author: Mr. Justice Douglas Mr. Justice Harlan, Mr. Justice Stewart,

text:
    OESTEREICH v. SELECTIVE SERVICE SYSTEM LOCAL BOARD NO. 11, CHEYENNE, WYOMING, et al.
    No. 46.
    Argued October 24, 1968.
    Decided December 16, 1968.

      Melvin L. Wulf argued the cause for petitioner. With him on the brief were Alan H. Levine, John Griffiths,

      Marvin M. Karpatkin, Eleanor Holmes Norton, and William F. Reynard.

      Solicitor General Griswold argued the cause for respondents. With him on the brief were Assistant Attorney General Weisl, Francis X. Beytagh, Jr., Morton Hollander, and Robert V. Zener.

   Mr. Justice Douglas

delivered the opinion of the Court.

Petitioner is enrolled as a student at a theological school preparing for the ministry and was accordingly classified as IV-D by the Selective Service Board. Section 6 (g) of the Selective Service Act, 62 Stat. 611, as amended, now § 6 (g) of the Military Selective Service Act of 1967 (see 81 Stat. 100, § 1 (a)), 50 U. S. C. App. § 456 (g), gives such students exemption from training and service under the Act. He returned his registration certificate to the Government, according to the complaint in the present action, “for the sole purpose of expressing dissent from the participation by the United States in the war in Vietnam.” Shortly thereafter his Board declared him delinquent (1) for failure to have the registration certificate in his possession, and (2) for failure to provide the Board with notice of his local status. The Board thereupon changed his IV-D classification to I-A. He took an administrative appeal and lost and was ordered to report for induction.

At that point he brought suit to restrain his induction. The District Court dismissed the complaint, 280 F. Supp. 78, and the Court of Appeals affirmed. 390 F. 2d 100. The case is here on a petition for a writ of certiorari which we granted. 391 U. S. 912.

As noted, § 6 (g) of the Act states that “students preparing for the ministry” in qualified schools “shall be exempt from training and service” under the Act. Equally unambiguous is § 10 (b) (3) of the Military Selective Service Act of 1967, 81 Stat. 104, which provides that there shall be no pre-induction judicial review “of the classification or processing of any registrant,” judicial review being limited to a defense in a criminal prosecution or, as the Government concedes, to habeas corpus after induction. See Estep v. United States, 327 U. S. 114, 123-125; Eagles v. Samuels, 329 U. S. 304; Witmer v. United States, 348 U. S. 375, 377. If we assume, as we must for present purposes, that petitioner is entitled to a statutory exemption as a divinity student, by what authority can the Board withhold it or withdraw it and make him a delinquent?

In 1967 Congress added a provision concerning the immediate service of members of a “prime age group” after expiration of their deferment, stating that they were the first to be inducted “after delinquents and volunteers.” 50 U. S. C. App. §456 (h)(1) (1964 ed., Supp. III). Congress has also made criminal the knowing failure or neglect to perform any duty prescribed by the rules or regulations of the Selective Service System. 50 U. S. C. App. § 462 (a) (1964 ed., Supp. III). But Congress did not define delinquency; nor did it provide any standards for its definition by the Selective Service System. Yet Selective Service, as we have noted, has promulgated regulations governing delinquency and uses them to deprive registrants of their statutory exemption, because of various activities and conduct and without any regard to the exemptions provided by law.

We can find no authorization for that use of delinquency. Even if Congress had authorized the Boards to revoke statutory exemptions by means of delinquency classifications, serious questions would arise if Congress were silent and did not prescribe standards to govern the Boards' actions. There is no suggestion in the legislative history that, when Congress has granted an exemption and a registrant meets its terms and conditions, a Board can nonetheless withhold it from him for activities or conduct not material to the grant or withdrawal of the exemption. So to hold would make the Boards freewheeling agencies meting out their brand of justice in a vindictive manner.

Once a person registers and qualifies for a statutory exemption, we find no legislative authority to deprive him of that exemption because of conduct or activities unrelated to the merits of granting or continuing that exemption. The Solicitor General confesses error on the use by Selective Service of delinquency proceedings for that purpose.

We deal with conduct of a local Board that is basically lawless. It is no different in constitutional implications from a case where induction of-an ordained minister or other clearly exempt person is ordered (a) to retaliate against the person because of his political views or (b) to bear down on him for his religious views or his racial attitudes or (c) to get him out of town so that the amorous interests of a Board member might be better served. See Townsend v. Zimmerman, 237 F. 2d 376. In such instances, as in the present one, there is no exercise of discretion by a Board in evaluating evidence and in determining whether a claimed exemption is deserved. The case we decide today involves a clear departure by the Board from its statutory mandate. To hold that a person deprived of his statutory exemption in such a blatantly lawless manner must either be inducted and raise his protest through habeas corpus or defy induction and defend his refusal in a criminal prosecution is to construe the Act with unnecessary harshness. As the Solicitor General suggests, such literalness does violence to the clear mandate of § 6 (g) governing the exemption. Our construction leaves § 10 (b)(3) unimpaired in the normal operations of the Act.

No one, we believe, suggests that § 10 (b)(3) can sustain a literal reading. For while it purports on its face to suspend the writ of habeas corpus as a vehicle for reviewing a criminal conviction under the Act, everyone agrees that such was not its intent. Examples are legion where literalness in statutory language is out of harmony either with constitutional requirements, United States v. Rumely, 345 U. S. 41, or with an Act taken as an organic whole. Clark v. Uebersee Finanz-Korp., 332 U. S. 480, 488-489. We think § 10 (b) (3) and § 6 (g) are another illustration; and the Solicitor General agrees. Since the exemption granted divinity students is plain and unequivocal and in no way contested here, and since the scope of the statutory delinquency concept is not broad enough to sustain a revocation of what Congress has granted as a statutory right, or sufficiently buttressed by legislative standards, we conclude that pre-induction judicial review is not precluded in cases of this type.

We accordingly reverse the judgment and remand the case to the District Court where petitioner must have the opportunity to prove the facts alleged and also to demonstrate that he meets the jurisdictional requirements of 28 U. S. C. § 1331.

Reversed.

Mr. Justice Harlan,

concurring in the result.

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

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

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

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

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

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

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

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

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

To withhold pre-induction review in this case would thus deprive petitioner of his liberty without the prior opportunity to present to any competent forum — agency or court — his substantial claim that he was ordered inducted pursuant to an unlawful procedure. Such an interpretation of § 10 (b) (3) would raise serious constitutional problems, and is not indicated by the statute’s history, language, or purpose. On the foregoing basis I agree that 110(b)(3) does not forbid pre-induction review in this instance.

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

Mr. Justice Stewart,

with whom Mr. Justice Brennan and Mr. Justice White join, dissenting.

It is clear that in enacting § 10 (b) (3) of the Military . Selective Service Act of 1967, Congress intended to specify the exclusive methods by which the determinations of Selective Service Boards may be judicially reviewed. Since under the terms of that provision the present suit is plainly premature, I would affirm the judgment of the Court of Appeals.

Section 10 (b) (3) provides in pertinent part as follows:

“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 . . .

