author:
Mr. Justice Marshall
      Mr. Justice Douglas,

text:
    McGEE v. UNITED STATES
    No. 362.
    Argued February 23, 1971
    Decided May 17, 1971
    Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Black, Harlan, Brennan, Stewart, White, and Black-mun, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 492.

      Alan H. Levine argued the cause for petitioner. With him on the briefs were Marvin M. Karpatkin and Melvin L. Wulf.

      William Bradford Reynolds argued the cause for the United States pro hac vice. With him on the brief were Solicitor General Griswold and Assistant Attorney General Wilson.

      Marvin B. Haiken filed briefs for Richard Kenneth LeGrande as amicus curiae.

   Mr. Justice Marshall

delivered the opinion of the Court.

Petitioner was convicted of failing to submit to induction and other violations of the draft laws. His principal defense involves the contention that he had been incorrectly classified by his local Selective Service board. The Court of Appeals ruled that this defense was barred because petitioner had failed to pursue and exhaust his administrative remedies. We granted certiorari, 400 U. S. 864 (1970), to consider the applicability of the “exhaustion of administrative remedies” doctrine in the circumstances of this case.

I

In February 1966, while attending the University of Rochester, petitioner applied to his local Selective Service board for conscientious objector status. In support of his claim to that exemption he submitted the special form for conscientious objectors (SSS Form 150), setting forth his views concerning participation in war. The board continued petitioner’s existing classification — student deferment — and advised him that the conscientious objector claim would be passed upon when student status no longer applied.

In April 1967 petitioner wrote to President Johnson, enclosing the charred remnants of his draft cards and declaring his conviction that he must “sever every link with violence and war.” The letter included a statement that petitioner had “already been accepted for graduate study in a program where I would probably qualify for the theological deferment.” A copy of the letter was forwarded to the local board; the board continued petitioner’s student deferment. Petitioner graduated in June 1967, and thereafter the board sent him a current information questionnaire (SSS Form 127), which asked inter alia for specific information concerning his future educational plans and generally for any information he thought should be called to the board’s attention. Petitioner returned the questionnaire unanswered and announced in a cover letter that henceforth he would adhere to a policy of noncooperation with the Selective Service System.

In September 1967 the board reviewed petitioner’s file, rejected the pending conscientious objector claim, and reclassified petitioner I-A. In response to his reclassification petitioner sought neither a personal appearance before the local board nor review by the appeal board. Indeed, pursuant to his policy of noncooperation, he returned to the board, unopened, the communication notifying him of the reclassification and of his right to appear before the local board, to confer with the Government appeal agent, and to appeal. Petitioner did not appear for a physical examination ordered to take place in October 1967. He did respond to an order to appear for induction in January 1968, and he took a physical examination at that time. However, he refused to submit to induction.

Petitioner was prosecuted, under § 12 (a) of the Military Selective Service Act of 1967, 62 Stat. 622, as amended, 50 U. S. C. App. §462 (a) (1964 ed., Supp. V) and applicable Selective Service regulations, for failing to submit to induction (count I), failing to report for a pre-induction physical examination (count II), failing to keep possession of a valid classification notice (count III), and failing to submit requested information relevant to his draft status (count IV). Petitioner was convicted on all four counts and sentenced to two years’ imprisonment on each count, the sentences to run concurrently. Petitioner’s principal defense to liability for refusing induction was that the local board had erred in classifying him I-A. The Court of Appeals, with one judge dissenting, held that the defense of incorrect classification was barred because petitioner had failed to exhaust the administrative remedies available for correction of such an error. The conviction was affirmed by the Court of Appeals.

II

Two Terms ago, in McKart v. United States, 395 U. S. 185 (1969), the Court surveyed the place of the exhaustion doctrine in Selective Service cases, and the policies that underpin the doctrine. As it has evolved since Falbo v. United States, 320 U. S. 549 (1944), and Estep v. United States, 327 U. S. 114 (1946), the doctrine when properly invoked operates to restrict judicial scrutiny of administrative action having to do with the classification of a registrant, in the case of a registrant who has failed to pursue normal administrative remedies and thus has sidestepped a corrective process which might have cured or rendered moot the very defect later complained of in court. Cf. Oestereich v. Selective Service Board, 393 U. S. 233, 235-236, n. 5 (1968); Gibson v. United States, 329 U. S. 338, 349-350 (1946). McKart stands for the proposition that the doctrine is not to be applied inflexibly in all situations, but that decision also plainly contemplates situations where a litigant's claims will lose vitality because the litigant has failed to contest his rights in an administrative forum. The result in a criminal context is no doubt a substantial detriment to the defendant whose claims are barred. Still this unhappy result may be justified in particular circumstances by considerations relating to the integrity of the Selective Service classification process and the limited role of the courts in deciding the proper classification of draft registrants.

A

After McKart the task for the courts, in deciding the applicability of the exhaustion doctrine to the circumstances of a particular case, is to ask “whether allowing all similarly situated registrants to bypass [the administrative avenue in question] would seriously impair the Selective Service System’s ability to perform its functions.” 395 U. S., at 197. McKart specified thesalient interests that may be jeopardized by a registrant’sTailure to pursue administrative remedies. Certain failures to exhaust may deny the administrative system important opportunities “to make a factual record” for purposes of classification, or “to exercise its discretion or apply its expertise” in the course of decisionmaking. Id., at 194. There may be a danger that relaxation of exhaustion requirements, in certain circumstances, would induce “frequent and deliberate flouting of administrative processes,” thereby undermining the scheme of decisionmaking that Congress has created. Id., at 195. And of course, a strict exhaustion requirement tends to ensure that the agency have additional opportunities “to discover and correct its own errors,” and thus may help to obviate all occasion for judicial review. Ibid.

To be weighed against the interests in exhaustion is the harsh impact of the doctrine when it is invoked to bar any judicial review of a registrant’s claims. Surely an insubstantial procedural default by a registrant should not shield an invalid order from judicial correction, simply because the interest in time-saving self-correction by the agency is involved. That single interest is conceivably slighted by any failure to exhaust, however innocuous the bypass in other respects, and McKart recognizes that the exhaustion requirement is not to be applied “blindly in every case.” Id., at 201. McKart also acknowledges that the fear of “frequent and deliberate flouting” can easily be overblown, since in the normal case a registrant would be “foolhardy” indeed to withhold a valid claim from administrative scrutiny. Id., at 200. Thus the contention that the rigors of the exhaustion doctrine should be relaxed is not to be met by mechanical recitation of the broad interests usually served by the doctrine, but rather should be assessed in light of a discrete analysis of the particular default in question, to see whether there is “a governmental interest compelling enough” to justify the forfeiting of judicial review. Id., at 197.

In the McKart case, the focal interest for purposes of analysis was the interest in allowing the agency “to make a factual record, or to exercise its discretion or apply its expertise.” There the registrant had failed to take an administrative appeal from the local board’s denial of “sole surviving son” status. Later the issue of McKart’s entitlement to that exempt status arose in a criminal context, and the Court held that the claim should be heard as a defense to liability despite the failure to exhaust. The validity of the claim was a question “solely ... of statutory interpretation.” Id., at 197-198. McKart’s failure to exhaust did not inhibit the making of an administrative record — all the relevant facts had been presented. Id., at 198 n. 15. The issue was not one of fact and thus its resolution would not have been aided by the exercise of special administrative expertise; and proper interpretation of the statutory provision in question was not a matter for agency discretion.

In the present case the same interest is pivotal — but here it is apparent that McGee’s failure to exhaust did jeopardize the interest in full administrative fact gathering and utilization of agency expertise, rather than the contrary. Unlike the dispute about statutory interpretation involved in McKart, McGee’s claims to exempt status — as a ministerial student or a conscientious objector — depended on the application of expertise by administrative bodies in resolving underlying issues of fact. Factfinding for purposes of Selective Service classification is committed primarily to the administrative process, with very limited judicial review to ascertain whether there is a “basis in fact” for the administrative determination. See 50 U. S. C. App. § 460 (b) (3) (1964 ed., Supp. V); Estep v. United States, 327 U. S., at 122-123; cf. Witmer v. United States, 348 U. S. 375, 380-381 (1955). McKart expressly noted that as to classification claims turning on the Resolution of particularistic fact questions^ “the Selective Service System and the courts may have'" a stronger interest in having the question decided in the first instance by the local board and then by the appeal board, which considers the question anew.” 395 U. S., at 198 n. 16. See id., at 200-201. This “stronger interest,” in the circumstances of the present case, has become compelling and fully sufficient to justify invocation of the exhaustion doctrine.

B

Petitioner argues that denial of exemption as a ministerial student was erroneous, but he had never requested that classification nor had he submitted information that would have been pertinent to such a claim. In regard to his entitlement to this exempt status, McGee made no effort to invoke administrative processes for factfinding, classification, and review, It is true that vagrant bits of information may have come to the attention of the local board raising a bare possibility that petitioner might qualify as a ministerial student, but this hardly changes the picture of a thoroughgoing attempt to sidestep the administrative process and make the first serious case for an exemption later in court.

