text:
    DOWELL et al. v. BOARD OF EDUCATION OF OKLAHOMA CITY PUBLIC SCHOOLS et al.
    No. 603.
    Decided December 15, 1969

      Jack Greenberg and James M. Nabrit III for Dowel] et al., and Calvin W. Hendrickson for Sanger et al., petitioners.

      J. Harry Johnson and Leslie L. Conner for the Board of Education of Oklahoma City Public Schools et al., and V. P. Crowe, C. Harold Thweatt, George F. Short, and Norman E. Reynolds for McWilliams et al., respondents.
   Per Curiam.

In this school desegregation case, the District Court for the Western District of Oklahoma, by order entered August 13, 1969, approved respondent Oklahoma City School Board’s proposal for furthering desegregation of some Oklahoma City schools by revising school attend-anee boundaries effective September 2, 1969, the start of the 1969-1970 school year. The order also decreed that the School Board prepare and submit on or before November 1, 1969, a comprehensive plan for the complete desegregation of the entire school system. In-tervenors of the “McWilliams Class” appealed to the Court of Appeals for the Tenth Circuit from the provision of the order which approved implementation of the School Board’s proposed boundary changes by September 2, 1969, and sought a stay of that provision pending decision of the appeal. The Court of Appeals, on August 27, 1969, instead of limiting relief to the requested stay, summarily vacated the District Court’s approval of the School Board’s proposal. The Court of Appeals held that consideration of the proposal was inappropriate “at this stage of the proceedings” and should await the District Court’s “consideration and adoption of a full and comprehensive plan for the complete desegregation and integration of the Oklahoma City School system as contemplated in the court’s order of August 13, 1969.”

The petition for certiorari is granted. The Court of Appeals erred in holding that the District Court’s approval of the School Board’s plan must be vacated because consideration of the proposal was inappropriate except in the context of a comprehensive city-wide plan. The burden on a school board is to desegregate an unconstitutional dual system at once. Green v. County School Board, 391 U. S. 430, 439 (1968); Alexander v. Holmes County Board of Education, ante, p. 19. Since the District Court ordered the desegregation measures into effect, and since the petitioners did not object to their scope, the Court of Appeals should have permitted their implementation pending argument and decision of the appeal. Alexander v. Holmes County Board of Education, supra. The order of the Court of Appeals is therefore vacated and the case is remanded to that court promptly to hear and determine, consistently with Alexander, all pending appeals from the District Court order.

It is so ordered.

       The petition was filed pursuant to an expedited schedule specified by Mr. Justice Brennan when on petitioners’ application he, as Acting Circuit Justice, vacated the order of the Court of Appeals and reinstated that of the District Court, pending action by this Court on the petition.

       We are informed by the parties that the School Board on September 12, 1969, also filed an appeal from the District Court’s approval of the Board’s proposal, and another appeal from the District Court’s denial on September 11, 1969, of the Board’s application for amendment of the August 13 order to extend from November 1, 1969, to March 31, 1970, the time for filing of a comprehensive desegregation plan for secondary schools. The District Court granted the Board’s application as to a plan for desegregation of the elementary schools.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CARLTON et al. v. CONNER, COMMISSIONER OF AGRICULTURE OF FLORIDA
    No. 625.
    Decided December 15, 1969

      John R. Beranek and Charles H. Damsel, Jr., for appellants.

      Robert A. Chastain for appellee.
   Per Curiam.

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


text:
    AMERICAN SMELTING & REFINING CO. v. COUNTY OF CONTRA COSTA et al.
    No. 656.
    Decided January 12, 1970

      Valentine Brookes, Alexander J. Gillespie, Jr., C. Rudolf Peterson, and George W. Beatty for appellant.

      John B. Clausen for appellees.
   Per Curiam.

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


text:
    LOCAL 1497, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, et al. v. CITY AND COUNTY OF DENVER et al.
    No. 703.
    Decided January 12, 1970

      George Louis Creamer for appellants.

      Max P. Zall for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction.


text:
    IN RE REED
    No. 706.
    Decided January 12, 1970

      Warren B. Burt for appellant.

      David P. Buckson, Attorney General, and Ruth M. Ferrell, State Solicitor, for the State of Delaware.
   Per Curiam.

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


text:
    LYON v. FLOURNOY, CONTROLLER OF CALIFORNIA, et al.
    No. 715.
    Decided January 12, 1970

      Randal F. Dickey, Jr., and Robert L. McCarty for appellant.

      Thomas C. Lynch, Attorney General of California, Harold B. Haas, Assistant Attorney General, and William J. Power, Deputy Attorney General, for appellees.
   Per Curiam.

The appeal is dismissed for want of a substantial federal question.


text:
    MICHAEL SCHIAVONE & SONS, INC. v. UNITED STATES
    No. 722.
    Decided January 12, 1970

      Joseph S. Oteri for appellant.

      Solicitor General Griswold for the United States.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction.


text:
    ATCHISON, TOPEKA & SANTA FE RAILWAY CO. et al. v. UNITED STATES et al.
    No. 741.
    Decided January 12, 1970

      James E. Nisbet, Ed White, and Jeremiah C. Waterman for appellants.

      Solicitor General Griswold, Assistant Attorney General McLaren, Fritz R. Kahn, and Jerome Nelson for the United States et al., and Warren Price, Jr., and John W. McConnell, Jr., for Sea-Land Service, Inc., appellees.
   Per Curiam.

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


text:
    SANCHEZ v. NEW MEXICO
    No. 974,
    Misc.
    Decided January 12, 1970

      Pat Sheehan for appellee.
   Per Curiam.

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


text:
    ARIEL v. MASSACHUSETTS
    No. 897,
    Misc.
    Decided January 12, 1970

      Edward J. Duggan for appellant.

      Robert H. Quinn, Attorney General of Massachusetts, John Wall, Assistant Attorney General, and Lawrence P. Cohen, Deputy Assistant Attorney General, for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.


text:
    DOYLE et al. v. O’BRIEN, CHIEF OF POLICE OF SOMERVILLE, et al.
    No. 1123,
    Misc.
    Decided January 12, 1970

      Edward J. Duggan for appellants.

      Robert H. Quinn, Attorney General of Massachusetts, John Wall, Assistant Attorney General, and Lawrence P. Cohen, Deputy Assistant Attorney General, for appellees.
   Per Curiam.

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


text:
    SWAIN et al. v. BOARD OF ADJUSTMENT OF THE CITY OF UNIVERSITY PARK et al.
    No. 714.
    Decided January 12, 1970

      William Burrow for appellants.

      Alfred L. Ruebel for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    FISHKIN et al. v. UNITED STATES CIVIL SERVICE COMMISSION et al.
    No. 681.
    Decided January 12, 1970

      Thomas C. Lynch, Attorney General of California, and Richard L. Mayers, Deputy Attorney General, for appellant the State of California.

      Solicitor General Griswold, Assistant Attorney General Ruckelshaus, and Alan S. Rosenthal for appellees.
   Per Curiam.

The appeal is dismissed for failure to docket the case within the time prescribed by Rule 13.

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


text:
    BONOMO et al. v. JONES
    No. 662.
    Decided January 12, 1970

      Robert E. Dauer for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    GRAHAM v. ALABAMA
    No. 738.
    Decided January 12, 1970

      Truman Hobbs for appellant.

      MacDonald Gallion, Attorney General of Alabama, and David W. Clark and Lloyd G. Hart, Assistant Attorneys General, for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    SCHWEGMANN v. LOUISIANA STADIUM AND EXPOSITION DISTRICT et al.
    No. 748.
    Decided January 12, 1970

      Paul O. H. Pigman for appellant.

