author: Mr. Justice Marshall Mr. Justice Douglas, Mb. Justice White,

text:
    McKART v. UNITED STATES.
    No. 403.
    Argued February 27, 1969.
    Decided May 26, 1969.

      George C. Pontikes argued the cause for petitioner. With him on the briefs was Marshall Patner.

      Francis X. Beytagh, Jr., argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Leonard H. Dickstein.

   Mr. Justice Marshall

delivered the opinion of the Court.

Petitioner was indicted for willfully and knowingly failing to report for and submit to induction into the Armed Forces of the United States. At trial, petitioner’s only defense was that he should have been exempt from military service because he was the “sole surviving son” of a family whose father had been killed in action while serving in the Armed Forces of the United States. The District Court held that he could not raise that defense because he had failed to exhaust the administrative remedies provided by the Selective Service System. Accordingly, petitioner was convicted and sentenced to three years’ imprisonment. The Court of Appeals affirmed, with one judge dissenting. United States v. McKart, 395 F. 2d 906 (C. A. 6th Cir. 1968). We granted certiorari. 393 U. S. 922 (1968).

I.

The facts are not in dispute. Petitioner registered with his local Selective Service board shortly after his 18th birthday and thereafter completed his classification questionnaire. On that form he indicated that he was "the sole surviving son of a family of which one or more sons or daughters were killed in action . . . while serving in the Armed Forces of the United States . . . .” On February 25, 1963, petitioner's local board placed him in Class I-A, available for military service; he made no attempt to appeal that classification.

On March 23, 1964, he was ordered to report for a pre-induction physical, but failed to do so. He was declared a delinquent and ordered to report for induction on May 11, 1964. He failed to report, but instead wrote a letter to his local board indicating that his moral beliefs prevented him from cooperating with the Selective Service System. The local board replied by sending petitioner the form for claiming conscientious objector status. The board also referred to petitioner's indication in his original questionnaire that he was a sole surviving son and requested further information on that subject.

On May 20, 1964, petitioner returned the blank form, stating that he did not wish to be a conscientious objector. In response to the board's request for information about his claim to be a sole surviving son, petitioner indicated that his father had been killed in World War II. The local board, after consulting the State Director, again wrote petitioner requesting more information about his father. Petitioner supplied some of the information. The local board forwarded this information to the State Director, who requested the local board to reopen petitioner’s classification. The board canceled his induction order and reclassified him IV-A, the appropriate classification for a registrant exempted as a sole surviving son. Petitioner remained in that classification until February 14, 1966.

Early in 1966, the local board learned of the death of petitioner’s mother. After checking with the State Director, the board returned petitioner to Class I-A. The board rested this decision on the theory that a IV-A classification became improper when petitioner’s “family unit” ceased to exist on the death of his mother. Petitioner was ordered to report for a pre-induction physical. He failed to report and was declared a delinquent and ordered to report for induction. He again failed to report and, after further investigation, his criminal prosecution followed.

II.

We think it clear that petitioner was exempt from military service as a sole surviving son. The sole surviving son exemption originated in the Selective Service Act of 1948, c. 625, § 6 (o), 62 Stat. 613. As originally enacted, that section provided exemption for the sole surviving son only “[w]here one or more sons or daughters of a family were killed in action . . . while serving in the armed forces of the United States.” In 1964, the section was amended to extend the exemption to sole surviving sons whose fathers were killed in action. 78 Stat. 296. The section now reads in relevant part as follows:

“[W]here the father or one or more sons or daughters of a family were killed in action or died in line of duty while serving in the Armed Forces . . . the sole surviving son of such family shall not be inducted for service . . ..” 50 U. S. C. App. § 456 (o).

There is no question that petitioner was entitled to an exemption before the death of his mother. The issue is whether her death, and the end of the immediate “family unit,” ended that exemption.

We have found no cases discussing this aspect of § 6 (o). The applicable Selective Service System Regulation, 32 CFR § 1622.40 (a) (10) (1969), merely repeats the language of the statute. The System’s administrative interpretations have not been uniform, although in the present case the National Director took the position that “inasmuch as there is no family, it is not believed that [petitioner] would qualify for sole surviving son status.” We must, therefore, decide what is essentially a question of first impression. Our examination of the language and legislative history of § 6 (o) indicates that the Selective Service System’s interpretation fails to effectuate fully the purposes Congress had in mind in providing the exemption.

The language of the statute provides only three conditions, two explicit and one implicit, upon which the exemption should terminate. The registrant may volunteer for service, a national emergency or war may be declared, or, implicitly, the registrant may cease to be the sole surviving son by the birth of a brother. The section says nothing about the continuing existence of a family unit, even though other provisions of the Selective Service laws make similar conditions explicit in other contexts.

The argument for conditioning the exemption upon the continued existence of a family unit is based not upon the language or structure of the statute but upon certain references in the legislative history. These comments indicate that one purpose of the exemption was to provide ‘'solace and consolation” to the remaining family members by guaranteeing the presence of the sole surviving son. See S. Rep. No. 1119, 88th Cong., 2d Sess., 3 (1964); Hearings before Subcommittee No. 1 of the House Committee on Armed Services on H. R. 2664, 88th Cong., 1st Sess., 3442-3443 (1963). When there is no one left to comfort, it is argued, the sole surviving son may be drafted. However, our examination of the sparse legislative history discloses that Congress had not one but several purposes in mind in providing the exemption, only some of which depend upon the existence of a family unit.