Such a default directly jeopardizes the functional autonomy of the administrative bodies on which Congress has conferred the primary responsibility to decide questions of fact relating to the proper classification of Selective Service registrants. See McKart v. United States, 395 U. S. 185, 198 n. 15 (1969); cf. 32 CFR § 1622.1 (c). Here the bypass was deliberate and without excuse, and this is not a case where entitlement to an exemption would be automatically made out, given a minimal showing by the registrant or minimal investigatory effort by the local board. The exhaustion requirement is properly imposed where, as here, the claim to exemption depends on careful factual analysis and where the registrant has completely sidestepped the administrative process designed to marshal relevant facts and resolve factual issues in the first instance. Cf. Dickinson v. United States, 346 U. S. 389, 395-396 (1953).

C

Petitioner did claim exemption as a conscientious objector to war. He filled out and returned the special form for conscientious objectors (SSS Form 150), and appended a further statement of beliefs, thereby making out a prima facie case for the exempt status. Since at that time — 1966—petitioner held an undergraduate student deferment, the board postponed consideration of the claim to a “higher” classification. See 32 CFR § 1623.2. In 1967, after petitioner had graduated, the pending conscientious objector claim was reviewed and rejected, and petitioner was classified I-A. Petitioner contends that denial of conscientious objector status was erroneous, but after the claim was rejected he did not invoke the administrative processes available to correct the error. He did not seek a personal appearance before the local board, nor did he take an administrative appeal to contest the denial before the appeal board, which classifies de novo

That petitioner’s failure to exhaust should cut off judicial review of his conscientious objector claim may seem too hard a result, assuming, as the Government admits, that the written information available to the board provided no basis in fact for denial of the exemption, and, as the Court of Appeals ruled, that neither did petitioner’s conduct in relation to the conscription system or other acts that came into view. See 426 F. 2d 691, 697 (CA2 1970); id., at 700-701 (dissenting opinion). But even assuming the above, petitioner’s dual failure to exhaust — his failure either to secure a personal appearance or to take an administrative appeal— implicates decisively the policies served by the exhaustion requirement, especially the purpose of ensuring that the Selective Service System have full opportunity to “make a factual record” and “apply its expertise” in relation to a registrant’s claims. Wlien a claim to exemption depends ultimately on the careful gathering and analysis of relevant facts, the interest in full airing of the facts within the administrative system is prominent, and as the Court of Appeals noted, the exhaustion requirement “cannot properly be limited to those persons whose claims would fail in court anyway.” Id., at 699.

Conscientious objector claims turn on the resolution of factual questions relating to the nature of a registrant’s beliefs concerning war, Gillette v. United States, 401 U. S. 437 (1971), the basis of the objection in conscience and religion, Welsh v. United States, 398 U. S. 333 (1970), and the registrant’s sincerity, Witmer v. United States, 348 U. S. 375, 381 (1955). See 50 U. S. C. App. § 456 (j) (1964 ed., Supp. V). Petitioner declined to contest the denial of his conscientious objector claim before the local board by securing a personal appearance, and the Selective Service System was thereby deprived of one opportunity to supplement the record of relevant facts. The opportunity would have been restored had petitioner sought review by the appeal board. While the local board apparently was satisfied that classification should be made on the basis of the record it confronted, the appeal board, which classifies de novo, might have determined that the record should be supplemented by the local board. See 32 CFR § 1626.23. In the circumstances of this case, petitioner’s failure to take an administrative appeal not only deprived the appeal board of the opportunity to “apply its expertise” in factfinding to the record that was available; it also removed an opportunity to supplement a record containing petitioner’s own submissions but not containing the results of any specific inquiry into sincerity.

The Government contends that unless the exhaustion requirement is imposed to bar judicial review when the failure to exhaust has the present character, registrants would be encouraged to sidestep the administrative processes once a prima facie claim to conscientious objector status is made out by submission of a carefully drafted Form 150. Should the claim be denied at the local board level, the claimant might be tempted to circumvent further fact-gathering processes, and take a chance on showing in court that the only administrative record available contains no basis in fact for denial of the claim. This somewhat extreme situation is indeed presented by the circumstances of the present case, though, of course, there is no reason to question the bona fides of McGee’s own supervening policy of noncooperation with the conscription system. It remains that McGee’s failure to pursue his administrative remedies was deliberate and without excuse. And it is not fanciful to think that “frequent and deliberate flouting of administrative processes” might occur if McGee and others similarly situated were allowed to press their claims in court despite a dual failure to exhaust.

Ill

We conclude that petitioner’s failure to exhaust administrative remedies bars the defense of erroneous classification, and therefore the judgment below is

Affirmed.

Mr. Justice Douglas,

dissenting.

This is a case where so far every judge has agreed that McGee is a conscientious objector. He expressed his belief “in a personal Supreme Being to whom obligation is superior when duties of human relations are considered”; he said that “taking part in any form of military operation indicates an approval/consent situation repugnant ... to love and service of God and fellowman.” The majority of the Court of Appeals concluded that “[n] either his prior nor his subsequent actions were inconsistent with his assertions . . . and we see nothing in McGee’s file — all that was before the board — that could reasonably put his sincerity in issue.” 426 F. 2d 691, 697. Judge Feinberg in dissent agreed. Id., at 703.

Petitioner was a Roman Catholic studying at the Union Theological Seminary in New York City, preparing for the ministry. His sincerity and dedication to his moral cause are not questioned.

The critical issue in the case is whether the Selective Service Board in 1966 did “consider” and reject the claim of the registrant that he was a conscientious objector. The District Court and a majority of the Court of Appeals held that the board did pass on the claim. And this Court now refuses to pass on the registrant’s claim to the contrary, because, it says, that finding is not “clearly erroneous.” That the finding is clearly erroneous seems apparent to one who reads the entire record.

The advice which the registrant received in a letter from the board, dated March 23, 1966, was as follows: “We wish to advise that your claim as conscientious objector will be considered when you no longer qualify for student classification.” That letter states that de-cisión on the “claim as conscientious objector” will be passed on later. The inference is clear — that it was not then considered and decided.

The Chairman of the board testified that the conscientious objector claim was not considered, “because the young man was attending college and in my judgment he rated a 2S qualification which we proceeded to give him.” He later testified that in February 1966 he, the Chairman of the board, felt “that there weren’t sufficient facts in that to motivate me to grant the registrant the request he sought.” Yet even that ambiguous statement is a far cry from concluding that the board rejected his claim to status as a conscientious objector. Indeed, it was the duty of the board under the Regulations to classify the registrant “in the lowest class for which he is determined to be eligible.” 32 CFR § 1623.2. And it is clear that the student classification of II-S is lower than the classification of a conscientious objector, I-O. In 1966 the board therefore had no occasion to pass on the conscientious objector claim.

As respects the reclassification of registrant in 1967 the Chairman of the board testified: “. . . I recall that subsequently the young man finished his college or left college, I don’t recall, and did not further merit a 2S deferment at which time, sir, based on nothing further in his file other than what we had already had in the file, we gave him a 1A classification. In doing that, sir, we again reviewed what appeared in the file.” And the Chairman also testified: “He was no longer in school and we had no alternative but to classify him 1A.”

But it is clear from the Chairman’s own testimony that the classification of I-A granted in 1967 was based upon the supposition that the board had denied the conscientious objector claim in 1966, for the Chairman stated:

“Based on our previous determination that his request for conscientious objection status was denied, we had no alternative at that time but to give him a 1A, which we did.
“Q. You didn’t consider the conscientious objector claim again because it had been denied previously?
“A. Yes-”

And yet, as the Chairman also testified, the board made no decision in 1966:

Mr. Lande [board Chairman]: “When Mr. McGee’s return application came in asking for his deferment on the grounds of conscientious objector, sir, that was reviewed by me and read and carefully considered, as I consider all requests. As I stated before, it was my considered judgment upon concluding the reading of it and my consideration that he did not rate the deferment.
“Q. Mr. Lande, am I correct in understanding that the decision with respect to this conscientious objector application was made, then, by you and not by the entire boardf
“The Court: Are you talking now about the original receipt of the application?
“Mr. Meyer [counsel for petitioner]: Yes, your Honor.
“The Court: Or when they were told or learned that he no longer was in college?
“Mr. Meyer: The original receipt.
“The Court: He said, as I recall it, that that was his decision.”

It is, with all due respect, I think, a clear miscarriage of justice to allow a man to be sent off to prison where there are at best only dubious grounds for saying that the board discharged its statutory duty of considering and passing upon the conscientious objector claim.

The question might not loom as important as it seems to be in this case if the claim itself were a transparent one. But there is nothing on the face of the claim or in the record to detract from it. The man was a theological student studying for the priesthood, and to send him off to prison on this record is either to sanction a form of administrative trickery or to allow the Selective Service board to act quite irresponsibly.

If there were a “lawless” act in this case, it was committed by the Selective Service Board.

