and are to be inducted before all other draftees. Reg. 1631.7.

8 Huey was reclassified I-A delinquent not for turning in his 
draft card but for participating “ in a peaceful public demonstration 
near the Armed Forces Entrance and Examination Station at 438 
South Main Street, Salt Lake City, Utah, for the sole purpose of 
expressing publicly his dissent from American involvement in the 
Vietnam War.” Huey Complaint, p. 2. Huey is an example of the



18

et al. v. Selective Service Local Board, et at., No. Civ. 1968 
-—33 (W. D. N. Y .) ; Colfax v. Selective Service System 
Local Bd. No. 11, et al., Civ. Action No. 68-132 (W. D. P a .); 
Worstell v. Selective Service System Local Bd. No. 7, et al., 
Civ. Action No. 68-156 (W. D. Pa.); Zigmond v. Selective 
Service Local Board No. 16, C. A. No. 68-368-Gr (D. Mass.).

Registrants who have been declared delinquent, declared 
delinquent and reclassified, or ordered to report for induc­
tion, include men in a variety of classifications. Some, like 
petitioner, had been exempt as ministers or students of 
the ministry; others had been deferred as students (Act, 
Sec. 6(h) and ( i ) ; Regs. 1622.25, 1622.26); a 37 year old 
registrant formerly classified Y-A under Reg. 1622.50 as 
over-age, was reclassified I-A (N. Y. Times, December 
20, 1967, p. 15); of the six plaintiffs in Linser v. Selective 
Service System, supra, all but one of whom have been re­
classified I-A, two had II-S deferments as students, one 
had been classified I-Y because “ under applicable physical, 
mental, and moral standards [he is] not currently quali­
fied for service” (Reg. 1622.17), one had been deferred in 
class III-A as a parent (Reg. 1622.30), one had been classi­
fied IY-A having completed his military service (Reg.

punitive reclassification of a registrant pursuant to the Hershey 
letter of October 26, 1967. Appendix, infra, p. la. In Peffers 
and Hess v. Selective Service Appeal Board, No. 7469 (W. D. 
Wash.), two men were reclassified I-A and ordered for priority 
induction for distributing anti-war leaflets during their pre-induc­
tion. physical examinations. The plaintiffs’ deferments were re­
stored by their boards only after suit was filed. On May 15, 1968, 
Local Board No. 10, Mount Vernon, N. Y., declared Daniel F. 
Connell III delinquent for “ Counseling evasion of The Selective 
Service Law,” and on June 27, 1968 reclassified him from III-A 
(Mr. Connell is married and has two children) to I-A. His case 
is on appeal to the State Appeal Board.



19

1622.40),9 and one had been classified Y-A as over the age 
of liability (Reg. 1622.50).10

Thus, petitioner is not a victim of an aberrant draft 
board. Though we do not know exactly how many men 
have been declared delinquent, reclassified, or ordered to 
report for induction, we know that the number is far 
greater than seventy-six.

Whatever the number of registrants who have been di­
rectly affected by the policy at issue here, equally sig­
nificant is the number of registrants who have been silenced 
out of fear that, should they publicly protest against the 
war in Vietnam, they too will lose their deferred or exempt 
status. What is at stake, therefore, is the power of the 
government to present to a large number of young men the 
choice of surrendering their right to speak freely on ques­
tions of urgent public importance, or of suffering heavy pen­
alties for exercising that right. Equally at issue is the 
power of the Selective Service System to deprive persons 
of exemptions granted by statute, and to impose punish­
ment without due process of law under the capricious au­
thority of a distorted “ delinquency” procedure which is 
unauthorized either by statute or regulation.

9 The IV-A plaintiff was not reclassified I-A. Veterans may be 
reclassified I-A only with the authorization of the Director of Selec­
tive Service. Reg. 1642.12.

10 As of December 31, 1967, there were 15,593,748 registrants in 
V-A. Selective Service, February 1968, p. 4.



20

I.

The Federal Courts have jurisdiction to hear and de­
termine this suit.

A. Effective Judicial Review of the Classification Orders of 
Local Boards Is Constitutionally Required.

An essential ingredient of onr Constitutional system is 
the requirement of judicial review of the orders and actions 
of administrative agencies. Accompanying the proliferation 
of such agencies at all levels of government, has been the 
concurrent development of the doctrine of judicial review, 
which holds that “ [t]he acts of all . . . officers must be justi­
fied by some law, and in case an official violates the law to 
the injury of an individual the courts generally have juris­
diction to grant relief.” School of Magnetic Healing v. 
McAnnuity, 187 U. S. 94, 108 (1902). See also, Abbott 
Laboratories v. Gardner, 387 U. S. 136, 140 (1967) (and 
cases cited therein). This basic principle was clearly stated 
by Mr. Justice Brandeis:

“The supremacy of law demands that there shall be an 
opportunity to have some court decide whether an 
erroneous rule of law was applied; and whether the 
proceeding in which facts were adjudicated was con­
ducted regularly. To that extent, the person asserting 
a right, whatever its source, should be entitled to the 
independent judgment of a court on the ultimate ques­
tion of constitutionality.” St. Joseph Stock Yards v. 
United States, 298 U. S. 38, 84 (1936) (concurring opin­
ion). See also, Ohio Valley Water Co. v. Ben Avon 
Borough, 253 U. S. 287 (1920).

And Professor Louis Jaffe has concluded that “ . . .  in our 
system of remedies, an individual whose interest is acutely



21

and immediately affected by an administrative action pre­
sumptively has a right to secure at some point a judicial 
determination of its validity.” Jaffe, The Eight to Judicial 
Review I, 71 Harvard Law Review 401, 420 (1958). Cf. 
Hart and Wechsler, The Federal Courts and the Federal 
System, 312-40 (1953).

In numerous instances congressional legislation, such as 
Sec. 10(b)(3) in issue here, has purported to restrict the 
scope or confine the availability of judicial review of admin­
istrative orders, but this Court has interpreted such provi­
sions to avoid constitutional infirmities. See, e.g., Lipke v. 
Lederer, 259 U. S. 557 (1922); Crowell v. Benson, 285 U. S. 
22 (1932); St. Joseph Stock Yards v. United States, supra; 
Estep v. United States, 327 IJ. S. 114 (1946); Heik- 
kila v. Barber, 345 U. S. 229 (1953); Skaughnessy v. Ped- 
reiro, 349 U. S. 48 (1955); Brownell v. Tom We Skung, 
352 H. S. 180 (1956) yLeedom v. Kyne, 358 IT. S. 184 (1958); 
Busk v. Cort, 369 IJ. S. 367 (1962); McCulloch v. Sociedad 
Nacional, 372 IJ. S. 10 (1963); see also, 4 Davis, Adminis­
trative Law Treatise §28.18 (1958); Jaffe, The Right to 
Judicial Review II, 71 Harvard Law Review 769, 770-86 
(1958). Illustrative of judicial unwillingness to sanc­
tion the claim that illegal administrative action is beyond 
judicial scrutiny is Estep v. United States, 327 U. S. 114 
(1946). Mr. Justice Douglas, writing for the Court, re­
jected the contention that the finality conferred upon local 
draft board orders by the Selective Training and Service 
Act of 1940 could preclude all judicial inquiry. Such orders 
were “ final” only when they were within the board’s “ juris­
diction,” either geographical or legal:

“We cannot read §11 as requiring the court to inflict 
punishment on registrants for violating whatever



22

orders the local board might issue. "We cannot believe 
that Congress intended that criminal sanctions were 
to be applied to orders issued by local boards no mat­
ter how flagrantly they violated the rules and regula­
tions which define their jurisdiction.” 327 IT. S. at 121.

Recognizing that “ [j judicial review may indeed be required 
by the Constitution . . . ,” the Court construed the statute 
so as to accord only administrative finality to the board’s 
order and to insure a necessary measure of judicial review.

Lockerty v. Phillips, 319 U. S. 182 (1943), and Yakus 
v. United States, 321 U. S. 414 (1944), both arising 
under the Emergency Price Control Act of 1942, are often 
cited as extreme examples of judicial deference to congres­
sional efforts to preclude federal court jurisdiction and 
control over the actions of administrative agencies.11 
Lockerty v. Phillips involved a suit to enjoin a threatened 
prosecution for violation of administrative orders under 
the act. The Court upheld the lower court’s dismissal for 
want of jurisdiction. Though there is dicta in that opin­
ion which discusses the scope of congressional control 
over the jurisdiction of the federal courts, 319 U. S. at 
187, that extreme language has not only been criticized by 
scholars, see Hart and Weehsler, supra, at 298, but it must 
be read within the context of the statutory scheme which 
Congress had established. One aggrieved by an order 
by the Administrator could complain within the adminis­
trative system. But more importantly, he could then ap­
peal to the Emergency Court of Appeals, which in its 11

11 FaTbo v. United States, 320 U. S. 549 (1944), is also often cited 
in this regard. That decision, however, was thereafter limited 
by the decision in Estep v. United States, supra.



23

essentials resembled an Article III court, and finally to 
this Court. Thus, the complainant received at least one 
opportunity to litigate the legality of the order in a civil 
proceeding and seek Supreme Court review before he had 
to become a defendant in a criminal prosecution for viola­
tion of the order. See Lockerty v. Phillips, 319 U. S. at 
188-89. Cf. Pacific Telephone and Telegraph Co. v. Kuy­
kendall, 265 U. S. 196, 204-05 (1924); Porter v. Investors’ 
Syndicate, 286 U. S. 461, 471 (1932). Even in Yakus v. 
United States, supra, which held that one who failed to 
exhaust the special administrative remedies could not chal­
lenge the validity of an order as a defense to a criminal 
prosecution, the Court noted that there was a preliminary 
opportunity to contest the constitutionality of an order in 
civil proceedings prior to facing criminal charges for its 
violation.

Much more relevant here are the decisions of this Court 
which demonstrate that the right to effective judicial re­
view cannot be impaired by imposing extreme burdens and 
penalties on the exercise of that right. Two cases which 
directly support this view are Ex Parte Young, 209 U. S. 
123 (1908) and Oklahoma Operating Co. v. Love, 252 U. S. 
331 (1920). Young held that the Fourteenth Amendment’s 
guarantee of due process required judicial review by civil 
suit where a State legislative scheme provided that the only 
way to challenge administrative rate-setting was to violate 
the prescribed rates and become subject to penalties up to 
five years in jail and a $5,000 fine. The Court recoiled at 
this deterrent to judicial review:

“ The necessary effect and result of such legislation must 
be to preclude a resort to the courts . . .  for the purpose 
of testing its validity. The officers and employees could



24

not be expected to disobey any of the provisions of the 
acts or orders at the risk of snch fines and penalties 
being imposed upon them, in case the court should de­
cide that the law was valid. The result would be a
denial of any hearing . . .

# *  # # #

A law which indirectly accomplishes a like result [mak­
ing administrative orders conclusive] by imposing 
such conditions upon the right to appeal for judicial 
relief as work an abandonment of the right rather 
than face the conditions upon which it is offered or may 
be obtained is also unconstitutional. It may therefore 
be said that when the penalties for disobedience are by 
fines so enormous and imprisonment so severe as to 
intimidate the company and its officers from resorting 
to the courts to test the validity of the legislation, the 
result is the same as if the law in terms prohibited 
the company from seeking judicial construction of laws 
which deeply affect its rights.” 209 U. S. at 146, 147.

The Court held that the remedy at law was so uncertain 
and hazardous as to require federal equity to intervene and 
protect constitutional rights.

The Love decision carried this rationale of the time at 
which judicial review was mandated one step further. It 
held that, faced with a legislative scheme similar to that 
in Young, which only allowed judicial review of adminis­
trative orders by way of defense to contempt proceedings, 
a federal equity court could enjoin enforcement of the 
orders and the imposition of fines. Mr. Justice Brandeis 
held that the right to judicial review could not be made 
contingent upon the risk of such penalties:



25

“ Obviously a judicial review beset by such deterrents 
does not satisfy the constitutional requirements, even 
if otherwise adequate, and therefore the provisions of 
the act relating to the enforcement of the rates by pen­
alties are unconstitutional without regard to the ques­
tion of the insufficiency of these rates.” 252 U. S. at 
337.

Both cases establish the principle that judicial review is 
constitutionally required at an earlier stage than as a de­
fense to a criminal prosecution where the penalty for being 
wrong will deter legitimate challenge to the constitutional 
validity of a statute, regulation or order.12

Sec. 10(b)(3) was held invalid for this very reason in 
Petersen v. Clark, et al., Civil No. 47888 (N. D. Calif. 1968), 
in an opinion by Zirpoli, J.13 In Petersen, the complaint 
alleged that the plaintiff was conscientiously opposed to

12 More recently, this Court held that an alien seeking to chal­
lenge an exclusion order could bring a declaratory judgment suit 
to avoid having to face the “ odium of arrest and detention which 
a habeas corpus application would involve. Brownell v. Tom We 
Shung, 352 U. S. 180 (1956). For other cases which displayed a 
similar reluctance to allow the imposition of great burdens on the 
right to judicial review of an illegal administrative determination, 
see Busk v. Cort, 369 U. S. 367 (1962) and Abbott Laboratories v. 
Gardner, 387 U. S. 136, 151-154 (1967). In Reisman v. Caplin, 375 
U. S. 440 (1964), a case involving attempts to resist a subpoena un­
der the Internal Revenue laws, the Court discussed Young and Love 
and concluded that the legislative scheme under review was suffi­
ciently free from burdens: “ Finding that the remedy specified by 
Congress works no injustice and suffers no constitutional invalidity 
we remit the parties to the comprehensive^ procedure of the Code 
which provides full opportunity for judicial review before any 
coercive sanctions may be imposed.”  (Emphasis added.) 375 U. S. 
at 450. See pp. 34-41, infra.

13 An original and nine copies of a certified copy of the opinion 
have been filed with the Clerk of the Court.



26

participation in war in any form though willing to perform 
alternative service and was therefore entitled to a 1-0 clas­
sification under Sec. 6(j) of the Act, but that the local board 
had unlawfully refused to consider plaintiff’s application 
for classification into I-O. After the plaintiff was issued 
an order to report for induction, he initiated a lawsuit to 
enjoin his induction. Unable to secure a temporary re­
straining order, plaintiff refused induction. The case was 
then referred to a statutory three-judge court on the 
theory that the suit challenged the constitutionality of 
Sec. 10(b)(3), but was thereafter remanded to one judge 
on the ground that the constitutionality of Sec. 10(b)(3) 
was “ merely drawn in question,” rather than challenged 
directly as unconstitutional, relying on International Ladies 
Garment Workers Union v. Donnelly Garment Company, 
304 U. S. 243 (1938).

Plaintiff moved the one-judge court for an order en­
joining his prosecution for failing to submit to induc­
tion and for an order holding the induction order invalid. 
The opinion of Judge Zirpoli followed.

As phrased by Judge Zirpoli, the issue before him in­
volved “the specific situation where a federal administra­
tive agency places an individual in the position of having 
to either: (1) comply with an allegedly invalid order when 
compliance may subject him to such restraint of liberty as 
military service entails or (2) risk criminal prosecution 
to judicially test the order’s validity” (Opinion, p. 4).

First reviewing the power of Congress to regulate the 
jurisdiction of the lower federal courts, Judge Zirpoli 
concluded that Article III must be read in conjunction with 
the due process clause of the Fifth Amendment and that 
the latter was a limitation upon the former at least where



27

judicial review of administrative action was concerned. 
Consequently, relying upon American School of Magnetic 
Healing, supra; St. Joseph Stockyards, supra; Ex Parte 
Young, supra; Yakus v. United States, supra; Estep v. 
United States, supra; and Crowell v. Benson, supra, Judge 
Zirpoli concluded that “ Congress cannot make selective 
service induction orders wnreviewable. Due process is of­
fended by an administrative order which demands com­
pliance or a term of imprisonment” (Opinion, p. 14).