Perhaps chief among these other purposes was a desire to avoid extinguishing the male line of a family through the death in action of the only surviving son. See S. Rep. No. 1119, supra; Hearing before the Senate Committee on Armed Services on H. R. 2664, 88th Cong., 1st Sess., 30-31 (1963); 110 Cong. Rec. 15218 (1964) (remarks of Senator Keating). Other purposes mentioned were providing financial support for the remaining family members, fairness to the registrant who has lost his father in the service of his country, and the feeling that there is, under normal circumstances, a limit to the sacrifice that one family must make in the service of the country. See Hearing before the Senate Committee on Armed Services on H. R. 2664, supra, at 30-31; Hearings before Subcommittee No. 1 of the House Committee on Armed Services on H. R. 2664, supra, at 3442-3443; 109 Cong. Rec. 24889 (1963).

Perhaps the most that can be said in these circumstances is that Congress had multiple purposes in mind in providing an exemption for a sole surviving son. Depriving petitioner of an exemption might not frustrate one of these purposes, but it certainly would frustrate several of the others. Therefore, given the beneficent basis for § 6 (o), we cannot believe that Congress intended to make one factor, the existence of a “family unit,” crucial. Accordingly, the death of petitioner’s mother did not operate to deprive him of his right to be exempt from military service. The local board erred in classifying petitioner I-A and ordering him to report for induction.

III.

The Government maintains, however, that petitioner cannot raise the invalidity of his I-A classification and subsequent induction order as a defense to a criminal prosecution for refusal to report for induction. According to the Government, petitioner’s failure to appeal his reclassification after the death of his mother constitutes a failure to exhaust available administrative remedies and therefore should bar all judicial review. For the reasons set out below, we cannot agree.

The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law. See generally 3 K. Davis, Administrative Law Treatise § 20.01 et seq. (1958 ed., 1965 Supp.); L. Jaffe, Judicial Control of Administrative Action 424-458 (1965). The doctrine provides “that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41, 50-51 (1938). The doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions. Application of the. doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved.

Perhaps the most common application of the exhaustion doctrine is in cases where the relevant statute provides that certain administrative procedures shall be exclusive. See Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41 (1938) (National Labor Relations Act). The reasons for making such procedures exclusive, and for the judicial application of the exhaustion doctrine in cases where the statutory requirement of exclusivity is not so explicit, are not difficult to understand. A primary purpose is, of course, the avoidance of premature interruption of the administrative process. The agency, like a trial court, is created for the purpose of applying a statute in the first instance. Accordingly, it is normally desirable to let the agency develop the necessary factual background upon which decisions should be based. And since agency decisions are frequently of a discretionary nature or frequently require expertise, the agency should be given the first chance to exercise that discretion or to apply that expertise. And of course it is generally more efficient for the administrative process to go forward without interruption than it is to permit the parties to seek aid from the courts at various intermediate stages. The very same reasons lie behind judicial rules sharply limiting interlocutory appeals.

Closely related to the above reasons is a notion peculiar to administrative law. The administrative agency is created as a separate entity and invested with certain powers and duties. The courts ordinarily should not interfere with an agency until it has completed its action, or else has clearly exceeded its jurisdiction. As Professor Jaffe puts it, “[t]he exhaustion doctrine is, therefore, an expression of executive and administrative autonomy.” This reason is particularly pertinent where the function of the agency and the particular decision sought to be reviewed involve exercise of discretionary powers granted the agency by Congress, or require application of special expertise.

Some of these reasons apply equally to cases like the present one, where the administrative process is at an end and a party seeks judicial review of a decision that was not appealed through the administrative process. Particularly, judicial review may be hindered by the failure of the litigant to allow the agency to make a factual record, or to exercise its discretion or apply its expertise. In addition, other justifications for requiring exhaustion in cases of this sort have nothing to do with the dangers of interruption of the administrative process. Certain very practical notions of judicial efficiency come into play as well. A complaining party may be successful in vindicating his rights in the administrative process. If he is required to pursue his administrative remedies, the courts may never have to intervene. And notions of administrative autonomy require that the agency be given a chance to discover and correct its own errors. Finally, it is possible that frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures.

In Selective Service cases, the exhaustion doctrine must be tailored to fit the peculiarities of the administrative system Congress has created. At the heart of the Selective Service System are the local boards, which are charged in the first instance with registering and classifying those subject to the Selective Service laws. 32 CFR § 1613.1 et seq., §§ 1621.1-1623.10 (1969). Upon being classified by the local board, the registrant has a right of appeal to a state appeal board, 32 CFR § 1626.2 (1969), and, in some instances, to the President, 32 CFR § 1627.3 (1969). No registrant is required to appeal. A registrant cannot be ordered to report for induction while his classification is being considered by the local board or by an appeal board. 32 CFR §§ 1624.3,1625.14, 1626.41, 1627.8 (1969).

At some stage during this process, normally shortly before he is expected to be ordered to report for induction, see 32 CFR § 1628.11 (1969), the registrant is required to complete a pre-induction physical examination. If he passes this examination, he ordinarily will be ordered to report for induction. The next, and last, step is to report to the induction center and submit to induction. At this point, the administrative process is at an end.

If the registrant fails to report for induction, he is, like petitioner in the present case, subject to criminal prosecution. Although the Universal Military Training and Service Act, as it stood at the time of petitioner’s trial, provided that the decisions of the local boards were “final,” it was long ago established that a registrant charged with failure to report can raise the defense that there was “no basis in fact” for his classification. See Estep v. United States, 327 U. S. 114, 123 (1946). It is also established that there can be no judicial review at all, with some exceptions, until the registrant has refused to submit to induction and is prosecuted, or else has submitted to induction and seeks release by habeas corpus.

This case raises a different question. We are not here faced with a premature resort to the courts — all administrative remedies are now closed to petitioner. We are asked instead to hold that petitioner’s failure to utilize a particular administrative process — an appeal — bars him from defending a criminal prosecution on grounds which could have been raised on that appeal. We cannot agree that application of the exhaustion doctrine would be proper in the circumstances of the present case.