It was the board that defaulted, not McGee. Its duty under the Regulations was to “receive and consider all information, pertinent to the classification of a registrant, presented to it.” 32 CFR § 1622.1 (c) (italics added). The board did not “consider” the claim. Since the board did not “consider” the claim and reject it, but deferred decision on it in 1966 and then in 1967 said that the 1966 deferment was a decision on the merits, there was no way in which McGee could have made a timely appeal to the board.

This case, on the facts, is a much stronger one for dispensing with the need to exhaust administrative remedies than was McKart v. United States, 395 U. S. 185. In McKart the registrant failed to appeal his classification of I-A where he had enjoyed a IV-A classification (sole surviving son status) until his mother died. Then the board put him in I-A on the ground that the “family unit” had ceased to exist. We excused exhaustion of remedies on the ground that only a question of law was involved. We rationalized the result as follows:

“In short, we simply do not think that the exhaustion doctrine contributes significantly to the fairly low number of registrants who decide to subject themselves to criminal prosecution for failure to submit to induction. Accordingly, in the present case, where there appears no significant interest to be served in having the System decide the issue before it reaches the courts, we do not believe that petitioner’s failure to appeal his classification should foreclose all judicial review.” Id., at 200.

By like reasoning, we should conclude that cases where the local board does not “consider” the conscientious objector claim must be few and far between. Moreover, the term “consider” is a key part of a Regulation and just as much a question of law as the phrase in issue in McKart. Men should not go to prison because boards are either derelict or vindictive.

I would reverse this judgment of conviction.

       In this connection he noted that he intended “to continue on to actual ordained Priesthood.” After registering for the draft in 1961, petitioner had informed the local board that he was then a student at a Catholic seminary, preparing for the ministry under the direction of the Roman Catholic Church. Subsequently he left the seminary and later enrolled at the University of Rochester, a secular university.

       See n. 10, infra.

       See 32 CFR § 1632.14; 32 CFR § 1628.16 ; 32 CFR § 1623.5; 32 CFR § 1641.7 (b).

       In the Court of Appeals, as here, petitioner argued that the defense of erroneous classification would, if valid, defeat criminal liability for acts charged under counts II and III, as well as count I.

       Petitioner contended, as he does in this Court, that the board erroneously failed to pass on the merits of his conscientious objector claim when reclassifying him in September 1967, that at any rate the board erred in denying conscientious objector status, and also that the board erred in failing to grant him a ministerial student exemption. Petitioner had matriculated at Union Theological Seminary in September 1967, after being reclassified I-A. He had never, however, requested that he be classified as exempt from the draft as a ministerial student. See infra, at 486-488.

       Certainly it is late in the day to launch a broadside against the whole scheme of the exhaustion doctrine in Selective Service cases, as petitioner attempts, on the ground that a doctrine of the same name operates in some other legal context simply to inhibit premature access to the courts on the part of a litigant seeking affirmatively to challenge agency action. Cf. McKart v. United States, 395 U. S. 185, 193-195 (1969). Nor is it tenable to say that the doctrine is inappropriate when fashioned by judicial decision rather than specific congressional command. See id., at 193-194, 197; id., at 206 (White, J., concurring in result). The whole rationale of the exhaustion doctrine in the present context lies in purposes intimately related to the autonomy and proper functioning of the particular administrative system Congress has constructed. See generally Mulloy v. United States, 398 U. S. 410, 416 (1970); Witmer v. United States, 348 U. S. 375, 380-381 (1955).

       Petitioner’s letter to President Johnson, a copy of which was transmitted to the board, declared that petitioner’s future graduate studies in his own view "would probably qualify” him for the ministerial student exemption. This is the sole communication from petitioner that actually reached the board, however circuitously, and contained a hint of petitioner’s projected studies at the Union Theological Seminary, though the letter did not say where petitioner intended to study and it gave no information whatever on other matters critical to ministerial student status. See n. 9, infra. Petitioner’s reliance on information communicated by him, not to the local board, but to certain FBI agents and to an assistant United States attorney, is even more farfetched.

       Local Board Memorandum No. 56 (August 18, 1954) prescribes that “[t]o substantiate the claim of a registrant that he is a theological student, the local board must require him to furnish” certain relevant evidence. Petitioner contends that this directive places the burden of fact gathering on the board and relieves him of the responsibility to produce unsolicited evidence relevant to a ministerial student claim. However, in petitioner’s case there was no “claim of a registrant” before the board, and at any rate the board’s fact-gathering efforts were thwarted by petitioner’s refusal to fill out the current information questionnaire (SSS Form 127) sent to him. Thus, we need not consider the relevance of the directive for exhaustion purposes in the case of a registrant who claims ministerial student status but falls short in his initial proofs.
      Petitioner’s emphasis on the mandatory statutory language relating to exemption of ministerial students, 50 U. S. C. App. § 456 (g) (such persons “shall be exempt”), is also misplaced. This is not a case where, though no definite formal request for exemption is made, entitlement to exemption is clear on information submitted. Indeed, even on the record as developed in the trial court below, much less on the scraps of information available to the Selective Service System, denial of exemption in petitioner’s case is not unsupportable. See n. 9, infra.

       The Military Selective Service Act of 1967, 50 U. S. C. App. §456 (g), provides that “students preparing for the ministry under the direction of recognized churches or religious organizations, who are satisfactorily pursuing full-time courses of instruction in recognized theological or divinity schools . . . shall be exempt . . . .” See 32 CFR § 1622.43 (a). Evidence aired at trial showed that after September 1967 petitioner was engaged in studies at Union Theological Seminary, a nondenominational seminary. There was some evidence that petitioner intended eventually to become a priest, but scant evidence, if any, tending to indicate that petitioner’s studies were “under the direction” of his church. The Court of Appeals determined, in view of the trial record, that “denial of a [ministerial student] exemption to McGee would have had a ‘basis in fact.’” 426 F. 2d 691, 696 (CA2 1970).

       Though the trial testimony was somewhat ambiguous, the District Judge found specifically that the local board had passed on the merits of petitioner’s pending conscientious objector claim in September 1967, before reclassifying petitioner I-A. We do not disturb this finding, which was approved by the Court of Appeals majority below.

       See 32 CFR §§ 1624.1, 1624.2.

       See 32 CFR §§ 1626.2, 1626.26.

       Petitioner’s board did not summon him for an interview to inquire into the sincerity of his claim prior to classification, as it might have done. See Local Board Memorandum No. 41, as amended July 30, 1968 (rescinded August 27, 1970).

       Local boards have wide fact-gathering powers. See 32 CFR §§ 1621.14, 1621.15, and 1625.1 (c).

       This defense figures in petitioner’s challenge to his conviction on counts I, II, and III. The two-year sentences on each of the four counts are to run concurrently, and we decline to disturb the conviction on count IV, a minor offense indeed in comparison to the act involved in count I.


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Harlan, Me. Justice Douglas,

license: Public Domain

text:
    TRIANGLE IMPROVEMENT COUNCIL et al. v. RITCHIE, COMMISSIONER, STATE ROAD COMMISSION OF WEST VIRGINIA, et al.
    No. 712.
    Argued March 22, 1971
    Decided May 17, 1971

      Jack Greenberg argued the cause for petitioners. With him on the briefs were James M. Nabrit III, Charles Stephen Ralston, Elizabeth B. DuBois, and Thomas J. O’Sullivan.

      William Bradford Reynolds argued the cause for the federal respondents pro hac vice. With him on the brief were Solicitor General Griswold and Assistant Attorney General Gray. Stanley E. Preiser argued the cause and filed a brief for the state respondents.

      Kenneth F. Phillips filed a brief for the National Housing and Economic Development Law Project as amicus curiae urging reversal.
   Per Curiam.

The writ of certiorari is dismissed as improvidently granted.

Mr. Justice Harlan,

concurring.

In light of my Brother Douglas’ assertion, post, at 508, that today’s disposition might be taken to impair the integrity of the “rule of four,” see Ferguson v. Moore-McCormack Lines, 352 U. S. 521, 559-562, 564 (1957) (opinion of this writer), I deem it appropriate to set forth my reasons for joining in the dismissal of the writ as improvidently granted.

The Federal-Aid Highway Act of 1968 provided in pertinent part that:

“The Secretary [of Transportation] shall not approve any project [such as that here involved] which will cause the displacement of any person . . . unless he receives satisfactory assurances from the State Highway department that—
“(3) within a reasonable period of time prior to displacement there will be available, to the extent that can reasonably be accomplished, in areas not generally less desirable in regard to public utilities and public and commercial facilities and at rents or prices within the financial means of the families and individuals displaced, decent, safe, and sanitary dwellings, as defined by the Secretary, equal in number to the number of and available to such displaced families and individuals and reasonably accessible to their places of employment.” 23 U. S. C. § 502 (1964 ed., Supp. V).