Proceeding to the next question, namely, whether Sec. 
10(b)(3) is constitutional in confining review to criminal 
prosecution, Judge Zirpoli concluded that in general “ judi­
cial review cannot be conditioned on the risk of incurring 
a substantial penalty or complying with an invalid order” 
(Opinion, p. 9), but believed himself obliged, in the selec­
tive service context, to balance “ the interests of the govern­
ment and the individual . . .  to see if what the government 
cannot do in other factual situations it may do when the 
governmental function involved is the raising of armies” 
{ibid.). He held that “ allowing civil review in advance of 
criminal prosecution would not disrupt the Selective Ser­
vice system” {ibid.), principally on the ground that the 
apprehension by the government of litigious interruptions 
of the induction process were baseless, that, indeed, “ the 
court will experience a net saving in time” because “ the need 
for a few trials will be obviated by voluntary compliance 
with orders which have been judicially declared valid, and 
some time will be saved at trials because the issue of the 
order’s validity probably will not have to be litigated.” In 
addition, “ the need for calling and empanelling a jury will 
be completely eliminated.” Finally, “ since only the timing 
and not the scope of review will be affected the number of



men who will ultimately be found to have been validly 
classified will not be changed” (ibid.).1*

Thus, there is a constitutionally protected right to judi­
cial review and that review cannot be conditioned on harsh 
burdens which have the practical effect of denying any re­
view at all. Insofar as the courts below have construed 
Section 10(b)(3) as placing such extreme penalties on the 
registrant who challenges a local board order, it would be 
unconstitutional.14 15

B. In Cases Where a Board Order Affects Rights Safeguarded 
by the First Amendment, the Federal Courts Have Juris­
diction to Protect Those Rights.

Even if Sec. 10(b)(3) is not unconstitutional in the 
generality of cases, we believe it should be held inapplicable

14 Meeting the government’s argument that due process is satisfied 
by the availability of post-induction habeas corpus, Judge Zirpoli 
held that that was inadequate because the registrant must first be 
inducted, that induction is the equivalent of compliance with the 
allegedly invalid order, that the habeas remedy does not abrogate 
the duty to prevent the damage if possible, and that our system 
of justice would not tolerate deferring all “ fourth or fifth amend­
ment claims or defenses until after a factual finding that a defen­
dant committed certain acts and require that they be raised by way 
of habeas corpus after confinement” (Opinion, p. 11). The So­
licitor General agrees that “ a habeas corpus proceeding after in­
duction . . .  is a very heavy burden to put on the citizen.” Memo­
randum for Respondents, pp. 12-13.

15 Petersen has been followed in the Northern District of Cali­
fornia by Harris, J in Gabriel v. Clark, et al., Civil No. 49419. 
In Kolden v. Selective Service Local Board No. 4, No. 19,331 (8th 
Cir. July 16, 1968), Blackman, J., issued an injunction, pending 
appeal, against appellant’s punitive reclassification from II-S and 
induction, relying on the grant at certiorari in the case at bar. 
Though he did not cite Petersen, Judge Blackman said, that 
“Kolden, if relief is not now granted to him, is subject to irrepa­
rable injury and that, in contrast, the appellee, if relief is granted, 
will be subject to little, if any, injury,” thus agreeing with Judge 
Zirpoli’s assessment that “civil review in advance of criminal 
prosecution will not disrupt the Selective Service System.”



29

in the present case where it is the interest of the First 
Amendment which is at stake.

The concern for insuring judicial review has nowhere 
been more meticulous than when the rights for which the 
judicial power is invoked are those protected by the 
First Amendment. These are “preferred freedoms” which 
when threatened by legislative or administrative acts will 
be given special constitutional protection.

A  review of Supreme Court decisions leaves no doubt 
about the primacy of First Amendment rights. The Court 
has expressed concern not only with direct governmental 
attempts to infringe those rights, but also with statutes and 
rules that have an indirect but deadly effect on the exercise 
of those rights. Of course, as is too well demonstrated by 
the decisions below, one of the most effective ways to 
destroy rights is to inhibit and frustrate the remedies 
available for their implementation. And it follows that 
the best way to cripple the remedy is to place burdensome 
limitations upon those who seek to exercise it. To interpret 
Sec. 10(b)(3) as requiring the registrant who is the ob­
ject of a punitive and illegal classification and induc­
tion order, to subject himself to criminal indictment and 
prosecution in order to assert his claim that the board action 
violates his First Amendment rights, effectively nullifies 
those rights.

This Court has held that statutory schemes which 
impose an intolerable restraint and have a “ chilling 
effect” on the exercise of First Amendment rights cannot 
constitutionally be allowed. See Dombrowski v. Pfister, 380 
U. S. 479 (1965). Ex Parte Young, supra, and Oklahoma 
Operating Co. v. Love, supra, demonstrate that in the pro­



30

tection of rights of property judicial review cannot be fore­
stalled until the point where its utilization becomes fraught 
with peril and hazard. Dombrowski, and the long line of 
cases it synthesized, show that rights of liberty are surely 
entitled to no less protection. The individual cannot be 
forced to choose between the Scylla of adhering to an order 
which may ultimately be held void or the Charybdis of dis­
obeying an order which may ultimately be held valid. See 
Yakus v. United States, supra (dissenting opinion).

Dombrowski is central to this case. There, various offi­
cials of a civil rights organization were being threatened 
with prosecution under state statutes which appeared to be 
drawn in violation of the First and Fourteenth Amend­
ments. They brought suit in the federal court seeking 
declarative and injunctive relief against prosecutions or 
the threat of the same. The suit was dismissed and this 
Court reversed.

After expressing its concern for considerations of fed­
eralism and noting that only “ special circumstances” justify 
“ cutting short the normal adjudication of constitutional 
defenses in the course of a criminal prosecution,” 380 U. S. 
at 485, the Court pointed out that the complaint depicted a 
situation in which “a substantial loss or impairment of 
freedom of expression will occur if appellants must await 
the state court’s disposition and ultimate review in this 
Court . . . ”  380 U. S. at 486. Because of the “ sensitive 
nature of constitutionally protected expression” and in 
light of the fact that free expression is “ of transcendant 
value to all society,” the normal rules as to standing have 
been relaxed in this area.

“ If the rule were otherwise, the contours of regulation 
would have to be hammered out case by case—and



31

tested only by those hardy enough to risk criminal 
prosecution to determine the proper scope of regula­
tion. Cf. Ex Parte Young. . . . [W ]e have, in effect, 
avoided making vindication of freedom of expression 
await the outcome of protracted litigation. Moreover, 
we have not thought that the improbability of success­
ful prosecution makes the ease different. The chilling 
effect upon the exercise of First Amendment rights 
may derive from the fact of the prosecution, unaffected 
by the prospects of its success or failure.” 380 U. S. 
at 487.

The Court concluded that the need for “prompt judicial 
resolution of First Amendment claims” outweighed con­
siderations of federalism and justified federal jurisdic­
tion and relief.

The parallels to the instant ease are apparent. Here 
petitioner asserts that his punitive reclassification violates 
his protected constitutional rights to freedom of expres­
sion (A. 5). See Point III A, infra. As the court below 
interpreted Sec. 10(b)(3), in order to secure judicial re­
view of the invalid induction order, petitioner must violate 
the law, suffer the ignominy of indictment and endure the 
burdens of a criminal trial. The very fact of prosecution, 
as the Court noted in Dombrowski, will have the prohibited 
“ chilling effect” on petitioner’s rights and on the rights 
of others who protest the Vietnam war and the draft.

The effect of such towering obstacles to judicial review 
on other Selective Service registrants is crucial. Few will 
be willing to pay such a high price for the right to dissent. 
The result is clear. Thousands of registrants will have 
fewer First Amendment rights than the rest of us. They



32

will have to exercise their right to lawful dissent with one 
eye cast on their local draft board, fearful that their activi­
ties will meet with disapproval and result in reclassifica­
tion. Those with valid deferments will “ steer far wider of 
the unlawful zone.” Speiser v. Randall, 357 U. S. 513, 526 
(1958). The draft boards can reclassify them I-A with im­
punity and dare registrants to run the hazards of crim­
inal prosecution to prove the board wrong. In such an en­
vironment, “ sensitive” constitutionally protected expres­
sion can hardly flourish as our free society demands it 
must.

These considerations were carefully weighed in Wolff v. 
Selective Service, 372 F. 2d 817 (2d Cir. 1967). Plaintiffs, 
registered with New York draft boards, were full-time 
students at the University of Michigan. As such they were 
classified II-S. They participated in a demonstration at a 
Michigan draft board, protesting the war in Vietnam. As 
a result they suffered the same fate as petitioner, namely, 
reclassification as delinquents into I-A. Claiming that such 
reclassification violated their rights of free speech and 
assembly they brought suit, prior to exhaustion of adminis­
trative remedies. The District Court dismissed the com­
plaint for lack of a justiciable controversy and the Sec­
ond Circuit reversed.

The Second Circuit found that reclassification alone 
posed such an immediate and irreparable injury to plain­
tiffs’ First Amendment rights “as to require prompt action 
by the courts to avoid an erosion of these precious con­
stitutional rights.” 372 F. 2d at 820. The court carefully 
analyzed the statutes and regulations and concluded that 
it was not the draft board’s function to punish registrants 
by reclassifying them for protest activities. Noting the



33

policy reasons which have traditionally caused judicial 
reluctance to interfere with the operations of the Selective 
Service System, the court nevertheless felt compelled to 
intervene:

“ Only the most weighty consideration could induce us 
to depart from this long standing policy. But of all 
constitutional rights, the freedoms of speech and of 
assembly are the most perishable, yet the most vital 
to the preservation of American democracy. Histori­
cally, these preferred and paramount rights have con­
tinually come under attack from the best intentioned 
sources. And once the erosion of these rights is per­
mitted to begin, it is exceedingly difficult to halt and 
the intervening damage may be irreparable. Here it is 
the free expression of views on issues of critical cur­
rent national importance that is jeopardized. On such 
topics perhaps more than any other, it is imperative 
that the public debate be full and that each segment of 
our society be permitted freely to express its views. 
Thus the allegations of the complaint in this case that 
the draft boards have unlawfully suppressed criticism 
must take precedence over the policy of non-interven­
tion in the affairs of the Selective Service.” 372 P. 2d 
at 822.

Finally, the court summarized the thrust of the cases lead­
ing up to Dombrowski:

“ It has been held repeatedly that the mere threat of the 
imposition of unconstitutional sanctions will cause im­
mediate and irreparable injury to the free exercise of 
rights as fragile and sensitive to suppression as the 
freedoms of speech and assembly. . . . Since it is the



34

mere threat of unconstitutional sanctions which pre­
cipitates the injury, the courts must intervene at once 
to vindicate the threatened liberties.”  372 F. 2d at 824. 
(Citations omitted.)

The Wolff decision held that judicial relief was available 
to vindicate First Amendment rights threatened only by re­
classification. A fortiori the case for judicial intervention 
is even greater when, as here, an induction order has al­
ready issued.

The rule which emerges is clear: where governmental ac­
tion has a “ chilling effect” on First Amendment rights, a 
federal court has jurisdiction to hear the suit and safe­
guard those rights. A  decision which held that there can 
be no federal relief would raise serious constitutional ques­
tions. In order to avoid constitutional infirmities, we urge 
that where a board order has a “ chilling effect” on regis­
trants’ First Amendment rights, the federal courts have 
jurisdiction to review prior to induction. Cf. DombrowsJci 
v. Pfister, supra at 485; Note, 81 Harv. L. Rev. 685-690 
(1967). Under this construction, not every board order 
would give rise to federal jurisdiction. For the purposes 
of this case it is only necessary to hold that in the excep­
tional case which stems from the First Amendment, the 
policy of orderly conscription must give way to the com­
pulsion of the Constitution. See Layton and Fine, “ The 
Draft and Exhaustion of Administrative Remedies,” 56 
Geo. L. J. 315 (1967).16

16 Nor is the thrust of this argument blunted by the assertion 
that, on the merits, petitioner’s First Amendment claim is invalid. 
Whatever the disposition of his claim on the merits, he has 
standing to present that issue. Dombrowski, supra, at 485, 492; 
Freedman' v. Maryland, 380 U. S. 51 (1965). The appellants in



35

C. The “ Special Circumstances”  of This Case Require 
Judicial Review.

The Solicitor General, in his Memorandum for Respon­
dents filed in this case, urged upon the Court the view that 
the action of the Local Board was invalid because it was 
“ in fact contrary to an exemption which has been ex­
pressly granted by statute” (p. 12). For that reason, 
said the Solicitor General, Sec. 10(b)(3) ought not be 
deemed a bar to this suit because “there is room for an 
appropriate distinction between an order which is con­
trary to the terms of a statute and an order which is 
subject to challenge only on the ground that the board 
has misapplied or abused its authority in making its judg­
ment. Cf. Harmon v. Brucker, 355 U. S. 581-582; Leedom 
v. Kyne, 358 U. S. 184, 188” {ibid.). It was also the 
Solicitor General’s view that to require petitioner to raise 
his defenses in a criminal prosecution or in a habeas pro­
ceeding would be “a very heavy burden to put on the citi­
zen if the board has in fact acted contrary to the terms 
of the statute—which is the situation here . . . ” (p. 13).

Thus, the Solicitor General has acknowledged both that 
the Local Board’s action was invalid, and that Sec. 10

Wolff were themselves ultimately convicted in state court for the 
very conduct which was the basis of their reclassification, Broth- 
man v. Michigan, 379 Mich. 776, cert, denied, 36 TJ. S. L. Week 
3287 (January 16, 1968), but as the Second Circuit said, “ . . .  it 
is not the function of local boards . . .  to punish these registrants 
by reclassifying them I-A because they protested as they did over 
the Government’s involvement in Vietnam,”  372 F. 2d at 822. 
Furthermore, Freedman teaches that when administrative action 
may threaten First Amendment rights, judicial review must not 
only be available, but that it must be quick and efficacious. Dom- 
"browski goes beyond Freedman to hold that a civil forum must be 
provided if the criminal forum is fraught with peril for the right 
to dissent.



36

(b) (3) is no bar in this suit to securing judicial relief 
from the invalid act.

Needless to say, the Solicitor General’s view is quite 
agreeable to petitioner. But the Court need not rely only 
on the parties’ entente cordials in order to dispose of this 
case on those grounds, for there is ample precedent for 
support in law.17

The Solicitor General has in effect urged the Court to 
adopt the “ special circumstances” exception which has 
been applied in several areas of the law where, though 
legislation purports to preclude or defer judicial review 
of administrative orders, the courts believe immediate 
review to be constitutionally necessary.

In Leedorn v. Kyne, 358 U. S. 184 (1958), the NLRB, 
acting contrary to the flat prohibition of the statute, had 
included professional employees within a bargaining unit 
without a vote of those employees. In an action brought by 
the Engineers Association to set aside the Board’s action, 
the Board argued that the courts had no jurisdiction except 
by a petition for enforcement or review of an order restrain­
ing an unfair labor practice, as the statute provided. But 
the Court held:

17 The discussion which follows is confined to the See. 10(b)(3) 
question. It subsumes the correctness of the view that the Local 
Board’s action was invalid. Though we subscribe to and discuss, 
infra, Point II A, the view that the Local Board’s action was invalid 
because it is in flat contradiction to a mandatory statutory exemp­
tion, we also advance other grounds upon which that action can 
be held invalid. See Points II and III, infra. Though the So­
licitor General has so far taken the position that Sec. 10(b)(3) 
is no bar to review only insofar as the Local Board action was 
contrary to the statutory exemption, our position is that any of 
the several invalid board practices which we describe should be 
reviewable in a pre-induction civil suit because each of them ex­
ceeded the Local Board’s power.



37

“ This Court cannot lightly infer that Congress does 
not intend judicial protection of rights it confers 
against agency action taken in excess of delegated 
powers.” 358 U. S. at 190.18

The Court has given similar treatment to the statute 
prohibiting the enjoining of tax collections. Section 3224, 
Revised Statutes,19 provided that “No suit for the purpose 
of restraining the assessment or collection of any tax shall 
be maintained in any court.” During prohibition, Lipke 
was arrested for selling liquor. While his prosecution was 
still pending he was served with notice that a tax was to be 
levied, under Sec. 35 of the Prohibition Act, upon his sale 
of liquor. Lipke sued for an injunction to restrain the 
collection of the tax. The Government argued that Sec. 
3224 prevented the issuing of the injunction. This Court 
held that the tax sought to be levied was not a tax but a 
penalty, and to allow its collection wrnuld be a denial of due 
process because there was no provision in the Prohibition 
Act for a “ fair opportunity for hearing.” Lipke v. Lederer, 
259 U. S. 557, 562 (1922). Therefore, despite Sec. 3224, an 
injunction should have been issued.