It is unquestioned that the overriding purpose of this provision was “to prevent litigious interruptions of procedures to provide necessary military manpower.” To be sure, the provision is somewhat inartistically drawn, but its background and legislative history clearly resolve whatever difficulties might otherwise be presented by the imprecision of the draftsman’s language.

In interpreting the less explicit terms of predecessor statutes, this Court had established the general rule that draft classifications could not be judicially reviewed prior to the time a registrant was to be inducted. Review was held to be proper only when challenges to such determinations were raised either (1) in defense to a criminal prosecution following a refusal to be inducted, or (2) in habeas corpus proceedings initiated after induction. See Witmer v. United States, 348 U. S. 375, 377; Estep v. United States, 327 U. S. 114; Billings v. Truesdell, 321 U. S. 542; Falbo v. United States, 320 U. S. 549.

Occasionally, however, other federal courts had allowed exceptions to this rule. Section 10 (b) (3) was proposed and enacted shortly after the Court of Appeals for the Second Circuit had, in the well-publicized case of Wolff v. Selective Service Bd., 372 F. 2d 817, permitted just such an exception. In adopting the section Congress specifically disapproved those decisions that had deviated from the rule against pre-induction review, and made explicit its absolute commitment against premature judicial interference with the orderly processing of registrants. The Senate Armed Services Committee put the matter this way:

“Until recently, there was no problem in the observance of the finality provision. In several recent cases, however, district courts have been brought into selective service processing prematurely. The committee attaches much importance to the finality provisions and reemphasizes the original intent that judicial review of classifications should not occur until after the registrant’s administrative remedies have been exhausted and the registrant presents himself for induction.”

A similar statement of intent was included in the report of the House Armed Services Committee:

“The committee was disturbed by the apparent inclination of some courts to review the classification action of local or appeal boards before the registrant had exhausted his administrative remedies. Existing law quite clearly precludes such a judicial review until after a registrant has been ordered to report for induction and has responded either affirmatively or negatively to such an order. In view of this inclination of the courts to prematurely inquire into the classification action of local boards, the committee has rewritten this provision of the law so as to more clearly enunciate this principle. The committee was prompted to take this action since continued disregard of this principle of the law by various courts could seriously affect the administration of the Selective Service System.”

Although the language of §10 (b)(3) contains no explicit reference to habeas corpus as a remedy for inductees seeking to challenge their classifications, that remedy was plainly recognized and approved by Congress. The section provides for review “after the registrant has responded either affirmatively or negatively to an order to report for induction . . . .” (Emphasis added.) The remedy for one who responds affirmatively cannot, of course, be by way of “defense to a criminal prosecution” for refusing to be inducted; the only remedy in such a case is habeas corpus, and the Senate Committee Report made quite clear Congress' understanding in this regard:

“A registrant who presents himself for induction may challenge his classification by seeking a writ of habeas corpus after his induction. If the registrant does not submit to induction, he may raise as a defense to a criminal prosecution the issue of the legality of the classification.”

Thus there can be no doubt that § 10 (b) (3) was designed to permit judicial review of draft classifications only in connection with criminal prosecutions or habeas corpus proceedings. Today, however, the Court holds that § 10 (b) (3) does not mean what it says in a case like this, where it is “plain on the record and on the face of the Act that an exemption ha[s] been granted.” In such a case, it is said, there is a “clash” between the exemption and the provisions of § 10 (b)(3). With all respect, I am simply unable to perceive any “clash” whatsoever. Exemptions from service are substantive, while § 10 (b) (3) is purely procedural, specifying when substantive rights may be asserted. How the Court can conclude that the provisions of § 10 (b) (3) somehow do “violence to” the divinity student exemption is a mystery to me.

The only other reason the Court offers for its casual disregard of § 10 (b) (3) is the suggestion that obedience to the statute would lead to “unnecessary harshness.” But if the statute is constitutional, we have no power to disregard it simply because we think it is harsh. That is a judgment for Congress, not for us. And the Court does not question the law’s constitutionality. To the contrary, the constitutionality of § 10 (b) (3) is upheld this very day in Clark v. Gabriel, post, p. 256, in reaffirmation of several previous decisions in which this Court has enunciated and applied the rule against pre-induction review of Selective Service determinations.

The Court states that its “construction leaves § 10 (b) (3) unimpaired in the normal operations of the Act.” The implication seems to be that the present case is somehow exceptional. But the Court has carved out an “exception” to § 10 (b) (3) in exactly the kind of case where, in terms of the interests at stake, an exception seems least justified. The registrant with a clear statutory exemption is precisely the one least jeopardized by the procedural limitations of § 10 (b)(3). For, as the Government has acknowledged, “the Department of Justice would not prosecute [such a registrant] if he refuses to be inducted, and would promptly confess error if he submits to induction and brings a habeas corpus action.”

It is upon those registrants, rather, whose rights are not so clear that the burden of § 10 (b)(3) most harshly falls. For it is they who must choose whether to run the serious risk of a criminal prosecution or submit to induction with the uncertain hope of prevailing in a habeas corpus proceeding. Yet the Court has made plain today in Clark v. Gabriel, supra, that a registrant whose exemption from service is not clear will under § 10 (b) (3) be put to just such a fateful choice. In light of Gabriel, the allowance of pre-induction review in the present case thus stands as all the more irrational and unjustified.

I respectfully dissent.

       Section 6 (g) reads as follows:
      “Regular or duly ordained ministers of religion, as defined in this title, and 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, or who are satisfactorily pursuing full-time courses of instruction leading to their entrance into recognized theological or divinity schools in which they have been pre-enrolled, shall be exempt from training and service (but not from registration) under this title.”

       Section 1617.1 of the Selective Service System Regulations requires a registrant to have the certificate in his personal possession at all times (32 CFR § 1617.1), and § 1642.4, 32 CFR § 1642.4 (a), provides that whenever a registrant fails to perform “any duty” required of him (apart from the duty to obey an order to report for induction) the Board may declare him to be “a delinquent.”

       The United States admits for purposes of the present proceeding by its motion to dismiss that petitioner satisfies the requirements of the exemption provided by § 6 (g).

       Section 10 (b) (3) reads in pertinent part as follows:
      “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.”

       See S. Rep. No. 209, 90th Cong., 1st Sess., 10, where it is stated:
      “A registrant who presents himself for induction may challenge his classification by seeking a writ of habeas corpus after his induction. If the registrant does not submit to induction, he may raise as a defense to a criminal prosecution the issue of the legality of the classification.”
      In Falbo v. United States, 320 U. S. 549, a Jehovah’s Witness had been given conscientious objector status and ordered to report to a domestic camp for civilian work in lieu of military service. In defense to a criminal prosecution for disobeying that order, he argued that his local board had wrongly classified him by denying him an exemption as a minister. Without deciding whether Congress envisaged judicial review of such classifications, we held that a registrant could not challenge his classification without first exhausting his administrative remedies by reporting, and being accepted, for induction. Because he might still have been rejected at the civilian camp for mental or physical disabilities, Falbo had omitted a “necessary intermediate step in a united and continuous process designed to raise an army speedily and efficiently.” Id., at 553. In Estep v. United States, 327 U. S. 114, petitioners were Jehovah’s Witnesses like Falbo who had been denied ministerial exemptions and who challenged that classification in defense to a criminal prosecution for refusing induction. In their case, however, they had exhausted their administrative remedies by reporting, and being accepted, for service, before then refusing to submit to induction. We found nothing in the 1940 Act to preclude judicial review of selective service classifications in defense to a criminal prosecution for refusing induction.

