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Clark v. Gabriel

U.S.
Dec 16, 1968
393 U.S. 256 (1968)

Summary

In Clark v. Gabriel, the registrant challenged the factual and judgmental determination that he was not entitled to a conscientious objector classification.

Summary of this case from Fein v. Selective Service System Local Board No. 7

Opinion

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA.

No. 572.

Decided December 16, 1968.

Appellee's draft Board rejected his claim to classification as a conscientious objector and classified him I-A. His administrative appeals were unsuccessful and, after he was ordered to report for induction, he filed suit in the District Court to enjoin his induction and to have the rejection of his conscientious objector claim declared improper. The District Court entered a preliminary injunction preventing induction until a determination of the claim on the merits. That court held that § 10(b)(3) of the Military Selective Service Act of 1967, which provides that there shall be no pre-induction judicial review "of the classification or processing of any registrant," if applied to bar pre-induction review of appellee's classification, was unconstitutional. Held: The draft Board had exercised its statutory discretion, evaluating the evidence in appellee's individual case, and had rejected his claim. Congress may constitutionally require that a registrant's challenges to such decisions be deferred until after induction, when the remedy of habeas corpus would be available, or until defense of a criminal prosecution, should he refuse to submit to induction. See Oestereich v. Selective Service Bd., ante, p. 233.

287 F. Supp. 369, reversed and remanded.

Solicitor General Griswold, Assistant Attorney General Weisl, Morton Hollander, and Robert V. Zener for appellants.

Norman Leonard for appellee.


Appellee's draft Board rejected his claim to classification as a conscientious objector and classified him I-A. His appeals within the Selective Service System were unsuccessful. After he was ordered to report for induction he brought an action in the United States District Court for the Northern District of California seeking to have his induction enjoined and to have the rejection of his claim to conscientious objector classification declared improper on the grounds that it had no basis in fact, that the Board had misapplied the statutory definition of conscientious objector, and that the members of the Board were improperly motivated by hostility and bias against those who claim to be conscientious objectors. The District Court entered a preliminary injunction preventing appellee's induction until after a determination of his claim on the merits.

In entering the preliminary injunction, the District Court held that it had jurisdiction to hear appellee's claim despite § 10(b)(3) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 460(b)(3) (1964 ed., Supp. III), which provides:

"No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question 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."

Acknowledging that this statute if applicable would prevent pre-induction review of appellee's classification, the District Court held that, so applied, § 10(b)(3) was unconstitutional because to provide for judicial consideration of the lawfulness of the Board's action only as a defense to a criminal prosecution would require that appellee pursue a "tortuous judicial adventure" so beset by "hazards" and "penalties" as to result "in no review at all." The Government has appealed under 28 U.S.C. § 1252 which allows direct appeal to this Court of "an interlocutory or final judgment, decree or order of any court of the United States . . . holding an Act of Congress unconstitutional in any civil action . . . to which the United States . . . or any officer . . . thereof . . . is a party."

This Court has today, after full consideration, decided Oestereich v. Selective Service Bd., ante, p. 233. Because the result here is dictated by the principles enunciated in that case, it is appropriate to decide this case summarily, reversing the District Court.

In Oestereich the delinquency procedure by which the registrant was reclassified was without statutory basis and in conflict with petitioner's rights explicitly established by the statute and not dependent upon an act of judgment by the Board. Oestereich, as a divinity student, was by statute unconditionally entitled to exemption. Here, by contrast, there is no doubt of the Board's statutory authority to take action which appellee challenges, and that action inescapably involves a determination of fact and an exercise of judgment. By statute, classification as a conscientious objector is expressly conditioned on the registrant's claim being "sustained by the local board." 50 U.S.C. App. § 456(j) (1964 ed., Supp. III).

Here the Board has exercised its statutory discretion to pass on a particular request for classification, "evaluating evidence and . . . determining whether a claimed exemption is deserved." Oestereich v. Selective Service Bd., supra, at 238. A Local Board must make such a decision in respect of each of the many classification claims presented to it. To allow pre-induction judicial review of such determinations would be to permit precisely the kind of "litigious interruptions of procedures to provide necessary military manpower" (113 Cong. Rec. 15426 (report by Senator Russell on Conference Committee action)) which Congress sought to prevent when it enacted § 10(b)(3).