First of all, it is well to remember that use of the exhaustion doctrine in criminal cases can be exceedingly harsh. The defendant is often stripped of his only defense; he must go to jail without having any judicial review of an assertedly invalid order. This deprivation of judicial review occurs not when the affected person is affirmatively asking for assistance from the courts but when the Government is attempting to impose criminal sanctions on him. Such a result should not be tolerated unless the interests underlying the exhaustion rule clearly outweigh the severe burden imposed upon the registrant if he is denied judicial review. The statute as it stood when petitioner was reclassified said nothing which would require registrants to raise all their claims before the appeal boards. We must ask, then, whether there is in this case a governmental interest compelling enough to outweigh the severe burden placed on petitioner. Even if there is no such compelling interest when petitioner’s case is viewed in isolation, we must also ask whether allowing all similarly situated registrants to bypass administrative appeal procedures would seriously impair the Selective Service System’s ability to perform its functions.

The question of whether petitioner is entitled to exemption as a sole surviving son is, as we have seen, solely one of statutory interpretation. The resolution of that issue does not require any particular expertise on the part of the appeal board; the proper interpretation is certainly not a matter of discretion. In this sense, the issue is different from many Selective Service classification questions which do involve expertise or the exercise of discretion, both by the local boards and the appeal boards. Petitioner’s failure to take his claim through all available administrative appeals only deprived the Selective Service System of the opportunity of having its appellate boards resolve a question of statutory interpretation. Since judicial review would not be significantly aided by an additional administrative decision of this sort, we cannot see any compelling reason why petitioner’s failure to appeal should bar his only defense to a criminal prosecution. There is simply no overwhelming need for the court to have the agency finally resolve this question in the first instance, at least not where the administrative process is at an end and the registrant is faced with criminal prosecution.

We are thus left with the Government’s argument that failure to require exhaustion in the present case will induce registrants to bypass available administrative remedies. The Government fears an increase in litigation and a consequent danger of thwarting the primary function of the Selective Service System, the rapid mobilization of manpower. This argument is based upon the proposition that the Selective Service System will, through its own processes, correct most errors and thus avoid much litigation. The exhaustion doctrine is assert-edly necessary to compel resort to these processes. The Government also speculates that many more registrants will risk criminal prosecution if their claims need not carry into court the stigma of denial not only by their local boards, but also by at least one appeal board.

We do not, however, take such a dire view of the likely consequences of today’s decision. At the outset, we doubt whether many registrants will be foolhardy enough to deny the Selective Service System the opportunity to correct its own errors by taking their chances with a criminal prosecution and a possibility of five years in jail. The very presence of the criminal sanction is sufficient to ensure that the great majority of registrants will exhaust all administrative remedies before deciding whether or not to continue the challenge to their classifications. And, today’s holding does not apply to every registrant who fails to take advantage of the administrative remedies provided by the Selective Service System. For, as we have said, many classifications require exercise of discretion or application of expertise; in these cases, it may be proper to require a registrant to carry his case through the administrative process before he comes into court. Moreover, we are not convinced that many in this rather small class of registrants will bypass the Selective Service System with the thought that their ultimate chances of success in the courts are enhanced thereby. In short, we simply do not. think that the exhaustion doctrine contributes significantly to the fairly low number of registrants who decide to subject themselves to criminal prosecution for failure to submit to induction. Accordingly, in the present case, where there appears no significant interest to be served in having the System decide the issue before it reaches the courts, we do not believe that petitioner’s failure to appeal his classification should foreclose all judicial review.

We do not view the cases of Falbo v. United States, 320 U. S. 549 (1944), and Estep v. United States, 327 U. S. 114 (1946), insofar as they concern the exhaustion doctrine, as a bar to today’s holding. Neither those two cases, nor any of the other cases decided by this Court, stand for the proposition that the; exhaustion doctrine must be applied blindly in every case. Indeed, those cases all involved ministerial or conscientious objector claims, claims that may well have to be pursued through the administrative procedures provided by the Selective Service laws.

IV.

Finally, we are faced with the argument that petitioner’s challenge to the validity of his classification is barred by his failure to report for and pass his pre-induction physical, thus giving the System one last chance to reject him. The Government points to the fact that large numbers of registrants are rejected for physical and mental reasons, and asserts that many criminal trials would be rendered unnecessary if registrants were required to report for a physical before being allowed to challenge their classifications.

We think there are several answers to this argument. First, as we said above, we doubt very much whether very many registrants would pass up the chance to escape service by reason of physical or mental defects and leap immediately at the chance to defend a criminal prosecution. But more importantly, a registrant is under a duty to comply with the order to report for a physical examination and may be criminally prosecuted for failure to comply. If the Government deems it important enough to the smooth functioning of the System to have unfit, registrants weeded out at the earliest possible moment, it can enforce the duty to report for pre-induction examinations by criminal sanctions. In the present case, it has not chosen to do so. Petitioner has not been prosecuted for failure to report for his examination; he has been prosecuted for failure to report for induction, a duty he claims he did not have. Therefore, we hold that petitioner’s failure to report for his examination should not bar him from challenging the validity of his classification as a defense to his criminal prosecution.

We do not regard Falbo v. United States, supra, as a bar to this holding. Falbo involved an attempt to raise the invalidity of a registrant’s classification as a defense to a criminal prosecution for failure to report to a civilian work camp. The Court noted that the defendant had not reported to the work camp and thus had not given the Selective Service System the opportunity to reject him for physical or mental reasons. According to the Court, the “narrow question . . . presented . . . [was] whether Congress has authorized judicial review of the propriety of a board’s classification in a criminal prosecution for wilful violation of an order directing a registrant to report for the last step in the selective process.” 320 U. S., at 554. The Court held that Congress had not authorized such review.

Falbo was limited by Estep v. United States, supra, which held that a registrant could secure limited judicial review of his classification in a criminal prosecution for failure to report if he had pursued his administrative remedies to an end. In Estep, the registrant had reported, had been accepted for induction, but had refused to be inducted.