      Harry B. Kelleher, Gerald P. Fedoroff, and John E. Jackson, Jr., for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    EX PARTE CARRINGTON
    No. 787,
    Misc.
    Decided January 12, 1970

      Leon B. Polsky for Carrington.

      Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Judith T. Younger, Assistant Attorney General, for the State of New York.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. The petition for a writ of certiorari is denied.


text:
    NEW YORK v. UNITED STATES et al.
    No. 100.
    Decided January 12, 1970

      Louis J. Lefkowitz, Attorney General of New York, Dunton F. Tynan, Assistant Solicitor General, and Walter J. Myskowski for appellant in No. 100. Gordon P. Mac-Dougall, William G. Mahoney, and C. C. Sheldon, Assistant Attorney General of Nebraska, for appellants in No. 520.

      Solicitor General Griswold, Assistant Attorney General McLaren, Robert W. Ginnane, and Jerome Nelson for the United States et al. in No. 100. Solicitor General Griswold, Assistant Attorney General McLaren, and Fritz R. Kahn for the United States et al. in No. 520. Wallace R. Steffen for Erie Lackawanna Railway Co., appellee in No. 100. George G. Coughlin for Broome County Chamber of Commerce, appellee in No. 100, supporting the position of the appellant. Howard J. Trienens and Richard T. Cubbage for Chicago, Burlington & Quincy Railroad Co., appellee in No. 520.

      Together with No. 520, City of Sheridan et al. v. United States et al., on appeal from the United States District Court for the District of Wyoming.

   Per Curiam.

The motions to affirm are granted and the judgments are affirmed.


author: Mr. Justice Brennan Mr. Justice Black,

text:
    WADE v. WILSON, WARDEN, et al.
    No. 55.
    Argued November 12, 1969
    Decided January 13, 1970

      Marshall L. Small, by appointment of the Court, 394 U. S. 941, argued the cause for petitioner. With him on the briefs was Melvin R. Goldman.

      John T. Murphy, Deputy Attorney General of California, argued the cause for respondents. With him on the brief were Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, and Karl S. Mayer, Deputy Attorney General.
   Mr. Justice Brennan

delivered the opinion of the Court.

In 1961, petitioner and one Pollard appealed to the California District Court of Appeal from murder convictions upon which the California Superior Court had sentenced each of them to life imprisonment. California Rules of Court 35 (c) and 10 (c) required that the appellants be furnished with one free copy of the trial transcript to be shared by them for the purposes of the appeal. Pollard received the free copy but would not share it with petitioner. However, the State Attorney General loaned petitioner’s appellate counsel his copy. The District Court of Appeal affirmed the convictions, 194 Cal. App. 2d 830, 15 Cal. Rptr. 214 (1961).

Five years later, in 1966, petitioner wished to pursue a collateral remedy and sought the transcript from Pollard but Pollard “refuse [d] to communicate on the subject.” Petitioner’s inquiry of his appellate lawyer elicited the response that the copy borrowed from the Attorney General had been returned. Petitioner then turned to the California courts seeking, however, not temporary use of a copy, but to be furnished with a copy of his own. He applied initially to the trial court and was advised that the original of the transcript was in the District Court of Appeal. He thereupon filed a pro se motion for a copy in the District Court of Appeal, which motion was denied on the ground that the Court of Appeal had only the original and was not equipped to duplicate copies. He next filed a proceeding in the California Supreme Court and was advised by the clerk of that court that he must proceed in “the court possessed of the original record.” He renewed his application to the District Court of Appeal, which again denied it on the ground that that court had “no facility for reproducing records”; but this time petitioner was advised that the original record would be made available for copying at his expense. Petitioner then abandoned further efforts in the California courts.

In 1967, he filed the instant federal habeas corpus proceeding in the District Court for the Northern District of California. His petition alleged his indigency and the single claim that California’s refusal to furnish him without cost his own copy of the transcript denied him due process and equal protection of the laws in violation of the Fourteenth Amendment. The District Court after hearing granted the writ and ordered California either to provide the free transcript or to release the petitioner. The District Court stated in an unreported opinion, “although there is no square holding on the precise question of the right to a transcript in preparing a petition for a writ of habeas corpus rather than an appeal, the logic of the Supreme Court holdings compels a finding that such a right exists.” The Court of Appeals for the Ninth Circuit reversed on the ground that “the trial court failed to find that Wade was claiming that there was any error which occurred in the proceedings which led to his conviction which would warrant the granting of post-conviction relief. . . . Wade was not entitled to demand a transcript merely to enable him to comb the record in the hope of discovering some flaw.” 390 F. 2d 632, 634 (1968). We granted certiorari. 393 U. S. 1079 (1969).

The California Court Rules require that a free transcript be furnished to convicted persons separately tried in felony cases and to each codefendant where one or more co-defendants are under sentence of death. Petitioner argues that in furnishing only one copy to be shared by codefendants where none received the death penalty California interposes an unconstitutional barrier to the use of its criminal appellate proceedings and that the distinction made by the Rules, without more, establishes that California has denied him equal protection of the laws. But petitioner will not be heard to attack the Rules since they concern only the furnishing of transcripts for purposes of direct appeal and he and his appellate counsel in fact had the use on his direct appeal of the transcript borrowed from the State Attorney General and did not complain that the terms on which it was made available in any way impaired its effective use on the appeal. See United States v. Raines, 362 U. S. 17, 21-22 (1960).

Petitioner argues that in any event, contrary to the Court of Appeals, the District Court was correct in holding that because “it may not be possible to pinpoint . . . alleged errors in the absence of a transcript,” petitioner was entitled to a transcript for use in petitioning for habeas corpus even though he did not specify what errors he claimed in his conviction. To pass on this contention at this time would necessitate our decision whether there are circumstances in which the Constitution requires that a State furnish an indigent state prisoner free of cost a trial transcript to aid him to prepare a petition for collateral relief. This is a question of first impression which need not be reached at this stage of the case. Notwithstanding petitioner’s success in borrowing a copy of the transcript in connection with his direct appeal, his insistence in the subsequent proceedings in both the California and federal courts is that he has a constitutional right to a copy of his own. We think consideration of that contention should be postponed until it appears that petitioner cannot again borrow a copy from the state authorities, or successfully apply to the California courts to direct his codefendant, Pollard, or some other custodian of a copy to make a copy available to him. Cf. Rule 10 (c). Without such a showing, or a showing that having his own copy would be significantly more advantageous than obtaining the use of someone else’s copy, the District Court should not have reached the merits of petitioner’s claim. We think, however, that the case should be retained on the District Court’s docket pending petitioner’s efforts to obtain access to the original or a copy. Upon being advised by the parties that petitioner has been provided such access, the court should dismiss the action. We vacate the judgments of both the Court of Appeals and the District Court and remand to the District Court for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Black,

dissenting.

Petitioner and one Joe Pollard were convicted of murder in 1960 and sentenced to life imprisonment. Pollard received a trial transcript and when he refused to turn it over to petitioner for his use in preparing an appeal, the State Attorney General’s Office loaned a copy to petitioner’s appellate counsel. The California District Court of Appeal affirmed in 1961. 194 Cal. App. 2d 830, 15 Cal. Rptr. 214. Five years later, in 1966, petitioner tried in the state courts to obtain a trial transcript. Failing there, he filed a petition in the United States District Court for the Northern District of California in 1967 asking to be released because of the State’s refusal to provide him a copy of the transcript. The United States District Court held petitioner was entitled to a copy of the trial record but the United States Court of Appeals reversed, holding that since petitioner did not allege any trial error which might warrant post-conviction relief he was “not entitled to demand a transcript merely to enable him to comb the record in the hope of discovering some flaw.” 390 F. 2d 632, 634 (1968).