The principal issue presented by this case is whether that statute, either of its own force or together with the administrative regulations promulgated pursuant to it, prevents the Secretary from authorizing construction of a segment of the interstate highway system, even where the rights-of-way had been acquired and some persons displaced prior to the effective date of the 1968 Act, unless the State first compiles a comprehensive formal relocation plan. In short, the question is what constitutes “satisfactory assurances” in such a case.

Since certiorari was granted, a number of events have occurred that, in my judgment, have rendered this case wholly inappropriate for our review. First, the Act upon which petitioners base their case has been repealed. Secondly, a new statute has been enacted by the Congress that alters drastically the potential impact of any decision we might reach in this case. Third, we were informed that, as of the date of oral argument, less than 10 persons remained to be displaced by this federal project. Finally, in their brief on the merits in this Court, petitioners have almost completely abandoned their original claim for relief and now seek to broaden substantially the nature of the remedy they seek.

The original prayer for relief simply sought to enjoin further displacement pending submission and implementation of a formal relocation plan by the West Virginia State Highway Department. The fact that the statute has been repealed since certiorari was granted and that less than 10 persons would be affected were we to accept petitioners’ legal position renders this case, I think, a classic instance of a situation where the exercise of our powers of review would be of no significant continuing national import. Of course, every individual alleging he has been abused by the exercise of federal power should, as a general matter, be heard, even where his situation becomes unique due to repeal or cessation of the action he challenges. That is why federal district courts and courts of appeals are provided and vested with largely obligatory jurisdiction. Hearing such claims is not, however, a principal purpose for which this Court sits. See Rule 19 of the Rules of this Court.

At the same time Congress repealed the 1968 Act it enacted the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. 84 Stat. 1894. Its principal purpose, as the title implies, was to establish a uniform governing rule of federal law for all federally directed and federally financed projects that cause displacement of persons and businesses. The 1970 Act was very consciously modeled on the 1968 Federal-Aid Highway Act, following “as closely as possible [its] substantive provisions,” S. Rep. No. 91-488 (1969), in an effort to assure that all persons uprooted by federal authority would receive the beneficent protection earlier extended to those situated in the path of highway construction. See especially 115 Cong. Rec. 31535 (remarks of Sen. Cooper). Section 210 of the new Act provides that:

“[T]he head of a Federal agency shall not approve any grant to ... a State agency, under which Federal financial assistance will be available to pay all or part of the cost of any program or project which will result in the displacement of any person on or after the effective date of this title, unless he receives satisfactory assurances from such State agency that—
“(2) relocation assistance programs offering the services described in section 205 shall be provided to such displaced persons;
“(3) within a reasonable period of time prior to displacement, decent, safe, and sanitary replacement dwellings will be available to displaced persons in accordance with section 205 (c)(3).”

Section 205 (c) (3) describes in some detail the services that must be provided. It does not, however, explicitly state that such “program” shall include a comprehensive plan reflecting the projected relocation of each individual affected.

Arguably, the presence of this provision would enhance the general significance of our construction of the relevant, and similarly worded, section of the 1968 Act. Indeed, my Brother Douglas asserts that “any necessary interpretation of the 1968 [Act] would be equally applicable to the 1970 Act.” Post, at 504, n. 1. For me, however, this does not increase, but rather further diminishes, the appropriateness of our ruling in the instant case.

This case comes to us on a record that sheds light only upon the proper construction of the 1968 Act which governed only federal programs, administered by one agency, that aid highway construction by the States. It now appears that anything we might hold in that regard may very well have to be carried over in full force to govern the administration of the large number of federal programs that bring about human displacement. To render our determination upon such a wide-ranging issue we should, at a minimum, have the benefit of the thinking of lower federal courts on this problem, as well as some knowledge of the responses of the various affected agencies to this new statute. Yet we are entirely without these essential aids.

To the extent, then, that the instant case has any significance for the future, it seems to me that such issues should await a case arising under the new statute. Insofar as the case can be said to present an issue only as to the proper construction of the 1968 Act, events subsequent to the granting of the writ have, as noted previously, robbed it of all national significance.

Finally, it is troublesome that petitioners have virtually abandoned their initial claim for relief. Instead of the preparation of a plan, they now seek a decree to the effect that the District Court should bring before it all persons displaced by the highway and inquire whether their new locations meet statutory standards. As to this issue, there is neither an opinion below nor a record upon which to judge the claim. The case was tried upon a theory that the statutes require a formal plan, not that numerous individuals had been improperly relocated in fact. And there would seem to be no bar to the initiation of subsequent proceedings, in the District Court, raising individual claims of this sort where they do exist.

In light of this changed posture of the case, I do not think its adjudication would be a provident expenditure of the energies of the Court. Cf. Sanks v. Georgia, 401 U. S. 144 (1971).

Me. Justice Douglas,

with whom Me. Justice Black, Me. Justice Brennan, and Mr. Justice Marshall concur,

dissenting.

This case involves two federal-aid interstate highway projects in Charleston, West Virginia. Charleston lies in a narrow valley, along the Kanawha River and is bisected on the east by the Elk River which joins the Kanawha near the center of the city. The Triangle district is located along the south side of the Elk and near its mouth. Many of the residents of the Triangle district are elderly and almost all have comparatively low incomes. As often happens with interstate highways, the route selected was through the poor area of town, not through the area where the politically powerful people live.

The common urban housing shortage is severe in Charleston, in part, because many homes have been demolished for public projects. The impact of public projects in the Triangle has been exceptionally severe. Land clearance for a proposed expansion of a local water company displaced some 243 persons a few years ago. The planned interstate highway will displace about 300 more. And a proposed urban renewal project (which has been postponed indefinitely because of lack of replacement housing) will displace almost all of the area’s 2,000 residents.

Although alternative routes for the interstate highway were considered, the route through Triangle was selected and approved in 1964. Federal authorization for the right-of-way was given in 1966 and 1967. There were about 300 persons to be dislocated within Triangle.

On August 23, 1968, the 1968 amendments to the Federal-Aid Highway Act relating to relocation benefits for persons displaced by federal-aid highways became effective. By that date some 60% of the proposed right-of-way in the present case had been acquired by the State. But the vast majority of persons within the Triangle area, who were to be dislocated by the highway, had not yet been displaced from the area as of the effective date of the 1968 amendments.

Just over three months after the 1968 amendments became effective petitioners commenced this action, arguing that the amendments had not been complied with and that there was no state plan disclosing the existence of adequate replacement housing. Prior to trial only 17 households had been moved and over 280 persons remained to be displaced. Once the construction began, however, displacement did occur and the Solicitor General’s brief, filed just before oral argument, informs us that only nine persons are left in the Triangle and virtually all the vacant housing has been demolished pursuant to an order of Under Secretary of Transportation Beggs given November 6, 1970.

Much is made of the fact that although originally about 300 people were to be displaced in the Triangle, there remain only nine who have not been taken care of or who have not on their own found new shelter. If only one person were involved, the case would, in my view, be no different. For under our regime even one person can call a halt where government acts lawlessly. And this is patently a case where the federal bureaucracy has defied a congressional mandate.

It is notorious that interstate highways have left displaced citizens without homes because no efforts or inadequate efforts have been made for relocation. In 1962 Congress amended the Federal-Aid Highway Act to require assurances of “relocation advisory assistance” and authorized minimal payments for relocation assistance. 23 U. S. C. § 133 (repealed by Pub. L. 90-495, § 37, 82 Stat. 836). But, as Judge Sobeloff noted below, the “cold administrative indifference to the plight of those left without roofs over their heads mounted to the level of a national scandal.” 429 F. 2d 423, 424 (dissenting opinion). In 1968 Congress passed certain amendments to the Act to rectify this “national scandal.”

The 1968 amendments provide that any person displaced by a federal-aid highway project “may elect to receive actual reasonable expenses in moving.” 23 U. S. C. § 505 (1964 ed., Supp. V). If a property owner, he is entitled to a payment from the State, in addition to the acquisition price of the property taken, of up to $5,000, representing the difference between the acquisition price and the cost of obtaining a comparable dwelling. A tenant may receive up to $1,500 to enable him to rent for a period of two years, or make the down payment on the purchase of a decent, safe, and sanitary dwelling “not . . . less desirable” than his existing one. 23 U. S. C. § 506 (1964 ed., Supp. V).

The duty of the Secretary of Transportation under the amendments was made explicit. He is to see that the amendments are effective. Under 23 U. S. C. § 502 (1964 ed., Supp. V) he is not to approve any project “which will cause the displacement of any person, business, or farm operation unless he receives satisfactory assurances from the State Highway department that” (1) fair and reasonable relocation and other payments will be afforded in accordance with the Act, (2) relocation assistance programs will be afforded in accordance with the Act, and (3) “within a reasonable period of time prior to displacement there will be available, to the extent that can reasonably be accomplished, in areas not generally less desirable in regard to public utilities and public and commercial facilities and at rents or prices within the financial means of the families and individuals displaced, decent, safe, and sanitary dwellings . . . equal in number to the number of and available to such displaced families and individuals and reasonably accessible to their places of employment.”