18 This “ exception” for orders in excess of the Board’s jurisdic­
tion was extended to include the case of an order which caused 
international repercussions. McCulloch v. Sociedad Nacional, 372 
U. S. 10 (1963). Cf. Boire v. Greyhound Corporation, 376 U. S. 
473, 481 (1964), which declined to apply the special circumstances 
rule because the issue before the court, unlike the case at bar, was 
“ essentially a fact question;” and Schilling v. Rogers, 363 IJ. S. 
666, 676-677 (1960), which excluded a judicial remedy under the 
Trading With the Enemy Act because it was not charged that the 
administrative official had “ acted beyond the scope of his pow­
ers . . . ”

19 Now 26 U. S. C. Sec. 7421.



Since Lipke the Court has interpreted Sec. 3224 and its 
successor statutes to allow injunctions when legal remedies 
were insufficient. Thus in Miller v. Standard Nut Mar­
garine Co., 284 U. S. 498 (1932), the Court held that re­
spondent’s product was not within the tax statute, that 
imposition of the threatened tax was “ arbitrary and op­
pressive,” and that its business would be destroyed if it 
were required to pay the tax. In the light of these “ special 
and extraordinary facts and circumstances” the Court 
held that an injunction was proper. See also Alien v. 
Regents, 304 U. S. 439 (1938); Smith v. Flinn, 261 F. 2d 
781 (8th Cir. 1958).

In military and draft cases the Court has also liberally 
construed limitations on review in order to assure equi­
table results. Thus, in Harmon v. Brucker, 355 U. S. 579 
(1958), petitioner had been issued an other than honor­
able discharge from the Army because of pre-induction 
political activity. He brought an action to direct the is­
suance of an honorable discharge. The government con­
tended that judicial review was forbidden by 38 U. S. C. 
§693 (h) which provided that administrative determina­
tions relating to the quality of discharges were “ final” . 
The Court rejected the contention on the ground that the 
Army officials had acted “ in excess of [their] express or 
implied powers.” 355 U. S. at 582.20

20 Cf. Orloff v. Willoughby, 345 U. S. 83 (1953), which is 
often cited as supporting unreviewability. Professor Davis notes 
that “ The denial of review, however, is weakened by the fact that 
the Court also held that the applicable statute did not entitle 
Orloff to a commission and that ‘enough appears to make plain 
that there was cause for refusing him a commission.’ ” 4 Davis, 
Admin. Law Treatise 30.



39

'Wolff v. Selective Service, supra, itself a “ special cir­
cumstance” case, noted other similar cases in the area of 
selective service:

“ Wholly aside from the First Amendment considera­
tions which we believe compel our intervention at this 
time, it has in the past been suggested that when a 
local board acts in flagrant disregard of the applicable 
regulations and thus in clear excess of its jurisdiction, 
the courts may intervene at any time to rectify the 
situation. Thus in Schwartz v. Strauss, 206 F. 2d 767 
(2 Cir. 1953), Judge Frank remarked that he had no 
doubt that a court would have jurisdiction to review 
a classification where on undisputed facts the board’s 
lack of jurisdiction was manifest. On the merits, how­
ever, he found that the board had acted properly as 
a matter of law. And in Townsend v. Zimmermann, 237 
F. 2d 376 (6 Cir. 1956) Judge Stewart, now Justice 
Stewart, enjoined a threatened induction when it ap­
peared clearly as a matter of law that the board had 
violated the regulations in issuing its order.” 372 
F. 2d at 826.21

This Court has also made expansive provision for judi­
cial review in the area of immigration law in order to 
avoid the need of subjecting litigants to imprisonment as 
a condition precedent to review. Thus, in Shaughnessy

21 Sec. 10(b)(3) , which by its term precludes judicial review 
only of “ the classification or processing of any registrant,” can 
be read to exclude an act wholly outside a board’s jurisdiction. 
Such a lawless act cannot be described as “classification or process­
ing” since those terms refer only to the ordinary, authorized ac­
tivities of draft boards. See Griffiths, Some Notes on the Solicitor 
General’s Memorandum in Oestereich, 1 Selective Service Law 
Reporter 4012 (1968) (hereinafter cited as S.S.L.R.).



40

y. Pedreiro, 349 U. S. 48 (1955), the question before the 
Court was whether a deportation order under the Im­
migration and Nationality Act of 1952, in face of a provi­
sion that such orders shall be “ final” , could be reviewed 
in an action for declaratory relief under Sec. 10 of the 
Administrative Procedure Act. It had been held in Heik- 
kila v. Barber, 345 U. S. 229 (1953), that review in de­
portation cases under the Immigration Act of 1917 was 
confined to habeas corpus. The Court rejected the Heikkila 
holding on the ground that “ it would certainly not be 
in keeping with either of these Acts to require a person

ordered deported to go to jail in order to obtain review 
by a court.” 349 U. S. at 51. This holding was extended to 
exclusion orders in Brownell v. Tom We Shung, 352 U. S. 
180 (1956), on the ground that in a declaratory judgment 
action “ the odium of arrest and detention is not pres­
ent.” 352 U. S. at 183.

In Rusk v. Cort, 369 U. S. 367 (1962), appellee had os­
tensibly been expatriated under Sec. 349(a) (10) of the Im­
migration and Nationality Act of 1952 for having evaded 
service in the armed forces. Cort, who was living abroad, 
instituted an action in the District of Colombia for declara­
tory and injunctive relief challenging the constitutionality 
of Sec. 349 (a )(10). The government claimed that review 
was limited by Sec. 360(b) and (c) of the Act which re­
quired that claimants living abroad secure a deter­
mination of their citizenship “ in habeas corpus proceedings 
and not otherwise.” The Court rejected the contention be­
cause it concluded that Congress did not intend “that a 
native of this country living abroad must travel thousands 
of miles, be arrested and go to jail in order to attack an 
administrative finding . . . ”  369 U. S. at 375.



41

In the area of habeas corpus the Court has also created 
exceptions to legislative restraints on judicial relief. 28 
U. S. C. Sec. 2254, like Sec. 10(b)(3), deals with ex­
haustion of remedies, and likewise codifies an area of law 
previously left to the courts.

Sec. 2254 in relevant part reads:
An application for a writ of habeas corpus in behalf 
of a person in custody pursuant to the judgment of 
a State court shall not be granted unless it appears 
that the applicant has exhausted the remedies available 
in the courts of the State.

In Fay v. Noia, 372 IT. S. 391, 434-435 (1963), a state 
prisoner sought federal habeas corpus. The prisoner and 
two codefendants had been convicted on the basis of a co­
erced confession. The two codefendants appealed in the 
State Court and lost, and then sought habeas corpus in Fed­
eral court and were freed. The prisoner did not appeal, but 
thereafter sought federal habeas corpus. The State claimed 
the writ should not be granted because under Sec. 2254 he 
had not exhausted his state remedies. This Court said that 
the statute “was enacted to codify the judicially evolved 
rule of exhaustion, particularly as formulated in Ex Parte 
Hawke . . . ” Since the Court read Hawke to limit review 
only where state remedies were not presently available, it 
held “that Sec. 2254 is limited in its application to failure to 
exhaust state remedies still open to the habeas applicant 
at the time he files his application in federal court,”

The conclusion which emerges from all these cases is 
that notwithstanding statutory limitations upon judicial 
review, the Court will expand those limits in cases where



42

official action is clearly without authority, or where strict 
application of the statutory limitation will require litigants 
needlessly to expose themselves to detention or prosecu­
tion.22

That, of course, describes the case at bar, for here the 
Local Board action is “ lawless and beyond its jurisdiction,23 
and to demand that petitioner subject himself to criminal 
prosecution to establish that patent invalidity, is not only 
a needless exposure to the criminal process but also “ re­
quires the courts to march up the hill when it is apparent 
from the beginning that they will have to march down 
again.” 24

22 The government acknowledges that to require petitioner to 
raise his defenses in a criminal prosecution, or in a habeas corpus 
proceeding after induction, “ is a very heavy burden to put on the 
citizen. . . . ”  Memorandum for Respondents, p. 13.

23 Estep v. United States, supra at 121. Mr. Justice Frankfurter 
said that “ The objection to judicial [review] of an unauthorized 
exercise of powers is not weighty,” Joint Anti-Fascist Refugee 
Comm. v. McGrath, 341 U. S. 123, 157 (1951).

24 Estep v. United States, supra at 125. There must, after all, 
be some orders issued by Local Boards which are so thoroughly 
and unarguably lawless that they can be reviewed in pre-induction 
civil proceedings, if not simply ignored with impunity. _ What 
disposition would be made, for example, of a suit to declare invalid 
induction orders issued to members of this Court in light of the 
express Congressional deferment granted by Sec. 6(f)  of the Act, 
to say nothing of the other grounds for deferment or exemption 
to which all of the Justices are presumably entitled. Cf. Schwartz 
v. Strauss, 206 F. 2d 767 (2nd Cir. 1953) (Frank, C.J., concur­
ring). I f  anything, petitioner’s Sec. 6(g) exemption might be 
said to be more emphatic than the deferment granted by Sec. 6(f).  
But compare Kimball v. Selective Service Local Board No. 15, 
283 F. Supp. 606 (S. D. N. Y. 1968), extending the Solicitor 
General’s concession in this case to student II-S deferments.



43

D. Congress, in Enacting Section 1 0 ( b ) ( 3 ) ,  Did Not Intend 
to Bar Suits Such as the Present One.

In enacting Sec. 10(b)(3), Congress did not intend to 
preclude a suit like the instant one. It is axiomatic that a 
statutory construction which avoids constitutional ques­
tions is to be preferred. More particularly, the intent to 
exclude the jurisdiction of the federal courts must plainly 
appear from the language and history of the enactment. 
No such explicit legislative intent appears here.

This is a statute uniquely in need of instructive judicial 
gloss. Its legislative history indicates that Congress was 
interested in “ restating” the law as it existed in June 
1967. See, House Report No. 267, Committee on Armed 
Services, at 7, 30-31; Cong. Record, Vol. 113 (June 12, 
1967) S.8052.

In indicating that it was “ codifying” preexisting law, 
Congress did not make clear what law it had in mind. To 
be sure, the case law prior to June, 1967, contained numer­
ous decisions which required full exhaustion of adminis­
trative remedies and stated that only a criminal defense 
or a habeas corpus proceeding could be utilized as vehicles 
for challenging the validity of a draft board order. E.g., 
Witmer v. United States, 348 U. S. 375 (1955); Watkins v. 
Rwpert, 224 F. 2d 47 (2d Cir. 1955); Tamarkin v. Selective 
Service System, 243 F. 2d 108 (5th Cir. 1957); Woo v. 
United States, 350 F. 2d 992 (9th Cir. 1965). However, there 
were also decisions which, because of the existence of 
special and compelling circumstances, either departed from 
the strict requirements of total administrative exhaustion 
or allowed the draft board’s order to be challenged by way 
of injunctive suit prior to induction. E.g., Townsend v.



44

Zimmerman, 237 F. 2d 376 (6th Cir. 1956); Glover v. United 
States, 286 F. 2d 84 (8th Cir. 1961); Wolff v. Local Board 
No. 12, supra; Ex Parte Fabiani, 105 F. Supp. 139 (E. D. 
Pa. 1952); Tomlinson v. Hershey, 95 F. Supp. 72 (E. D. Pa. 
1949); United States v. Willard, 211 F. Supp. 643 (N. D. 
Ohio 1962). Cf. Schwartz v. Strauss, 206 F. 2d 767 (2d Cir. 
1953) (concurring opinion). Thus, Congress should be 
held to have meant to include all prior law, including cases 
life Wolff and others which recognized a broader scope of 
judicial review in this area.

An analogous situation was presented when Congress 
“ codified” the law governing federal habeas corpus in 
1948. 28 U. S. C. 2241 et seq. In giving content to these 
enactments this Court relied heavily on its own prior de­
cisions. See, e.g., Darr v. Burford, 339 IT. S. 200 (1950); 
United States v. Eayman, 342 U. S. 205 (1952); Brown v. 
Allen, 344 IT. S. 443 (1953); Irvin v. Dowd, 366 IT. S. 717 
(1959). Whenever statutory language seemed at odds with 
prior developed case law, this Court found that Congress 
had not intended to depart from established procedures or 
diminish known rights. The lower federal courts have 
taken a similar approach with regard to the recent 1966 
legislation on habeas. E.g., White v. Swenson, 261 F. Supp. 
42 (W. D. Mo. 1966); Plummer v. Louisiana, 262 F. Supp. 
1021 (D. C. La. 1967). Thus, there is sound authority for 
finding a legislative intent to restate all prior law.

Respondents will no doubt argue that the legislative his­
tory of Section 10(b)(3) reflects displeasure with Wolff 
and the intent to “ overrule” it. But that history is more 
consistently interpreted to indicate criticism of the ex­
haustion and justiciability aspects of Wolff rather than an 
effort to repudiate its constitutional basis. See Note, 81



45

Harv. L. Eev. 685 (1967). In Wolff the plaintiffs had not 
completed the various appeals procedures available within 
the Selective Service System. Here, however, petitioner 
exhausted those remedies and his induction was imminent 
until stayed. It would be a juridically empty gesture to 
require the one final step before his claims can become ju­
dicially cognizable.

II.
The Declaration of Delinquency, Punitive Reclassifica­

tion and Order to Report for Induction in This Case Are 
Invalid.

A. Petitioner’s Reclassification Is Contrary to an Exemption 
Expressly Granted by Statute.

As a duly enrolled student in a recognized divinity 
school satisfactorily pursuing a full-time course of in­
struction, petitioner was automatically entitled to an ex­
emption from military service under Sec. 6(g). The lan­
guage of that section is unambiguous; the exemption is 
not conditioned on the making of a request, cf. Sec. 6(i) (2), 
or on the performance of any duty.

Nor did Congress grant the Selective Service System 
the power to condition that exemption. In defining the 
powers of the System, Congress, in Section 10(b) of the 
Act, stated that the President is authorized:

“ 1) to prescribe the necessary rules and regulations 
to carry out the provisions of this title;”

In authorizing the President to promulgate the regula­
tions under which local boards operate, Congress clearly



46

intended to authorize only those regulations which im­
plemented the substantive provisions of the Act, including, 
of course, that providing for the automatic Sec. 6(g) ex­
emption. And since the President was authorized to dele­
gate to local boards only that “ authority vested in him 
under this title,” Sec. 10(c), Congress clearly did not intend 
that Selective Service should do that which was forbidden 
the President. Thus, as the government has conceded, “ The 
board has in fact acted contrary to the terms of the statute. 
. . . ” Memorandum for Respondents, p. 13.

One need hardly have to rely on the citation of authority 
to establish that administrative agency action which flies 
in the face of explicit statutory language is a nullity, but 
authority is of course available. E.g., Estep v. United 
States, supra; Leedom v. Kyne, supra; Harmon v. Brucker, 
supra; McCulloch v. Sociedad Nacional, supra; Quaid v. 
United States, 386 F.2d 25 (10th Cir. 1968). As this 
Court said in Peters v. Hobby, 349 U. S. 331, 345 (1955), 
“Agencies, whether created by statute or Executive Order, 
must of course be free to give reasonable scope to the terms 
conferring their authority. But they are not free to ignore 
plain limitations on that authority.” See also Greene v. 
McElroy, 360' U. S. 474, 507-508 (1959).

B. Punitive Reclassification Is Not Authorized by Statute.

There is not a single wmrd in the Act which so much 
as suggests that induction is to be used as a summary pun­
ishment for the breach of duties under Selective Service 
law. The word “'delinquency” appears but once. In a pro­
vision added in 1967 to implement the “prime age group” 
idea, Congress defined such a group as “ the age group from 
which selections for induction into the Armed Forces are



47

first to be made after delinquents and volunteers.” Act 
§6(h)(1). This was in deference to the pre-existing Selec­
tive Service Regulation on order of induction. Reg. 1631.7. 
The amendment is perfectly consistent with a non-penal 
interpretation of “delinquency” status, which, it will be 
shown below, is the most reasonable interpretation to which 
the Regulations dealing with delinquency lend themselves. 
The legislative history of the amendment reflects no 
Congressional approval of the use of delinquency status 
and reclassification as a punitive procedure leading to the 
punishment of induction. Congress was concerned with the 
order of call, not with the totally different problems raised 
in this case.25

That induction is not authorized to be used as punish­
ment for alleged offenses, was confirmed by the Executive 
Branch. In response to a letter concerning punitive reclassi­
fication from President Kingman Brewster of Yale Uni­
versity, Air. Joseph A. Califano, Jr., Special Assistant to 
the President, wrote:

“ The President has asked me to thank you for your 
letter of December 21 in behalf of the Presidents of 
the Ivy Group of Colleges and Universities. We com­
pletely agree with the need to uphold fully the spirit 
as well as the letter of the constitutional assurances 
of due process. Any potential threat to these funda­

25 In United States v. Eisdorfer, No. 67 Cr. 302 (E. D. N. Y. 
June 24, 1968), Dooling, J., noted that:

“ The delinquency procedure has no statutory authorization and 
no Congressional support except what can be spelled out of 
the 1967 Amendment [to Sec. 6 (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 priv­
ileges.”  Opinion, p. 10.