        Supra, at n. 2.

       We would have a somewhat different problem were the contest over, say, the quantum of evidence necessary to sustain a Board's classification. Then we would not be able to say that it was plain on the record and on the face of the Act that an exemption had been granted and there would therefore be no clash between § 10 (b) (3) and another explicit provision of the Act.

       Petitioner makes several other arguments which I do not find necessary to discuss.

       Moreover, a court should be hesitant to grant a preliminary injunction staying induction except upon a strong showing that the registrant is likely to succeed on the merits.

       A suggestive analogy may be found in the Court’s construction of the civil rights removal statute, 28 U. S. C. § 1443. Where state statutory procedure is valid on its face, it is presumed that the state courts will treat a defendant fairly, and removal is not permitted. Georgia v. Rachel, 384 U. S. 780, 803-804 (1966); Virginia v. Rives, 100 U. S. 313, 321-323 (1880). But, subject to qualifications not here pertinent, a defendant may remove the cause when the state statutory procedure is facially invalid: “When a statute of the State denies his right, or interposes a bar to his enforcing it, in the judicial tribunals, the presumption is fair that they will be controlled by it in their decisions Id., at 321. See also Greenwood v. Peacock, 384 U. S. 808 (1966).

       It may be noted that the Selective Service System urges that the delinquency reclassification provisions have been approved by Congress. Brief for the Respondents 71.

       See 32 CFR §§1603.3, 1604.22; Memorandum from General Hershey, S. Doc. No. 82, 89th Cong., 2d Sess., 4; Weekly Compilation of Presidential Documents, March 13, 1967, p. 395; Report of the National Advisory Commission on Selective Service 74-79 (1967).
      Although each local Board has assigned to it a part-time, uncompensated appeal agent — “whenever possible, a person with legal training and experience,” 32 CFR § 1604.71 (c) — his pertinent responsibilities to the Board are limited to assisting its members by “interpreting for them laws, regulations, and other directives,” 32 CFR § 1604.71 (d)(4), and he must be “equally diligent in protecting the interests of the Government and the rights of the registrant in all matters.” 32 CFR § 1604.71 (d)(5).-

       It is doubtful whether a person may be deprived of his personal liberty without the prior opportunity to be heard by some tribunal competent fully to adjudicate his claims. Cf. Kwong Hai Chew v. Colding, 344 U. S. 590, 596-598 (1953); Opp Cotton Mills, Inc. v. Administrator, 312 U. S. 126, 152-153 (1941); United States v. Illinois Central R. Co., 291 U. S. 457, 463 (1934); Londoner v. City and County of Denver, 210 U. S. 373, 385 (1908); Dixon v. Alabama State Board of Education, 294 F. 2d 150 (1961). But cf. Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594 (1950) ; Bowles v. Willingham, 321 U. S. 503, 520 (1944); North American

        Cold Storage Co. v. Chicago, 211 U. S. 306 (1908). The validity of summary administrative deprivation of liberty without a full hearing may turn on the availability of a prompt subsequent hearing, cf. U. S. Const., Amdt. VI; United States v. Ewell, 383 U. S. 116, 120 (1966); Freedman v. Maryland, 380 U. S. 51 (1965) — something not made meaningfully available to petitioner here, either by the option of defending a criminal prosecution for refusing to report for induction, see Ex parte Young, 209 U. S. 123 (1908); Oklahoma Operating Co. v. Love, 252 U. S. 331 (1920); cf. Beisman v. Caplin, 375 U. S. 440 (1964), or by filing a petition for a writ of habeas corpus after induction. See ante, at 235-236; Estep v. United States, supra, at 129-130 (concurring opinion of Mr. Justice Murphy).
      The problem is exacerbated by petitioner’s nonfrivolous argument that induction pursuant to the delinquency reclassification procedure constitutes “punishment” for violation of collateral regulations, without jury trial, right to counsel, and other constitutional requisites. See Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963). It is not necessary to decide this issue. If petitioner’s claim is valid, however, then postponement of a hearing until after induction is tantamount to permitting the imposition of summary punishment, followed by loss of liberty, without possibility of bail, until such time as the petitioner is able to secure his release by a writ of habeas corpus. This would, at the very least, cut against the grain of much that is fundamental to our constitutional tradition. Cf. Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1380-1383 (1953).

       The salient parts of the statute’s sparse legislative history are set out in my Brother Stewart’s dissenting opinion, post, at 247-248. Both the House and Senate committees were “disturbed by the apparent inclination of some courts to review the classification action of local or appeal Boards before the registrant had exhausted his administrative remedies.” H. R. Rep. No. 267, 90th Cong., 1st Sess., 30 (1967); S. Rep. No. 209, 90th Cong., 1st Sess., 10 (1967). As I have discussed in the preceding text, the Boards can provide no remedy for a registrant’s claim that the regulations or statutes are themselves invalid. (This is not to say that a registrant making such a claim may come into court before he has exhausted his administrative appeals, for the System may decide in his favor on other grounds, obviating the need for further review. Cf. my dissent in Public Utilities Comm’n v. United States, supra, at 549-550; Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U. S. 752, 772 (1947). Petitioner here has exhausted available remedies. Appendix 4.)
      Section 10 (b) (3) was likely precipitated by the Second Circuit’s well-publicized decision in Wolff v. Selective Service Bd., 372 F. 2d 817 (1967). See dissenting opinion of Mr. Justice Stewart, post, at 247; Brief for Respondent 18, n. 4, 69, n. 32. Wolff, as well as the other “recent cases” to which the committee reports probably referred, and this Court’s decisions construing the antecedent to §10 (b)(3), all involved claims that the Selective Service Boards had maladministered or misapplied the applicable statutes or regulations, and not challenges to the validity of the laws themselves. Wolff v. Selective Service Bd., supra (loss of deferment for participating in demonstration); Townsend v. Zimmerman, 237 F. 2d 376 (1956) (failure to follow proper appeal procedure); Schwartz v. Strauss, 206 F. 2d 767 (1953) (concurring opinion) (misclassification); Ex parte Fabiani, 105 F. Supp. 139 (1952) (refusal to recognize foreign medical school for deferment) ; Tomlinson v. Hershey, 95 F. Supp. 72 (1949) (refusal to hear request for deferment); Estep v. United States, supra (entitlement to ministerial exemption); Falbo v. United States, 320 U. S. 549 (1944) (entitlement to conscientious objector status).

       50 U. S. C. App. §460 (b)(3) (1964 ed., Supp. III). The Act amends and supersedes the Universal Military Training and Service Act.

       113 Cong. Rec. 15426 (1967) (Senator Russell).

       See § 10 (a) (2) of the Selective Training and Service Act of 1940, 54 Stat. 893:
      “[Djecisions of . . . local boards shall be final except where an [administrative] appeal is authorized . . . .”
      See also Estep v. United States, 327 U. S. 114, 119, 123-125.