This Court today says the petitioner thus raises a constitutional question of first impression, “whether there are circumstances in which the Constitution requires that a State furnish an indigent state prisoner free of cost a trial transcript to aid him to prepare a petition for collateral relief.” Ante, at 286. It may be conceivable that the Constitution would under certain special circumstances impose this duty on the State when it has such a record in its possession, but I cannot agree that anything shown in this record presents those special circumstances.

It is now over nine years since this case was tried. At petitioner’s request a trial record was made available for him to take an appeal; eight years ago he took that appeal and lost. There certainly is no constitutional requirement that a State must continue to supply convicted defendants trial records to enable them to raise the same old challenges to their convictions again and again and again. There is not a word or a suggestion in the whole record in this case that demonstrates or even intimates that any new events have occurred since petitioner’s 1961 appeal which could under any possible circumstances justify even a shadowy argument that petitioner was not guilty of the murder he was convicted of having committed. Although more than eight years have passed since that appeal, I would join in granting relief to this petitioner if he had shown, or even given any reason to believe, that new circumstances now indicate he was wrongfully convicted of a crime of which he was not guilty. See Fay v. Noia, 372 U. S. 391 (1963); cf. Kaufman v. United States, 394 U. S. 217, 231 (1969) (Black, J., dissenting); Harris v. Nelson, 394 U. S. 286, 301 (1969) (Black, J., dissenting). But we have no such case here. Petitioner has not raised any claims which indicate in the slightest that he has been convicted of a crime of which he is innocent. At the most he has asserted a desire to review the record to find some technical legal point which he can argue to a court as a basis for release from confinement. He has already-had one chance to make such arguments on direct appeal, and he lost that battle. I do not think he needs a transcript to know whether he was convicted erroneously or whether some new circumstances have arisen that now show a fatal constitutional error in the prior proceedings. In any event he has not yet based his request for a transcript on any indication of such a need. In such circumstances I see no reason whatsoever for the State to have to obtain a copy for him. This case is but another of the multitudinous instances in which courts are asked interminably to hash and rehash points that have already been determined after full deliberation and review. One considered appeal is enough, in the absence of factors which show a possibility that a substantial injustice has been inflicted on the defendant.

Nothing in this petitioner’s application for certiorari or his briefs and arguments gave any indication that he might be entitled to post-conviction relief, and there is thus no reason why this Court should even have reviewed his case. I would dismiss this writ as being improvidently granted.

       Petitioner styled Ms application to the Supreme Court of California “A Petition for a Writ of Habeas Corpus” but the only relief he requested was issuance of the record in his case or an order to the District Court of Appeal to furnish him with the record. He did not request an order releasing Mm from custody.

       The District Court cited Smith v. Bennett, 365 U. S. 708 (1961) (habeas corpus filmg fee); Griffin v. Illinois, 351 U. S. 12 (1956) (transcript on direct appeal); Lane v. Brown, 372 U. S. 477 (1963) (transcript on post-conviction appeal); Long v. District Court,
        385 U. S. 192 (1966) (transcript on post-conviction appeal). See also Roberts v. LaVallee, 389 U. S. 40 (1967); Gardner v. California, 393 U. S. 367 (1969).

       Rules 35 (c) and 10 (c) provide in pertinent part:
      Rule 35 (e): “As soon as both the clerk’s and reporter’s transcripts are completed, the clerk shall deliver one copy to the defendant or his attorney and one copy to the district attorney .... When there are two or more appealing defendants in a case in which a judgment of death has been rendered against one or more of the defendants, the clerk shall, deliver a copy of both transcripts to each such defendant or his attorney. . . . Where there are two or more appealing defendants represented by separate counsel in a case in which judgment of death has not been rendered against any defendant, the appellant’s copy shall be made available for the use of the appellants in the manner provided in Rule 10.”
      Rule 10 (e): “The additional copy of the record required by these rules shall be made available for the use of the parties to the appeal in such manner as the judge, or the clerk under his direction, shall prescribe; provided that the parties may stipulate to its use, and in such event only the original need be filed with the clerk of the superior court.”


author: Per Curiam. Mr. Justice Harlan, The Chief Justice and Mr. Justice Stewart.

text:
    CARTER et al. v. WEST FELICIANA PARISH SCHOOL BOARD et al.
    No. 944.
    Decided January 14, 1970

      Richard B. Sobol, Murphy W. Bell, Robert F. Collins, Norman C. Amaker, and Melvyn Zarr for petitioners in No. 944. Jack Greenberg, James M. Nabrit III, Mr. Amaker, Mr. Zarr, Oscar W. Adams, Jr., John H. Ruffin, Jr., and Earl M. Johnson for petitioners in No. 972.

      John F. Ward, Jr., for respondents in No. 944. Robert C. Cannada and Thomas H. Watkins for Jackson Municipal Separate School District et al., Hardy Lott for Marshall County Board of Education, Reid B. Barnes for Jefferson County Board of Education, Edwin L. Brobston for Board of Education of the City of Bessemer et al., Palmer Pillans and George F. Wood for Board of School Commissioners of Mobile County et al., Frank C. Jones and Wallace Miller, Jr., for Bibb County Board of Education et al., H. A. Aultman for Houston County Board of Education, W. Fred Turner for Board of Public Instruction of Bay County, and Sam T. Dell, Jr., for Board of Public Instruction of Alachua County et al., respondents in No. 972.
    Briefs of amici curiae in Nos. 944 and 972 were filed by Solicitor General Griswold for the United States, and by Mr. Ward for the Louisiana Teachers Association. Rivers Buford, Jr., and Gerald Mager filed a brief for the State Board of Education of Florida as amicus curiae in No. 972.

      Together with No. 972, Singleton et al. v. Jackson Municipal Separate School District et al., also on petition for writ of certiorari to the same court.

   Per Curiam.

Insofar as the Court of Appeals authorized deferral of student desegregation beyond February 1, 1970, that court misconstrued our holding in Alexander v. Holmes County Board of Education, ante, p. 19. Accordingly, the petitions for writs of certiorari are granted, the judgments of the Court of Appeals are reversed, and the cases remanded to that court for further proceedings consistent with this opinion. The judgments in these cases are to issue forthwith.

Mr. Justice Harlan,

with whom Mr. Justice White joins,

concurring.

I join the Court’s order. I agree that the action of the Court of Appeals in these cases does not fulfill the requirements of our recent decision in Alexander v. Holmes County Board of Education, ante, p. 19, and accordingly that the judgments below cannot stand. However, in fairness to the Court of Appeals and to the parties, and with a view to giving further guidance to litigants in future cases of this kind, I consider that something more is due to be said respecting the intended effect of the Alexander decision. Since the Court has not seen fit to do so, I am constrained to set forth at least my own understanding of the procedure to be followed in these cases. Because of the shortness of the time available, I must necessarily do this in a summary way.

