Oestereich v. Selective Service System Local Board No. 11/Concurrence Harlan

Mr. Justice HARLAN, concurring in the result.

I concur in the holding that pre-induction review is available in this case, but I reach this conclusion by means of a somewhat different analysis from that contained in the opinion of my Brother DOUGLAS.

At the outset, I think it is important to state what this case does and does not involve. Petitioner does not contend that the Selective Service System has improperly resolved factual questions, or wrongfully exercised its discretion, or even that it has acted without any 'basis in fact,' as that phrase is commonly used in this area of law. See Estep v. United States, 327 U.S. 114, 122-123, 66 S.Ct. 423, 427-428, 90 L.Ed. 567 (1946); ante at 238, n. 7. He asserts, rather, that the procedure pursuant to which he was reclassified and ordered to report for induction-a procedure plainly mandated by the System's self-promulgated published regulations, 32 CFR, pt. 1642-is unlawful. Specifically, he asserts that the delinquency reclassification scheme is not authorized by any statute, that it is inconsistent with his statutory exemption as a ministerial student, 50 U.S.C. App. § 456(g), and that, whether or not approved by Congress, the regulations are facially unconstitutional.

The pivotal language of § 10(b)(3), for present purposes, is the statute's proscription of pre-induction judicial review 'of the classification or processing of any registrant * *  * .' I take the phrase 'classification or processing' to encompass the numerous discretionary, factual, and mixed law-fact determinations which a Selective Service Board must make prior to issuing an order to report for induction. I do not understand that phrase to prohibit review of a claim, such as that made here by petitioner, that the very statutes or regulations which the Board administers are facially invalid.

'Classification is the key to selection,' 32 CFR § 1622.1(b), and among a local Board's most important functions is 'to decide, subject to appeal, the class in which each registrant shall be placed.' 32 CFR § 1622.1(c). Classification is a highly individualized process, in which a Board must consider all pertinent information presented to it. Ibid. Thus, a Board may be required to determine, on a conflicting record, whether a registrant is conscientiously opposed to participation in war in any form, 32 CFR § 1622.14, or whether the registrant's deferment 'is in the national interest and or paramount importance to our national security * *  * .' 32 CFR § 1622.20. A Board also exercises considerable discretion in the processing of registrants-for example, in securing information relevant to classification, 32 CFR §§ 1621.9-1621.15, scheduling of physical examinations, 32 CFR, pt. 1628, and scheduling and postponement of induction itself, 32 CFR, pt. 1632.

Congress' decision to defer judicial review of such decisions by the Selective Service Boards until after induction was, I believe, responsive to two major considerations. First, because these determinations are of an individualized and discretionary nature, a reviewing court must often examine Board records and other documentary evidence, here testimony, and resolve controversies on a sizable record. Even though the scope of judicial review is narrow, see Estep v. United States, supra, at 122-123, 66 S.Ct., at 427-428 this cannot be done quickly. To stay induction pending such review would work havoc with the orderly processing of registrants into the Nation's armed forces. See 113 Cong.Rec. 15426 (Senator Russell); cf. Estep v. United States, supra, at 137, 66 S.Ct., at 434 (Mr. Justice Frankfurter, concurring in the result).

Second, the registrant has been afforded, prior to his induction, the opportunity for a hearing and administrative appeals within the Selective Service System. 32 CFR, pts. 1624 1627. It is properly presumed that a registrant's Board has fully considered all relevant information presented to it, and that it has classified and processed him regularly, and in accordance with the applicable statutes and regulations. Greer v. United States, 5 Cir., 378 F.2d 931 (1967); Storey v. United States, 9 Cir., 370 F.2d 255 (1966); cf. United States v. Chemical Foundation, 272 U.S. 1, 14-15, 47 S.Ct. 1, 6, 71 L.Ed. 131 (1926); Chin Yow v. United States, 208 U.S. 8, 12, 28 S.Ct. 201, 202, 52 L.Ed. 369 (1908); Martin v. Mott, 12 Wheat. 19, 6 L.Ed. 537 (1827).

These factors are significantly altered where the registrant contends that the procedure employed by the Board is invalid on its face.

First, such a claim does not invite the court to review the factual and discretionary decisions inherent in the 'classification or processing' of registrants, and does not, therefore, present opportunity for protracted delay. To be sure, collateral factual determinations-for example, whether the registrant was subjected to the statute or regulation drawn in question (in this case, the delinquency reclassification procedure)-may sometimes be necessary. But, in general, a court may dispose of a challenge to the validity of the procedure on the pleadings. Insubstantial claims can usually be weeded out with dispatch.

Second, a challenge to the validity of the administrative procedure itself not only renders irrelevant the presumption of regularity, but also presents an issue beyond the competence of the Selective Service Boards to hear and determine. Adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies. See Public Utilities Comm'n of State of California v. United States, 355 U.S. 534, 539, 78 S.Ct. 446, 450, 2 L.Ed.2d 470 (1958); Engineers Public Service Co. v. SEC, 78 U.S.App.D.C. 199, 215-216, 138 F.2d 936, 952-953 (1943), dismissed as moot, 332 U.S. 788, 68 S.Ct. 96, 92 L.Ed. 370. The Boards have no power to promulgate regulations, and are not expressly delegated any authority to pass on the validity of regulations or statutes. Such authority cannot readily be inferred, for the composition of the boards, and their administrative procedures, render them wholly unsuitable forums for the adjudication of these matters: local and appeal Boards consist of part-time, uncompensated members, chosen ideally to be representative of the registrants' communities; the fact that a registrant may not be represented by counsel in Selective Service proceedings, 32 CFR § 1624.1(b), seems incompatible with the Boards' serious consideration of such purely legal claims. Indeed, the denial of counsel has been justified on the ground that the proceedings are nonjudicial. United States v. Sturgis, 3 Cir., 342 F.2d 328, 332 (1965), cert. denied, 382 U.S. 879, 86 S.Ct. 164, 15 L.Ed.2d 120; cf. United States v. Capehart, D.C., 141 F.Supp. 708, 719 (1956), aff'd, 237 F.2d 388 (1956), cert. denied, 352 U.S. 971, 77 S.Ct. 363, 1 L.Ed.2d 324.

To withhold pre-induction review in this case would thus deprive petitioner of his liberty without the prior opportunity to present to any competent forum-agency or court-his substantial claim that he was ordered inducted pursuant to an unlawful procedure. Such an interpretation of § 10(b)(3) would raise serious constitutional problems, and is not indicated by the statute's history, language, or purpose. On the foregoing basis I agree that § 10(b)(3) does not forbid pre-induction review in this instance.

Because both the District Court and the Court of Appeals passed on the merits of petitioner's challenge to the delinquency reclassification regulations, this issue is ripe for our consideration. Whatever validity the procedure may have under other circumstances, I agree that the delinquency reclassification of petitioner for failure to possess his registration certificate is inconsistent with petitioner's conceded statutory exemption as a student of the ministry.

Mr. Justice STEWART, with whom Mr. BRENNAN and Mr. Justice WHITE join, dissenting.