The holding of the Court in Falbo was based in part on a fear of litigious interruption of the Selective Service System. We have dealt with that problem in other cases. See Clark v. Gabriel, 393 U. S. 256 (1968); Oestereich v. Selective Service Board, 393 U. S. 233 (1968). It is not presented here. As noted above, the administrative process in this case is at an end.

Finally, the Court in Falbo was concerned with the possibility that a registrant might be rejected for physical or mental reasons, thus making a criminal prosecution unnecessary. But, as we have seen, the Selective Service System has ample means to ensure that the great majority of registrants will report for their pre-induction examinations. At the time Falbo was decided the regulations provided that the pre-induction examination was to be given at the time the registrant responded to the order to report for induction or to the work camp. See Gibson v. United States, 329 U. S. 338 (1946). Accordingly, the Selective Service System had no way to enforce the duty to report for an examination other than by a prosecution for failure to report for induction. An invalid classification, if allowed to be raised, would have been a complete defense to that prosecution; it would not be a defense today to a prosecution for failure to report for a pre-induction examination.

We hold that petitioner’s failure to appeal his classification and failure to report for his pre-induction physical do not bar a challenge to the validity of his classification as a defense to his criminal prosecution for refusal to submit to induction. We also hold that petitioner was entitled to exemption from military service as a sole surviving son. Accordingly, we reverse the judgment of the court below and remand the case for entry of a judgment of acquittal. T, . , , J ° It is so ordered.

Mr. Justice Douglas,

concurring.

The principle of Oestereich v. Selective Service Board, 393 U. S. 233, should dispose of this case. There a registrant was plainly entitled to a statutory exemption from service because he was a divinity student. Yet he was denied the exemption because, having burned his draft card, he was classified as a “delinquent” by Selective Service. He challenged that action in a civil suit for pre-induction review; and we granted relief.

This is not a suit for pre-induction review, but a defense tendered in a criminal prosecution. This statutory exemption is as clear as the one in Oestereich. The “sole surviving” son of a family whose father had been killed in action is exempt and there can hardly be any argument that petitioner is such a “son” though both his father and mother are dead. He is indeed the last male heir of the line and therefore one who Congress charitably decided should not be exposed to the chance of death in warfare.

If Oestereich could raise his claim to statutory exemption in a civil suit at a pre-induction stage, it follows a fortiori that petitioner can do so in a criminal prosecution for failure to obey the Act’s mandate.

The truth of the matter is that it was the Selective Service Board that acted in a “lawless” manner; and when its error is so egregious, it would be a travesty of justice to require a registrant — whether or not sophisticated — to pursue the administrative remedies that are designed for quite different categories of cases.

Mb. Justice White,

concurring in the result.

The Court’s opinion, as I understand it, does not dispense with the necessity of presenting an issue under the draft laws to the registrant’s local board for consideration in the first instance. Petitioner did exactly this, and by its decision, the Court provides no avenue for totally bypassing the Selective Service System and using the courts as an alternative to the local draft boards. Any decision to the contrary would be inconsistent with the well-established principle that the responsible administrative agency must be given “an opportunity to consider the matter, make its ruling, and state the reasons for its action.” Unemployment Compensation Commission of Alaska v. Aragon, 329 U. S. 143, 155 (1946). See generally 3 K. Davis, Administrative Law Treatise §20.06 (1958). But presentation of the issue to the agency for consideration in the first instance does not complete the litigant’s task under the exhaustion doctrine if he would seek resolution of that same issue in the courts. On the contrary, he must resort to appellate remedies available within the agency, and only after those remedies have been exhausted can he turn to the courts for review. See, e. g., United States v. Sing Tuck, 194 U. S. 161 (1904); Chicago, M., St. P. & P. R. Co. v. Risty, 276 U. S. 567, 575 (1928).

It is petitioner’s failure to exhaust appellate remedies available within the Selective Service System which presents the obstacle to the challenge of his classification in the courts. And while this facet of the exhaustion doctrine, like its other facets, admits of exceptions when special circumstances warrant, see, e. g., Donato v. United States, 302 F. 2d 468 (C. A. 9th Cir. 1962), I cannot agree with the Court’s apparent conclusion that petitioner’s failure to exhaust appellate remedies within the System can be disregarded on the broader ground that only a question of law is involved. Questions of law have not, in the past, been thought to be immune from exhaustion requirements. See, e. g., Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41 (1938). Indeed, this Court has often emphasized that the expertise of the responsible agency is entitled to great deference in matters of statutory construction, see, e. g., Udall v. Tallman, 380 U. S. 1, 16 (1965), thus refuting any contention that questions of law are somehow beyond the expertise of the agency and do not give rise to the considerations which underlie the exhaustion doctrine.

Although I would stop far short of the broad strokes used by the Court in this respect, I do agree that petitioner’s failure to exhaust appellate remedies does not bar review of his classification on the facts of this case. Undoubtedly, Congress could require such exhaustion as a prerequisite to judicial review, see, e. g., Yakus v. United States, 321 U. S. 414 (1944), but Congress has not chosen to do so. In the absence of any such requirement, I do not think review of petitioner’s classification is an impermissible encroachment upon the bailiwick of the Selective Service System. We are not faced with a situation in which consideration of the issue involved has stopped at the first level of the administrative machinery. Rather, petitioner’s case and the scope of the § 6 (o) exemption for sole surviving sons have received the attention of both the State and the National Directors of the Selective Service System. Petitioner has not exhausted the channels for formal appellate review within the System, but the informal review given petitioner’s case and the ratification by the State and National Directors of the position taken by petitioner’s local board are sufficient justification to permit the courts to entertain petitioner’s defense that his classification is improper under § 6 (o).