48

mental values has no place in a democracy. As your 
letter states, the Selective Service System is not an 
instrument to repress and punish unpopular views. 
Nor does it vest in draft boards the judicial role of 
determining the legality of individual conduct . . . .  
Where violations occur, the judicial system must be 
invoiced.”  (Italics added.) N. Y. Times, December 
31, 1967.

The Justice Department, likewise, does not interpret 
the Act to allow Local Boards to impose induction as a 
punishment. In response to an inquiry from Senator Hart 
to the Attorney General, the Department (through As­
sistant Attorney General Fred M. Yinson, Jr.) stated that 
only the punishments explicitly set forth in the Act may be 
imposed: “In short, where opinion is expressed, if there 
is no transgression of law, then no sanctions can be im­
posed. If there is a transgression, then the sanctions which 
attach to it are all that should be applied.” 26 (Italics 
added.) The Department used the same language in a 
letter to Professor Herman Schwartz of the University of 
Buffalo Law School, noting that delinquency proceedings 
are not appropriate where there has been “ a transgression,” 
but only when an individual has failed to meet an affirmative 
obligation (citing failure to register, failure to report an 
address, and failure to report for induction). In these 
latter situations, the letter observed, delinquency pro­
ceedings give individuals an opportunity to avoid crim­
inal liability by “bring [ing] themselves into compliance” 
with the Act.27 It is precisely this distinction between de­
linquency proceedings to enforce compliance with duties

26 Letter of January 6,1966.
27 Letter of January 6,1966.



49

the registrant owes to his Local Board—which the Act 
and the Regulations may properly be read to authorize— 
and delinquency proceedings to impose the punishment 
of induction for alleged violation of law—which would 
violate the Constitution as well as the Act and Regula­
tions—that petitioner relies upon here.

In concluding that the Act cannot be interpreted to au­
thorize punitive reclassification and the penal use of 
induction, one should note the traditional principle that 
Acts of Congress be read in light of “ our underlying con­
cepts of procedural regularity and basic fair play.” 28 Con­
gress is presumed to be as concerned as the courts to pro­
tect basic rights of due process, and no statute should be 
construed to delegate authority to establish procedures 
“ traditionally believed to be inadequate to protect affected 
persons.” 29 Unless Congress “ specifically has decided that 
the imposed procedures are necessary and warranted and 
has authorized their use,” 30 there must be no imputation 
to Congress of the intention that there be any departure 
“ from the traditional concepts of fair trial.” 31 The Court 
has also emphasized that “Without explicit action by law 
makers, decisions of great constitutional import and effect 
would be relegated by default to administrators who . . . 
tice Frankfurter observed, “From a great mass of cases, 
running the full gamut of control over property and liberty,

28 Gonzales v. United States, 348 U. S. 407, 412 (1955).
29 Greene v. McElroy, 360 U. S. 474, 504 (1959). Mr. Justice 

Frankfurter observed, in Joint Anti-Fascist Refugee Comm. v. 
McGrath, 341 U. S. 123, 168-169 (1951) (concurring opinion), 
that Congress, the Executive and administrative agencies have 
traditionally authorized and established procedures consonant with 
basic principles of fairness and due process.

30 Greene v. McElroy, 360 U. S. at 507.
31 Estep v. United States, 327 U. S. 114, 122 (1946).



50

there emerges the principle that statutes should be inter- 
are not endowed with authority to decide them.” 32 Mr. Jus- 
preted, if explicit language does not preclude, so as to 
observe due process in its basic meaning.” 33

C. Punitive Reclassification Is Not Authorized by the 
Regulations.

If the Regulations provided for reclassification and in­
duction as a punishment for the breach of duties under 
selective service law, they would have to be held invalid, 
because, as we have shown, the Act does not delegate any 
such power. They would also be unconstitutional, for the 
reasons set forth below, Point III (D). But the Regula­
tions do no such thing, and all that is required for the de­
cision in this case is to hold that the act of Local Board 
11 in declaring petitioner a delinquent and reclassifying 
him I-A for turning in his registration certificate is unau­
thorized by the Regulations, because if the delinquency 
procedure has any validity at all, its application must be 
confined to enforcing the registrant’s duty to provide the 
information required by local boards to enable them in­
telligently to perform their classification function.

The question, therefore, is whether the possession re­
quirement of Reg. 1617.1 is the kind of “ duty” which, if 
not performed, can be the basis for delinquency and re­
classification. We believe it is not.

32 Greene v. McElroy, 360 U. S. at 507. As Mr. Justice Holmes 
once observed in a similar context: “ [I]t would take very strong 
language to convince me that Congress ever intended to give such 
a practically despotic power to any one man.” Milwaukee Pub. Co. 
v. Burleson, 255 U. S. 407, 437 (1921) (dissenting opinion).

33 Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. S. 123, 
165 (Frankfurter, J., concurring).



51

The principal responsibility of local boards is to select 
yonng men for induction into the armed forces. “ Classifica­
tion is the key to selection . . .  ” , Reg. 1622.1(b), and the 
key to classification is “ pertinent” information. Reg. 1622.1 
(c).

The Act and regulations empower the boards to secure 
this information in a variety of ways. Sec. 15(b) of the 
Act provides that “ It shall be the duty of every registrant 
to keep his local board informed as to his current address 
and changes in status as required by such rules and regula­
tions as may be prescribed by the President.” Pursuant 
to Sec. 15(b), Reg. 1641.7(a) requires every registrant 
“ to keep his local board currently informed of his occu­
pational, marital, family, dependency, and military status, 
of his physical condition, of his home address, of his 
receipt of any professional degree in a medical, dental 
or allied specialist category.” Changes in any of these 
conditions must be reported within ten days of their 
occurrence. Reg. 1641.7(b) requires every registrant to 
“ submit to his local board in writing all information which 
the local board may at any time request from him concern­
ing his occupational, marital, family, dependency, or mili­
tary status or his physical condition or his receipt of a 
professional degree.”

Reg. 1622.1(c) provides that “ the mailing by the local 
board of a Classification Questionnaire (SSS Form 100)
. . . shall be notice to the registrant that unless information 
is presented to the local board . . . which will justify his de­
ferment or exemption from military service the registrant 
will be classified in Class I-A.” Furthermore, “ the local 
board shall proceed with the registrant’s classification and 
classify him whenever (1) he fails to return his Classifica­



52

tion Questionnaire . . . , or (2) lie fails to provide the local 
board with any other information concerning his status 
which he is requested or required to furnish.” Beg. 1623.1 
(b). In addition, “The local board shall keep informed of 
the status of classified registrants. Registrants may be 
questioned or physically or mentally reexamined, employers 
may be required to furnish information, police officials or 
other agencies may be requested to make investigations, 
and other steps may be taken by the local board to keep cur­
rently informed concerning the status of classified regis­
trants.” Reg. 1625.1(c). Finally, local boards are author­
ized to receive information from state and local welfare 
and governmental agencies. Reg. 1621.14.

Information being indispensable to classification, the 
local board must have some device by which to secure that 
information from uninformative registrants. That device 
is the delinquency procedure. Regs. Part 1642.

Delinquency, properly viewed, is analogous to civil con­
tempt. It is a procedure designed not to punish for past acts, 
but to coerce compliance with the procedures of the sys­
tem leading up to induction. Delinquency status says to 
the registrant that until you bring yourself into compliance 
with the rules designed to enable your local board to en­
sure that you are properly classified, you will be treated 
as having waived all the benefits of the System’s proce­
dures, and therefore as available for immediate induc­
tion.34

34 “It would appear that unless it can be shown that settled 
administration and published instructions having the effect of 
rules or regulations have essentially turned the delinquency regu­
lations into standardized compliance-securing procedures that are 
compatible with the Act and the valid substantive regulations 
adopted under it, they cannot be regarded as a legally sufficient



53

If delinquency status and subsequent induction is treated 
like civil contempt, then the constitutional problems dis­
cussed in the next section are no longer relevant.35 It is 
simply the sanction which the affected person brought upon 
himself, and which he had full power to avoid by bringing 
himself into compliance with the requirements of the proce­
dures by which registrants are processed. He could have 
had himself removed from delinquency status at any time, 
Eegs. 1642.4(c), 1642.10, as the contemnor could purge him­
self of contempt at any time, and the coercion visited upon 
him relates directly and specifically to his failure to abide 
by the rules of the proceedings in which the coercion is 
applied. The delinquent, like the contemnor, is not being 
coerced into compliance with some legal requirement foreign 
to the proceedings of the body imposing the coercive sanc­
tion. No one, of course, has ever suggested that civil con­
tempt could be used to secure compliance with law gen­
erally. That would be punishment. The same is true in the 
case of delinquency.

The tenor of the delinquency regulations (Part 1642) is 
certainly to this effect. They explicitly provide for the ex­
punging of delinquency—indeed, they relax the ordinary 
rule that a reopening of classification cannot be had after 
an order to report for induction, thereby allowing the regis­
trant to conform to the requirements of Selective Service

authorization for reclassification or priority-of-induction that 
would not otherwise be authorized by the Act and valid substan­
tive regulations adopted under it. Cf. Panama Refining Co. v. 
Ryan, 1935, 293 U. S. 388, 420 et seq.; Zemel v. Rusk, 1965, 381 
U. S. 1, 17-18.” United States v. Eisdorfer, supra at 11.

35 See Shillitani v. United States, 384 U. S. 364 (1966). The 
Solicitor General, in his Memorandum for the Respondents (p. 8) 
accepts this civil contempt analogy.



54

procedure right up to the last moment. The registrant is 
not bound by his waiver of the System’s procedural rights 
until he is actually in the armed forces. Up until the very 
last moment, by cooperating with the procedures which 
enable his local board to make appropriate classification 
decisions, he can receive consideration of his claim that he 
should not be considered available for immediate induction. 
Regs. 1642.14(b). The “Delinquency Notice” itself requests 
the registrant to contact his local board at once, obviously 
for the purpose of clearing up the alleged default.36

Since delinquency is a “ civil” means of enabling the 
board to perform its classification and selection functions, 
clearly it cannot be used against one who does not possess 
his registration certificate because that fact has nothing 
to do with these functions. The Board’s consideration of 
the propriety of a registrant’s current classification (or a 
classification he claims), or its ability to maintain official 
contact with him, is not impeded or affected by whether 
or not he happens to possess the required document, as long 
as the registrant otherwise provides his board with the 
pertinent information required by the statute and regula­
tions.

It follows from the fact that the possession requirement 
is not an integral part of the relationship between a Local 
Board and its registrants, that to use reclassification as 
a sanction to enforce the requirement is to use it as punish­
ment, not as “ civil” enforcement of the rules of the 
classification procedure. This the regulations do not and 
could not provide. It is as foreign to their purpose as 
punitive reclassification for “ interfering” with Selective

36 Appendix, infra, p. 2a.



55

Service (a crime under Sec. 12 of the Act) was held to he in 
the Wolff case. There the Court of Appeals for the Second 
Circuit held that “no regulation authorizes a draft board to 
declare a registrant delinquent or to reclassify him” for 
an alleged act in violation of the Act or the regulations. 
“ [Jurisdiction over offenses of this character is,” the 
Court continued, “ exclusively granted to the District
Courts___ ” 372 F. 2d at 821-22. Delinquency proceedings,
on the contrary, are designed to give registrants an oppor­
tunity to “bring themselves into compliance with the rules 
of the classification procedure,” as the Justice Department 
has observed. Acts unrelated to the classification process 
itself may be crimes under the Act. As such, they may be 
punishable—after a fair trial, before an impartial judicial 
tribunal, with all of the required procedural safeguards 
and rights. They may not, under the regulations, the Act, 
or the Constitution, be punished in summary proceedings 
appropriate only for “ civil” enforcement of the rules of 
the classification process.

D. Punitive Reclassification Is Unconstitutional.

The purpose of reclassifying a registrant who has not 
cured his delinquency is to make him available for imme­
diate induction. Reg. 1642.13. Selective Service is quite 
candid about this, observing that “ Since the purpose of the 
law is to provide men for the military establishment rather 
than for the penitentiaries” induction is preferable to 
prosecution for “minor infractions of rules during [a regis­
trant’s] selective service processing.” 37 Reclassification of

37 Selective Service System, Legal Aspects of Selective Service 
(1963), p. 42. Both the" Selective Service System and the Depart­
ment of Justice, during World War II, had candidly referred 
to the reclassification of delinquents as an “administrative pen-



56

delinquents, therefore, is directed toward the sanction of an 
induction order. Consideration of the validity of such re­
classification for violation of a requirement of the Act or 
Regulations cannot he separated from questions concerning 
the permissibility of using induction as a punishment, and 
the procedures required in order to do so. When the “ de­
linquency” is based upon an alleged act in violation of 
law, as in this case, the use of induction as a punishment 
raises substantial questions about the constitutionality of 
the application of such a sanction. Though we argued above 
that the constitutional issues need not be met, because 
neither the Regulations nor the Act authorize the punitive 
use of induction, we examine here the constitutional prob­
lems that have to be faced if this is not the case.

In considering the validity of punitive reclassification, it 
is important to keep in mind that General Hershey has 
been quite candid about his purposes in directing the re­
classification of persons alleged not to possess their draft 
cards, or who otherwise allegedly violate the Act or Reg­
ulations. He regards reclassification for “delinquency” 
as a legitimate punishment which the Selective Service 
System may impose when it determines that a registrant 
has engaged in “ illegal activity.” Letter to Local Boards, 
October 26, 1967 (Appendix, infra, p. la). His letter en­
couraged Local Boards, “ if evidence of violation of the act 
and regulations is established,” to declare the registrant 
a delinquent and “process him accordingly.” Ibid. He re­
peated this position frequently during the ensuing con-

alty.”  Enforcement of the Selective Service Law, Selective Ser­
vice System Special Monograph No. 14, 56 (1951) [hereinafter 
Enforcement Monograph]; Snpp. No. 18, Justice Department Cir­
cular No. 3421 to United States Attorneys, dated October 18, 1943 
[contained in Enforcement Monograph E-67].



57

troversy over his “usurpation of power” in requesting draft- 
boards to “become extra legal judges of the legality of 
acts of protest”—in the language of his critics. He ex­
plained that he was not attempting to “ suppress lawful 
dissent” but only “ to stop illegal activity” (New York 
Times, Dec. 12, 1967, p. 16, col. 1). At no point did he 
deny or even qualify the apparent conclusion that he con­
templated use of the threat of reclassification and induc­
tion to deter what he had concluded were unlawful activi­
ties, and the actual imposition of those sanctions to punish 
those who, in the opinion of their Local Board, are “ guilty.”

The central issue is whether an induction order following 
upon a punitive reclassification would be penal in the con­
stitutional sense. On this question there can hardly be 
doubt. The leading case on the definition of “punishment” 
is Kennedy v. Mendoza-Martinez, 372 IJ. S. 144 (1963). 
The Court there held unconstitutional a statute divest­
ing of their citizenship those who leave or remain outside 
the United States in time of war or national emergency to 
avoid service in the armed forces. The statute afforded 
certain administrative procedures to determine the rele­
vant facts, with judicial review, but the entire Court was 
agreed that if deprivation of citizenship was a “punish­
ment” these procedures were insufficient under the Fifth 
and Sixth Amendments. The majority held that expatria­
tion was in fact punishment. It was able to do so based 
upon extensive legislative history of the statute—which re­
course is of course not available here, since only Regula­
tions are involved. But the Court set forth the relevant 
criteria to be used in the absence of legislative history.