We find no constitutional objection to Congress' thus requiring that assertion of a conscientious objector's claims such as those advanced by appellee be deferred until after induction, if that is the course he chooses, whereupon habeas corpus would be an available remedy, or until defense of the criminal prosecution which would follow should be press his objections to his classification to the point of refusing to submit to induction. Estep v. United States, 327 U.S. 114 (1946); Falbo v. United States, 320 U.S. 549 (1944).

The motion of appellee for leave to proceed in forma pauperis is granted. The decision of the District Court is reversed, and the case remanded for issuance of an order dissolving the preliminary injunction and dismissing the action.

MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, and MR. JUSTICE WHITE concur in the judgment of the Court for the reasons stated in MR. JUSTICE STEWART'S dissenting opinion in Oestereich v. Selective Service Bd., ante, p. 245, decided today.

MR. JUSTICE BLACK would note probable jurisdiction and set the case down for argument.


The evidence in this case, which I have set forth in an Appendix, makes plain, as the Court states, that the question whether the registrant should be classified as a conscientious objector turns on the weight and credibility of the testimony. I therefore agree that § 10(b)(3) of the Military Selective Service Act of 1967 precludes review of the action of the Board at this pre-induction stage.

I would take a different view if this were a case where a registrant was moved from a CO (conscientious objector) classification to I-A because he made a speech, unpopular with the Board.

This would also be a different case if the registrant were a member of an institutionalized group, such as the Quakers, whose opposition to war was well known and the registrant, though perhaps unpopular with the Board, was a bona fide member of the group. Then, too, a Board would act in a lawless way if it moved a registrant from a CO classification to I-A and disregarding all the evidence denied him a CO classification.

Membership in a religious group is not, of course, the sole means of getting classification as a conscientious objector, as the exemption extends to anyone who has those conscientious objections, even though he is not associated with others. See United States v. Seeger, 380 U.S. 163, 172-173.

See White, Processing Conscientious Objector Claims: A Constitutional Inquiry, 56 Calif. L. Rev. 652, 660-667 (1968).

But in my view it takes the extreme case where the Board can be said to flout the law, as it did in Oestereich v. Selective Service Bd., ante, p. 233, to warrant pre-induction review of its actions.

APPENDIX TO OPINION OF DOUGLAS, J., CONCURRING.

Charles Gabriel is 23 years old, son of a white father and Negro mother. He graduated from Berkeley High School, attended San Francisco State College for two years before being dropped; for the following year he tried to regain entrance to that College by attending its "Extension School"; but when he was denied re-admission, he spent the next year at a City College from which he graduated. He registered with the Selective Service in 1963 at the age of 18. Two years later, at the age of 20, he applied for CO status. He was denied reclassification, and his three requests for a "personal appearance" before the board over a nine-month period were disregarded. Finally, he was given an opportunity for a personal appearance after he complained to the State Headquarters. He was denied reclassification.

(A) Gabriel's Letter of August 13, 1965.

In 1965, after he obtained a copy of Form 150 by which a registrant files for conscientious objector status, Gabriel filled out the form and sent his local draft board an accompanying letter explaining his conscientious convictions:

"As a Negro I firmly believe the United States Government has willfully let the Negro be deprived of his rights therefore the debt of forced service claimed arbitrarily from all eligible men for the purpose of fighting for the United States rights is in the Negroes case void. Because he has not been given the rights the United States fights for on its citizens behalf.

. . . . .

"My beliefs are superior to my human relations with the U.S. government and duties coming out of my beliefs are superior to duties stolen from me by the U.S. government.

"I have voiced my opinions and beliefs freely. In Berkeley H. S. in class in fall 1962 during the Cuban crisis I made a speech against U.S. action in Cuba otherwise I haven't bothered to record all the times I said what I thought.