       See Townsend v. Zimmerman, 237 F. 2d 376; Schwartz v. Strauss, 206 F. 2d 767 (concurring opinion); Ex parte Fabiani, 105 F. Supp. 139; Tomlinson v. Hershey, 95 F. Supp. 72.

       In Wolf} the court allowed pre-induction review of the reclassification of two students who had demonstrated against the hostilities in Vietnam.

       S. Rep. No. 209, 90th Cong., 1st Sess., 10 (1967).

       H. R. Rep. No. 267, 90th Cong., 1st Sess., 30-31 (1967).

       S. Rep. No. 209, su-pra, at 10.

       The Court seems to limit its holding to statutory “exemptions”; yet “deferments” may just as “plainly” preclude a registrant’s induction. See, e. g., 50 U. S. C. App. §456 (h)(1) (1964 ed., Supp. Ill); 32 CFB. § 1622.25 (1968) (full-time college students).

       A different ground for permitting review in the present case is set out in the separate opinion of my Brother HarlaN. His opinion is founded on the proposition that constitutional problems would be presented by a system that “deprive [d] petitioner of his liberty without the prior opportunity to present to any competent forum — agency or court — his substantial claim that he was ordered inducted pursuant to an unlawful procedure.” Mr. Justice HarlaN seeks to avoid such difficulties by viewing § 10 (b) (3) as intended to prohibit, not all delays in the processing of registrants, but merely those protracted delays that result from judicial consideration of factual claims.
      As the absence of any exception in its terms indicates, however, § 10 (b) (3) plainly was intended to prevent any interruption whatever of the orderly processing of registrants. There is not a glimmer of evidence in the section’s legislative history that Congress intended to prevent some sorts of delay but not others. Moreover, it is difficult to reconcile the distinction Mr. Justice Harlan seeks to draw — between claims “that the procedure employed by the Board is invalid on its face” and challenges to a Board’s factual determinations — with his recognition that the enactment of § 10 (b) (3) was in substantial part a congressional reaction to the Second Circuit’s decision in Wolff v. Selective Service Bd., 372 F. 2d 817. Wolff involved no factual dispute whatsoever; rather, that decision held that, on the basis of admitted facts, the “delinquency” reclassification of the registrants there involved had been entirely unauthorized under both the statute and the applicable regulations.
      Nor can I view the constitutional theory suggested by my Brother HarlaN as presenting a justifiable ground for decision. It is noteworthy, first of all, that no such theory has ever been advanced by the petitioner. Furthermore, persons arrested for criminal offenses are routinely deprived of their liberty — to a greater extent than are military inductees — without any prior opportunity for the adjudication of legal or constitutional claims, and often without any hope of securing release on bail. Preliminary hearings before magistrates, by and large, determine only the existence of a prima facie case for the prosecution, and do not. begin to reach defenses that might be raised, whether factual, legal, or constitutional. Nor does § 10 (b) (3) necessarily compel deprivation of liberty. A registrant in the petitioner’s position is free to refuse induction, keeping open the option of raising his claims should a criminal prosecution be brought against him. And it is entirely possible, of course — and more than likely in the petitioner’s case — that no such prosecution will ever be instituted.

       The petitioner suggests that where the action of a draft board is challenged as a violation of freedom of speech, the postponement of judicial review until after the scheduled time of induction might have a “chilling effect” upon First Amendment activity. But petitioner’s complaint presents no bona fide First Amendment issue. His alleged return of his registration certificate to the Government would not be protected expression. United States v. O’Brien, 391 U. S. 367.

       In Falbo v. United States, 320 U. S. 549, 550, for instance, a registrant who had not reported for induction sought review of his classification, claiming — as the petitioner claims here — “that he was entitled to a statutory exemption from all forms of national service In refusing to permit judicial review, the Court, through Mr. Justice Black, stated:
      “Even if there were, as the petitioner argues, a constitutional requirement that judicial review must be available to test the validity of the decision of the local board, it is certain that Congress was not required to provide for judicial intervention before final acceptance of an individual for national service.” Id., at 554.
      See also Witmer v. United States, 348 U. S. 375, 377; Estep v. United States, 327 U. S. 114; Billings v. Truesdell, 321 U. S. 542.

       Brief for Respondents 70, n. 33.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    JOHNSON v. BENNETT, WARDEN.
    No. 32.
    Argued November 13-14, 1968.
    Decided December 16, 1968.

      Ronald L. Carlson argued the cause and filed briefs for petitioner.

      William A. Claerhout, Assistant Attorney General of Iowa, argued the cause for respondent. With him on the brief was Richard C. Turner, Attorney General.
   Per Curiam.

In 1934, petitioner was indicted for murdering a policeman in Burlington, Jowa. Petitioner claimed that he was innocent and that he had not been present at the scene of the crime. At the trial, several witnesses testified that petitioner had been in Des Moines, 165 miles away from Burlington, on the day that the crime was committed. The trial judge instructed the jury that for the petitioner to be entitled to an acquittal on the ground that he was not present at the scene of the crime, the petitioner must have shown by a preponderance of the evidence that he was not present. The jury found petitioner guilty of second-degree murder, and petitioner was sentenced to life imprisonment. His conviction was affirmed by the Iowa Supreme Court. State v. Johnson, 221 Iowa 8, 264 N. W. 596 (1936).

In this habeas corpus proceeding, petitioner argued, among other points, that the State had denied him due process of law by placing on him the burden of proving the alibi defense. The United States District Court for the Southern District of Iowa rejected this argument and denied the petition. The United States Court of Appeals for the Eighth Circuit affirmed. 386 F. 2d 677 (1967). We granted certiorari to consider the constitutionality of the alibi instruction, along with other issues. 390 U. S. 1002 (1968). After we granted certiorari, the Court of Appeals for the Eighth Circuit, sitting en banc, held in another case that the Iowa rule shifting to the defendant the burden of proving an alibi defense violates the Due Process Clause of the Fourteenth Amendment. Stump v. Bennett, 398 F. 2d 111 (1968). In view of that holding, we vacate the decision in this case and remand to that court for reconsideration.

Mr. Justice Black dissents.

       The instruction was as follows:
      “The burden is upon the defendant to prove [the] defense [of alibi] by a preponderance of the evidence, that is, by the greater weight or superior evidence. The defense of alibi to be entitled to be considered as established must show that at the very time of the commission of the crime the accused was at another place so far away, or under such circumstances that he could not with ordinary exertion have reached the place where the crime was committed so as to have committed the same. If by a preponderance of the evidence the defendant has so shown, the defense must be considered established and the defendant would be entitled to an acquittal. But if the proof of alibi has failed so to show, you will not consider it established or proved. The evidence upon that point is to be considered by the jury, and if upon the whole case including the evidence of an alibi, there is a reasonable doubt of defendant’s guilt, you should acquit him.”

       See also State v. Johnson, 221 Iowa 8, 21, 267 N. W. 91 (1936), in which the Iowa Supreme Court corrected certain errors made in its original opinion.