“The punitive nature of the sanction here is evident 
under the tests traditionally applied to determine



58

whether an Act of Congress is penal or regulatory in 
character, even though in other cases this problem 
has been extremely difficult and elusive of solution. 
Whether the sanction involves an affirmative disability 
or restraint, whether it has historically been regarded 
as a punishment, whether it comes into play only on 
a finding of scienter, whether its operation will pro­
mote the traditional aims of punishment—retribution 
and deterrence, whether the behavior to which it ap­
plies is already a crime, whether an alternative pur­
pose to which it may rationally be connected is assign­
able for it, and whether it appears excessive in rela­
tion to the alternative purpose assigned are all rele­
vant to the inquiry, and may often point in differing 
directions. Absent conclusive evidence of congres­
sional intent as to the penal nature of a statute, these 
factors must be considered in relation to the statute on 
its face.” 372 U. S. at 168-169.

Of the Mendosa-Martinez criteria, at least four clearly 
apply here.

(1) Induction “ involves an affirmative disability or re­
straint.” This could hardly be gainsaid in light of the 
well-recognized facts of military life ; indeed, the availabil­
ity of habeas corpus to secure release from the armed 
forces, Eagle v. United States ex rel. Samuels, 329' U. S. 
304 (1946), necessarily rests upon this basis.

(2) Induction premised upon ‘delinquency’ “ comes into 
play only on a finding of scienter.” The Act makes it an 
offense to “knowingly” fail or neglect to perform a re­
quired duty. Sec. 12(a). The Supreme Court has imposed 
the same criminal mens rea requirement upon liability for



59

delinquency status, reclassification, and consequent induc­
tion. Bartchy v. United States, 319 U. S. 484 (1943).

(3) Punitive reclassification followed by induction is 
designed to “promote the traditional aims of punishment— 
retribution and deterrence.” SSS Form 304 resolves any 
doubt on this score, for it informs the delinquent registrant 
that unless he brings himself into conformity with his 
duties under the Act and Regulations, he will be liable to 
reclassification to Class I-A or to prosecution. One is at 
a loss to imagine any functions other than deterrence and 
retribution which might be served by taking a registrant 
out of a classification in which he otherwise belongs—-like 
IY-D (ministerial), IY-F (unfit for service), II-S (stu­
dent), or III-A (dependency)—and reclassifying him for 
immediate induction into the armed forces.

(4) “ [T]he behavior to which [punitive reclassification 
and induction] applies is already a crime,” under Sec. 12 
of the Act. United States v. Kime, 188 F. 2d 677 (7th Cir. 
1951), cert, denied 342 IT. S. 825 (1951); United States v. 
Hertlein, 143 F. Supp. 742 (E. D. Wise. 1956).

In summarjq then, induction as a sanction imposed after 
punitive reclassification for an alleged violation of a Se­
lective Service duty meets the test for “punishment” set 
forth in Mend,oza,-Martinez™ It is therefore essential to 
consider the process of punitive reclassification to deter­
mine whether it meets the minimum constitutional stand­
ards for a procedure leading to the imposition of “punish­
ment.” * 39

33 See also United States v. Brown, 381 U. S. 437 (1965) for a 
more recent application of the test for “ punishment.”

39 It should be noted that while some members of the Court in 
Mendoza-Martinez disagreed with the holding that the sanction



60

The essential constitutional requirements for the imposi­
tion of punishment are:

(1) Counsel. In Selective Service proceedings, includ­
ing punitive reclassifications by which it is sought to im­
pose induction as a punishment, there is no right to the 
assistance of any counsel, let alone to appointed coun­
sel. Cf. Gideon v. Wainwright, 372 U. S. 335 (1963); In 
Re Gault, 387 U. S. 1, 34-42 (1967). Reg. 1624.1(b) states: 
“ [N]o registrant may be represented before the local board 
by anyone acting as attorney or legal counsel.” The courts 
have upheld the denial of counsel in Selective Service pro­
ceedings on the ground that they “are non-judicial in na­
ture and clearly non-criminal.” United States v. Sturgis, 
342 F. 2d 328, 332 (3rd Cir.), cert, denied, 382 U. S. 879 
(1965); United States v. Capson, 347 F. 2d 959 (10th 
Cir.), cert, denied, 382 U. S. 911 (1965). This may well 
be a proper analysis for the ordinary classification process, 
but the court’s emphasis on the non-judicial, non-criminal 
nature of the proceedings shows how inappropriate the 
classification process is for determining questions of pun­
ishable guilt.40

there was “punishment” (on the ground that its purpose was not 
to deter or to impose retribution on the individuals, but rather to 
“regulate” the armed forces—by maintaining their morale in the 
face of wartime draft evaders), the Court was unanimously of the 
view that “punishment” in the institutional sense can only be 
imposed after a trial.

40 As if to emphasize that the Government Appeal Agents pro­
vided for in the Regulations (Reg. 1604.71) have little in common 
with the kind of counsel the Constitution requires, General Hershey 
last year requested all Agents “ to make known to the local board 
any knowledge of . . . violations by a registrant.” Letter to all 
Government Appeal Agents, Nov. 2, 1967. N. Y. Times, November 
17, 1967.



61

(2) Confrontation and Cross-Examination. The Sixth 
Amendment also guarantees to the accused “ the right . . . 
to he confronted with the witnesses against him . . . 
which includes the right of cross-examination. Pointer v. 
Texas, 380 U. S. 400 (1965); Douglas y. Alabama, 380 U. S. 
415 (1965). No such rights are provided for in the Regu­
lations, and Part 1624 (“Appearance before Local Board” ) 
plainly does not contemplate a hearing in which a regis­
trant accused of a violation can confront and cross-examine 
his accusers. See Harris v. Ross, 146 F. 2d 355 (5th Cir., 
1944).

(3) Compulsory Process. Not only is this right not af­
firmatively enforced in Selective Service proceedings, but 
the Regulations explicitly provide that it is wholly within 
the discretion of a Local Board to decide whether to 
“permit any person to appear before it with or on behalf 
of a registrant. . . . ” (Reg. 1624.1(b)). (Italics added.) 
It has been estimated that forty percent of all Local Boards 
allow no witnesses at all, and half of those which sometimes 
admit witnesses do so only separately from the registrant." 
It has been held that a registrant has no constitutional or 
statutory right to have witnesses before his Local Board. 
See, e.g., Uffleman v. United States, 230 F. 2d 297 (9th Cir., 
1956); Harris v. Ross, 146 F. 2d 355 (5th Cir., 1944).* 42

(4) Self-Incrimination. In the ordinary classification 
process the burden is on the registrant to establish his 
eligibility for a deferment or exemption. Regs. 1622.1(c); 
1622.10; 1623.2. A registrant is bound to provide all re­

"N ote, 114 U. Pa. L. Rev. 1014, 1033, n. 114 (1966).
42 Reg. 1621.15 gives Local Boards the power to subpoena wit­

nesses, but it seems clear that a registrant has no right to the 
exercise of this right in his behalf.



62

quired information, to notify his Board of any change in 
his circumstances, and to answer such further questions 
as his Board may ask. Reg. 1625.1; Act §15 (b). As the 
Selective Service itself observes: “The burden now is, 
therefore, definitely upon the registrant to show that he 
should not be deemed available for immediate military 
service.” Selective Service System, Legal Aspects of Se­
lective Service (1963), p. 7. The situation is no different 
in delinquency proceedings looking toward the punitive 
imposition of induction. After a registrant receives SSS 
Form 304, the “Notice of Delinquency,” it is entirely up 
to bim to exonerate himself if he can. Unless he persuades 
the Local Board that he was not “guilty,” he will quickly 
be inducted. See Regs. 1642.4, 1642.12, 1642.13, 1642.14. 
Cf. Spevack v. Klein, 385 U. S. 511 (1967).

(5) Burden of Proof. Closely connected with the ac­
cused’s right to insist that the State prove its case against 
him is his right to demand that such proof be “beyond a 
reasonable doubt.” See Davis v. United States, 160 U. S. 
469, 486-488 (1895); Holland v. United States, 348 U. S. 
121, 139-140 (1954). Obviously, since Selective Service 
procedure puts the burden of proving his innocence upon 
the accused registrant, this requirement is not met in de­
linquency proceedings.

(6) An Impartial Tribunal. The Sixth Amendment re­
quires an “impartial jury,” and an accused is also enti­
tled to an impartial judge. Turney v. Ohio, 273 U. S. 510 
(1927). With one minor exception,43 no change of venue 
or disqualification for bias (or even opportunity for re­
cusal) is available under Selective Service procedure. Yet

«  Keg. 1604.55. Cf. Reg. 1604.62.



63

the Marshall Commission documented the extraordinary 
prejudice against conscientious objectors which exists in 
at least one state.44 Some inexcusable examples of preju­
dice occur in the cases. See, e.g., Niznik v. United, States, 
173 F. 2d 328 (6th Cir.), cert, denied, 337 IT. S. 925 (1949). 
Surely a system which is to be used for the imposition of 
punishment must afford some way in which an accused 
can, in proper circumstances, secure an impartial tribunal.45

(7) Public Trial. The Sixth Amendment guarantees a 
“public trial.” As the Supreme Court observed in In re 
Oliver, 333 IT. S. 257 (1948), the friends, relatives and 
counsel of the accused have universally been held entitled 
to be present. Selective Service procedures, as noted above, 
do not contemplate anything but secret proceedings.

(8) Jury Trial. The Fifth Amendment guarantees this 
right in proceedings leading to serious punishments. See 
Cheff v. Schnackenberg, 384 U. S. 373 (1966). No such 
right is afforded in the Selective Service System.

Such, in sum, are some of the major constitutional rights 
which an accused faced with “punishment” must be af­
forded, Kennedy v. Mendoza-Martinez, supra, and which

44 “ In Pursuit of Equity: Who Serves When Not All Serve?” , 
Report of the National Advisory Commission on Selective Service 
(1967), p. 29. The Report also states that fewer than 3.3% of all 
Local Board members are Negro, Puerto Rican, Spanish Ameri­
can, Oriental or American Indian, Id., p. 19.

45 The Selective Service procedures—including those relating to 
delinquents— contain innumerable instances in which important 
decisions are left to the discretion of System personnel. See, 
e.g., Regs. 1642.4(c) (Local Board “may” remove registrant from 
delinquency status), 1642.12 (Local Board “may” classify de­
linquent registrant I-A). Such a thoroughly discretionary admin­
istrative system is certainly an inappropriate agency for the im­
position of punishment, and particularly here where First Amend­
ment values are involved.



64

have no counterpart in Selective Service delinquency and 
punitive reclassification proceedings. It is difficult to con­
ceive of a proposition of constitutional law clearer than 
the conclusion to which this analysis inevitably leads: 
induction as a punishment cannot be imposed for alleged 
delinquency following procedures of the sort described. 
For as the Court observed in Mendosa-Martines, “ If the 
sanction these sections impose is punishment, and it plainly 
is, the procedural safeguards required as incidents of a 
criminal prosecution are lacking. We need go no farther.” 
372 II. S. at 167.46

E. Local Board No. 11 Did Not Follow the Procedure for 
Punitive Reclassification Required by the Regulations and 
by Due Process.

An administrative agency is bound to act according to 
its own procedural rules when its action affects a substan­
tial interest of an individual.47 This is true even if, absent 
the agency’s rule, the individual would have had no due 
process right to the prescribed procedure.48 As the Supreme 
Court held in Estep v. United States, supra, actions of a

46 The need for impartial, responsible enforcement is critically 
important when the alleged offense consists of activity claimed 
to be protected under the First Amendment. A  prosecution in 
such circumstances, if it were wholly motivated by disapproval 
of the content of the political idea sought to be expressed, would 
certainly be invalid. But absent the open, responsible, careful 
procedure of a criminal trial, such impermissible criteria for en­
forcement are necessarily of such “ low visibility” that constitu­
tional supervision is virtually impossible. See Cafeteria Workers 
v. McElroy, 367 U. S. 886, 900-901 (1961) (Mr. Justice Brennan, 
with the Chief Justice and Justices Black and Douglas, dissenting).

47 Jaife, Judicial Control of Administrative Action 587 (1956).
48 United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 

(1954) ; Service v. Dulles, 354 U. S. 363 (1957); Vitarelli v. 
Seaton, 359 U. S. 535 (1959).



65

local board in derogation of the Act or valid regulations 
made under it are “ lawless and beyond its jurisdiction.” 49 
Scrupulous adherence by local boards to the procedural 
requirements of the regulations is also demanded by the 
■congressional admonition in Sec. 1(c) of the Act that the 
system be “ fair and just,” and is particularly important 
given the typically very limited judicial review of local 
board factual determinations.50 Eecognizing the need for 
strict procedural regularity to ensure the fairness of largely 
unreviewable fact finding, courts have frequently granted 
judgments of acquittal, or reversed convictions, because 
of a procedural default in the classification process.51 Fail­
ure of a local board to afford a registrant the procedure 
required by the regulations has been held to entitle the 
registrant, in appropriate circumstances, to an injunction 
against further proceedings looking toward induction until 
the procedural default has been rectified.52

Timely and adequate notice is one of the cardinal princi­
ples of procedural fairness and it has often been judicially 
enforced in Selective Service cases by demanding adher­

19 327 U. S. at 121.
50 See Note, Fairness and Due Process Under the Selective Ser­

vice System, i l l  U. Pa. L. Rev. 1014,1023 (1966).
51 “ [I] t is the uniform view of the courts passing on the subject 

that failure to accord a registrant the procedural rights provided 
by the regulations invalidates the action of the local board.” Knox 
v. United States, 200 F. 2d 398, 401 (9th Cir. 1952). See also 
Gonzales v. United States, 348 U. S. 407 (1955) ; Simmons v. 
United States, 348 U. S. 397 (1955); Olvera v. United States, 223
F. 2d 880 (5th Cir. 1955); United States v. Vincelli, 215 P. 2d 
210, reh. denied, 216 P. 2d 681 (2nd Cir. 1954) ; United States v. 
Burlich, 257 P. Supp. 906 (S. D. N. Y. 1966).

52 Townsend v. Zimmerman, 237 P. 2d 376 (6th Cir. 1956) (per 
Stewart, C.J., now Mr. Justice Stewart).



6 6

ence to a regulation requiring notice, or by invoking due 
process directly.53 In the case of alleged “delinquents,” the 
regulations are explicit on the subject of notice. Reg. 
1642.4(a) provides that a Local Board “may declare [a 
registrant] to be a delinquent” if he has failed to perform 
a duty required of him. Reg. 1642.4(b) provides that 
“When the local board declares a registrant to be a delin­
quent, it . . . shall complete a Delinquency Notice (SSS 
Form 304) . . . setting forth the duty or duties which the 
registrant has failed to perform.” The local board shall 
mail the original “ to the registrant.” Finally, Reg. 1642.10 
provides that “No delinquent registrant shall be placed in 
Class I-A, Class I-A-O, or Class 1-0 . . . unless the local 
board has declared him to be a delinquent in accordance 
with the provisions of Section 1642.4 and thereafter has not 
removed him from such delinquency status.” The orderly 
procedure contemplated by these regulations (and the rest 
of Part 1642) could hardly be clearer: (1) information 
comes to the attention of the local board indicating that a 
registrant is delinquent; (2) the local board declares that 
that is the effect of the information and notifies the regis­
trant; (3) the registrant is afforded a reasonable time to 
clear up the matter (see Reg. 1642.4(c)); (4) only if, after 
a reasonable time, the board “has not removed him from 
such delinquency status” may it proceed to reclassify him 
based upon his delinquency status (Reg. 1642.10). This 
is a clear and simple procedure, and in it SSS Form 304 
performs the indispensable function of notice. SSS Form 
304 is itself perfectly explicit as to its purpose. It tells the 
registrant why he has been placed in delinquency status, 
it directs him to communicate at once with his local board

53 See, e.g., United States v. Vincelli, supra; United States v. 
Stiles, 169 F. 2d 455 (3rd Cir. 1948); United States v. Thompson,
D. C. Mass., 1 S. S. L. R. 3059 (1968).



67

or to seek advice from the local board nearest him, and 
it notifies him that his alleged breach of duty is both a 
crime and that, if not cleared up, it may result in a I-A 
classification.

The by now familiar local board practice of sending both 
a delinquency notice and a notice of reclassification on the 
same day is, therefore, forbidden by the regulations. Such 
a procedure deprives the delinquency notice of any func­
tion whatsoever. How can a registrant who receives both 
notices the same day clear up the matter with his local 
board, as SSS Form 304 requires him to do lest he he 
reclassified I-A? How can he remove the delinquency after 
reasonable notice, as Regs. 1642.4(c) and 1642.10 contem­
plate ?