"[listing activities]: active CORE member (1961-2) March on Wash DC 1963; Demonstrated against HUAC in Wash. D.C. 1959 I was in and helped organize the Freedom Week Play in Berkeley H. S. 1963. Demonstrated in 1960 in support of sit-ins against southern Wolworth Stores.

. . . . .

"All through my life I have been in contact with people who did not believe in war or killing; who believed the U.S. government and system was unjust. My parents their friends, my friends, numerous books by liberal or leftist writers . . . have been things that make me what I am."

(B) Gabriel's Official Summary of his Personal Appearance.

After his personal appearance, Gabriel filed a copy of his summary of the hearing, as provided by Selective Service regulations.

"This is a summary of my personal appearance before you on Thursday, May 19, 1966. . . . The youngest, forty to forty-five years old was fairly friendly during the meeting; the oldest seemed neutral; the other three seemed fairly unfriendly. . . . The oldest man referred to my letters as `very pointed, belligerent.' I said, jokingly, that I wrote the letters with the help of Ben Seaver and Alex Sliszka and they should share the blame. Then there was an unfriendly comment about Sliszka and Seaver. The youngest man read my statement that said I was a Negro and didn't think I had my rights. He asked if this wasn't the basis of most of my case. I said, `No. It was only part of it.'. . . Then one man asked me if I was trying to `beat the game.'. . . I said that there were easier ways to avoid the draft and gave some examples. . . . The man who asked me to reread my written statement said, i. e. wasn't that answer subversive. I said `maybe so but I believe I'm right.'. . . The oldest man asked me if I'd fought in high school. I answered, `No' and he said, `You must have been a real good boy.' He then asked me between two and four times to `eradicate' the thought from my mind that I had gotten unfair treatment from the local board."

(C) Department of Justice Resume.

After being denied CO status, Gabriel appealed. And as is customary in such appeals, the Justice Department conducted an investigation into the sincerity of his beliefs. The following is a resume of the investigating officer's report.

"A representative of Berkeley High School . . . stated that he was a `quiet rebel' but was mature for his age. . . . Another representative at Berkeley High School stated that . . . she recalls that he demonstrated a high regard for the individual . . . and was extremely conscious of the role in society of the American Negro. It was advised that the registrant's mother . . . and step-father have been politically active in such organizations as the Congress for Racial Equality. . . . A representative of the Buildings and Grounds Department, San Francisco State College, advised that the registrant . . . had a reputation of being involved in any movement which has doings with anti-war demonstrations or activities. This representative stated that he never actually witnessed the registrant in these activities but it is general knowledge among employees around the campus. . . . An official of the Magic Theatre, San Francisco, California advised that . . . the registrant is against war and against military service. It was further stated that the registrant has discussed the Vietnam war and considers it unjust. . . . One person interviewed in San Francisco, California advised that she has resided here in an apartment building for the last four or five years. She stated as she recalls, a young Negro male resided with a young woman in an apartment in this building about a year ago. She believes this individual may have been the registrant. . . . A reference stated that he has known the registrant since about 1963 . . . when they both were students at San Francisco State College. . . . He further stated that the registrant could well be a communist, however, they have never discussed this. He advised that he is aware that the registrant's mother and father are very much against war and they are active in movements which are against war. He further stated that the registrant is also active in these movements and organizations, however, he did not know the names of these organizations. It was also stated that the registrant has mentioned that he is active in anti-war groups and he believes he has participated in anti-war marches. . . . Another reference stated . . . that when [the registrant] went to report for his armed forces physical examination he observed an anti-draft demonstration occurring in front of the physical facilities and felt compelled to take part in the demonstration, which he did."

(D) Department of Justice Recommendation.

After conducting its investigation, the Department of Justice filed a "recommendation" with the local board, suggesting that Gabriel be denied CO status:

"He said that he is definitely not a communist. . . . The registrant advised that he is, and has been, consistently nonviolent, and that he has never been a member of any aggressive anti-war demonstrations. He said that, although he was a member of the Vietnam Day Committee and the War Resistance League, and has participated in peace marches, he has always participated in a passive or peaceful manner."