       “Any . . . person . . . who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title ... , or rules, regulations, or directions made pursuant to this title . . . shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment . . . Selective Service Act of 1948, § 12, 62 Stat. 622, as amended, now § 12 of the Military Selective Service Act of 1967 (see 81 Stat. 100, §1 (a)), 50 U. S. C. App. §462 (1964 ed., Supp. III).

       “Except during the period of a war or a national emergency declared by the Congress after the date of the enactment of the 1964 amendment to this subsection [July 7, 1964], where the father or one or more sons or daughters of a family were killed in action or died in fine of duty while serving in the Armed Forces of the United States, or subsequently died as a result of injuries received or disease incurred during such service, the sole surviving son of such family shall not be inducted for service under the terms of this title . . . unless he volunteers for induction.” Selective Service Act of 1948, §6 (o), 62 Stat. 613, as amended, 50 U. S. C. App. §456 (o).

       A registrant has the right to appear before his local board to contest his classification or to present new information to the board. 32 CFR §§ 1624.1, 1624.2 (1969). The board then determines whether or not to reconsider the registrant’s classification. 32 CFR §§ 1624.2 (c), (d) (1969). Following the local board's decision, the registrant has the right to appeal to the state appeal board. 32 CFR §§ 1624.2 (e), 1625.13 (1969). A further appeal may be taken by the registrant to the National Selective Service Appeal Board only if one or more members of the state appeal board dissent from the board’s decision. 32 CFR §1627.3 (1969).

       The Selective Service System Regulations require the local board to reopen a registrant’s classification upon the written request of the State or National Director. 32 CFR §1625.3 (a) (1969).

       After petitioner failed to report for induction the second time, the State Director confirmed that petitioner’s father had been killed in action and then requested advice of the National Director. The latter replied that “inasmuch as there is no family, it is not believed that [petitioner] would qualify for sole surviving son status.” This information was then communicated to the local board and the case referred to the local United States Attorney. Petitioner’s indictment followed.

       Cf. Pickens v. Cox, 282 F. 2d 784 (C. A. 10th Cir. 1960).

       Shortly after the 1964 amendment, the Selective Service System took the position that a sole surviving son exemption would not be affected by any change in the status of the family, other than the birth of a full brother. Selective Service System Operations Bulletin No. 263 (August 14, 1964). That position was later rescinded and the System has issued no further instructions concerning § 6(o).

       Section 6 (h) of the Military Selective Service Act of 1967, 81 Stat. 102, authorizes the President to provide for the deferment of “persons who have children, or wives and children, with whom they maintain a bona fide family relationship in their homes.” Section 6 (h) of the Selective Service Act of 1948, 62 Stat. 611, was to the same general effect.
      Had Congress wished to condition the exemption on the existence of a family unit, it would also seem logical for it to have defined that “family unit.” For example, the trial in the present case disclosed that both of petitioner’s maternal grandparents and his paternal grandmother were still living. Nothing in the statute indicates whether these relatives should be considered part of the “family.”

       See, e. g., Layton & Fine, The Draft and Exhaustion of Administrative Remedies, 56 Geo. L. J. 315, 322-331 (1967).

       L. Jaffe, Judicial Control of Administrative Action 425 (1965).

       The Notice of Classification form, SSS Form 110, informs the registrant of his right to appeal, but does not inform him that failure to appeal may bar a subsequent challenge to the validity of his classification.

       These judicially created doctrines were recently enacted as § 10 (b) (3) of the Military Selective Service Act of 1967, 81 Stat. 104. Section 10 (b) (3) provides in pertinent part:
      “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 . . . after the registrant has responded either affirmatively or negatively to an order to report for induction .... 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.” 50 U. S. C. App. §460 (b)(3) (1964 ed., Supp. III).
      We have recently had occasion to interpret this section in the context of pre-induction challenges to classifications. See Clark v. Gabriel, 393 U. S. 256 (1968); Oestereich v. Selective Service Board, 393 U. S. 233 (1968). We have granted certiorari in Breen v. Selective Service Board, No. 1144, cert. granted, 394 U. S. 997, to consider the applicability of § 10 (b) (3) to pre-induction challenges to allegedly “punitive” reclassifications.

       See Yakus v. United States, 321 U. S. 414 (1944).

       The 1967 amendment, see n. 12, supra, makes no reference to exhaustion of administrative remedies as a prerequisite to challenging the validity of a classification as a defense to a criminal prosecution for refusal to submit to induction. The legislative history of that amendment indicates that Congress was concerned with certain judicial decisions allowing pre-induction review of selective service classifications and the possibility that such “litigious interruption” might seriously affect the administration of the Selective Service System. See Oestereich v. Selective Service Board, 393 U. S. 233, 245-252 (1968) (dissenting opinion).

       Of course, it is necessary that the local board, which has the responsibility of classifying registrants in the first instance, be given the information necessary to perform its function. However, the present case does not present an instance where a registrant is trying to challenge a classification on the basis of facts not presented to the local board. In such a case, the smooth functioning of the system may well require that challenges to classifications based upon facts not properly presented to the board be barred. In the case before us, the board was aware of the relevant facts when it made its decision to reclassify petitioner I-A; no further factual inquiry would have been at all useful.

         Conscientious objector claims, Military Selective Service Act of 1967, §6 (j), 81 Stat. 104, 50 U. S. C. App. §456 (j) (1964 ed., Supp. Ill), or deferments for those engaged in activities deemed “necessary to the maintenance of the national health, safety, or interest,” id., § 6 (h) (2), 81 Stat. 102, 50 U. S. C. App. § 456 (h) (2) (1964 ed., Supp. Ill), would appear to be examples of questions requiring the application of expertise or the exercise of discretion. In such cases, the Selective Service System and the courts may have a stronger interest in having the question decided in the first instance by the local board and then by the appeal board, which considers the question anew. 32 CFR, § 1626.26. The Selective Service System is empowered by Congress to make such discretionary determinations and only the local and appeal boards have the necessary expertise. See Thompson v. United States, 380 F. 2d 86 (C. A. 10th Cir. 1967).