The purpose of the procedure set out in the regulations is 
apparent. Many seeming delinquencies may when brought 
to the attention of the registrant be quickly cured, or turn 
out not to exist. The regulations would be unreasonable, 
and perhaps even void, if a declaration of delinquency 
could be coupled with a simultaneous reclassification to 
I-A with the consequent immediate exposure to an induc­
tion order which the regulations provide.04 The Supreme 
Court has recently reemphasized the constitutional require­
ment of notice in advance of proceedings, holding that no­
tice at an initial hearing, with opportunity for a postpone­
ment, is constitutionally insufficient.65 The mere availability 54 55 *

54 Reg. 1642.13. That SSS Form 304 must be sent a reasonable 
time prior to action by the local board predicated on the delin­
quency status is exemplified by the case of the registrant who is 
already I-A. Obviously, he cannot be ordered inducted before he 
has had a reasonable chance to respond to the Notice of Delin­
quency.

55 In re Gault, 387 U. S. 1, 32-33 (1967). See also United States
v. Thomson, 1 S. S. L. R. 3059 (D. Mass. 1967).



6 8

of a hearing after reclassification is no substitute for timely 
notice. No lawyer will believe that the opportunity to have 
a I-A removed is the same as the right to show, in advance, 
that there is no occasion to reclassify to I-A.

Also to be disposed of is any idea that failure to give 
timely and proper notice may he a trivial default which 
could not cause prejudice. This is not a mere formal de­
fault, properly treated as de minimis. The critical pro­
cedural right to proper, timely notice is denied. As this 
Court said of a similar procedural error, “ This is not an 
incidental infringement of technical rights. Petitioner has 
been deprived of . . .  a fundamental safeguard, and he 
need not specify the precise manner in which he would 
have used this right—and how such use would have aided 
his cause—in order to complain of the deprivation.” Sim­
mons v. United States, 348 U. 8. 397, 406-407 (1955).

III.
Petitioner’s act of returning his registration certificate 

to Local Board No. 11 was conduct protected by the 
First Amendment.

A. Peaceful Conduct Which Is Relevant to the Issue Giving 
Rise to the Protest Is Speech Protected by the First 
Amendment.

Petitioner agrees with this Court’s statement in United 
States v. O’Brien, 88 S. Ct. 1673 (1968), that it is untenable 
to assert that any conduct whatsoever, intended to express 
an idea, can be labelled speech. 88 S. Ct. at 1678. However, 
we believe that, at the very least, symbolic conduct must be 
considered speech if it is peaceful and if it is relevant to 
the issue giving rise to the symbolic protest. For example,



69

a peaceful march in support of better job opportunities 
for Negroes should be considered speech because the march 
is peaceful and because that form of demonstration is a 
relevant and traditional method of voicing protest over 
civil rights and economic issues. On the other hand, the 
surrender of drivers’ licenses to protest the war need not 
be considered speech, since the duty to carry a driver’s 
license has no relationship to war. Thus, in this case, the 
surrender of petitioner’s Registration Certificate to pro­
test the war should be held to be protected speech. Not 
only is its surrender a peaceful act, but since it is also 
a part of the government’s system for fighting a war, the 
surrender is a particularly relevant form of protest.

The rule we propose—that symbolic conduct should be 
considered speech if it is both peaceful and relevant to the 
issue giving rise to the protest—permits courts to draw a 
sensible balance between the need for an ordered society 
and the need to serve the vital functions of the First 
Amendment. The need for an ordered society is served 
because people will not be free to engage in any conduct 
which they choose to describe as symbolic speech even 
though it expresses an idea; they can engage only in con­
duct relevant to the issue which led to the protest. The 
vital functions of the First Amendment will be served be­
cause those functions are implemented by peaceful relevant 
conduct.

One critical function of the First Amendment is to insure 
that there is a free marketplace of ideas. Abrams v. United 
States, 250 U. S. 616, 630 (1919). The First Amendment 
reflects the view that no government, no writer, no scientist, 
no critic, has a monopoly of the truth, and that the truth 
is best approached by encouraging all people to contribute



70

to the political dialogue. This function is implemented by 
treating peaceful relevant conduct as speech, particularly in 
view of the realities surrounding access to the instruments 
of mass communication.

It is a hard fact of today’s world that the communica­
tions media are the key to whether or not the marketplace 
of ideas can function effectively under modern conditions. 
See Barron, Access to the Press—A  New First Amendment 
Right, 80 Harv. L. Rev. 1641, 1641-1656 (1967).56 The ideas 
of scores of millions are shaped by television, movies, na­
tional magazines, and newspaper monopolies. When pri­
vate citizens are unable to secure access to these media, as 
is normally the case, they are deprived of the opportunity 
to contribute effectively to the process by which public 
opinion is formed. This renders the marketplace theory of 
speech more myth than reality, and the imbalance is ex­
acerbated when, as is too often the case, the national media 
do not undertake themselves to circulate the ideas and 
grievances of the citizens who are frozen out of the free 
speech marketplace.57 However, it is also a hard fact of 
today’s world that the national media customarily treat 
peaceful symbolic conduct such as demonstrations, marches, 
surrender of draft cards, and other dramatic and graphic 
conduct, as news.66 * 68 Thus, those who normally are unable

66 For discussion of the crucial role of the mass media in shaping 
public opinion and of the disabilities faced by those who lack access 
to the media, see also, Yelvel, Freedom, of Speech and The Draft 
Card Burning Cases, 16 Kan. L. Rev. 149, 152-153 (1968) ; 
Kamin, Residential Picketing and the First Amendment, 61 North­
western U. L. Rev. 177, 214 (1966) ; Finman & Macaulay, Free­
dom to Dissent: The Viet Nam Protests and the Words of Public 
Officials, 1966 Wis. L. Rev. 632, 684.

57 See Barron, op. cit.
58 See authorities cited in note 56, supra.



71

to secure access to the media are enabled to contribute 
effectively to the process by which opinion is formed by 
attracting the attention of the media. Consequently, such 
conduct must be considered speech if the free speech clause 
is to have effective meaning under modern conditions for 
the scores of millions of citizens who lack access to the 
media.

Another critical function of the First Amendment is to 
aid in giving meaning to one of the fundamental tenets of 
our democracy: that the people have the power to insure 
that the government will be responsive to their wishes.59 
This First Amendment function is also served by consid­
ering peaceful symbolic conduct to be speech. Since such 
conduct receives widespread publicity, government officers 
are confronted with the diverse ideas and grievances which 
are held by citizens. They are thus enabled to respond to 
citizens’ wishes and, indeed, may find that to be reelected 
they must respond even though they might prefer not to. 
Furthermore, other citizens who have not participated in 
the peaceful relevant conduct, will be exposed to these 
diverse ideas and grievances, and their consequent thought 
and actions will also influence the government.

Finally, the safety valve function of speech is served 
when peaceful relevant conduct is considered to be speech.

59 In Stromberg v. California, 283 U. S. 359, 369 (1931), the 
Court called attention to this function of the First Amendment: 

“ The maintenance of the opportunity for free political discus­
sion to the end that government may be responsive to the will 
of the people and that changes may be obtained by lawful 
means, an opportunity essential to the security of the Repub­
lic, is a fundamental principle of our constitutional system.”

The Court reemphasized the responsiveness function of the First 
Amendment when it quoted the foregoing Stromberg statement in 
the relativelv recent case of Edwards v. South Carolina, 372 U. S. 
229, 238 (1963).



72

Mr. Justice Brandeis emphasized that a central function 
of speech is to preserve a stable and just society by enabling 
citizens to express their grievances in a peaceable way.60 
Engaging in peaceful relevant conduct permits citizens, 
who hold deep-seated grievances or ideas, to express their 
tensions and emotions peaceably and constructively rather 
than violently and destructively. Common experience 
teaches us that Mr. Justice Brandeis was correct when he 
said “ repression breeds hate; that hate menaces stable gov­
ernment.” People are more likely to work within an exist­
ing institutional system when they feel they have an oppor­
tunity to express themselves effectively within that system.

The specific act of surrendering a draft card in protest 
over the war meets the test suggested here for determining 
when conduct should be considered speech, and it is also 
clear that it fulfills the vital First Amendment functions 
stated above. It meets the proposed test for determining 
when conduct should be considered speech because it is 
peaceful and because it is a relevant method for protesting 
a war. The surrender of a card also fulfills the marketplace 
function of the First Amendment, the function of helping 
to insure that the government is responsive to the people’s 
wishes, and the safety-valve function as well.

eo “ piiose who won our independence . . . knew that order 
cannot be secured merely through fear of punishment for its in­
fraction; that it is hazardous to discourage thought, hope and 
imagination; that fear breeds repression; that repression breeds 
hate; that hate menaces stable government; that the path of 
safety lies in the opportunity to discuss freely supposed griev­
ances and proposed remedies; and that the fitting remedy for evil 
counsels is good ones. Believing in the power of reason as applied 
through public discussion, they eschewed silence coerced by law— 
the argument of force in its worst form.” Whitney v. California, 
274 U. S. 357, 375-376 (1927) (concurring opinion).



73

B. Under the Tests for Determining When Speech May Be 
Abridged, the Surrender of Draft Cards Cannot Be Penal­
ized.

1. R eg . 1 6 4 2 .4 ( a )  U pon  W h ich  P etitioner’s D elinquency, 
Reclassification, and Induction O rder A re Based Is Vague 
and O verbroad.

Reg. 1642.4(a) authorizes declarations of delinquency 
(and consequent I-A classification and priority induction) 
of a registrant who “has failed to perform any duty 
or duties required of him under the selective service 
law. . . . ” As construed by the government in this and other 
cases, the regulation can be and has been applied to punish 
a registrant for exercising First Amendment rights.

An examination of the regulations demonstrates that the 
delinquency provisions are designed to serve the discrete 
purpose of securing information needed for intelligent 
classification (see Sec. II C, supra). Consequently, the 
“ duties required” under Reg. 1642.4(a) are properly limited 
to such things, for example, as the duty to return the 
Classification Questionnaire within 10 days (Reg. 1621.10), 
the duty to correct an inadequate Questionnaire (Reg. 
1621.13), and the duty to report for physical examination 
(Reg. 1628.16). But as we have seen, the regulation has 
in fact been construed to include not only the alleged 
“duty” by petitioner to possess his registration certifi­
cate, but also the kind of “ duty” said to have been owed 
by the appellants in Wolff v. Selective Service, supra. 
According to General Hershey, it could, and should, be con­
strued also to include the “duty” not to violate the Act in 
its entirety, as well as its “ related processes” , and not to 
perform acts “under unfortunate influences of misdirected 
emotions . . .  or even completely vicious efforts to cripple,



74

if not to destroy, the unity vital to the existence of a 
nation. . . . ” App., infra, p. la.

A statute or regulation which lends itself to such broad 
interpretation runs afoul not only of the general rule 
against vague statutes, see, e.g., Cramp v. Board of Public 
Instruction, 368 U. S. 278 (1961); Amsterdam, The Void- 
For-Vagueness Doctrine in the Supreme Court, 109 U. of 
Pa. Law Rev. 67 (1960), but also the rule in Dombrowslci 
v. Pfister, supra, which condemns statutes with an “ over­
broad sweep . . . [which] lend themselves too readily to 
denial of [First Amendment] rights.” 380 U. S. at 486.

We need not rely only on the infinite scope of the de­
linquency regulation as defined by General Hershey, for 
local draft boards have acted upon his interpretation of the 
regulation. In addition to the hundreds of registrants, like 
petitioner, who have been declared delinquent, reclassified, 
or ordered to report for induction for turning in their draft 
cards, other registrants have been subjected to the same 
sanctions for more bizarre reasons, though reasons which 
nonetheless satisfy General Hershey’s expansive view of 
the regulation. Thus, in addition to the reclassification of 
appellants in Wolff v. Selective Service, supra, for par­
ticipating in an anti-war demonstration at a Michigan draft 
board, sanctions have been imposed on other registrants 
for participating in a peaceful, public demonstration near 
an Armed Forces Entrance and Examination Station, for 
distributing anti-war leaflets during pre-induction physical 
examinations, and for “ counseling evasion of the Selective 
Service Law.” Footnote 8, supra. And a student at the 
University of Oklahoma, John Ratliff, was reclassified I-A 
by Local Board No. 76, Tulsa, Oklahoma, because “ The 
local board did not feel that your activity as a member of



75

SDS is to the best interest of the U. S. Government.” Let­
ter from Local Board No. 76 to John Ratliff, dated Novem­
ber 13, 1967.

In Aptheker v. Secretary of State, 378 U. S. 500, 508 
(1964), this Court said, “It is a familiar and basic princi­
ple . . . that ‘a governmental purpose to control or pre­
vent activities constitutionally subject to . . . regulation 
may not be achieved by means which sweep unnecessarily 
broadly and thereby invade the area of protected free­
doms.’ ” And the Court repeated the admonition set out 
in NAACP v. Button, 371 U. S. 415 (1963): “ [First Amend­
ment] freedoms are delicate and vulnerable, as well as 
supremely precious in our society. The threat of sanctions 
may deter their exercise almost as potently as the actual 
application of sanctions.” 378 U. S. at 516.

The examples we have given of the way in which Reg. 
1642.4(a) has been applied, bring it squarely within the 
doctrine which forbids overbroad legislation which invades 
rights protected by the First Amendment. Those cases 
having led to delinquency, reclassification, and induction 
orders, and the National Director of Selective Service hav­
ing actively and publicly encouraged local boards to impose 
the same sanctions on “misguided registrants”, surely the 
regulation has had the effect of “discouraging protected 
activities,” Dombrowski v. Pfister, supra at 490, and “ chill­
ing . . . protected expression”. Id. at 494. Reg. 1642.4(a) 
should be struck down in its entirety because to deal with 
“ only a narrow portion of the prohibition at any one time” 
will not contribute “materially to articulation of the statu­
tory standard.” Id. at 491.

The Court’s holding in Cox v. Louisiana, 379 U. S. 536, 
537 (1965), applies equally here:



76

“ [T]he lodging of such broad discretion in a public 
official allows him to determine which expressions of 
view will be permitted and which will not. This thus 
sanctions a device for the suppression of the com­
munication of ideas and permits the official to act as a 
censor.”

The fact that petitioner has been penalized under an 
overbroad edict which vests too much power in adminis­
trators distinguishes this case from United States v. 
O’Brien, supra. In the O’Brien case, Congress had passed 
a statute which made it unlawful to “knowingly destroy 
or “knowingly mutilate” a draft card. As the Court stressed, 
the statute was a narrow and precise way of regulating 
conduct which included elements of speech. Because it was 
narrow and precise, the statute did not threaten to dis­
courage constitutionally protected activity, such as peaceful 
marches and dissenting speeches, and it did not give admin­
istrators the power to discourage or threaten citizens who 
engaged in constitutionally protected activity.

2. Plaintiff Is B eing Unlawfully Punished Under Past and 
P resent Interpretations o f  the Balancing Test.

Prior to the O’Brien decision, this Court had repeatedly 
made clear, in cases involving the question whether cer­
tain courses of conduct were constitutionally protected, 
that government could not penalize First Amendment con­
duct unless it showed a substantial danger to compelling 
governmental interests.61 In O’Brien, however, the Court

61 That the government must show a substantial danger to com­
pelling state interests before it can penalize First Amendment eon- 
duct was made clear in cases involving legal programs run by the 
NAACP and by unions, and in cases involving civil rights demon­
strations. For example, in the cases involving legal programs, the



77

appeared to indicate that, although First Amendment con­
duct cannot he regulated unless it poses some danger to 
a compelling governmental interest, the degree of danger 
need not be substantial in order for the government to 
have the right to regulate the conduct. The Court said 
that a regulation is “ justified if it is within the consti­
tutional power of the government; if it furthers an im­
portant or substantial government interest; if the govern­
ment interest is unrelated to the suppression of free ex­
pression; and if the incidental restriction is no greater 
than is necessary to the furtherance of that interest.” 62 
The O'Brien formulation seems to mean that there need 
not be a substantial danger to a compelling interest. Thus, 
were Congress to pass a narrow and precise law banning

states claimed an interest in preventing barratry, maintenance and 
champerty, and in preventing lay intermediaries from controlling 
litigation for their own benefit rather than the client’s. The Court 
balanced the danger to state interests against the First Amendment 
conduct at issue, and found the danger too insubstantial to permit 
the state to penalize the conduct. “We held [in NAACP  v. But­
ton] the danger of baseless litigation and conflicting interests be­
tween the association and individual litigants far too speculative 
to justify the broad remedy invoked by the State,' a remedy that 
would have seriously crippled the efforts of the NAACP to vindi­
cate the rights of its members in court. . . . Nor can the case at 
bar be distinguished from the Trainmen case in any persuasive 
way . . .  In both cases, there was absolutely no indication that the 
theoretically imaginable divergence between the interests of union 
and member ever actually arose in the context of a particular law­
suit; indeed in the present case the Illinois Supreme Court itself 
described the possibility of conflicting interests as, at most, ‘con­
ceivable.’ ” United Mine Workers of America v. Illinois State 
Bar Association, 389 U. S. 217 (1967). The civil rights demon­
stration cases involved state interests in preventing public dis­
orders. The Court weighed the threat to public order, and found 
it too insubstantial to permit the states to infringe the First 
Amendment conduct at issue. Edwards v. South Carolina, 372 U. S. 
229, 235-236 (1963); Cox v. Louisiana, 379 U. S. 536, 544-551 
(1965); Brown v. Louisiana, 383 U. S. 131, 139-140, 141 (1966).