The intent of Alexander, as I see it, was that the burden in actions of this type should be shifted from plaintiffs, seeking redress for a denial of constitutional rights, to defendant school boards. What this means is that upon a prima facie showing of noncompliance with this Court’s holding in Green v. County School Board of New Kent County, 391 U. S. 430 (1968), sufficient to demonstrate a likelihood of success at trial, plaintiffs may apply for immediate relief that will at once extirpate any lingering vestiges of a constitutionally prohibited dual school system. Cf. Magnum Import Co. v. Coty, 262 U. S. 159 (1923).

Such relief, I believe it was intended, should consist of an order providing measures for achieving disestablishment of segregated school systems, and should, if appropriate, include provisions for pupil and teacher reassignments, rezoning, or any other steps necessary to accomplish the desegregation of the public school system as required by Oreen. Graduated implementation of the relief is no longer constitutionally permissible. Such relief shall become effective immediately after the courts, acting with dispatch, have formulated and approved an order that will achieve complete disestablishment of all aspects of a segregated public school system.

It was contemplated, I think, that in determining the character of such relief the courts may consider submissions of the parties or any recommendations of the Department of Health, Education, and Welfare that may exist or may request proposals from the Department of Health, Education, and Welfare. If Department recommendations are already available the school districts are to bear the burden of demonstrating beyond question, after a hearing, the unworkability of the proposals, and if such proposals are found unworkable, the courts shall devise measures to provide the required relief. It would suffice that such measures will tend to accomplish the goals set forth in Green, and, if they are less than educationally perfect, proposals for amendments may thereafter be made. Such proposals for amendments are in no way to suspend the relief granted in accordance with the requirements of Alexander.

Alexander makes clear that any order so approved should thereafter be implemented in the minimum time necessary for accomplishing whatever physical steps are required to permit transfers of students and personnel or other changes that may be necessary to effectuate the required relief. Were the recent orders of the Court of Appeals for the Fifth Circuit in United States v. Hinds County School Board, 423 F. 2d 1264 (November 7, 1969), and that of the Fourth Circuit in Nesbit v. Statesville City Board of Education, 418 F. 2d 1040 (December 2, 1969), each implementing in those cases our decision in Alexander, to be taken as a yardstick, this would lead to the conclusion that in no event should the time from the finding of noncompliance with the requirements of the Oreen case to the time of the actual operative effect of the relief, including the time for judicial approval and review, exceed a period of approximately eight weeks. This, I think, is indeed the “maximum” timetable established by the Court today for cases of this kind.

Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall express their disagreement with the opinion of Mr. Justice Harlan, joined by Mr. Justice White. They believe that those views retreat from our holding in Alexander v. Holmes County Board of Education, ante, at 20, that “the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools.”

Memorandum of

The Chief Justice and Mr. Justice Stewart.

We would not peremptorily reverse the judgments of the Court of Appeals for the Fifth Circuit. That court, sitting en banc and acting unanimously after our decision in Alexander v. Holmes County Board of Education, ante, p. 19, has required the respondents to effect desegregation in their public schools by February 1, 1970, save for the student bodies, which are to be wholly desegregated during the current year, no later than September. In light of the measures the Court of Appeals has directed the respondent school districts to undertake, with total desegregation required for the upcoming school year, we are not prepared summarily to set aside its judgments. That court is far more familiar than we with the various situations of these several school districts, some large, some small, some rural, and some metropolitan, and has exhibited responsibility and fidelity to the objectives of our holdings in school desegregation cases. To say peremptorily that the Court of Appeals erred in its application of the Alexander doctrine to these cases, and to direct summary reversal without argument and without opportunity for exploration of the varying problems of individual school districts, seems unsound to us.


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

text:
    GUTKNECHT v. UNITED STATES
    No. 71.
    Argued November 20, 1969
    Decided January 19, 1970

      Michael E. Tigar argued the cause for petitioner pro hac vice. With him on the briefs were Melvin L. Wulf and Chester Bruvold.

      Assistant Attorney General Ruckelshaus argued the cause for the United States. With him on the brief were Attorney General Mitchell, Assistant Attorney General Wilson, and Philip R. Monahan.

    Briefs of amici curiae urging reversal were filed by George Soli and Joseph B. Robison for the American Jewish Congress, and by Marvin M. Karpatkin, Michael N. Pollet, and E. Curry First for the Central Committee for Conscientious Objectors.
   Mr. Justice Douglas

delivered the opinion of the Court.

This case presents an important question under the Military Selective Service Act of 1967, 62 Stat. 604, as amended, 65 Stat. 75, 81 Stat. 100.

Petitioner registered with his Selective Service Local Board and was classified I-A. Shortly thereafter he received a II-S (student) classification. In a little over a year he notified the Board that he was no longer a student and was classified I-A. Meanwhile he had asked for an exemption as a conscientious objector. The Board denied that exemption, reclassifying him as I-A, and he appealed to the State Board. While that appeal was pending, he surrendered his registration certificate and notice of classification by leaving them on the steps of the Federal Building in Minneapolis with a statement explaining he was opposed to the war in Vietnam. That was on October 16, 1967. On November 22, 1967, his appeal to the State Board was denied. On November 27, 1967, he was notified that he was I-A.

On December 20, 1967, he was declared delinquent by the local board. On December 26, 1967, he was ordered to report for induction on January 24,1968. He reported at the induction center, but in his case the normal procedure of induction was not followed. Rather, he signed a statement, “I refuse to take part, or all, [sic] of the prescribed processing.” Thereafter he was indicted for wilfully and knowingly failing and neglecting “to perform a duty required of him” under the Act. He was tried without a jury, found guilty, and sentenced to four years’ imprisonment. 283 F. Supp. 945. His conviction was affirmed by the Court of Appeals. 406 F. 2d 494. The case is here on a petition for a writ of certiorari. 394 U. S. 997.

I

Among the defenses tendered at the trial was the legality of the delinquency regulations which were applied to petitioner. It is that single question which we will consider.

By the regulations promulgated under the Act a local board may declare a registrant to be a “delinquent” whenever he

“has failed to perform any duty or duties required of him under the selective service law other than the duty to comply with an Order to Report for Induction (SSS Form No. 252) or the duty to comply with an Order to Report for Civilian Work and Statement of Employer (SSS Form No. 153) . . . 32 CFR § 1642.4.

In this case, petitioner was declared a delinquent for failing to have his registration certificate (SSS Form No. 2) and current classification notice (SSS Form No. 110) in his personal possession at all times, as required by 32 CFR §§.1617.1 and 1623.5, respectively.

The consequences of being declared a delinquent under § 1642.4 are of two types: (1) Registrants who have deferments or exemptions may be reclassified in one of the classes available for service, I-A, I-A-O, or I-O, whichever is deemed applicable. 32 CFR § 1642.12. (2) Registrants who are already classified I-A, I-A-O, or I-O, and those who are reclassified to such a status, will be given first priority in the order of call for induction, requiring them to be called even ahead of volunteers for induction. 32 CFR § 1642.13. The latter consequence deprives the registrant of his previous standing in the order of call as set out in 32 CFR § 1631.7.

The order-of-call provision in use when petitioner was declared “delinquent” is set out in 32 CFR § 1631.7 (a). The provision lists, in order, six categories of registrants and provides that the registrants shall be selected and ordered to report for induction according to the order of those categories. The first category is delinquents; the next category is volunteers; the other four categories consist of nonvolunteers. In this case, the petitioner was in the third of the six categories at the time he was declared to be a “delinquent.” By virtue of the declaration of delinquency he was moved to the first of the categories which meant, according to the brief of the Department of Justice, that “it is unlikely that petitioner, who was 20 years of age when ordered to report for induction, would have been called at such an early date had he not been declared a delinquent.”