       The other issues were whether the State had suppressed evidence favorable to petitioner and intentionally used false evidence at petitioner’s trial, in violation of the Fourteenth Amendment.

       The instruction in Stump was similar to the one in the present ease. The Court of Appeals rejected the State’s contention that any error was harmless because the jury was also instructed that the State had the burden of proving "the crime as a whole” beyond a reasonable doubt. The court pointed out that, in view of the instruction’s inconsistency, reasonable minds could infer that the defendant retained the burden of proving nonpresence. 398 F. 2d, at 116, 121-122.

       In Stump, the Court of Appeals said:
      “[W]e are not directly faced with issues of retroactivity. We recognize that a panel of this court in Johnson v. Bennett, also a habeas corpus proceeding by an Iowa state prisoner, refused relief as to a number of matters, including the alibi instruction. The Johnson case concededly has some factual distinctions from the present one. Also significant is the fact that in the Stump case, unlike Johnson, counsel has carefully preserved by objections throughout the trial and appellate procedures his argument as to the unconstitutionality of the instruction.” (Citations omitted.) 398 F. 2d, at 122-123.
      We express no opinion as to the validity of the distinctions suggested by the Court of Appeals. Instead, we deem it appropriate to remand to that court for a definite ruling on the issue.


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

text:
    CLARK, ATTORNEY GENERAL, et al. v. GABRIEL.
    No. 572.
    Decided December 16, 1968.

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

      Norman Leonard for appellee.
   Per Curiam.

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. Ill), 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 he 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.

Me. 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.

. Mr. Justice Douglas,

concurring.

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.

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 IS, 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. T 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 Résumé.

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 résumé 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 antiwar 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.”

       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).


text:
    HOUSEHOLD GOODS CARRIERS' BUREAU et al. v. UNITED STATES et al.
    No. 615.
    Decided December 16, 1968.

      Homer S. Carpenter for appellants.

      Alan F. Wohlstetter for Household Goods Forwarders Association of America, Inc., et al., intervening defendants below.

      Solicitor General Griswold, Assistant Attorney General Zimmerman, Robert W. Ginnane, and Betty Jo Christian for the United States et al.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


text:
    OGLE v. HEIM, AUDITOR-CONTROLLER OF COUNTY OF ORANGE.
    No. 617.
    Decided December 16, 1968.

      Eric A. Rose for appellant.

      Robert F. Nuttman for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.


text:
    WILSON et al. v. KELLEY, CORRECTIONS DIRECTOR, et al.
    No. 561.
    Decided December 16, 1968.

      Charles Morgan, Jr., Reber F. Boult, Jr., Howard Moore, Jr., P. Walter Jones, Arthur Kinoy, Melvin L. Wulf, and Martin Garbus for appellants.

      Arthur K. Bolton, Attorney General of Georgia, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion 0. Gordon, Mathew Robins, and W. Wheeler Bryan, Assistant Attorneys General, and Don L. Hartman, Deputy Assistant Attorney General, for appellees.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.

Mr. Justice Douglas and Mr. Justice White are of the opinion that probable jurisdiction should be noted.


text:
    STANDARD OIL CO. OF CALIFORNIA v. CITY OF LOS ANGELES et al.
    No. 609.
    Decided December 16, 1968.

      Francis R. Kirkham, Francis N. Marshall, and Marcus Mattson for appellant.

      Roger Arnebergh, Gilmore Tillman, Henry E. Kappler, and Ellis J. Horvitz for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.


author: Mr. Chief Justice Warren Me. Justice Black,

text:
    THORPE v. HOUSING AUTHORITY OF THE CITY OF DURHAM.
    No. 20.
    Argued October 23, 1968.
    Decided January 13, 1969.

      James M. Nabrit III argued the cause for petitioner. With him on the briefs were Jack Greenberg, Charles Stephen Ralston, Charles H. Jones, Jr., Anthony G. Amsterdam, and William Bennett Turner.

      Daniel K. Edwards argued the cause for respondent. With him on the briefs was William Y. Manson.

   Mr. Chief Justice Warren

delivered the opinion of the Court.

This case raises the question whether a tenant of a federally assisted housing project can be evicted prior to notification of the reasons for the eviction and without an opportunity to reply to those reasons, when such a procedure is provided for in a Department of Housing and Urban Development (hereinafter HUD) circular issued after eviction proceedings have been initiated.

On November 11, 1964, petitioner and her children commenced a month-to-month tenancy in McDougald Terrace, a federally assisted, low-rent housing project owned and operated by the Housing Authority of the City of Durham, North Carolina. Under the lease, petitioner is entitled to an automatic renewal for successive one-month terms, provided that her family composition and income remain unchanged and that she does not violate the terms of the lease. The lease also provides, however, that either the tenant or the Authority may terminate the tenancy by giving notice at least 15 days before the end of any monthly term.

On August 10, 1965, petitioner was elected president of a McDougald Terrace tenants’ organization called the Parents’ Club. On the very next day, without any explanation, the executive director of the Housing Authority notified petitioner that her lease would be canceled as of August 31. After receiving notice, petitioner attempted through her attorneys, by phone and by letter, to find out the reasons for her eviction. Her inquiries went unanswered, and she refused to vacate.

On September 17,1965, the Housing Authority brought an action for summary eviction in the Durham Justice of the Peace Court, which, three days later, ordered petitioner removed from her apartment. On appeal to the Superior Court of Durham County, petitioner alleged that she was being evicted because of her organizational activities in violation of her First Amendment rights. After a trial de novo, the Superior Court affirmed the eviction, and the Supreme Court of North Carolina also affirmed. Both appellate courts held that under the lease the Authority’s reasons for terminating petitioner’s tenancy were immaterial. On December 5, 1966, we granted certiorari to consider whether petitioner was denied due process by the Housing Authority’s refusal to state the reasons for her eviction and to afford her a hearing at which she could contest the sufficiency of those reasons.

On February 7, 1967, while petitioner’s case was pending in this Court, HUD issued a circular directing that before instituting an eviction proceeding local housing authorities operating all federally assisted projects should inform the tenant "in a private conference or other appropriate manner” of the reasons for the eviction and give him “an opportunity to make such reply or explanation as he may wish.” Since the application of this directive to petitioner would render a decision on the constitutional issues she raised unnecessary, we vacated the judgment of the Supreme Court of North Carolina and remanded the case “for such further proceedings as may be appropriate in the light of the February 7 circular of the Department of Housing and Urban Development.”

On remand, the North Carolina Supreme Court refused to apply the February 7 HUD circular and reaffirmed its prior decision upholding petitioner’s eviction. Analogizing to the North Carolina rule that statutes are presumed to act prospectively only, the court held that since “[a] 11 critical events” had occurred prior to the date on which the circular was issued “[t]he rights of the parties had matured and had been determined before . . that date. We again granted certiorari. We reverse the judgment of the Supreme Court of North Carolina and hold that housing authorities of federally assisted public housing projects must apply the February 7, 1967, HUD circular before evicting any tenant still residing in such projects on the date of this decision.