62 88 S. Ct. at 1679.



78

peaceful marches outside of draft boards because these 
protests dissuade a few citizens from volunteering for the 
service, the statute could be upheld under O’Brien, for this 
congressional regulation of speech would be undertaken 
under the constitutional power to raise armies; its object 
would be to further the government’s interest in promoting 
voluntary enlistments; the interest in promoting enlist­
ments is not related to suppressing free speech; and the 
infringement on free speech would be no greater than 
necessary to further the interest in promoting voluntary 
enlistment.

But because peaceful relevant symbolic conduct plays a 
vital role in serving the First Amendment function of sup­
plying the market-place with ideas, keeping government 
responsive to the people and providing a safety valve, the 
government ought not to be empowered to penalize First 
Amendment conduct unless that conduct poses a substantial 
danger to compelling government interests. For as the pre- 
O’Brien balancing cases demonstrate, the government can 
always show that First Amendment conduct poses some 
slight danger to compelling state interests—indeed pure 
speech often poses some danger to state interests-—and 
therefore, if O’Brien means that conduct can be punished 
in the absence of a substantial danger, it opens the door to 
government repression of many kinds of speech—pure and 
symbolic.

We contend and will later show that petitioner’s reclassi­
fication and induction notice are unlawful if, pursuant to 
the pre-O’Brien balancing cases, the government must 
demonstrate a substantial danger before it can penalize 
citizens. However, we also contend that petitioner’s re­
classification and induction are unlawful under the ap­
parently more lax standards of the O’Brien case. For in



79

reclassifying and inducting men who surrender their draft 
cards in protest over the war, the government is restrict­
ing speech to a much greater degree than is essential to 
further its interest in having an efficient Selective Service 
System, and therefore violating the O’Brien requirement 
that a restriction on speech can be no greater than is 
essential to further a valid government interest.

The restriction on speech at issue in this case is greater 
than necessary because the government could run an effec­
tive selective service system even if no-one carried a draft 
card—a point virtually conceded in the government’s 
O’Brien brief in the First Circuit (pp. 13-14). If the gov­
ernment could run an effective selective service system 
even though no-one carried a draft card, it can obviously 
run an effective system when draft cards are surrendered 
by a small percentage of the millions of men who are re­
quired to carry them. The restriction on speech is also 
greater than necessary because General Hershey’s punitive 
edict, and the implementing delinquency regulations, not 
only strike at the surrender of cards, but chill many forms 
of expression whose constitutional legitimacy is not open to 
dispute and which in no way harm the draft. Finally, the 
restriction on speech is greater than necessary because, 
even if it were necessary to penalize those who surrender 
their cards in order to protest the draft (which it in fact is 
not), it is possible for the Congress to formulate a nar­
rower and more precise regulation of speech than the 
Hershey edict and the delinquency regulations.

There is a further reason why the government has vio­
lated the standards set forth in O’Brien by reclassifying 
and inducting men who surrendered their draft cards in 
protest over the war. It is commonly accepted that Gen­
eral Hershey’s edict was issued because of his well pub­



80

licized aversion to those who protest the war. The General, 
in his own words, believes that those who protest the war 
are not acting in the “national interest,” are under the 
influence of “misdirected emotions,” are acting pursuant 
to “ illegal advice” or are engaged in “vicious efforts to 
cripple if not destroy, the unity vital to” our nation and 
liberties. It is commonly accepted, and the government has 
never to our knowledge denied, that General Hershey has 
taken it upon himself to suppress dissent over the war by 
reclassifying and inducting people who protest against it. 
Thus, the reclassification and induction at issue here were 
undertaken pursuant solely to suppress communication. 
This case, therefore, is akin to Stromberg v. California, 283 
U. S. 359 (1931), in which, as O’Brien pointed out, the 
government unlawfully penalized symbolic conduct because 
it thought that the message contained in the symbolic con­
duct was harmful. General Hershey apparently thinks sym­
bolic protestors are delivering a harmful message and must 
therefore be punished by reclassification and induction.

If the government cannot meet the more lax standards 
of O’Brien, then, a fortiori, it cannot meet the more difficult 
burden, established by pre-O’Brien balancing cases, of 
showing that it can penalize petitioner because the sur­
render of draft cards in protest over the war poses a sub­
stantial danger to the government’s interest in effectively 
raising armies.

This Court has taken pains to point out that fundamental 
rights cannot be denied merely because their denial will 
provide some administrative benefits.63 Indeed, it may be 
observed that, if the denial of important rights could be

63 Carrington v. Bash, 380 U. S. 89, 96 (1965) ;  Binaldi v. Yeager, 
384 U. S. 305, 310 (1966).



81

justified so long as the denial gives rise to some administra­
tive benefits, there would soon be no rights or liberties left, 
since the work of administrative bureaucracies is always 
simplified by political suppression. Thus, the government 
ought not be able to penalize the surrender of cards unless 
such penalties assure administrative benefits which are 
necessary if selective service is to operate effectively and 
which are also necessary to avoid a substantial danger 
to a compelling government interest. We believe it clear 
that reelassifying and inducting men who surrender their 
cards do not give rise to such significant benefits, but rather, 
when considered in the overall operation of the selective 
service system, give rise only to inconsequential benefits.

That penalizing the surrender of cards does not give rise 
to administrative benefits which are necessary to an effec­
tive selective service system and which are therefore neces­
sary to avoid a substantial danger to the government’s in­
terest in an effective draft is shown by the very fact that 
the government could efficiently raise armies even if nobody 
carried draft cards. It is also shown by analyzing the rea­
sons commonly given in support of penalizing men who, for 
one reason or another, do not carry draft cards.64 First, it 
has been asserted that the availability of registration cer­
tificates and notices of classification makes it easier to de­
termine if a man is delinquent in his draft obligations,65 
and it is quite true that these cards will show whether a 
man has at least registered with selective service. However, 
the question of failure to register, as well as most other

64 These reasons have also been analyzed in Velvel, supra, note 
56, at 163-166.

65 O’Brien v. United States, 88 S. Ct. at 1680; United States v. 
Miller, 367 F. 2d 72, 80-81 (2d Cir. 1966), cert. den. 386 U. S. 911 
(1967).



82

questions of delinquency, never arise with regard to the 
overwhelming majority of registrants. Further, govern­
ment agents do not generally ask people to show their regis­
tration certificates or notices of classification in order ini­
tially to detect delinquencies. When government agents ask 
a person to show these cards, it is usually because the gov­
ernment already knows about a delinquency. Even if a 
registration certificate and notice of classification do to 
some degree aid in the detection of delinquents, this aid is 
still available when a man surrenders his card. For unlike 
the burning of draft cards which was at issue in O’Brien, 
cards which are surrendered remain “ continuingly avail­
able” (88 S. Ct. at 1679, 1681, 1682) to Selective Service.

Another reason which has been given in support of penal­
izing men who do not carry draft cards is that the cards 
help in case of confusion in the registrant’s file or its de­
struction.66 The fact is, however, that the government has 
duplicate files on every registrant and can obtain necessary 
information in that way. Moreover, unlike the burning of 
eards, their surrender leaves them “continuingly available” 
in case a file is mixed up or destroyed. And if the files of 
a local board are destroyed by fire or other mishap, and the 
board wishes to rebuild them by contacting registrants, the 
board would first have to consult the Selective Service Sys­
tem’s duplicate files in order to know whom to contact. 
Since it must consult the duplicate file anyway, the board 
might as easily secure the necessary information from that 
file rather than go through the additional and unnecessary 
effort of also contacting the registrants.

It has been asserted that the carrying of draft cards 
provides an administrative benefit because, in a time of

66 O’Brien, 88 S. Ct. at 1680; Miller, 367 F. 2d at 81.



national crisis, they provide a quick means of determin­
ing a man’s fitness for immediate induction no matter how 
distant he may be from his local board.67 However, the 
registration certificate which petitioner surrendered does 
not tell a man’s eligibility for induction since it does not 
give his classification. And in the national crisis presented 
by a thermonuclear attack, the overwhelming destruction 
of life and property suffered by both sides would make it 
irrelevant and impossible to induct large numbers of men 
immediately. Immediate induction is also irrelevant and 
has not been practiced in short term crises such as occurred 
in Lebanon and the Dominican Republic, since they are 
over long before men can be inducted and trained. 
And, immediate induction of men is irrelevant and has 
not been practiced in regard to long term crises such as 
Korea and Vietnam, where the government has adequate 
time to induct and train men.

It has been asserted that the carrying of draft cards 
provides an administrative benefit because it facilitates 
communication between registrants and draft boards,68 by 
bearing the registrant’s address and selective service num­
ber, and classification. Granting that communication is fa­
cilitated by the cards, cards which are surrendered, unlike 
cards which are burned, remain “continuingly available” to 
provide the necessary information to facilitate communica­
tion. Furthermore, the number of young men wffio are so 
unconcerned with their draft status as not to know their 
classification, but who nevertheless have sufficient intelli­
gence to meet the armed forces mental standards, must be

83

67 Ibid.
68 Ibid.



84

de minimis. Even when a person surrenders his Regis­
tration Certificate, he can still obtain the address of his 
local board, his selective service number, and his classifica­
tion, from his Notice of Classification.

It has been asserted that draft cards provide an adminis­
trative benefit because they aid in detecting and tracing 
alterations, forgeries or other deceptive misuses of cer­
tificates.69 70 However, unlike the case when draft cards are 
destroyed by burning, the surrender of a card may be said 
to increase the possibility of obtaining this benefit.

In sum, if, as petitioner believes, the government must 
prove a substantial danger to a compelling interest before 
it can penalize the surrender of draft cards, then the gov­
ernment has no power to reclassify and induct young men 
who surrender their draft cards as a protest over the war. 
For the government cannot show that the surrender of 
cards poses a substantial danger to the power to raise 
armies, and has never even made the attempt to do so.™ 
It is true that the carrying of cards provides some adminis­
trative benefits to selective service, but selective service 
can be administered very effectively though cards are sur­
rendered as a protest, and therefore no substantial danger 
arises when selective service does not obtain whatever ad­
ministrative benefits accrue when citizens are punished 
for surrendering draft cards.

69 88 S. Ct. at 1680.
70 Even when Congress passed the law banning draft card burn­

ings, a law which, as the foregoing text shows, gives rise to some­
what greater administrative benefits than are engendered by penal­
izing the surrender of draft cards, Congress neither gathered nor 
produced any factual evidence whatsoever to show that the burn­
ings posed a substantial danger to selective service.



85

IV.

There is in fact no independent requirement of per­
sonal possession of registration certificates.71

Selective Service Regulation 1617.1 is titled “Effect of 
failure to have unaltered registration certificate in personal 
possession.” It states first that every registrant must have 
his registration certificate in his personal possession at all 
times. The second sentence reads “ The failure of any per­
son to have his Registration Certificate (SSS Form 2) in his 
personal possession shall be prima facie evidence of his fail­
ure to register.” Given the title, the first two sentences, and 
the historical background of this Regulation, it should be 
clear that the second sentence provides the exclusive sanc­
tion for non-possession of a registration certificate.

The initial possession Regulation under the Selective 
Service Act of 1917 stated that registrants would spare 
themselves much “ inconvenience” if they carried their cer­
tificates at all times.72 * This was a reference to the fact that 
police officers had the duty of searching out those persons

71 The material in this section is based upon Dranitzke, The 
Possession of Registration Certificates and Notices of Classification 
by Registrants Under the Selective Service System, 1 S.S.L.R. 
4029 (1968).

72 The regulation (paragraph 62) provided:
All persons registered will be furnished a registration cer­
tificate. Since all police officers of the Nation, States, and 
municipalities are required to examine the registration lists 
and make sure that all persons liable to registration have 
registered themselves, much inconvenience will be spared to 
those who are registered if they will keep these certificates 
always in their possession. All persons of the designated ages 
must exhibit their certificates when called upon by any police 
officer to do so.



who, although liable for registration under Sec. 5 of the 1917 
Act, had not registered.73 Such persons were taken by the 
police to the jail pending further instructions from the local 
board. During World War I, mass roundups or slacker 
raids were conducted by the police as a means of ensuring 
registration. “ The individuals who wTere over age, or who 
had changed their suits of clothes that morning, or who for 
any other reason did not have their cards with them, lost 
several hours of time and were subjected to the seeming 
indignity of being herded together.” 74 Thus, if a registrant 
did not carry his card, he would not be able to prove imme­
diately that he had registered and would suffer the “ incon­
venience” of going to jail until he could satisfy the police 
that he had complied with law. The failure to possess a 
certificate in such circumstances was effectively treated as 
prima facie evidence of non-registration, at least for non­
judicial purposes.

The initial regulations under the 1940 Act (as had the 
revised Regulations of 1917 and 1918), stated that regis­
trants “ should” carry their certificates.75 Clearly, this was a

74 Selective Service System, Special Monograph No. 14, Enforce­
ment of the Selective Service Law 13 [hereinafter cited as Mono­
graph No. 14].

73 See paragraph 16 of the initial 1917 Regulations and Sec. 49 
of the revised 1917 Regulations.

75 Regulations, paragraph 239 of Volume Two, “Registration,” 
provided:

After the registration card is completed and signed the regis­
trar shall prepare the registration certificate and give it to 
the registrant. The registrar shall never fill out the certificate 
until after completely finishing the registration card. The 
registrant shall be warned that he should carry the registra­
tion certificate with him at all times, as he may be required 
to show it from time to time. The registrant should then be 
given a copy of the leaflet of instructions for registrants 
(Form 5).



87

warning to those who wanted to avoid the “ inconvenience” 
of not being able to produce proof of registration imme­
diately.

In 1941, the Regulation was amended to state that each 
registrant “must have” his certificate in his personal posses­
sion at all times. It was also expressly provided that non­
possession constituted a violation of the regulations and was 
prima facie evidence of failure to register.76 However, the 
former provision was removed after being in effect for 20 
months.77 The prima facie evidence proviso, on the other 
hand, has remained in the Regulation since the 1941 amend­
ment. That non-possession was not a violation of the regu­
lations before the addition of the “violation” clause is stated 
clearly by the Selective Service System, itself: “Failure to 
possess a Registration Certificate was not a violation prior 
to Apr. 17, 1941.” 78 The implication is that unless this 
particular Regulation said “violation”, the failure to possess 
a certificate was not a breach of the Selective Service rules. 
Thus, it appears that non-possession constituted a violation 
of the regulations only during 1941-1942. With the removal 
of the “violation” clause, the Regulation effectively read 
in the same way as had the 1917 Regulation.

This interpretation is bolstered by the history of the 
contemporaneous amendments to the World War II Regu­
lations. The “violation” clause, as noted above, was added 
in March, 1941. Reg. 617.2, promulgated a year later, 
prohibited the wrongful possession of, wrongful trans­

76 6 Fed. Reg. 1796 (March 31, 1941). Amendment No. 22.
77 7 Fed. Reg. 9683 (Nov. 23, 1942). Amendment No. 101, 2d 

Ed. The Regulations had been renumbered and this regulation 
was numbered Sec. 617.1.