If a person, who is ordered to report for induction or alternative civilian service, refuses to comply with that order, he subjects himself to criminal prosecution. See 32 CFR §§ 1642.41, 1660.30.

There is no doubt concerning the propriety of the latter criminal sanction, for Congress has specifically provided for the punishment of those who disobey selective service statutes and regulations in § 12 of the Military Selective Service Act of 1967, 50 U. S. C. App. § 462 (1964 ed., Supp. IV). The question posed by this case concerns the legitimacy of the delinquency regulations, which were applied to the petitioner, so as to deprive him of his previous standing in the order of call.

II

There is a preliminary point which must be mentioned and that is the suggestion that petitioner should have taken an administrative appeal from the order declaring him “delinquent” and that his failure to do so bars the defense in the criminal prosecution.

The pertinent regulation is 32 CFR § 1642.14, which gives a delinquent who “is classified in or reclassified into Class I-A, Class I-A-0 or Class I-O” three rights:

(a) the right to a personal appearance, upon request, “under the same circumstances as in any other case”;

(b) the right to have his classification reopened “in the discretion of the local hoard”; and

(c) the right to an appeal “under the same circumstances and by the same persons as in any other case.” (Emphasis added.)

The right to a personal appearance “in any other case” is covered by 32 CFR § 1624.1 (a). That section gives the right to “[e]very registrant after his classification is determined by the local board” provided a request is made therefor within 30 days. (Emphasis added.) The action taken against this petitioner, however, did not involve classification. The term “classification” is used exclusively in the regulations to refer to classification in one of the classes determining availability for service, e. g., I-A, I-O. See 32 CFR pts. 1621-1623. “Delinquency” is not such a classification, and a registrant is “declared” a delinquent, not “classified” as a delinquent. See 32 CFR pt. 1642.

The right to reopen his classification is also irrelevant to petitioner as he is not attacking his classification, but only his accelerated induction.

The right to appeal “as in any other case” is covered by 32 CFR § 1626.2(a). That section provides that “[t]he registrant . . . may appeal to an appeal board from the classification of a registrant by the local board.” (Emphasis added.)

Again, since petitioner was not classified in conjunction with his delinquency, but only had his induction accelerated, it would mean that he did not have the right to an appeal under the regulations. We are not advised, in any authoritative way, that this interpretation of the regulations is contrary to the administrative construction of them or to the accepted practice.

Ill

We come then to the merits. The problem of “delinquency” goes back to the 1917 Act, 40 Stat. 76, as shown in the Appendix to this opinion. The present “delinquency” regulations with which we are concerned stem from the 1948 Act, 62 Stat. 604.

The regulations issued under the 1948 Act were substantially identical to th'e present delinquency regulations, 32 CFR pt. 1642. Nothing in the 1948 Act or in any prior Act makes reference to delinquency or delinquents. The regulations purport to issue under the authority of § 10 of the 1948 Act. Section 10, however, relates neither to selection (§5) nor to deferments and exemptions (§6), but simply to the administration of the Act as delegated to the President: “The President is authorized — (1) to prescribe the necessary rules and regulations to carry out the provisions of this title.” 62 Stat. 619.

The delinquency provisions of 32 CFR pt. 1642 survived the Military Selective Service Act of 1967 largely intact. Again, however, there is nothing to indicate that Congress authorized the Selective Service System to reclassify exempt or deferred registrants for punitive purposes and to provide for accelerated induction of delinquents. Rather, the Congress reaffirmed its intention under § 12 (60 U. S. C. App. § 462 (1964 ed., Supp. IV)), to punish delinquents through the criminal law.

It is true, of course, that Congress referred to “delinquents” in § 6 (h)(1), 81 St-at. 102, 50 U. S. C. App. § 456 (h)(1) (1964 ed., Supp. IV):

“As used in this subsection, the term ‘prime age group’ means the age group which has been designated by the President as the age group from which selections for induction into the Armed Forces are first to be made after delinquents and volunteers.” (Emphasis added.)

This reference concerns only an order-of-call provision which institutes a call by age groups, 32 CFR § 1631.7 (b), a provision which has never been used. This casual mention of the term “delinquents,” moreover, must be measured against the explicit congressional provision for criminal punishment of those who violate the selective service laws, 50 U. S. C. App. § 462 (1964 ed., Supp. IV), the congressional provision for exemptions and deferments, 50 U. S. C. App. § 456 (1964 ed., Supp. IV), and congressional expressions emphasizing the importance of an impartial order of call, 50 U. S. C. App. § 455 (1964 ed., Supp. IV); H. R. Conf. Rep. No. 346, 90th Cong., 1st Sess., 9-10. Thus it was that the Solicitor General stated in his brief in Oestereich v. Selective Service Board, No. 46, O. T. 1968, 393 U. S. 233:

“It is difficult to believe that Congress intended the local boards to have the unfettered discretion to decide that any violation of the Act or regulations warrants a declaration of delinquency, reclassification and induction . . . Brief for the United States 54.

Judge Dooling stated in United States v. Eisdorfer, 299 F. Supp. 975, 989:

“The delinquency procedure has no statutory authorization and no Congressional support except what can be spelled out of the 1967 amendment of 50 U. S. C. App. §456 (h)(1) .... The delinquency regulations, moreover, disregard the structure of the Act; deferments and priorities-of-induction, adopted in the public interest, are treated as if they were forfeitable personal privileges.”

Oestereich involved a case where a divinity school student with a statutory exemption and a IV-D classification was declared “delinquent” for turning in his registration certificate to the Government in protest against the war in Vietnam. His Board thereupon reclassified him as I-A. After he exhausted his administrative remedies, he was ordered to report for induction. At that point he brought suit in the District Court for judicial review of the action by the Board. We held that under the unusual circumstances of the case, pre-induction judicial review was permissible prior to induction and that there was no statutory authorization to use the “delinquency” procedure to deprive a registrant of a statutory exemption. We said:

“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 free-wheeling 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.” 393 U. S., at 237.

The question in the instant case is different because no- “exemption,” no “deferment,” no “classification” in the statutory sense is involved. “Delinquency” was used here not to change a classification but to accelerate petitioner’s induction from the third category to the first; and it was that difference which led the Court of Appeals to conclude that what we said in Oestereich was not controlling here.

Deferment of the order of call may be the bestowal of great benefits; and its acceleration may be extremely punitive. As already indicated, the statutory policy is the selection of persons for training and service “in an impartial manner.” 50 U. S. C. App. § 455 (a)(1) (1964 ed., Supp. IV). That is the only express statutory provision which gives specific content to that phrase. That section does permit people registered at one time to be selected “before, together with, or after” persons registered at a prior time. Moreover, those who have not reached the age of 19 are given a deferred position in the order of call. But those variations in the phrase “in an impartial manner” are of no particular help in the instant case, except to underline the concern of Congress with the integrity of that phrase.

We know from the legislative history that, while Congress did not address itself specifically to the “delinquency” issue, it was vitally concerned with the order of selection, as well as with exemptions and deferments. Thus in 1967 a Conference Report brought House and Senate together against the grant of power to the President to initiate “a random system of selection” — a grant which, it was felt, would preclude Congress from “playing an affirmative role” in the constitutional task of “raising armies.” II. R. Conf. Rep. No. 346, supra, at 9-10. It is difficult to believe that with that show of resistance to a grant of a more limited power, there was acquiescence in the delegation of a broad, sweeping power to Selective Service to discipline registrants through the “delinquency” device.