In support of the North Carolina judgment, the Housing Authority makes three arguments: (1) the HUD circular was intended to be advisory, not mandatory; (2) if the circular is mandatory, it is an unauthorized and unconstitutional impairment of both the Authority’s annual contributions contract with HUD and the lease agreement between the Authority and petitioner; and (3) even if the circular is mandatory, within HUD’s power, and constitutional, it does not apply to eviction proceedings commenced prior to the date the circular was issued. We reject each of these contentions.

I.

Pursuant to its general rule-making power under § 8 of the United States Housing Act of 1937, HUD has issued a Low-Rent Management Manual, which contains requirements that supplement the provisions of the annual contributions contract applicable to project management. According to HUD, these requirements “are the minimum considered consistent with fulfilling Federal responsibilities” under the Act. Changes in the manual are initially promulgated as circulars. These circulars, which have not yet been physically incorporated into the manual, are temporary additions or modifications of the manual’s requirements and “have the same effect.” In contrast, the various “handbooks” and “booklets” issued by HUD contain mere “instructions,” “technical suggestions,” and “items for consideration.”

Despite the incorporation of the February 7 circular into the Management Manual in October 1967, the Housing Authority contends that on its face the circular purports to be only advisory. The Authority places particular emphasis on the circular’s precatory statement that HUD “believes” that its notification procedure should be followed. In addition to overlooking the significance of the subsequent incorporation of the circular into the Management Manual, the Authority’s argument is based upon a simple misconstruction of the language actually used. The import of that language, which characterizes the new notification procedure as “essential,” becomes apparent when the February 7 circular is contrasted with the one it superseded. The earlier circular, issued on May 31, 1966, stated: “[W]e strongly urge, as a matter of good social policy, that Local Authorities in a private conference inform any tenants who are given . . . [termination] notices of the reasons for this action.” (Emphasis added.) This circular was not incorporated into the Management Manual.

That HUD intended the February 7 circular to be mandatory has been confirmed unequivocally in letters written by HUD’s Assistant Secretary for Renewal and Housing Assistance and by its Chief Counsel. As we stated in Bowles v. Seminole Rock Co., 325 U. S. 410, 414 (1945), when construing an administrative regulation, “a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. . . . [T]he ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Thus, when the language and HUD’s treatment of the February 7 circular are contrasted with the language and treatment of the superseded circular, there can be no doubt that the more recent circular was intended to be mandatory, not merely advisory as contended by the Authority.

II.

Finding that the circular was intended to be mandatory does not, of course, determine the validity of the requirements it imposes. In our opinion remanding this case to the Supreme Court of North Carolina to consider the HUD circular’s applicability, we pointed out that the circular was issued pursuant to HUD’s rule-making power under § 8 of the United States Housing Act of 1937, which authorizes HUD “from time to time [to] make, amend, and rescind such rules and regulations as may be necessary to carry out the provisions of this Act.” The Housing Authority argues that this authorization is limited by the Act’s express policy of “vest[ing] in the local public housing agencies the maximum amount of responsibility in the administration of the low-rent housing program, including responsibility for the establishment of rents and eligibility requirements (subject to the approval of . . . [HUD]), with due consideration to accomplishing the objectives of this Act while effecting economies.” But the HUD circular is not inconsistent with this policy. Its minimal effect upon the Authority’s “responsibility in the administration” of McDougald Terrace is aptly attested to by the Authority’s own description of what the circular does not require:

“It does not . . . purport to change the terms of the lease provisions used by Housing Authorities, nor does it purport to take away from the Housing Authority its legal ability to evict by complying with the terms of the lease and the pertinent provisions of the State law relating to evictions. It does not deal with what reasons are acceptable to HUD .... Moreover, the Circular clearly does not say that a Housing Authority cannot terminate at the end of any term without cause as is provided in the lease.”

The circular imposes only one requirement: that the Authority comply with a very simple notification procedure before evicting its tenants. Given the admittedly insubstantial effect this requirement has upon the basic lease agreement under which the Authority discharges its management responsibilities, the contention that the circular violates the congressional policy of allowing local authorities to retain maximum control over the administration of federally financed housing projects is untenable.

The Authority also argues that under the Due Process Clause of the Fifth Amendment HUD is powerless to impose any obligations except those mutually agreed upon in the annual contributions contract. If HUD’s power is not so limited, the Authority argues, HUD would be free to impair its contractual obligations to the Authority through unilateral action. Moreover, in this particular case, the Authority contends that HUD has not only impaired its own contract with the Authority, but it has also impaired the contract between petitioner and the Authority. The obligations of each of these contracts, however, can be impaired only “by a law which renders them invalid, or releases or extinguishes them ... [or by a law] which without destroying [the] contracts derogate [s] from substantial contractual rights.” The HUD circular does neither.

The respective obligations of both HUD and the Authority under the annual contributions contract remain unchanged. Each provision of that contract is as enforceable now as it was prior to the issuance of the circular. Although the circular supplements the contract in the sense that it imposes upon the Authority an additional obligation not contained in the contract, that obligation is imposed under HUD’s wholly independent rule-making power.

Likewise, the lease agreement between the Authority and petitioner remains inviolate. Petitioner must still pay her rent and comply with the other terms of the lease; and, as the Authority itself acknowledges, she is still subject to eviction. HUD has merely provided for a particular type of notification that must precede eviction; and “[i]n modes of proceeding and forms to enforce the contract the legislature has the control, and may enlarge, limit, or alter them, provided it does not deny a remedy or so embarrass it with conditions or restrictions as seriously to impair the value of the right.”

Since the Authority does not argue that the circular is proscribed by any constitutional provision other than the Due Process Clause, the only remaining inquiry is whether it is reasonably related to the purposes of the enabling legislation under which it was promulgated. One of the specific purposes of the federal housing acts is to provide “a decent home and a suitable living environment for every American family” that lacks the financial means of providing such a home without governmental aid. A procedure requiring housing authorities to explain why they are evicting a tenant who is apparently among those people in need of such assistance certainly furthers this goal. We therefore cannot hold that the circular’s requirements bear no reasonable relationship to the purposes for which HUD’s rule-making power was authorized.

III.

The Housing Authority also urges that petitioner’s eviction should be upheld on the theory relied upon by the Supreme Court of North Carolina: the circular does not apply to eviction proceedings commenced prior to its issuance. The general rule, however, is that an appellate court must apply the law in effect at the time it renders its decision. Since the law we are concerned with in this case is embodied in a federal administrative regulation, the applicability of this general rule is necessarily governed by federal law. Chief Justice Marshall explained the rule over 150 years ago as follows:

“[I]f subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, ... I know of no court which can contest its obligation. It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns . . . the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.”

This same reasoning has been applied where the change was constitutional, statutory, or judicial. Surely it applies with equal force where the change is made by an administrative agency acting pursuant to legislative authorization. Exceptions have been made to prevent manifest injustice, but this is not such a case.