       As noted above, the Selective Service System is not without power to correct its own errors without the intervention of the registrant. See nn. 4 and 5, supra.

       It is true that w*e recently made specific reference to the exhaustion doctrine in Oestereich v. Selective Service Board, 393 U. S. 233, 235-236, n. 5 (1968), a case where all administrative appeals had been exhausted. However, that case involved an attempt to challenge the validity of a classification before receipt of a notice of induction. A registrant’s failure to appeal may have different implications if raised in a suit for pre-induction review.

       See Billings v. Truesdell, 321 U. S. 542, 558 (1944); Gibson v. United States, 329 U. S. 338, 349-350 (1946); Sunal v. Large, 332 U. S. 174, 176 (1947); Cox v. United States, 332 U. S. 442, 445, 448 (1947).

       See n. 16, supra.

       See 32 CFR §§ 1628.10, 1628.11 (1969).

       See n. 1, supra.

       While questions of law are usually routed through the available administrative machinery (see Udall v. Tallman, 380 U. S. 1, 16), that principle evolved under regulatory schemes where agencies had general oversight and supervision over companies or other groups of individuals. See Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41, 51. Arguably, these Selective Service boards have no claim to that kind of expertise. But assuming that they do, the present “legal” question is too transparent to be dignified in that manner.

       The fact that the relevant statute is ambiguous or uncertain, e. g., Logan v. Davis, 233 U. S. 613, 627 (1914), or that the agency’s interpretation of a statute comes while its interrelationship with the other parts of the regulatory scheme is as yet “untried and new,” Norwegian Nitrogen Prods. Co. v. United States, 288 U. S. 294, 315 (1933), may accord the agency interpretation of the statute additional significance. And since the construction of the sole surviving son exemption is “essentially a question of first impression,” ante, at 190, the importance of exhaustion — or of a failure to exhaust — is, perhaps, accentuated in this case. Any ambiguity in the language and legislative history of the statute, or any question as to the role which § 6 (o) must play in the statutory scheme would be well suited to resolution by the Selective Service System in the first instance. Exhaustion of appellate remedies within the System would have afforded that agency full opportunity to apply its expertise to these and other questions, thereby facilitating the disclosure of factors which, although germane, are not highly visible to tribunals less familiar with the regulatory scheme.

       Compare Falbo v. United States, 320 U. S. 549 (1944). Section 10 (b) (3) of the Military Selective Service Act of 1967, 81 Stat. 104, prescribes the timing of judicial review — “after the registrant has responded either affirmatively or negatively to an order to report for induction” — but does not speak to the exhaustion question.
      It should be noted that where agency orders are not suspended during the pendency of an administrative appeal, Congress has seen fit to permit judicial review without exhaustion of appellate remedies. Administrative Procedure Act § 10 (c), 5 U. S. C. §704 (1964 ed., Supp. Ill). Under that section, however, if the agency action is inoperative during administrative review, the agency may require exhaustion by its own rules. Since induction may not be ordered during a registrant's appeal, 32 CFR, §§1626.41, 1627.8 (1969), the Selective Service System could require exhaustion even if subject to § 10 (c) of the APA. The administration of the draft laws, however, is not covered by the APA, and the necessity for exhausting appellate remedies would seem to rest on the general doctrine developed by the courts.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEREZ v. CALIFORNIA.
    No. 39.
    Argued November 14, 1968.
    Decided May 26, 1969.

      Peter G. Fetros, by appointment of the Court, 393 U. S. 812, argued the cause and filed a brief for petitioner.

      Edsel W. Haws, Deputy Attorney General of California, argued the cause for respondent. With him on the brief were Thomas C. Lynch, Attorney General, and Doris H. Maier, Assistant Attorney General.
   Per Curiam.

The writ is dismissed as improvidently granted.

Mr. Justice Douglas dissents from the dismissal of the writ.


text:
    MATTIELLO v. CONNECTICUT.
    No. 150.
    Argued December 11, 1968.
    Decided May 26, 1969.

      Robert N. Grosby argued the cause for appellant. With him on the briefs was Joseph D. Harbaugh.

      George F. Carroll, Jr., argued the cause and filed a brief for appellee.
   Per Curiam.

The appeal is dismissed for want of a properly presented federal question.


text:
    BROTHERHOOD OF RAILROAD TRAINMEN et al. v. O’CONNELL et al.
    No. 158.
    Argued January 14, 1969.
    Decided May 26, 1969

      Arnold B. Elkind argued the cause and filed a brief for petitioners in No. 158. David Leo Uelmen argued the cause for petitioners in No. 172. With him on the briefs were David Previant, John J. Naughton, James P. Reedy, and Gerry M. Miller.

      Lee LeibiJc argued the cause for respondents in each case. With him on the briefs was Ruth Weyand.

      Harold A. Ross filed briefs for the Brotherhood of Locomotive Engineers as amicus curiae urging reversal in both cases.

      Harold C. Heiss filed a brief for the Brotherhood of Locomotive Firemen & Enginemen as amicus curiae urging affirmance in both cases.

      Together with No. 172, Dirks et al. v. Birkholz et al., on certiorari to the United States Court of Appeals for the Seventh Circuit.

   Per Curiam.

The judgments are vacated and the cases are remanded to the respective district courts with instructions to dismiss the cases as moot.


text:
    SHAW v. CALIFORNIA.
    No. 1245.
    Decided May 26, 1969.

      Irving A. Kanarek for appellant.
   Per Curiam.

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:
    LOPO v. SAKS FIFTH AVENUE.
    No. 1257.
    Decided May 26, 1969.

      Robert E. Dunne 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:
    EVERHARDT et al. v. CITY OF NEW ORLEANS et al.
    No. 1284.
    Decided May 26, 1969.