Satisfactory assurances have been strictly defined by regulation. Instructional Memorandum 80-1-68, § 5a (5) of the Department of Transportation requires that the program be “realistic.” “The State highway department, prior to proceeding with . . . construction shall furnish . . . information for review and approval by the division engineer [concerning methods] by which the needs of every individual to be displaced will be evaluated and correlated with available decent, safe, and sanitary housing [and the methods] by which the State will . . . inventory . . . currently available comparable housing.” (Italics added.) Id., at § 7b. Instructional Memorandum 80-1-68 was issued on September 5, 1968, § 5b of which stated that “assurances are not required where authorization to acquire right-of-way or to commence construction has been given prior to the issuance of this memorandum.” Even with this restriction, the memorandum would apply to this case since construction was not authorized until the fall of 1969.

The route for the highway was approved in 1964 and approval for acquisition of right-of-way was given in both 1966 and 1967. In early 1968 the Director of Public Roads issued a memorandum to his regional and state administrators directing that relocation problems be considered more extensively. A state plan for Charleston was reviewed and a federal division engineer stated:

“In the Charleston area the State did secure valuable information relative to persons to be dislocated by a survey which was a valuable assist in defining the overall problem involved. It would not be considered, in our opinion, a complete relocation plan since it did not provide information either factual, estimated or projected as to the availability of replacement housing.”

Since there was no need for a relocation plan at all, the division engineer felt that the “half of a plan” of the State was to their credit. Then on August 23, 1968, the 1968 amendments became effective. Section 511 (3) (1964 ed., Supp. V) provided that a displaced person was “any person who moves from real property on or after the effective date of this chapter” as a result of acquisition for a federal-aid highway.

The Secretary did not require the State to comply with the requirements of § 502. Yet as of the effective date of the 1968 amendments there had been no authorization of construction and at least 280 persons remained in the project area to be dislocated. The State finally did prepare a relocation plan, but only in response to this lawsuit and while the federal officials have obtained a copy of it, we are told they have made no attempt to review it. The plan that was prepared does not consider competing and simultaneous needs of other displaced persons because competition was not considered relevant. No formal plan for relocation was submitted to the division engineer because of the administrative interpretation that if authorization to acquire right-of-way had been given prior to August 23, 1968, then the 1968 amendments were of no effect. Subsequent to the District Court order dismissing petitioners’ complaint construction was authorized.

This petition should not be dismissed as improvidently granted. Our “rule of four” allows any four Justices to vote to grant certiorari and set the case for consideration on the merits. The four who now dissent were the only ones to vote to grant the petition. The rule should not be changed to a “rule of five” by actions of the five Justices who originally opposed certiorari. It is improper for them to dismiss the case after oral argument unless one of the four who voted to grant moves so to do, which has not occurred here. As Mr. Justice Harlan has noted it would save time and money if the five would dismiss as improvidently granted immediately after certiorari is granted rather than waiting for briefs and oral argument. Ferguson v. Moore-McCormack Lines, 352 U. S. 521, 560 (separate opinion). As Justice Harlan’s opinion in Ferguson makes clear, it is the duty of the five opposing certiorari to persuade others at Conference, but, failing that, to vote on the merits of the case. Id., at 562. His advice should be heeded here, lest the integrity of the “rule of four” be impaired.

I therefore dissent from a dismissal of this petition.

       The 1968 Act is still the relevant focus of this class action. The 1970 Act did not become effective until January 1971, and it specifically preserves rights and liabilities existing under prior Acts. § 220 (b). Those petitioners not relocated prior to the effective date of the 1970 Act may have a claim under the latter statute as well.

       Petitioners have not wholly abandoned their original claim for relief. They argue that preparation of a plan “may be appropriate relief” for those not yet relocated. Petitioners’ Brief 51. Prime emphasis, however, is placed upon the new remedial technique described in the text.

       It is true, of course, that the 1968 amendments were repealed by the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 84 Stat. 1894. That Act, however, is so similar to the 1968 amendments that any necessary interpretation of the 1968 amendments would be equally applicable to the 1970 Act. For convenience I have provided parallel citations in the footnotes.

       Cf. § 202 of the 1970 Act.

       Cf. §§ 203 and 204 of the 1970 Act. The payments are substantially higher under the new Act.

      Cf. §210 of the 1970 Act: “Notwithstanding any other law, the head of a Federal agency shall not approve any grant to, or contract or agreement with, a State agency, under which Federal financial assistance will be available to pay all or part of the cost of any program or project which will result in the displacement of any person on or after the effective date of this title, unless he receives satisfactory assurances from such State agency that—
      “(1) fair and reasonable relocation payments and assistance shall be provided to or for displaced persons, as are required to be provided by a Federal agency under sections 202, 203, and 204 of this title;
      “(2) relocation assistance programs offering the services described in section 205 shall be provided to such displaced persons;
      “(3) within a reasonable period of time prior to displacement, decent, safe, and sanitary replacement dwellings will be available to displaced persons in accordance with section 205 (c) (3)
      Section 205 (c) (3) of the 1970 Act is virtually identical to § 502 (3) mentioned injra in the textual paragraph.

       The Secretary, however, has subsequently changed that position and the memorandum now applies to all approvals of construction. See Memorandum of Secretary of Transportation: Implementation of Replacement Housing Policy, January 15, 1970; Federal Highway Administration Circular Memorandum: Relocation Assistance— Availability of Replacement Housing, March 27, 1970.

       § 101 (6) of the 1970 Act.

       The problem is an old and recurring one. Mr. Justice Frankfurter took the position that even the five who voted to deny the petition can, after oral argument, properly dismiss the writ as improvidently granted. United States v. Shannon, 342 U. S. 288, 294-297. But I thought then — and still think — that such a practice impairs “the integrity of our certiorari jurisdiction.” Id., at 298.
      “By long practice — announced to the Congress and well-known to this Bar — it takes four votes out of a Court of nine to grant a petition for certiorari. If four can grant and the opposing five dismiss, then the four cannot get a decision of the case on the merits. The integrity of the four-vote rule on certiorari would then be impaired.” Ibid.


author: Mr. Justice Black

text:
    ASTRUP v. IMMIGRATION AND NATURALIZATION SERVICE
    No. 840.
    Argued April 20, 1971
    Decided May 24, 1971
    Black, J., delivered the opinion for a unanimous Court.

      Paul N. Halvonik argued the cause for petitioner. With him on the brief was Marshall W. Krause.

      Richard B. Stone argued the cause for respondent. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, and Charles Gordon.

   Mr. Justice Black

delivered the opinion of the Court.

The issue in this case is exceedingly simple. By signing SSS Form 130 — Application by Alien for Relief from Training and Service in the Armed Forces — the petitioner, lb Otto Astrup, a native of Denmark, agreed to give up his right to become an American citizen, and in exchange, the United States, pursuant to § 4 (a) of the Selective Service Act of 1948, 62 Stat. 605, 50 U. S. C. App. §454 (a) (1946 ed., Supp. Ill), agreed to give up the right to induct Astrup into the United States armed forces. Congress later repealed the law under which Astrup was exempted from military service, reneging on its part of the bargain with him. Universal Military Training and Service Act § 4 (a), 65 Stat. 76, 50 U. S. C. App. §454 (a) (1952 ed.). Thereafter the Selective Service System attempted to draft Astrup and would have succeeded in putting him into uniform but for the fact that he was found to be physically unfit for the draft. Later, when Astrup decided that he would like to become an American citizen, the Government attempted to enforce Astrup’s promise even though it was unwilling to keep its own promise. When Astrup petitioned for naturalization, the United States District Court for the Northern District of California denied his petition on the ground that he was debarred from citizenship. The Court of Appeals for the Ninth Circuit affirmed. 432 F. 2d 438 (1970). We granted Astrup’s petition for cer-tiorari, 400 U. S. 1008 (1971), and now reverse.

In support of the decision below the United States emphasizes the fact that Astrup admitted having read a notice proclaiming that:

“Any citizen of a foreign country . . . shall be relieved from liability for training and service under this title if, prior to his induction into the armed forces, he has made application to be relieved from such liability . . . ; but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States.” Form SSS 130, quoting Selective Service Act of 1948, § 4 (a), 62 Stat. 606, 50 U. S. C. App. § 454 (a) (1946 ed., Supp. III).

He further admitted having signed a statement saying, “I understand that I will forever lose my rights to become a citizen of the United States . . . .” Upon the basis of these statements and § 4 (a) of the Selective Service Act of 1948, the United States argues that the case is controlled by our decision in Ceballos v. Shaughnessy, 352 U. S. 599 (1957), in which we enforced similar citizenship debarment provisions in a deportation case arising under the Immigration Act of 1917, § 19 (c), 39 Stat. 889, as amended, 54 Stat. 672, 62 Stat. 1206, 8 U. S. C. § 155 (c) (1946 ed., Supp. V). Ceballos, however, does not govern this case. In Ceballos the Court specifically held that § 315 of the Immigration and Nationality Act of 1952, 66 Stat. 242, 8 U. S. C. § 1426, was inapplicable because of the effective date of the 1952 Act and because § 315 was expressly inapplicable to deportation proceedings under the 1917 Act. 352 U. S., at 606 n. 17.