78 Monograph No. 14 at 89.



88

fer of, or making, altering, forging, or counterfeiting of 
registration certificates; it also contained a “violation” 
clause.™ Then on November 23, 1942, at the same time that 
the “violation” clause was deleted from Reg. 617.1, Reg.
623.61- 2, which prohibited the wrongful possession of, 
wrongful transfer of, or making, altering, forging, or coun­
terfeiting of notices of classification, was promulgated, and 
it contained a “violation” clause.79 80 Both Reg. 617.2 and Reg.
623.61- 2 retained these clauses while the World War II 
Regulations were in effect. And the present day counter­
part of the latter still contains this clause.81 The conclusion 
to be drawn from this series of amendments is that the “vio­
lation” clause was a necessary part of Reg. 617.1 in order 
for non-possession, by and of itself, to be punishable by 
criminal penalties or delinquency proceedings. Without this 
clause, the exclusive effect of non-possession was, and is 
now, only prima facie evidence of non-registration.82

That these contemporaneous changes in the Regulations 
were deliberate is established by the Selective Service Sys­
tem’s official explanations of these amendments at the time. 
The purpose of Amendment No. 101, 2d Ed. which deleted 
the “violation” clause from Reg. 617.1, was

79 7 Fed. Reg. 2086 (Feb. 15, 1942). Amendment No. 21, 2d Ed.
80 7 Fed. Reg. 9773 (Nov. 23, 1942). Amendment No. 102, 2d Ed.
81 Reg. 1623.6. Reg. 617.2 was dropped in 1948.
82 The intervening Regulation under the Selective Service Act 

of 1948 provided:
617.1 Effect of failure to have Registration Certicficate in 
possession. Every person required to present himself for and 
submit to registration must have a Registration Certificate 
(SSS Form No. 2) in his personal possession at all times. The 
failure of any person to have such Registration Certificate 
(SSS Form No. 2) in his personal possession shall be prima 
facie evidence of his failure to register.



89

To provide that any representative of the Secretary 
of State, any representative of the Secretary of the 
Treasury, or any representative of the Attorney Gen­
eral, who has occasion to examine registrants at places 
of departure, may request a registrant to exhibit his 
Registration Certificate; to clarify the language con­
cerning Selective Service officials wTho may request a 
registrant to exhibit his Registration Certificate; to 
delete the language stating that it is a violation of the 
regulations to refuse to exhibit this certificate; and, 
to add that a registrant shall surrender his Registration 
Certificate on becoming a member of the armed forces. 
(Emphasis added.)83

And the purpose of Amendment no. 102, 2d Ed., which added 
Reg. 623.61-2, was

To require a registrant to have in his personal pos­
session at all times a Notice of Classification (Form 
57); to make it a violation of the regulations to wrong­
fully possess, make, alter, forge, or counterfeit such 
form; and, to provide for the issuance of a duplicate, 
lost, mislaid, stolen, or destroyed Notice of Classifica­
tion in warranted cases. (Emphasis added.)84

Furthermore, this exclusivity of sanction argument is 
supported by the rationale later put forward by the Selec­
tive Service for the promulgation of the Regulation:

In the early stages of the 1940-7 operation, it was 
found most difficult to affirmatively establish that a

83 Selective Service Regulations, Second Edition, First Printing 
437 (1944).

84 Ibid.



90

person required to do so, had not registered. To avoid 
this difficulty Selective Service provided by regula­
tion that all registered persons must have with them 
at all times their ‘registration cards.’ It was a far 
simpler matter to ask a man for his certificate than to 
establish that he had not registered in any of the 
120,000 places where he might have registered.85

The effect of this interpretation is that non-possession of 
a registration certificate is not a violation of the regula­
tions in itself, but only prima facie evidence of another 
act which is a violation of the regulations and of the 
statute, i.e. non-registration.

This construction of Reg. 1617.1 is supported by exami­
nation of the history of Reg. 1623.5 which states that every 
registrant who has been classified must have his notice 
of classification in his personal possession at all times. 
Under Section 57 of the second set of 1917 Regulations, 
the final notice of classification, upon its issuance to a 
registrant, replaced the registration card as a means of 
identification, i.e., as prima facie evidence of registration. 
Its possession likewise meant no “ inconvenience” in the 
case of a slacker raid.86

With the passage of the 1940 Act, there was no immedi­
ate promulgation of a regulation pertaining to possession 
of notices of classification. In 1942, at the time of the dele­
tion of the “violation” provision in the registration cer­

85 Selective Service System, Special Monograph No. 18, p. 122 
(1967).

86 As required by Section 279 of the 1918 Regulations, the reverse 
side of the Final Notice of Classification stated: “Failure to com­
ply [with the law] may subject you to detention by the police 
and serious personal inconvenience.”



91

tificate Regulation, a section entitled “Effect of failure to 
have Notice of Classification (Form 57) in personal pos­
session” (Reg. 623.61-1) was promulgated. It stated that 
those persons who have been liable for service for 6 months 
must have their classification notices in their personal 
possession at all times; however, no “ effect” was men­
tioned.87

Interpolating the history of Reg. 1617.1 through the 
initial title of the classification notice Regulation, it is 
evident that non-possession of a notice of classification 
was meant to be prima facie evidence of delinquency. If 
a person who should have a classification card did not, 
it would be prima facie evidence of his not keeping in con­
tact with his local board, which is a duty of all registrants; 
for example, Reg. 1621.10 requires a registrant to return 
his classification questionnaire to his board and Reg. 1641.3 
requires a registrant to report changes in mailing address. 
Support for this interpretation is gained from the fact 
that the Regulation only applied to those who had been 
liable for service for 6 months: it was reasonable to assume 
that any person who did not possess a notice of classifica­
tion after that period was a delinquent. Furthermore, Reg.
623.61-1 (possession of notice of classification) was pat­
terned after Reg. 617.1 (possession of registration cer­
tificate) as Reg. 623.61-2 (fraudulent possession of notices 
of classification) after Reg. 617.2 (fraudulent possession 
of registration certificate) and Reg. 623.61-3 (duplicate 
notice of classification) after Reg. 617.11 (duplicate regis­
tration certificate). To interpret non-possession of a notice 
of classification otherwise than as prima facie evidence of

87 7 Fed. Reg. 9773 (Nov. 23, 1942). Amendment No. 102, 2d Ed.



92

delinquency would leave the original title “ Effect of failure 
to have Notice of Classification . . . ” without meaning.

The interpretation gains strong support from the Selec­
tive Service’s rationale for the issuance of this Regulation 
in 1942:

The new requirement had two main purposes. It was 
thought that requiring the possession of a Notice of 
Classification would encourage many men who regis­
tered but were out of contact with their local boards 
to get in touch with them and by so doing effect a 
termination of their delinquencies. The change also 
places law enforcement officers in a position to hold a 
suspected delinquent in custody if he did not have a 
DSS Form 57 in his possession even though he did 
have a registration certificate. They could determine 
whether the individual was delinquent before releasing 
him.88

Moreover, when Reg. 623.61-1 (possession of notice of clas­
sification) was prescribed in 1942, it contained no “viola­
tion” clause whereas Reg. 623.61-2 (wrongful or fraudulent 
possession or alteration of notices of classification), which 
was part of the very same amendment, did contain such a 
provision; the implication is that failure to possess a notice 
of classification was not a violation of the regulations. 
Non-possession of a classification notice is therefore only 
prima facie evidence of delinquency.

Thus, non-possession of draft cards is not per se a vio­
lation of the Selective Service Regulations—non-possession 
is simply prima facie evidence of another act which is a 
violation.

Monograph No. 14, at 55.



CONCLUSION

For the reasons set forth above, the judgment below 
should be reversed and the case remanded to the Dis­
trict Court with directions to enter judgment for peti­
tioner.89

Respectfully submitted,

Melvin L. W ulf
A lan H. Levine

156 Fifth Avenue 
New York, N. Y. 10010

L awrence R. V elvel
University of Kansas Law School 
Lawrence, Kansas

Attorneys for Petitioner
J ohn Griffiths 
Michael E. T igar 
Marvin M. K arpatkin 
E leanor H olmes Norton 
J ohn A. K ing 
W illiam F. R eynard

Of Counsel 

August 1968

89 The Solicitor General suggested in his Memorandum for Re­
spondents (p. 13 n. 5) that on remand to the District Court peti­
tioner should have the opportunity to offer proof on the issue 
whether the amount in controversy exceeds $10,000. Though peti­
tioner would be prepared to do so, he also intends to seek leave 
to amend the complaint’s jurisdictional allegation to include 28 
U. S. C. Sec. 1361 and requests the Court, in its remand order, 
specifically to direct the District Court to allow the amendment. 
See Byse and Fiocca, Section 1361 of the Mandamus and Venue 
Act of 1962 and “Nonstatutory” Judicial Review of Federal Ad­
ministrative Action, 81 Harv. L. Rev. 308 (1967).



A P P E N D I X



la

APPENDIX
THE  N E W  YORK TIMES,  THURSDAY,  N O V E M B E R  9. 1967

Texts of Letter and Memo on the Draft
| Special lo The New York Times

j WASHINGTON, Nov. 8—Fol­
lowing is the text of a letter, 
dated Oct. 26, to all members 
of the Selective Service system  
from the director of Selective 
Service Lieut. Gen Lewis B. 
Hershey, and of a memorandum, 
dated Oct. 24, from General 
Hershcy on draft cards:

The Letter
The basic purpose and the 

| objective of the Selective 
Service system is the sur­
vival of the United States. 
The principal means used to 
that end is the military ob­
ligation placed by law upon 
all males of specified age 
groups. The compexities of 
the means of assuring sur­
vival are recognized by the 
broad authority for deferment 
from military service in the 
national health, safety, or 
interest.

Important facts, too often 
j forgotten or ignored, are that 

the military obligation for 
liable age groups is universal 
and that deferments are given 
only when they serve the 
national interest. It is obvious 
that any action that violates 
the military selective service 

i act or the regulations, or the 
| related processes cannot be 
! in the national interest.
S It follows that those who 

violate them should be denied 
deferment in the national in­
terest. It also follows that 
illegal activity which inter­
feres with recruiting or causes

■ refusal of duty in the mili- 
; tary of naval forces could 
i not by any stretch of the 
• imagination be construed as 
j being in support of the na- 
| tional interest.

The Selective Service sys­
tem has always recognized 
that it was created to provide

■ registrants for the armed 
! forces, rather than to secure 
i their punishment for dis­

obedience of the act and reg-
' ulations. There occasionally 

will be registrants, however, 
i who will refuse to comply 
j with their legal responsibili­

ties, or who will fail to re­
port as ordered, or refuse to 
be inducted. For these regis­
trants, prosecution in the 
courts of the United States 
must follow with promptness 
and effectiveness. All mem­
bers of the Selective Service 
system must give every pos­
sible assistance to every law 
enforcement agency and es­
pecially to United States at­
torneys.

It is to be hoped that mis­
guided registrants will recog­
nize the long-range signifi­
cance of accepting their 
obligations now, rather than 
hereafter regretting their 
actions performed under un­
fortunate influences of mis­
directed emotions, or possibly 
honest but wholly illegal ad­
vice, or even completely vi­
cious efforts to cripple, if not 
to destroy, the unity vital to 
the existence of a nation and 
the preservation of the lib­
erties of each o f our citizens.

Demonstrations, when they 
become illegal, have pro­
duced and will continue to 
produce much evidence that 
relates to the basis for classi­
fication and, in some in­
stances, even to violation of 
the act and regulations. Any 
material of this nature re­
ceived in national headquar­
ters or any other segment of 
the system should be sent to 
state directors for forward­
ing to appropriate local 
boards for their considera­
tion.

A local board, upon receipt 
of this information, may re­
open the classification of the 
registrant, classify him anew, 
and if evidence of violation 
of the act and regulations is 
established, also to declare 
the registrant to be a delin­
quent and to process him ac­
cordingly. This should in­
clude all registrants with re­
maining liability up to 35 
years of'age.

If the United States Attor­
ney should desire to prose­
cute before the local board 
has ordered the registrant for 
induction, full cooperation will 
be given him and develop­
ments in the case should be 
reported to the state director 
and by him to national head­
quarters.

Evidence received from any 
source indicating efforts by 
nonregistrants to prevent in­
duction or in any way inter­
fere illegally with the 
operation of the Military 
Selective Service Act or with 
recruiting or its related 
processes, will be reported 
in as great detail as facts 
are available to state head­
quarters and national head­
quarters so that thev may 
be made available to "United 
States attorneys.

Registrants' presently in 
classes IV-F or I-Y who have 
already been reported for 
delinquency, if they are found 
still lo be delinquent, should

again be ordered to report 
for physical examination to 
ascertain whether they may 
be acceptable in the light of 
current circumstances.

All elements of the Selec­
tive Service system are urged 
to expedite responsive classi­
fication and the processing j 
of delinquents to the greater 
possible extent consistent 
with sound procedure.

Memorandum
Subject; Disposition of Aban­

doned or Multilated Regis­
tration Certificate and
Notices of Classification.
1. Whenever an abandoned 

or mutilated registration cer­
tificate or current notice of 
classification reaches a local 
board, and the card was origi­
nally issued to a registrant 
by some other board, it 
should be forwarded to the 
state director of selective 
service, who will forward it 
to the appropriate local 
board if within the state, or 
the appropriate state director 
if the board of origin is out­
side the state.

2. Whenever a local board 
receives an abandoned or 
mutilated registration certifi­
cate or current notice of clas­
sification which had been 
issued to one o f its own reg­
istrants, the following action 
is recommended:

(A) Declare the registrant 
to be delinquent for failure 
to have the card in his pos­
session.

(B) Reclassify the regis- i 
trant into a class available \ 
for service as a delinquent, j

(C) At the expiration o f j 
the time for taking an appeal, j 
if no appeal has been taken, j 
and the delinquency has not j 
been removed, order the reg- | 
istrant to report for indue- ! 
tion or for civilian work in j 
lieu of induction if in Class 
I-O, as a delinquent, or in j 
the board’s discretion in a j 
flagrant case, report him to 
the United States attorney for I 
prosecution.(d) If appeal is taken and 
the registrant is retained in i 
a class available for service 
by the appeal board, and the 
delinquency has not been re­
moved, order the registrant 
to report for induction or for 
civilian work in lieu of in­
duction if in Class 1-0. as a 
delinquent, or in the board’s 
discretion in a flagrant case, 
report him to the United 
States Attorney for prosecu­
tion.



2a

D 2 U K QUi?.NCY NG7lCE

s::u.c';vi' S l I ; v : c e  s v s t l m
LG-./vL iiO ;\?.D  NoY-AliiR l ]

!-G:< NUMSDt 2186 
VV70.V.:.\,G 8200!

(locol Soord Stomp)

j.y-ss JAY OESTEKEICH

20 October 1967 .
(Dote Become Delinquent)

7 November 196?
(Dote of Moiling)

SElEChVE SERVICE NO.

4 8 1 1 4 4 1 7 6
(First) (Middle) (lost]

A d d re s s 215 Herrick Road
(Street end Number or RED Route.)

Nev.’ton O c t ;  L ’O Ma s  sa chu s e t t ,  r. ____Q2155L.
• (Cny, 1o«n, or Village)

1. You art hereby notified that this Local Boatci r.*s declared you to be. a delinquent because o f  your failure to perform the fol­
lowing duty or dunes required o f  you under the selective service taw:

“Failure to have ii) h is  possession a duly authorized Registration 
C ertifica te  (SS3 *ona 2)" -

“Failure to provide the lo ca l board o f h is current status”

2. You are hereby directed to report to this Local Board immediately in person or by mail, or to take this notice to the Local Board 
nearest you for advice as to what you should do.

3. Your willful failure to perform the foregoing duty or duties is a violation o f  the Universal Military Training and Set vice Act, 
as .amended, which is punishable by im pm onm ent for as much as 5 years or a fine o f as much as $10,000, or by both such fine and 
imprisonment.

0

INSTRUCTIONS .

A Delinquency Notice (SSS Form 301) shall b '’ prepared by the Local Board whenever it declares the registrant to be a delinquent 
because o f his failure to perform any duty or duties required o f  him other than failure to com ply with an Order to Report for In­
duction (SSS Form 252), or an Order to Report for Civilian Work and Statement o f  Employer (SSS Form 153). This notice shall 
be prepared in triplicate, and the specific duty or duties which the registrant has failed to perform shall be dcscrilx-d in detail in the 
space provided. The Local Board shall (a) mail the oiiginal to the registrant at his last known address, (b ) file a copy in the regis­
trant’s Cover Sheet (SSS Form 101), and (c) mail a copy to the State Director o f  Selective Service.

SSS Form 304 (10-3-64)



RECORD PRESS —  N. Y. C. 38