To the contrary, the general rule is particularly applicable here. The Housing Authority concedes that its power to evict is limited at least to the extent that it may not evict a tenant for engaging in constitutionally protected activity; but a tenant would have considerable difficulty effectively defending against such an admittedly illegal eviction if the Authority were under no obligation to disclose its reasons. On the other hand, requiring the Authority to apply the circular before evicting petitioner not only does not infringe upon any of its rights, but also does not even constitute an imposition. The Authority admitted during oral argument that it has already begun complying with the circular. It refuses to apply it to petitioner simply because it decided to evict her before the circular was issued. Since petitioner has not yet vacated, we fail to see the significance of this distinction. We conclude, therefore, that the circular should be applied to all tenants still residing in McDougald Terrace, including petitioner, not only because it is designed to insure a fairer eviction procedure in general, but also because the prescribed notification is essential to remove a serious impediment to the successful protection of constitutional rights.

IV.

Petitioner argues that in addition to holding the HUD circular applicable to her case, we must also establish guidelines to insure that she is provided with not only the reasons for her eviction but also a hearing that comports with the requirements of due process. We do not sit, however, “to decide abstract, hypothetical or contingent questions ... or to decide any constitutional question in advance of the necessity for its decision . . . .” The Authority may be able to provide petitioner with reasons that justify eviction under the express terms of the lease. In that event, she may decide to vacate voluntarily without contesting the Authority’s right to have her removed. And if she challenges the reasons offered, the Authority may well decide to afford her the full hearing she insists is essential. Moreover, even if the Authority does not provide such a hearing, we have no reason to believe that once petitioner is told the reasons for her eviction she cannot effectively challenge their legal sufficiency in whatever eviction proceedings may be brought in the North Carolina courts. Thus, with the case in this posture, a decision on petitioner’s constitutional claims would be premature. Reversed and remanded.

Me. Justice Black,

concurring.

The Court here uses a cannon to dispose of a case that calls for no more than a popgun. The Durham Housing Authority has clearly stated, both in its brief and at oral argument, that it is fully complying with the directive of the Department of Housing and Urban Development concerning notice to tenants of reasons for their eviction. The only possible issue therefore is whether the directive should apply to Mrs. Thorpe, against whom eviction proceedings were started prior to the effective date of the HUD memorandum but who is still residing in public housing, as a result of judicial stays. I agree, of course, that the directive should apply to her eviction. Nothing else need be decided.

      “This lease shall be automatically renewed for successive terms of one month each at the rental last entered and acknowledged below .... Provided, there is no change in the income or composition of the family of the tenant and no violation of the terms hereof. In the event of any change in the composition or income of the family of the tenant, rent for the premises shall automatically conform to the rental rates established in the approved current rent schedule which has been adopted by the Management for the operation of this Project ...”

       “This lease may be terminated by the Tenant by giving to Management notice in writing of such termination 15 days prior to the last day of the term. The Management may terminate this lease by giving to the Tenant notice in writing of such termination fifteen (15) days prior to the last day of the term. Provided, however, that this paragraph shall not be construed to prevent the termination of this lease by Management in any other method or for any other cause set forth in this lease.”
      The Housing Authority construes this provision to authorize termination upon the giving of the required notice even if the tenant has not violated the terms of the lease and his income and family composition have not changed. Petitioner, however, insists that since the Authority is a government agency, it may not constitutionally evict “for no reason at all, or for an unreasonable, arbitrary and capricious reason . . . .” Brief for Petitioner 27. We do not, however, reach that issue in this case. See n. 49, infra.

       The text of the notice is as follows:
      “Your Dwelling Lease provides that the Lease may be cancelled upon fifteen (15) days written notice. This is to notify you that your Dwelling Lease will be cancelled effective August 31, 1965, at which time you will be required to vacate the premises you now occupy.”

       One of those attempts was made on September 1. In an affidavit filed with the Superior Court of Durham County, petitioner alleged that on that day members of the Housing Authority met with a Durham police detective who had been investigating petitioner’s conduct. Although petitioner’s attorney met with Housing Authority representatives on this same day to request a hearing, the attorney was not informed what information had been uncovered by the police investigation or whether it had any bearing on petitioner’s eviction.

       All of the essential facts were stipulated in the Superior Court, including:
      “that if Mr. C. S. Oldham, the Executive Director of the Housing Authority of the City of Durham, were present and duly sworn and were testifying, he would testify that whatever reason there may have been, if any, for giving notice to Joyce C. Thorpe of the termination of her lease, it was not for the reason that she was elected

        president of any group organized in McDougald Terrace, and specifically it was not for the reason that she was elected president of any group organized in McDougald Terrace on August 10, 1965 .. . .”

       267 N. C. 431, 148 S. E. 2d 290 (1966).

       385 U. S. 967.

       The full text of that circular is as follows:
      DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Washington, D. C. 20410
      Circular
      2-7-67
      Office of the Assistant Secretary For Renewal and Housing Assistance TO: Local Housing Authorities
      Assistant Regional Administrators for
      Housing Assistance HAA Division and Branch Heads
      FROM: Don Hummel
      SUBJECT: Terminations of Tenancy in Low-Rent Projects
      Within the past year increasing dissatisfaction has been expressed with eviction practices in public low-rent housing projects. During that period a number of suits have been filed throughout the United States generally challenging the right of a Local Authority to evict a tenant without advising him of the reasons for such eviction.
      Since this is a federally assisted program, we believe it is essential that no tenant be given notice to vacate without being told by the Local Authority, in a private conference or other appropriate manner, the reasons for the eviction, and given an opportunity to make such reply or explanation as he may wish.
      In addition to informing the tenant of the reason (s) for any proposed eviction action, from this date each Local Authority shall maintain a written record of every eviction from its federally assisted public housing. Such records are to be available for review from time to time by HUD representatives and shall contain the following information:
      1. Name of tenant and identification of unit occupied.
      2. Date of notice to vacate.
      3. Specific reason(s) for notice to vacate. For example, if a tenant is being evicted because of undesirable actions, the record should detail the actions which resulted in the determination that eviction should be instituted.
      4. Date and method of notifying tenant with summary of any conferences with tenant, including names of conference participants.
      5. Date and description of final action taken.
      The Circular on the above subject from the PHA Commissioner, dated May 31, 1966, is superseded by this Circular.
      s/ Don Hummel Assistant Secretary for Renewal and Housing Assistance

       386 U. S. 670, 673-674 (1967).

       271 N. C. 468, 471, 167 S. E. 2d 147, 150 (1967).

       271 N. C., at 470, 157 S. E. 2d, at 149.

       390 U. S. 942 (1968).

       The Supreme Court of North Carolina stayed the execution of its judgment pending our decision. As a result, petitioner has not yet vacated her apartment.

       Under § 10 (a) of the United States Housing Act of 1937, 50 Stat. 891, as amended, 42 U. S. C. § 1410 (a) (1964 ed., Supp. Ill), HUD is required to enter into an annual contributions contract with the local housing authorities. In that contract, HUD guarantees to provide a certain amount of money over a certain number of years.

       50 Stat. 891, as amended, 42 U. S. C. § 1408 (1964 ed., Supp. III).

       Housing Assistance Administration, HUD, Low-Rent Management Manual.

        Id., §0 (preface) (April 1962).

        Ibid.

       Housing Assistance Administration, HUD, Low-Rent Housing Manual § 100.2, at 2 (Sept. 1963).

        Ibid.