Astrup, unlike Ceballos, is not involved in a deportation proceeding under the Immigration Act of 1917 and consequently the saving clause of the Immigration and Nationality Act of 1952, § 405, 66 Stat. 280, is inapplicable. See note following 8 U. S. C. § 1101. Moreover, Astrup petitioned for naturalization under § 316 of the 1952 Act. Therefore, § 315 of the 1952 Act, not § 4 (a) of the Selective Service Act of 1948, determines the effect to be given to Astrup’s 1950 application for exemption from military service. Section 315 provides:

“Notwithstanding the provisions of section 405 (b) of this Act, any alien who applies or has applied for exemption or discharge from training or service in the Armed Forces or in the National Security Training Corps of the United States on the ground that he is an alien, and is or was relieved or discharged from such training or service on such ground, shall be permanently ineligible to become a citizen of the United States.” 66 Stat. 242, 8 U. S. C. § 1426. (Emphasis added.)

This is a two-pronged prerequisite for the loss of eligibility for United States citizenship. The alien must be one who “applies or has applied for exemption or discharge” from military service and “is or was relieved or discharged” from that service. There is no question that Astrup applied for an exemption. The United States argues that he was temporarily released from military service but recognizes that the release was not permanent. And even the Government is forced to concede that temporary release from military service is not by itself sufficient to debar an alien from a later claim to naturalized citizenship, because the Government recognizes the correctness of the Second Circuit's decision in United States v. Hoellger, 273 F. 2d 760 (1960), that if an alien is once relieved from service but is later compelled to perform military service the bar to citizenship does not arise.

Other courts have distinguished the Hoellger holding from the situation where an alien is once relieved from military service but later reclassified for service which he never performs because of intervening circumstances such as physical unfitness. See Lapenieks v. Immigration and Naturalization Service, 389 F. 2d 343 (1968); United States v. Hoellger, supra, at 762 n. 2. However, there is nothing in the language of § 315 which leads us to believe that Congress intended such harsh and bizarre consequences to flow from an individual’s failure to pass a physical examination. We think that Congress used the words “is or was relieved” to provide that an alien who requests exemption from the military service be held to his agreement to relinquish all claims to naturalized citizenship only when the Government abides by its part of the agreement and completely exempts him from service in our armed forces.

Consequently, the United States District Court erred in denying Astrup’s petition for naturalization on the ground that he was barred from citizenship because he had once claimed an exemption from military service as an alien. The decision of the Court of Appeals for the Ninth Circuit affirming the District Court is reversed and the case is remanded to the District Court for further proceedings on Astrup’s petition for naturalization.

It is so ordered.

       Astrup was lawfully admitted to the United States for permanent residence on February 20, 1950. On November 14, 1950, he executed SSS Form 130, requesting an exemption from military service on the ground of alienage. At that time the Selective Service Act of 1948, §4 (a), 62 Stat. 605, 50 U. S. C. App. § 454 (a) (1946 ed., Supp. Ill), provided such an exemption for any alien. The Universal Military Training and Service Act § 4 (a), 65 Stat. 76, 50 U. S. C. App. § 454 (a) (1952 ed.), which became effective June 19, 1951, amended the earlier provision relating to exemptions for aliens so that the exemption was not available to aliens who were permanent residents of this country.

       The United States argues that the saving clause of the 1952 Act is applicable, citing United States v. Menasche, 348 U. S. 528 (1955), and Shomberg v. United States, 348 U. S. 540 (1955). In Menasche the Court held that an alien who had filed a declaration of intention to become an American citizen had a “right in the process of acquisition” preserved by the saving clause which provided: “Nothing contained in [the 1952] Act, unless otherwise specifically provided therein, shall be construed to affect the validity of any declaration of intention . . . .” The Court there found nothing in the 1952 Act that specifically nullified Menasche’s declaration. In Shomberg, on the other hand, the Court found in § 318 of the 1952 Act, 66 Stat. 244, 8 U. S. C. § 1429, a specific bar to final determination of a naturalization petition by an alien against whom there was an outstanding deportation proceeding. This case is more like Shom-berg than Menasche in that § 315 is addressed to events which may have occurred before the effective date of the 1952 Act and refers specifically to the saving clause as, at least partially, inapplicable.

       We find no merit in the Government’s contention that Astrup was effectively relieved from military service on account of alienage merely because he was found to be medically qualified for the draft on October 11, 1950, before he claimed an exemption and was later found to be medically unfit for the draft, after the Government repudiated its part of the bargain. The quality of pre-induction physical examinations varies widely and the standards of medical fitness are frequently revised. In any event, the examination is primarily for the benefit of the United States, insuring that those inducted are physically capable of performing adequately and that the United States does not become legally obligated to provide medical treatment for conditions not caused by military service.

       Cf. Federal Power Comm’n v. Tuscarora Indian Nation, 362 U. S. 99, 142 (1960) (Black, J., dissenting): “Great nations, like great men, should keep their word.”


author: Me. Justice Brennan

text:
    GAINESVILLE UTILITIES DEPARTMENT et al. v. FLORIDA POWER CORP.
    No. 464.
    Argued February 24, 1971
    Decided May 24, 1971

    BeeNNAN, J., delivered the opinion of the Court, in which all members joined except Blackmun, J., who took no part in the decision of the cases.

      George Spiegel argued the cause for petitioners in No. 464. With him on the briefs was Melvin Richter. Gordon Gooch argued the cause for petitioner in No. 469. With him on the brief were Solicitor General Griswold, Samuel Huntington, Peter H. Schiff, and Leonard D. Eesley.

      Richard W. Emory argued the cause for respondent in both cases. With him on the brief were Robert A. Shelton and S. A. Brandimore.

      Northcutt Ely filed a brief for the American Public Power Association as amicus curiae urging reversal.

      Thomas M. Debevoise filed a brief for the American Electric Power Service Corp. et al. as amici curiae urging affirmance.

      Together with No. 469, Federal Power Commission v. Florida Power Corp., also on certiorari to the same court.

   Me. Justice Brennan

delivered the opinion of the Court.

Under the Federal Power Act, an order of the Federal Power Commission that directs one electric utility “to establish physical connection of its transmission facilities with the facilities of” another utility “may prescribe the terms and conditions of the arrangement to be made . . . including the apportionment of cost between them and the compensation or reimbursement reasonably due to any of them.” Federal Power Act §202 (b), 49 Stat. 848, 16 U. S. C. § 824a (b). The Commission order which directed respondent Florida Power Corp. to interconnect its electric system with that of petitioner Gaines-ville Utilities Department did not contain a term or condition sought by respondent requiring petitioner to pay an annual standby charge of approximately $150,000 for the emergency or backup service provided by the interconnection, 40 F. P. C. 1227 (1968); 41 F. P. C. 4 (1969). The Court of Appeals for the Fifth Circuit held that, because of the omission of such a term or condition, “the terms of the interconnection do not adequately satisfy the statutory requirements because they do not provide Florida Power with the ‘reimbursement reasonably due’ it. . . . Thus we deny enforcement of this order insofar as no provision for the reasonable compensation of Florida Power is made.” 425 F. 2d 1196, 1203 (1970) (footnote omitted). We granted the petition for certiorari of Gainesville Utilities Department in No. 464, and of the Federal Power Commission in No. 469, 400 U. S. 877 (1970). We reverse the judgment of the Court of Appeals insofar as it denied enforcement of the Commission’s order and remand for the entry of a new judgment enforcing the Commission’s order in its entirety.

I

The demand upon an electric utility for electric power fluctuates significantly from hour to hour,' day to day, and season to season. For this reason, generating facilities cannot be maintained on the basis of a constant demand. Rather, the utility’s generating capability must be geared to the utility’s peak load of demand, and also take into account the fact that generating equipment must occasionally be out of service for overhaul, or because of breakdowns. In consequence, the utility builds certain “reserves” of generating capacity in excess of peak load requirements into its system. The practice of a utility that relies completely on its own generating resources (an “isolated” system in industry jargon) is to maintain equipment capable of producing its peak load requirements plus equipment that produces a “reserve” capacity equal to the capacity of its largest generating unit.

The major importance of an interconnection is that it reduces the need for the “isolated” utility to build and maintain “reserve” generating capacity. An interconnection is simply a transmission line connecting two utilities. Electric power may move freely through the line up to the line’s capacity. Ordinarily, however, the energy generated by each system is sufficient to supply the requirements of the system’s customers and no substantial amount of power flows through the interconnection. It is only at the times when one of the connected utilities is unable for some reason to produce sufficient power to meet its customers’ needs that the deficiency may be supplied by power that automatically flows through the interconnection from the other utility. To the extent that the utility may rely upon the interconnection to supply this deficiency, the utility is freed of the necessity of constructing and maintaining its own equipment for the purpose.