The problem of the order of induction was once more before the Congress late in 1969. Section 5 (a) (2) of the 1967 Act, 50 U. S. C. App. §455 (a)(2) (1964 ed., Supp. IV), provided:

“Notwithstanding the provisions of paragraph (1) of this subsection, the President in establishing the order of induction for registrants within the various age groups found qualified for induction shall not effect any change in the method of determining the relative order of induction for such registrants within such age groups as has been heretofore established and in effect on the date of enactment of this paragraph, unless authorized by law enacted after the date of enactment of the Military Selective Service Act of 1967.”

While §5 (a) (2) gave the President authority to designate a prime age group for induction, it required him to select from the oldest first within the group. S. Rep. No. 91-531, 91st Cong., 1st Sess., 1. The Act of November 26, 1969, 83 Stat. 220, repealed § 5 (a) (2) pursuant to a request of the President that a random system of selection be authorized. See S. Rep. No. 91-531, supra, at 3-4; H. R. Rep. No. 91-577, 91st Cong., 1st Sess., 2, 9. The random system has now been put in force. It applies of course only prospectively. But its legislative history, as well as the concern of the Congress that the order in which registrants are inducted be achieved “in an impartial manner,” emphasizes a deep concern by Congress with the problems of the order of induction as well as with those of exemptions, deferments, and classifications.

While § 5 (a) (1) provides that “there shall be no discrimination against any person on account of race or color,” 50 U. S. C. App. § 455 (a)(1) (1964 ed., Supp. IV), there is no suggestion that as respects other types of discrimination the Selective Service has freewheeling authority to ride herd on the registrants using immediate induction as a disciplinary or vindictive measure.

The power under the regulations to declare a registrant “delinquent” has no statutory standard or even guidelines. The power is exercised entirely at the discretion of the local board. It is a broad, roving authority, a type of administrative absolutism not congenial to our law-making traditions. In Kent v. Dulles, 357 U. S. 116, 128-129, we refused to impute to Congress the grant of “unbridled discretion” to the Secretary of State to issue or withhold a passport from a citizen “for any substantive reason he may choose.” Id., at 128. Where the liberties of the citizen are involved, we said that “we will construe narrowly all delegated powers that curtail or dilute them.” Id., at 129. The Director of Selective Service described the “delinquency” regulations as designed “to prevent, wherever possible, prosecutions for minor infractions of rules” during the selective service processing. We search the Act in vain for any clues that Congress desired the Act to have punitive sanctions apart from the criminal prosecutions specifically authorized. Nor do we read it as granting personal privileges that may be forfeited for transgressions that affront the local board. If federal or state laws are violated by registrants, they can be prosecuted. If induction is to be substituted for these prosecutions, a vast rewriting of the Act is needed. Standards would be needed by which the legality of a declaration of “delinquency” could be judged. And the regulations, when written, would be subject to the customary inquiries as to infirmities on their face or in their application, including the question whether they were used to penalize or punish the free exercise of constitutional rights.

Reversed.

Mr. Chief Justice Burger concurs in the result reached by the Court generally for the reasons set put in the separate opinion of Mr. Justice Stewart.

Mr. Justice White joins the opinion of the Court insofar as it holds that Congress has not delegated to the President the authority to promulgate the delinquency regulations involved in this case.

APPENDIX TO OPINION OF THE COURT

Under the Selective Service Act of 1917, 40 Stat. 76, if a registrant failed to return his questionnaire or to report for physical examination, he was mailed a special order directing him to report for military service at a specified time. The registrant became a member of the service on the date specified in his order; any refusal to obey that order subjected him to prosecution under military law for desertion. “Since in most instances the delinquent registrant would never receive the order, due to not being in contact with his local board, he would normally acquire the status of a deserter without having any actual knowledge of his induction.” Selective Service System, Enforcement of the Selective Service Law 13 (Special Monograph No. 14, 1950). Thus, enforcement of the 1917 Act rested principally with the military, with court-martial being the main weapon of enforcement.

In passing the Selective Training and Service Act of 1940, 54 Stat. 885, Congress specifically ended the practice of subjecting delinquent registrants to military jurisdiction immediately upon receipt of their orders to report. Rather, § 11 of the Act provided that no registrant should be tried in a military court for disobeying selective service laws until he had been actually inducted, vesting criminal jurisdiction until such time in the United States district courts.

No mention was made in the 1940 Act of “delinquency” or “delinquents.” These terms were first introduced by the Selective Service regulations issued under the Act, 32 CFR, c. VI (Supp. 1940), which prescribed various duties for registrants and defined a “delinquent” as one who failed to perform them:

“A ‘delinquent’ is . . . (b) any registrant who prior to his induction into the military service fails to perform at the required time, or within the allowed period of given time, any duty imposed upon him by the selective service law, and directions given pursuant thereto, and has no valid reason for having failed to perform that duty.” 32 CFR § 601.106 (Supp.1940).

Furthermore, the regulations provided definite procedures for processing delinquents: after giving them notice of their suspected delinquency, 32 CFR § 603.389 (Supp. 1940), and after investigating those suspected charges, 32 CFR §603.390 (Supp. 1940), the Selective Service System provided for two possible dispositions:

On the one hand—

“If the local board is convinced that a delinquent is not innocent of wrongful intent, or if a suspected delinquent does not report to the board within 5 days after the mailing of the Notice of Delinquency . . . , the board should report him to a United States District Attorney for prosecution under section 11 of the Selective Service Act.” 32 CFR § 603.391 (a) (Supp. 1940).

On the other hand—

“If the board finds that the suspected delinquent is innocent of any wrongful intent, the board shall proceed with him just as if he were never suspected of being a delinquent.” 32 CFR § 603.390 (a) (Supp. 1940).

The February 1942 amendments to the regulations added a provision by which local boards would advise the United States Attorney in the exercise of his discretion not to prosecute those who had violated the selective service laws:

“If it is determined that the delinquency is not wilful, or that substantial justice will result, the local board should encourage the delinquent to comply with his obligations under the law and, if he does so or offers to do so, should urge that any charge of delinquency against him or any prosecution of him for delinquency be dropped.” 32 CFR §642.5 (Cum. Supp. 1938-1943).

This process was called the “enforcement procedure of education and persuasion.” Selective Service System, Enforcement of the Selective Service Law, supra, at 1-3.

“The first steps of the board were to try educating and persuading [the delinquent] to comply, but if such failed his case was referred to the United States attorney for further education and persuasion or if such also failed, for prosecution.” Selective Service System, Organization and Administration of the System 241 (Special Monograph No. 3, 1951).

If it was determined that the delinquency was “wilful” or that for any reason the United States Attorney should not exercise his discretion not to prosecute, the registrant was given an opportunity to avoid prosecution by “volunteering” for induction.

“[T]he registrant could volunteer for induction from any classification, not just I-A, any time he so desired, and if he was a delinquent under prosecution such volunteering was often allowed from any stage of the proceedings.” Ibid.

This procedure made it possible for the boards to siphon into military service some delinquents who might otherwise have traveled to jail:

“Since the purpose of the [selective service] law is to provide men for the military establishment rather than for the penitentiaries, it would seem that when a registrant is willing to be inducted, he should not be prosecuted for minor offenses committed during his processing.” Selective Service System, Legal Aspects of Selective Service 47 (Rev. 1969).

In November 1943, a new and substantially different set of regulations was issued. These regulations did not rely upon a delinquent’s “volunteering” for induction; instead they provided for reclassification of deferred or exempted delinquents into classes available for service, 32 CFR § 642.12 (a) (Supp. 1943), and provided for their priority induction without regard to the order of call established elsewhere in the regulations, 32 CFR § 642.13 (a) (Supp. 1943).