       Circular from Commissioner Marie C. McGuire to Local Authorities, Regional Directors, and Central Office Division and Branch Heads, May 31, 1966.

      “[W]e intended it to be followed. . . . The circular is as binding in its present form as it will be after incorporation in the manual. . . . HUD intends to enforce the circular to the fullest extent of its ability. . . .”
      Letter from Assistant Secretary Don Hummel to Mr. Charles S. Ralston of the NAACP Legal Defense and Educational Fund, Inc., July 25,1967.

       HUD’s Chief Counsel stated that his “views are the same as those expressed” by Assistant Secretary Hummel. Letter from Mr. Joseph Burstein to Mr. Charles S. Ralston, Aug. 7, 1967.

       Accord, Udall v. Tollman, 380 U. S. 1 (1965). See Zemel v. Rusk, 381 U. S. 1 (1965).

        See Udall v. Tollman, supra.

       3 86 U. S. 670, 673, n. 4 (1967).

       This rule-making power was transferred from the Public Housing Administration to HUD by § 5 (a) of the Department of Housing and Urban Development Act, 79 Stat. 669, 42 U. S. C. § 3534 (a) (1964 ed., Supp. III).

       50 Stat. 891, as amended, 42 U. S. C. § 1408 (1964 ed., Supp. III). Such broad rule-making powers have been granted to numerous other federal administrative bodies in substantially the same language. See, e. g., 72 Stat. 743, 49 U. S. C. § 1324 (a) (Civil Aeronautics Board); 49 Stat. 647, as amended, 42 U. S. C. § 1302 (Department of Health, Education, and Welfare); 52 Stat. 830, 15 U. S. C. § 717o (Federal Power Commission).

       Section 1 of the United States Housing Act of 1937, 50 Stat. 888, as amended by § 501 of the Housing Act of 1959, 73 Stat. 679, 42 U. S. C. § 1401.

       Brief for Respondent 21, 23.

       Although the constitutional prohibition of the impairment of contracts, U. S. Const. Art. I, § 10, applies only to the States, we have held that “[v]alid contracts are property, whether the obligor be a private individual, a municipality, a State or the United States. Rights against the United States arising out of a contract with it are protected by the Fifth Amendment.” Lynch v. United States, 292 U. S. 571, 579 (1934).

        Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398, 431 (1934). The statute challenged in Lynch v. United States, supra, fell into the first of these two categories. It repealed “all laws granting or pertaining to yearly renewable [War Risk term] insurance . . . .” 292 TJ. S., at 575.

       A far different case would be presented if HUD were a party to this suit arguing that it could repudiate its obligations under the annual contributions contract because the Authority had failed to apply the circular. Cf. Lynch v. United States, supra.

       Cf. Home Bldg. & Loan Assn. v. Blaisdell, supra, at 425.

        Penniman’s Case, 103 U. S. 714, 720 (1881). See El Paso v. Simmons, 379 U. S. 497, at 508 (1965); Home Bldg. & Loan Assn. v. Blaisdell, supra.

      We have consistently upheld legislation that affects contract rights far more substantially than does the HUD circular. E. g., El Paso v. Simmons, supra, upheld a state statute that placed a time limit on the right to reinstate a claim in previously forfeited public lands; East N. Y. Sav. Bank v. Hahn, 326 U. S. 230 (1945), upheld a New York statute suspending mortgage foreclosures for the 10th year in succession; and Blaisdell upheld a statute that extended mortgagors’ redemption time.
      There is no reason why the principles that control legislation that affects contractual rights should not also control administrative rule making that affects contractual rights. Cf. Permian Basin Area Rate Cases, 390 U. S. 747, 779-780 (1968), which upheld a Federal Power Commission order limiting the application of “escalation clauses” in contracts for the sale of natural gas; and 24 CFR §§ 1.1-1,12 (1968), which proscribe a wide range of racially discriminatory practices by both governmental and private interests that receive any federal financial assistance whether or not pursuant to a preexisting contract. This regulation was promulgated under § 602 of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d-l, which directs each federal agency that administers federal financial assistance “by way of grant, loan, or contract other than a contract of insurance or guaranty ... to effectuate the provisions of section 601 [which prohibits racial discrimination in the administration of any program receiving federal financial assistance] ... by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.”

       See, e. g., FCC v. Schreiber, 381 U. S. 279, 289-294 (1965); American Trucking Assns., Inc. v. United States, 344 U. S. 298 (1953).

       Section 2 of the Housing Act of 1949, 63 Stat. 413, 42 U. S. C. § 1441. That section further directs all agencies of the Federal Government “having powers, functions, or duties with respect to housing . . . [to] exercise their powers, functions, and duties under this or any other law, consistently with the national housing policy declared by this Act . . . .” Ibid.

       “A change in the law between a nisi prius and an appellate decision requires the appellate court to apply the changed law.” Ziffrin, Inc. v. United States, 318 U. S. 73, 78 (1943). Accord, e. g., Vandenbark v. Owens-Illinois Glass Co., 311 U. S. 538 (1941); United States v. Chambers, 291 U. S. 217 (1934).

        United States v. Schooner Peggy, 1 Cranch 103, 110 (1801).

       See, e. g., United States v. Chambers, supra.

       See, e. g., Carpenter v. Wabash R. Co., 309 U. S. 23 (1940).

       See, e. g., Vandenbark v. Owens-Illinois Glass Co., supra.

       See Greene v. United States, 376 U. S. 149 (1964), in which we held that the petitioner’s right to recover lost pay for a wrongful discharge was “vested” as a result of our earlier decision in Greene v. McElroy, 360 U. S. 474 (1959), which we construed to have made a “final” and “favorable” determination, 376 U. S., at 159, that petitioner had been wrongfully deprived of his employment.

       “We do not contend that, in the case of Housing Authority leases if the purpose of the notice of termination of the lease is to proscribe the exercise of a constitutional right by the tenant the notice would be effective; the notice would be invalid, and the term of the lease and its automatic renewal would not thereby be affected.” Brief for Respondent 11.

       See generally Thorpe v. Housing Authority of the City of Durham, 386 U. S. 670, 674-681 (1967) (Douglas, J., concurring).

       Transcript of Argument 28. Despite this admission, counsel for the Authority insisted throughout his oral argument that HUD has no power to require compliance with the circular. See id., at 26-27, 28, 30-32, 48-49. He even expressly suggested that the Authority could depart from its requirements “without violating any kind of Federal law.” Id., at 48.

        Alabama State Federation of Labor v. McAdory, 325 U. S. 450, 461 (1945). Cf. Zemel v. Rusk, supra, at 13-20; United States v. Fruehauf, 365 U. S. 146 (1961).

       Moreover, if the procedure followed by the Authority proves inadequate, HUD may well decide to provide for an appropriate hearing. Cf. 24 CFB, §§1.1-1.12 (1968), which establish a detailed procedure to dispose of complaints of racial discrimination in any federally assisted program.

       These same considerations lead us to conclude that it would be equally premature for us to reach a decision on petitioner’s contention that it would violate due process for the Authority to evict her arbitrarily. That issue can be more appropriately considered if petitioner is in fact evicted arbitrarily. See Alabama State Federation of Labor v. McAdory, supra.