The Gainesville Utilities Department is a municipally owned and operated electric utility serving approximately 17,000 customers in a 22-square-mile area covering the city of Gainesville and adjacent portions of Alachua County, Florida. In 1965, Gainesville's “isolated” system had a total generating capability of 108.4 megawatts (mw) while its peak load was 51.1 mw. Gainesville’s generating capacity in 1965 consisted of five steam electric generating units ranging from five to 50 mw. Thus Gainesville’s generating capacity of 108.4 mw gave it a reserve capacity of 57.3 mw over its annual peak load of 51.1 mw — a reserve adequate to cover the shutdown of the system’s largest generating unit of 50 mw. Gaines-ville’s peak load was projected to be doubled to 102 mw by 1970. Its 1970 capacity, however, was projected to increase to only 138.4 mw through the addition in 1968 of two 15-mw gas-turbine generators. Thus an interconnection was necessary if Gainesville was to avoid having to make a still greater investment in generating equipment.

Florida Power Corporation operates a major electric generation, transmission, and distribution system serving 370,000 retail customers in a 20,600-square-mile system serving 32 counties in central and northwest Florida, including Alachua County. It also supplies power at wholesale to 12 municipal distribution systems and 9 REA cooperatives. In 1966, Florida Power had an aggregate generating capability of 1595 mw and experienced a peak load of 1232 mw. At the time of the hearing before the Commission, Florida Power was building a 525-mw generating unit to begin service in December 1969, and anticipated a 1970 generating capability of 2114 mw and a 1970 peak load of 1826 mw. Thus the anticipated excess of capacity over peak load, 288 mw, is less than the size of its largest generating unit, 525 mw. However, the deficiency is provided for by interconnections which Florida Power has with four other Florida utilities. See n. 3, supra. All five of these utilities constitute the Florida Operating Committee, which, though informal in nature, serves as a medium through which the technical operations of its members are coordinated. As a result of the sharing of reserves made possible by the interconnection of the Committee’s members, each utility is able to reduce the reserve generating capacity that would be required if it were electrically isolated. Specifically, each of the Florida Operating Committee members maintains generating capacity equal to 115% of its annual peak load.

For several years prior to 1965, Gainesville sought to negotiate an “interconnection” with Florida Power and with another member of the Florida Operating Committee, Florida Power & Light. When those efforts failed, Gainesville, in 1965, filed an application with the Commission seeking an order under § 202 (b) directing Florida Power to interconnect with Gainesville.

II

Section 202 (b) authorizes the Federal Power Commission to order a utility to interconnect with another, and to “prescribe the terms and conditions of the arrangement . . . ,” if the Commission “finds such action necessary or appropriate in the public interest,” and “if the Commission finds that no undue burden will be placed upon such public utility thereby.” The proviso to the section makes explicit that the Commission has no authority in ordering an interconnection “to compel the enlargement of generating facilities . . . [or] to compel such public utility to sell or exchange energy when to do so would impair its ability to render adequate service to its customers.” 16 U. S. C. § 824a (b).

Following extensive hearings, an examiner made findings that the proposed interconnection would be in the public interest and that it would not place an undue burden on Florida Power. The Commission affirmed the findings and further found that the interconnection would neither compel Florida Power to enlarge its generating facilities nor impair its ability to serve its customers. The Commission ordered the interconnection but on conditions (1) that Gainesville pay the entire $3 million cost of the interconnection, and (2) that Gainesville maintain generating capacity resources at least equal to 115% of its peak load — the requirement imposed by the Florida Operating Committee on all its members. The order also fixed the rates of compensation to be paid for actual energy transfers across the interconnection.

Respondent, Florida Power, does not challenge the Commission's order except in its omission of a term or condition that Gainesville pay approximately $150,000 annually as “compensation or reimbursement reasonably due” respondent for the backup service effected by the interconnection. Respondent contended that this charge, computed on the basis of Gainesville’s largest generator, was justified because only Gainesville could gain from the interconnection since the reserve made available to respondent from Gainesville was too small to be of any realistic value to respondent’s massive power system. The Commission rejected the contention. It noted that respondent had not included a comparable charge in any of the contracts for interconnection voluntarily negotiated with members of the Florida Operating Committee. The Commission also emphasized that “the apportionment of cost” factor had been satisfied by requiring Gainesville to bear the full cost of making the interconnection. Primarily, however, the Commission rested its rejection upon two grounds. First, the Commission stated its view that, in applying the statutory provision, the appropriate analysis should focus not upon the respective gains to be realized by the parties from the interconnection but upon the sharing of responsibilities by the interconnected operations:

“[T]hat sharing must be based upon, and follow the proportionate burdens each system places upon the interconnected system networks, not the benefits each expects to receive. Benefits received in any given situation may approximate these responsibilities or they may not. In the course of negotiation of voluntary pooling arrangements, benefits received may, on occasion, serve to offset burdens imposed in determining the appropriate charge for particular services rendered or facilities supplied. But where, as here, the cost of providing such services and facilities and the appropriate charges therefor have equitably been determined after a careful analysis and apportionment of the burdens and responsibilities of each party, there is no basis for any further consideration of relative benefits . . . .” 40 F. P. C., at 1237.

Second, the Commission found that even if the interconnection were evaluated on the basis of relative benefits, “this record shows that the proposed intertie will afford both parties opportunities to take advantage of substantial and important benefits: electrical operating benefits, and corporate financial savings.” Id., at 1238. In its original opinion and in its opinion denying rehearing, the Commission specified the benefits that it found Florida Power would gain from the interconnection, as set out in the margin. On the basis of these findings, the Commission concluded that no standby charge should be imposed on either party to the interconnection. Thus, under the terms of the Commission's final order, each party pays only for the power actually received from the other, and each party is obligated to deliver power only on an “as available” basis. 40 F. P. C., at 1236 n. 4, 1246.

The Court of Appeals’ denial of enforcement of the Commission’s order insofar as no provision was made “for the reasonable compensation of Florida Power” rested on the court’s conclusion that the Commission’s “proportionate burden” analysis was “largely illusory:”

“The Commission’s policy of proportionate utility responsibility really works only one way. The small system receives high benefits and, because of its size, no real obligations. The large system, however, receives no benefit but does incur real, substantial responsibilities. Such imaginary equity is not reasonable compensation.” 425 F. 2d, at 1203.

The validity of this conclusion, however, depends upon whether the court correctly read the record as showing that Florida Power “receives no benefit” and that Gaines-ville incurs “no real obligations.” The Commission’s findings are squarely contrary.

Although the Commission did argue that the benefits to be derived from the interconnection by each party were irrelevant to the proper decision of the case, nonetheless, in view of respondent’s strenuous protest, the Commission went on to bring its expertise and judgment to bear upon the benefits and burdens and made findings identifying several specific benefits that would accrue to Florida Power from the interconnection. See n. 5, supra. Merely because the Commission argued that on its view of the legal question involved, findings of benefits were unnecessary to its decision does not render them any the less findings on the question of benefits. A reviewing court should hardly complain because an agency provides more analysis than it feels is absolutely necessary.

Section 313 (b) of the Federal Power Act, 16 U. S. C. § 8251 (b), provides that “[t]he finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.” See Universal Camera Corp. v. NLRB, 340 U. S. 474 (1951). Among the specific benefits the Commission found would accrue to Florida Power were increased reliability of Florida Power’s service to customers in the Gainesville area, the availability of 60 to 100 mw of reserve capacity during certain periods of the year, and savings from coordinated planning to achieve use at all times of the most efficient generating equipment in both systems. The Commission’s findings were aided by specific studies, made by the Commission’s staff, and placed in the record. Insofar as the Court of Appeals’ opinion implies that there was not substantial evidence to support a finding of some benefits, it is clearly wrong. And insofar as the court’s opinion implies that the responsibilities assumed by Gainesville in combination with the benefits found to accrue to Florida Power were insufficient to constitute “compensation . . . reasonably due,” the Court of Appeals overstepped the role of the judiciary. Congress ordained that that determination should be made, in the first instance, by the Commission, and on the record made in this case, the Court of Appeals erred in not deferring to the Commission’s expert judgment.

Florida Power’s emphasis on Gainesville’s small size occurs only when discussing Gainesville’s ability to provide Florida Power with energy. But Gainesville’s small size has relevance in terms of the amount of power it may, even in emergencies, require from Florida Power. What Florida Power chooses to emphasize is that the availability of a certain amount of power flowing from it to Gainesville is relatively more valuable to Gainesville’s small system than the availability of the same amount of power flowing from Gainesville to Florida Power. It is certainly true that the same service or commodity may be more valuable to some customers than to others, in terms of the price they are willing to pay for it. An airplane seat may bring greater profit to a passenger flying to California to close a million-dollar business deal than to one flying west for a vacation; as a consequence, the former might be willing to pay more for his seat than the latter. But focus on the willingness or ability of the purchaser to pay for a service is the concern of the monopolist, not of a governmental agency charged both with assuring the industry a fair return and with assuring the public reliable and efficient service, at a reasonable price.