A deferred or exempted registrant who was reclassified into a class available for service was accorded the procedural rights of personal appearance and appeal to which he would otherwise have been entitled. 32 CFR § 642.14 (a) (Supp. 1943). In the case of a registrant who was not reclassified as a result of his delinquency, the local board could “reopen” the classification and accord rights of personal appearance and appeal “at any time before induction.” 32 CFR § 642.14 (b) (Supp. 1943). If the local board determined that the registrant “knowingly became a delinquent,” however, it was directed to decline to reopen the registrant’s classification. Ibid.

With respect to those registrants who were given appeal rights under § 642.14, the appeal board would determine if they had “knowingly” become delinquents. If they had, they were to be retained in a class available for service. If they had not, they were to be “classified on appeal in the usual manner” and their status as delinquents was to be “disregarded.” 32 CFR § 642.14 (c) (Supp. 1943).

The purpose of these regulations was “to prevent delay in the induction of apprehended delinquent registrants.” Selective Service System, Enforcement of the Selective Service Law, supra, at 56 (emphasis added). More important, the Service recognized that the procedure had little to do with the statutory exemptions delineated by Congress but, rather, was punitive in nature:

“[T]he Selective Service Regulations concerning delinquents . . . were amended again on November 1, 1943 .... The purposes of these changes were . . . To provide for the administrative penalty to a delinquent of prompt classification into Classes I-A, I-A-0 or IV-E as available for service, in addition to the existing criminal sanction.” (Ibid.) (Emphasis added.)

The regulation of November 1, 1943, purportedly drew its authority from § 3 of the 1940 Act, 54 Stat. 885. Nothing in that section, however, gives the Service powers of punitive reclassification and accelerated induction. Moreover, to the extent that § 3 has been so construed, it would conflict with the spirit of § 4 (a):

“The selection of men for training and service under section 3 . . . shall be made in an impartial manner, under such rules and regulations as the President may prescribe, from the men who are liable for such training and service and who at the time of selection are registered and classified but not deferred or exempted.” 54 Stat. 887 (emphasis added).

The delinquency provisions under the 1940 Act expired on March 31, 1947. The provisions issued under the 1948 Act are discussed in the text, supra.

Mr. Justice Harlan,

concurring.

I join the Court’s opinion with the following observations. First, as I see it, nothing in the Court’s opinion prevents a selective service board, under the present statute and existing regulations, from classifying as I-A a registrant who fails to provide his board with information essential to the determination of whether he qualifies for a requested exemption or deferment. Section 1622.10 of 32 CFR provides that: “In Class I-A shall be placed every registrant who has failed to establish to the satisfaction of the local board, subject to appeal hereinafter provided, that he is eligible for classification in another class.” I assume, of course, that under this regulation a board has no authority to keep a registrant classified I-A once it has information that justifies some lower classification.

Second, I think it entirely possible that consistently with our opinion today the President might promulgate new regulations, restricted in application to cases in which a registrant fails to comply with a duty essential to the classification process itself, that provide for accelerated induction under the existing statute. However, in order to avoid those punitive features now found to be unauthorized under existing legislation, any new regulations would have to give to a registrant being subjected to accelerated induction the right (like a person held in civil contempt) to avoid any sanction by future compliance. In other words, while existing legislation does not authorize the use of accelerated induction to punish past transgressions, it may well authorize acceleration to encourage a registrant to bring himself into compliance with rules essential to the operation of the classification process.

Mr. Justice Stewart,

concurring in the judgment.

I do not reach the question whether Congress has authorized the delinquency regulations, because even under the regulations the petitioner’s conviction cannot stand. After the petitioner’s local board declared him delinquent, he had 30 days as a matter of right to seek a personal appearance before the board and to take an appeal from its ruling. Yet the board gave him no chance to assert either of those rights. Instead, it ordered him to report for induction only five days after it had mailed him a notice of the delinquency declaration.

The local board thus violated the very regulations it purported to enforce. Those provisions seek to induce Selective Service registrants to satisfy their legal obligations by presenting them with the alternative prospect of induction into the armed forces. The personal appearance and appeal are critical stages in the delinquency process. They enable the registrant declared delinquent by his local board to contest the factual premises on which the delinquency declaration rests, to correct his oversight if the breach of duty has arisen merely from neglect, or to purge himself of his delinquency if his violation has been wilful. In any event, the regulatory objective is remedial. The board’s authority to reclassify a registrant based on his delinquency and to accelerate his induction is analogous to the age-old power of the courts to pronounce judgments of civil contempt. In each case the subject of the order carries “the keys . . . in [his] own pocket” to the termination of the order’s effect.

The Government has advanced the civil-contempt analogy, not only in this case, but also in others before the Court both this Term and last. Such an interpretation of the delinquency regulations comports with the view of the agency charged with their administration — that their purpose is to provide young men for the armed services, not the penitentiaries. It comports, as well, with the regulatory scheme itself, under which the local board may reopen its classification of a delinquent registrant without regard to the usual restrictions against such action, and remove the registrant from delinquency status at any time, even after it has ordered him to report for induction.

Accordingly, even though the regulations seem to say that such reopening and removal lie within the discretion of the local board, the Government agrees that the board would abuse its discretion if it refused such remedial relief to a registrant who breached his duty inadvertently or carelessly, or who sought to correct the breach, even if originally wilful, and to return to compliance with his obligations. But the Government argues that in this case the petitioner cannot avail himself of these provisions in the delinquency regulations, because he made no effort to correct his delinquency. The fact is that the petitioner’s local board never gave him a chance to purge his delinquency. It declared him a delinquent on December 20, 1967, sent him a notice to that effect the next day, and five days later ordered him to report for induction, more than two weeks before the expiration of the petitioner’s time to seek a personal appearance or take an appeal. In these circumstances the petitioner’s failure to seek his local board’s advice on what he should do, as suggested by the delinquency notice, does not detract from the force of his attack upon the validity of his criminal conviction.

The Government also argues that the petitioner was not prejudiced by the local board’s departure from the prescribed regulatory routine because when he was declared delinquent he was already classified I-A. But the Court of Appeals noted that the petitioner’s induction date was advanced as a result of the declaration, and the Government concedes that since the petitioner was only 20 years old at the time, it is unlikely that he would have been called at such an early date had he not been declared a delinquent. That the petitioner might eventually have been called — by no means a certainty, given the variations in draft calls and the possibility that he might subsequently have qualified for a deferment or exemption — does not mean he cannot complain that he was ordered to report for induction earlier than he should have been.

Finally, it is said that the petitioner had no right to a personal appearance before the local board and an appeal from its ruling because its delinquency declaration did not entail his removal into Class I-A from some other category. Since the petitioner was already I-A, the argument runs, his local board never “reclassified” him; it just shifted him from a lower to the highest category within the I-A order of call. Neither logic nor policy supports such a narrow reading of the regulations. Section 1642.14 specifically provides for a personal appearance and appeal, not only upon a “reclassification into” I-A, but also upon a “classification in” that category. The regulation thus covers precisely those registrants who are already “classified in” Class I-A, and whose declaration of delinquency automatically elevates them to the head of the order of call, as well as those registrants who are not yet in I-A, and who must be “reclassified into” that category before they can be put at the top of the list. The regulation, recognizing that the status of the registrant prior to his being declared delinquent and placed at the head of the order of call is irrelevant to the delinquency process, ensures that all registrants declared delinquent will enjoy the same rights of personal appearance and appeal without regard to their previous status.