      William F. Wessel for appellants.

      Alvin J. Liska for appellees.

      John A. Eckler filed a brief for the American Motorcycle Assn, as amicus curiae.

   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.


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

text:
    JENKINS v. DELAWARE.
    No. 748.
    Argued March 5, 1969.
    Decided June 2, 1969.

      Henry N. Herndon, Jr., argued the cause and filed a brief for petitioner.

      Jay H. Conner, Deputy Attorney General of Delaware, argued the cause and filed a brief for respondent.
    A brief as amicus curiae urging reversal was filed for Henry A. Yigliano.

      Louis J. Lefkowits, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Amy Juviler, Assistant Attorney General, filed a brief for the Attorney General of New York as amicus curiae urging affirmance.
   Mr. Chief Justice Warren

delivered the opinion of the Court.

In Johnson v. New Jersey, 384 U. S. 719 (1966), we held that Miranda v. Arizona, 384 U. S. 436 (1966), “applies only to cases in which the trial began after the date of our [Miranda] decision . . . 384 U. S., at 721. In this case, we must decide whether Miranda’s, standards for determining the admissibility of in-custody statements apply to post-Miranda retrials of cases originally tried prior to that decision. We hold that they do not.

Petitioner was arrested on the morning of March 17, 1965, as a murder suspect, and was interrogated on three separate occasions, at 11:30 a. m., 2:50 p. m., and 7:05 p. m. Although indigent, he was not advised that he had the right to have an attorney present at the State’s expense. Approximately 10 minutes after the evening interrogation began, petitioner gave the police a statement in which he admitted struggling with the victim during a burglary the preceding evening.

Petitioner’s first trial commenced on January 13, 1966. He did not take the stand, but his incriminating statement was admitted into evidence. The jury found him guilty of murder in the first degree and burglary in the fourth degree. Disregarding the jury’s recommendation, the trial court sentenced him to death. During the pendency of petitioner’s appeal to the Supreme Court of Delaware, we decided Miranda and Johnson. In reversing petitioner’s conviction on various state grounds, the Delaware Supreme Court also determined, sua sponte, that under Johnson petitioner’s statement, which was obtained without fully advising him of his constitutional rights, would be admissible at his retrial. - Del. -, 230 A. 2d 262 (1967). It reasoned that the retrial would be a mere continuation of the case originally commenced prior to our decision in Miranda.

Petitioner’s second trial began on October 2, 1967. He was convicted of second degree murder and sentenced to life imprisonment. The Supreme Court of Delaware affirmed, again rejecting petitioner’s argument that under Johnson his incriminating statement was inadmissible at his retrial. - Del. -, 240 A. 2d 146 (1968). Because of a disagreement among state courts over this issue, we granted certiorari. 393 U. S. 950 (1968). For the reasons stated below, we affirm.

Petitioner and the decisions he relies upon emphasize our references in Johnson to “trials” commenced before the date Miranda was decided and our stated concern for the reliance placed on pre-Miranda standards by trial courts as well as by law enforcement officers. Petitioner argues that this “studied” focus on the trial process indicates that we intended Miranda to be applied to retrials, which, he insists, begin that process anew. As Delaware correctly points out, however, more than once we stated our holding in Johnson in terms of “cases” commenced before the date of Miranda. See 384 U. S., at 733. Delaware and the authorities it relies upon argue that, since the word “case” usually incorporates all the judicial proceedings against an accused, a retrial is not the “commencement” of a case. Delaware also quotes our statement that only “[fjuture defendants will benefit fully from our new standards governing in-custody interrogation, while past defendants may still avail themselves of the voluntariness test.” Id., at 732. Delaware suggests that petitioner, who was tried six months before Miranda, cannot be regarded as a “future” defendant within the meaning of Johnson. That there is language in Johnson supporting the positions of both petitioner and respondent demonstrates what some courts and commentators have readily recognized: in that decision, we did not consider the applicability of Miranda to retrials. The issue simply was not presented.

Petitioner buttresses his interpretation of Johnson by arguing that Miranda must be applied to retrials in order to insure the uniform treatment of individuals similarly situated. If it is not applied, he points out, it is possible that different standards for the protection of constitutional rights could be applied to two defendants simultaneously tried in the same courthouse for similar offenses. This anomaly could result if one of the defendants had been previously tried for the same offense prior to Miranda. This identical result, however, is also possible under our more recent prospectivity decisions. Because both Desist v. United States, 394 U. S. 244 (1969), and Stovall v. Denno, 388 U. S. 293 (1967), selected the date on which the prohibited practice was engaged in, rather than the date the trial commenced, to determine the applicability of newly formulated constitutional standards, those standards do not apply to retrials of defendants originally tried prior to the dates the standards were announced. In fact, under those decisions, different rules could govern where neither defendant had been tried before, depending upon when the condemned practice was engaged in.

Moreover, as petitioner acknowledges, Johnson made it quite clear that Miranda need not be applied to trials commenced prior to that decision but not yet final when it was announced. On that date, petitioner’s case was in precisely that posture. The type of apparent incongruity petitioner urges us to avoid is equally present in refusing to apply Miranda to defendants whose cases, like petitioner’s, were not final on the date Miranda was decided, yet making an exception for petitioner simply because he was afforded a post -Miranda retrial for reasons wholly unrelated to the admissibility of his incriminating statement. Nor is petitioner’s hypothetical more disconcerting than applying the new standards for in-custody interrogation to Ernesto Miranda while denying them to other defendants whose cases, for wholly fortuitous reasons, simply reached this Court at a later date, although the defendants in those cases may have been both interrogated and tried after Ernesto Miranda.