Our guidepost here is the Act’s explicit commitment of the judgment as to what compensation is reasonably due, in this highly technical field, to the Commission. Cf. Permian Basin Area Rate Cases, 390 U. S. 747, 767 (1968). In the exercise of this judgment, the Commission’s order placed on Gainesville the entire $3 million cost of constructing the interconnection. Thus the benefits that the Commission found that Florida Power will receive from the interconnection will come without any capital investment on its part. In addition, the Commission required Gainesville to maintain generating capacity equal to at least 115% of its annual peak load and to maintain operating reserves in accordance with the procedures established by the Florida Operating Committee. In light of these circumstances, the Commission concluded on the basis of its proportionate-burden analysis that Gainesville should not pay a standby charge for the availability of emergency service, which is provided only on an “as available” basis. It simply required Gainesville to pay for energy actually received. On this record, we cannot say that the Commission has failed to discharge either its responsibility to assure Florida Power of “reasonable compensation” or its responsibility to the public to assure reliable efficient electric service.

Since we conclude that substantial evidence supports the findings of the Commission that benefits will accrue to Florida Power from the interconnection, we have no occasion to decide whether the Commission in ordering the interconnection of two electric power companies, may properly condition the interconnection, when one party receives no benefits, upon compensation terms based on the relative burdens that each places on the interconnected network. Decision of that question must await a case which presents it.

Reversed and remanded.

Mr. Justice Blackmun took no part in the decision of these cases.

       Section 202 (b) of the Federal Power Act, 49 Stat. 848, 16 U. S. C. § 824a (b), provides:
      “(b) Whenever the Commission, upon application of any State commission or of any person engaged in the transmission or sale of electric energy, and after notice to each State commission and public utility affected and after opportunity for hearing, finds such action necessary or appropriate in the public interest it may by order direct a public utility (if the Commission finds that no undue burden will be placed upon such public utility thereby) to establish physical connection of its transmission facilities with the facilities of one or more other persons engaged in the transmission or sale of electric energy, to sell energy to or exchange energy with such persons: Provided, That the Commission shall have no authority to compel the enlargement of generating facilities for such purposes, nor to compel such public utility to sell or exchange energy when to do so would impair its ability to render adequate service to its customers. The Commission may prescribe the terms and conditions of the arrangement to be made between the persons affected by any such order, including the apportionment of cost between them and the compensation or reimbursement reasonably due to any of them.”

       The industry distinguishes between various types of “reserve” requirements. Since time is required to start up equipment that is not operating, a certain amount of equipment must be maintained in such a state that it can begin generating power immediately. The industry calls these instantaneous or “spinning” reserves, and they must be available to meet load variations and breakdowns of equipment as they occur. A utility must always maintain “spinning” reserves equal to the size of the largest generator currently in service producing power, in order to protect against a breakdown of that unit. As “spinning” reserves are called upon a utility must start up more equipment in order to maintain “spinning” reserves at an adequate level. These reserves are called “quick-start” or "ready” reserves and must be available on short notice — usually 10 minutes or less. Both spinning and quick-start reserves are collectively referred to as “operating” reserves, in contrast to “installed” reserves. Installed reserves refers to the remaining generating capacity of a utility, those generators that are not ready to be operated, or in operation. Accordingly, the expense associated with “reserve” requirements includes both capital expense — building the necessary “installed” reserve generating capacity — and operating expense — running the necessary “spinning” reserves and maintaining the readiness of “quick-start” reserves. In general, this opinion will not differentiate between the different reserve requirements.

       The reason that interconnections lower reserve requirements is well illustrated by a hypothetical discussed in the Commission’s brief, at 15-16.
      “Assume that four electric systems operate in isolation and that each has an annual peak load of 500 mw served by several generating units the largest of which is 200 mw. At a minimum, each system would have to provide 700 mw of installed generating capacity (500 mw to cover the annual peak load plus 200 mw of installed reserves equal to the largest unit). If we assume further that each system operates its 200 mw unit near capacity throughout the year, spinning reserves equal to the output of that unit would constantly be required. If the four systems are to be interconnected pursuant to the Florida Operating Committee formula, total generating capacity need not exceed 2300 mw (total annual peak load — if all peaks occur during the same period — plus operating reserves of 300 mw, i.e., 1% times the largest generating unit). This 2300 mw capacity requirement would be met by requiring each system to maintain generating capacity equal to 115 percent of its annual peak load. Each system would thus have to maintain only 575 mw of generating capacity — 125 mw less than would be required if operating in isolation. The interconnected system as a whole would require the constant maintenance of 200 mw of spinning reserves and 100 mw of quick-start reserves; each system’s pro rata share of operating reserves would amount to only 75 mw. Thus, interconnection of the four systems would result in substantial capital savings by reducing installed generating capacity requirements and substantial operating savings by reducing operating reserve requirements.” (Footnote omitted.)

       At the same time, Gainesville also filed a complaint with the Commission charging Florida Power with unlawful discrimination under §§ 205 and 206 of the Federal Power Act, 16 U. S. C. §§ 824d, 824e, for failure to agree to an interconnection. The Commission dismissed this complaint as moot when the interconnection was ordered.

       “For the Company, the interconnection will add an additional energy source to its network in a geographic area where the Company has a substantial load (customer demands), but does not have generating plants of its own. Because of that, the expected benefit to Florida Power may be very substantial since the [Gainesville] governors have a faster rate of response setting than Florida Power’s. Also of great importance to Florida Power is the improved system reliability which the Company will gain through the proposed inter-tie. That is shown in studies submitted by staff from engineering analyses of loss of load probabilities. They establish that the interconnection will have the effect of improving the reliability of Florida Power’s system.” 40 F. P. C., at 1238.
      “[Throughout its application [for rehearing], the Corporation emphasizes the contention that Gainesville will not be able to render any service of significant value to Florida Power. Upon consideration of this argument we find that Florida Power has greatly underestimated Gainesville’s capacity to be of service to the Corporation. Because of its electrical isolation, Gainesville has maintained a very large reserve capacity in relationship to its peak load. In 1965 its peak load was 51.1 mw, and its reserve capacity was 57.3 mw or 112,1 percent of peak demand. Although the purpose of this interconnection proceeding is to enable Gainesville to lessen its need for self-reliance, Gainesville’s reserve capacity will continue to be large even after interconnection. The staff’s witness has testified that during the ten year period 1970-1979, Gainesville’s average minimum reserves at the time of Florida Power’s annual peak hour demand will be 43 percent. According to staff’s computations, Gainesville will be able to deliver, if there will be sufficient interconnection transmission facilities, anywhere from 60 mw to 100 mw to Florida Power during certain periods in January, April, and September 1970. This prediction that Gainesville will be able to furnish capacity of this magnitude to Florida Power plainly refutes Florida Power’s assertion that the interconnection will prove to be a one-way street with all the benefits flowing from the Corporation to the City. The Commission is satisfied that the interconnection will permit a reciprocal exchange of benefits to the mutual advantage of both systems.
      “Staff’s studies of Gainesville’s future reserve capacity also serve to refute Florida Power’s allegation that there is ‘no scintilla of evidence’ to support the Commission’s finding that Gainesville will become an additional interchange power source on Florida Power’s network after the interconnection is consummated. Similarly, staff’s studies rebut the Corporation’s assertions regarding the insignificance of Gainesville’s anticipated capacity contributions.” 41 F. P. C., at 5-6 (opinion denying rehearing).
      “Florida Power asserts that the Commission erred in finding that the interconnection will add an additional energy source in an area where Florida [Power] has no generating plant. The Corporation states that it now has three energy sources to supply its load in the Gainesville area and that it does not need a fourth. Florida Power’s Form 12 for 1965 shows that the Corporation’s Suwanee Plant is the closest generating source to its Gainesville load center. This plant is more than 75 transmission line miles away from this load center. The next closest plant is the Inglis Station which is more than 80 transmission line miles away. Florida Power’s three energy sources are connected to the Gainesville load area by 69 kv transmission lines. According to staff, two of these lines serve other loads and could be vulnerable to outages. We agree with staff’s position that the connection with Gainesville’s generating resources would upgrade service reliability to the Corporation’s customers in the Gainesville area.” 41 F. P. C., at 7.

       Respondent Florida Power concedes that the Commission's proportionate-burden analysis is appropriate when the interconnected systems are approximately equal in size and when the interconnection does benefit both parties to an interconnection. Brief for Florida Power Corp. 21.

       We, therefore, reject the Court of Appeals’ conclusion that, because they were stated in the alternative, these were “not fact-findings protected by the umbrella of the substantial evidence test.” 425 F. 2d, at 1203 n. 20. This is not a ease where the Commission did not follow a procedure that it might have followed, see SEC v. Chenery Corp., 318 U. S. 80 (1943), or failed to make findings or evaluate considerations relevant to its determination, see Schaffer Transportation Co. v. United States, 355 U. S. 83 (1957).