Because the challenged regulations afford the petitioner procedural rights that his local board never gave him a chance to exercise, I would reverse the judgment of conviction.

       Under the terms of 32 CFR §1631.7 (a)(1) in effect at the time of petitioner’s trial, the first in line for induction were “[delinquents who have attained the age of 19 years in the order of their dates of birth with the oldest being selected first.” That provision has been included in the new § 1631.7 (a) promulgated after the random system of selection, discussed hereafter, was adopted.

       The order of call provided for by 32 CFR § 1631.7 (b) concerned calls of a designated “age group or groups,” a system never used.

       Cf. McKart v. United States, 395 U. S. 185. In McKart, the petitioner, who challenged his I-A classification, was given a right to appeal under the regulations but failed to exercise it. This Court held that this failure did not preclude the petitioner from raising the invalidity of his I-A classification as a defense to his prosecution for refusal to report for induction. The doctrine of exhaustion of remedies, we held, was inapplicable where the question sought to be raised was solely one of statutory interpretation, id.,
        at 197-199, and where application of the doctrine would serve to deprive a criminal defendant of a defense to his prosecution, id., at 197.

       The Department of Justice does not suggest that a registrant who has been declared a “delinquent” has administrative remedies for a review of that action. It points out, however, that the regulations, 32 CFR § 1642.4 (c), provide that: “A registrant who has been declared to be a delinquent may be removed from that status by the local board at any time.” It suggests that “at least up to the time of the issuance of the order to report for priority induction, it would be an abuse of discretion for a board to refuse removal in the case of a registrant who sought in good faith to correct his breach of duty.” Whatever may be the ultimate reach of 32 CFR § 1642.4 (c), it seems to be conceded that it has little relevance to the present case where, the Department states, “the local board had solid evidence that petitioner had dispossessed himself of his draft cards.”

       And see 115 Cong. Rec. H10255 et seq. (Oct. 29, 1969). Id., at H 10301 et seq., H 10313 et seq. (Oct. 30, 1969). Id., at S 14632 et seq. (Nov. 19, 1969).

         The random selection was established by the President through Proclamation 3945, on November 26, 1969. 34 Fed. Reg. 19017 (Nov. 29,1969).

       Selective Service System, Legal Aspects of Selective Service 46 (Rev. 1969).
      “The escalation of the United States military involvement in Vietnam increased the draft calls, and there was an upsurge of public demonstrations in protest. Some of these protests took the form of turning ‘draft’ cards in to various public officials of the Department of Justice,' the State or National Headquarters of Selective Service System, or directly to local boards. By agreement with the Department of Justice, registrants who turned in cards (as contrasted to those who burned cards) were not prosecuted under section 12 (a) of the Military Selective Service Law of 1967, but were processed administratively by the local boards. In many instances, the local boards determined that a deferment of such registrant was no longer in the national interest, and he was reclassified 1-A delinquent for failure to perform a duty required of him under the Act, namely retaining in his possession the Registration Card and current Notice of Classification card.” Id.., at 47.

       Cf. Shillitani v. United States, 384 U. S. 364, 368-372; Green v. United States, 356 U. S. 165, 197-198 (Black, J., dissenting); Penfield Co. v. SEC, 330 U. S. 585, 590; United States v. United Mine Workers, 330 U. S. 258, 330-332 (Black and Douglas, JJ., concurring in part and dissenting in part).

       The Government has spelled out the analogy in its briefs in Oestereich v. Selective Service Local Bd. No. 11, 393 U. S. 233; Breen v. Selective Service Board, No. 65, O. T. 1969, awaiting decision; Troutman v. United States, No. 623, O. T. 1969, cert. pending; and the present case. See also Griffiths, Punitive Reclassification of Registrants Who Turn in Their Draft Cards, 1 Sel. Serv. L. Rep. 4001, 4010-4012.

       Selective Service System, Legal Aspects of Selective Service 47 (Rev. 1969).

       32 CFR § 1642.14 (b); cf. 32 CFR § 1625.2.

       32 CFR § 1642.4 (e). Of similar import is the board’s authority, before notifying the local United States Attorney that a registrant has failed to report for induction, to wait 30 days if it believes it may be able to locate the registrant and secure his compliance. 32 CFR § 1642.41 (a).
      The civil-contempt interpretation draws further support from the historical development of the law of Selective Service delinquency. In the First World War, one who failed to fill out his questionnaire was simply inducted into the military, and his failure to report for duty led to a court-martial for desertion. See United States ex rel. Bergdoll v. Drum, 107 F. 2d 897, 899. By the Second World War, when the precursor of the present delinquency regulations first appeared, 32 CFR §§ 601.106, 603.389-603.393 (Supp. 1940), the law provided compliance procedures for registrants who offered to satisfy their obligations, even after their boards had referred their cases to the United States Attorneys for prosecution. 32 CFR § 642.5 (Cum. Supp. 1938-1943). However, from 1943 on, the regulations required denial of reopenings for knowingly delinquent registrants. 32 CFR § 642.14 (b) (Supp. 1943). Under the present regulations even a registrant whose delinquency is wilful may redeem himself before his local board. Surely this historical progression demonstrates that whatever may have been the punitive nature of the draft law’s initial response to the delinquency problem, its present character is remedial: recalcitrant registrants are handled in civilian rather than military proceedings, and receive an opportunity to recant even where their dereliction has been deliberate.
      Such an understanding of the delinquency regulations underlies recent decisions in the federal courts, e. g., Wills v. United States, 384 F. 2d 943, 945-946, cert. denied, 392 U. S. 908; United States v. Bruinier, 293 F. Supp. 666, including those upholding the constitutionality of the regulations, e. g., Anderson v. Hershey, 410 F. 2d 492, 495-496 n. 10, 498 nn. 15-16, 499, No. 449, cert. pending; cf. United States v. Branigan, 299 F. Supp. 225, 236-237; but see United States v. Eisdorfer, 299 F. Supp. 975, 984r-989, app. docketed, No. 330, O. T. 1969.

       See 32 CFR §§ 1642.4 (c), 1642.14 (b).

       The Government qualifies its interpretation by implying that a local board might not abuse its discretion in refusing removal in the case of a registrant who sought in good faith to correct his breach of duty after the board had issued its order to report for induction. But that limitation has no application in the present case, where the local board improperly issued the order to report before the petitioner had a chance to bring himself into compliance. In Trout-man v. United States, supra, where the Solicitor General has conceded that the local board erred in refusing to remove the petitioner’s delinquency after he sought to bring himself into compliance with his Selective Service duties, nearly six months intervened between the board’s declaration of delinquency that the petitioner sought to cure and its order to report for induction that gave rise to the prosecution for failure to submit to induction.

       32 CFR §§1642.14, 1624.1 (a), 1624.2(d), 1626.2 (c)(1).

       Cf. McKart v. United States, 395 U. S. 185, 197.

       406 F. 2d 494,496.

        United States v. Baker, 416 F. 2d 202, 204-205; Yates v. United States, 404 F. 2d 462, 465-466, rehearing denied, 407 F. 2d 50, cert. denied, 395 U. S. 925; United States v. Smith, 291 F. Supp. 63, 67-68; United States v. Lybrand, 279 F. Supp. 74, 77-83.

       See 32 CFK, § 1631.7 (a).

       Cf. 32 CFR §§ 1642.12,1642.13.