Summaries of

Clark v. Gabriel

U.S.
Dec 16, 1968
393 U.S. 256 (1968)

In Clark v. Gabriel, the registrant challenged the factual and judgmental determination that he was not entitled to a conscientious objector classification.

Summary of this case from Fein v. Selective Service System Local Board No. 7

In Clark v. Gabriel, we interpreted § 10(b)(3) to bar pre-induction review where the challenged action "inescapably involves a determination of fact and an exercise of judgment"; thus, we refused to allow pre-induction review where the registrant claimed, on the facts, that he was entitled to a CO classification.

Summary of this case from Fein v. Selective Service System Local Board No. 7

In Oestereich and Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968) the court construed 460(b)(3) to allow pre-induction judicial review where the board's action is blatantly lawless or a clear departure from a statutory mandate but not where the board acts within its statutory authority with respect to a discretionary classification or exercises judgment in determining facts and evaluating evidence.

Summary of this case from Zerillo v. Local Board No. 102

In Gabriel, the Court distinguished a case in which the registrant "was by statute unconditionally entitled to exemption," as in Oestereich, from one which "inescapably involves a determination of fact and an exercise of judgment," 393 U.S. at 258, 89 S.Ct. at 426 and declared that if a case fits within the latter category, there may be no pre-induction review.

Summary of this case from Hunt v. Local Board No. 197

In Gabriel, a registrant claiming conscientious objector status sought to have his induction enjoined on the grounds that his I-A classification was without basis in fact, that the local board had misapplied the statutory definition of conscientious objector and that members of his board were prejudiced against conscientious objectors.

Summary of this case from Kolden v. Selective Service Local Board No. 4, Beltrami County

In Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968), the Court upheld the constitutionality of § 10(b)(3) on grounds that to allow preinduction review would create the sort of disruption which Congress sought to prevent when it passed § 10(b)(3), namely, 'litigious interruptions of procedures to provide necessary military manpower.

Summary of this case from Feinberg v. Federal Deposit Ins. Corp.

In Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968), a local draft board rejected the plaintiff's contention that he was a conscientious objector and classified him I-A. Section 6(j) of the Act, 50 U.S.C. App. § 456(j), does not give a person an absolute right to an exemption as a conscientious objector, but rather gives the local board some discretion in the matter.

Summary of this case from Pasquier v. Tarr

In Gabriel, on the other hand, the Court was faced with a case where the Board had been authorized by the statute to exercise its discretion.

Summary of this case from Hykel v. Federal Savings and Loan Insurance Corp.

In Gabriel the Court did not allow preinduction review of plaintiff's claim for conscientious-objector status, because an act of discretion was involved. From these two cases it would seem that judicial review is possible only when the board is refusing to grant a classification or exemption that is mandatory under the statute. If the board has any discretion, then judicial review is not possible.

Summary of this case from Ryan v. Hershey

In Clark the Court found that although a conscientious objector is absolutely entitled to exemption (as was the ministerial student in Oestereich), the board must exercise its discretion in determining whether a registrant is in fact a conscientious objector within the meaning of the statute (unless that fact is undisputed as in Oestereich) and concluded that Oestereich therefore required that preinduction judicial review be denied pursuant to § 10(b)(3).

Summary of this case from Gee v. Smith

In Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968), the Court did not allow pre-induction judicial review.

Summary of this case from Runnels v. Local Bd. 102

In Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418, registrant sought to enjoin his induction on the ground that his claim to conscientious objector classification was wrongfully refused.

Summary of this case from Davis v. Hershey

In Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968), the Court held § 10(b)(3) constitutional, at least on its face and as there applied.

Summary of this case from Murray v. Vaughn

In Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418, the Court in a per curiam opinion said the constitutional § 10(b)(3) precluded review of the I-A classification of a registrant claiming to be a conscientious objector.

Summary of this case from Armendariz v. Hershey
Case details for

Clark v. Gabriel

Case Details

Full title:CLARK, ATTORNEY GENERAL, ET AL. v . GABRIEL

Court:U.S.

Date published: Dec 16, 1968

Citations

393 U.S. 256 (1968)
89 S. Ct. 424

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