In short, petitioner’s concern for what he refers to as “visible imperfection[s] in a judicial process” merely highlights the problem inherent in prospective decision-making, i. e., some defendants benefit from the new rule while others do not, solely because of the fortuities that determine the progress of their cases from initial investigation and arrest to final judgment. The resulting incongruities must be balanced against the impetus the technique provides for the implementation of long overdue reforms, which otherwise could not be practicably effected. Thus, raising the specter of potential anomalies does not further the difficult decision of selecting the precise event that should determine the prospective application of a newly formulated constitutional principle.

Once the need is established for applying the principle prospectively, as the Supreme Court of New Jersey has pointed out, “there is a large measure of judicial discretion involved in deciding ... the time from which the new principle is to be deemed controlling.” State v. Vigliano, 50 N. J. 51, 65-66, 232 A. 2d 129, 137 (1967). In our more recent decisions in this area, we have regarded as determinative the moment at which the discarded standards were first relied upon. See, e. g., Desist v. United States, supra; Stovall v. Denno, supra. The point of reliance is critical, not because of any constitutional compulsion, but because it determines the impact that newly articulated constitutional principles will have upon convictions obtained pursuant to investigatory and prose-cutorial practices not previously proscribed. See Johnson v. New Jersey, supra, at 733. See generally Schaefer, The Control of “Sunbursts”: Techniques of Prospective Overruling, 42 N. Y. U. L. Rev. 631 (1967).

In Johnson, after considering the need to avoid unreasonably disrupting the administration of our criminal laws, we selected the commencement of trial as determinative. We of course could have applied Miranda to all judgments not yet final, although they were obtained in good-faith reliance upon constitutional standards then applicable. See Linkletter v. Walker, 381 U. S. 618 (1965). As we pointed out, however, that choice "would [have] impose[d] an unjustifiable burden on the administration of justice.” 384 U. S., at 733. On the other hand, we could have adopted the approach we took in Stovall and Desist and made the point of initial reliance, the moment the defendant is interrogated, the operative event. See Schaefer, supra, at 646. But in an effort to extend the protection of Miranda to as many defendants as was consistent with society’s legitimate concern that convictions already validly obtained not be needlessly aborted, we selected the commencement of the trial. Implicit in this choice was the assumption that, with few exceptions, the commission and investigation of a crime would be sufficiently proximate to the commencement of the defendant’s trial that no undue burden would be imposed upon prosecuting authorities by requiring them to find evidentiary substitutes for statements obtained in violation of the constitutional protections afforded by Miranda.

This same concern for the justifiable reliance of law enforcement officials upon pre-Miranda standards militates against applying Miranda to retrials, which would place a much heavier burden upon prosecutors to compensate for the inadmissibility of incriminating statements obtained and admitted into evidence pursuant to practices not previously proscribed. See, e. g., State v. Vigliano, supra; People v. Sayers, 22 N. Y. 2d 571, 240 N. E. 2d 540 (1968); Comment, The Applicability of Miranda to Retrials, 116 U. Pa. L. Rev. 316, 324-325 (1967). As we stated in Stovall, “[I]nquiry would be handicapped by the unavailability of witnesses and dim memories.” 388 U. S., at 300. The burden would be particularly onerous where an investigation was closed years prior to a retrial because law enforcement officials relied in good faith upon a strongly incriminating statement, admissible at the first trial, to provide the cornerstone of the prosecution’s case. Moreover, we cannot assume that applying Miranda to retrials would affect only a small number of cases. It could, for example, render significantly more difficult the prosecutions of defendants, some of whom may have been convicted many years ago, who are afforded retrials because their convictions were obtained in violation of recently articulated constitutional principles that are fully retroactive. See, e. g., Berger v. California, 393 U. S. 314 (1969); Roberts v. Russell, 392 U. S. 293 (1968). Such a decision could also pose a serious obstacle to the successful prosecution of an undetermined number of defendants whose pr e-Miranda convictions are reversed because of errors under federal or state law that do not even constitute constitutional violations.

In determining how much weight to give the increased evidentiary burden that would result if we were to insist that Miranda be applied to retrials, we must consider society’s interest in the effective prosecution of criminals in light of the protection our pr e-Miranda standards afford criminal defendants. As we pointed out in Johnson, an individual who cannot claim the benefits of Miranda may still resort to whatever state and federal procedures are available to insure that statements admitted against him were made voluntarily. Moreover, he may invoke a “substantive test of voluntariness which, because of the persistence of abusive practices, has become increasingly meticulous . . . , [taking] specific account of the failure to advise the accused of his privilege against self-incrimination or to allow him access to outside assistance.” 384 U. S., at 730. As a result, not applying Miranda to retrials will not preclude the invocation of “the same safeguards as part of an involuntariness claim.” Ibid. Thus, because of the increased evidentiary burden that would be placed unreasonably upon law enforcement officials by insisting that Miranda be applied to retrials, and for all the reasons we gave in Johnson for not applying Miranda retroactively, we hold that Miranda does not apply to any retrial of a defendant whose first trial commenced prior to June 13, 1966.

Accordingly, the judgment of the Supreme Court of Delaware is Affirmed.

Mr. Justice Black, with whom Mb. Justice Douglas joins, dissents for the reasons stated in his dissenting opinions in Linkletter v. Walker, 381 U. S. 618, 640, and Johnson v. New Jersey, 384 U. S. 719, 736.

Me. Justice Hablan,

dissenting.

As one who has never agreed with the Miranda case but nonetheless felt bound by it, I now find myself in the uncomfortable position of having to dissent from a holding which actually serves to curtail the impact of that decision.

I feel compelled to dissent because I consider that the new “retroactivity” ruling which the Court makes today is indefensible. Were I free to do so, I would hold that this petitioner is entitled to the benefits of Miranda, this case being before us on direct review and being one which had not become final prior to the decision of Miranda. See my dissenting opinion in Desist v. United States, 394 U. S. 244, 256 (1969); Linkletter v. Walker, 381 U. S. 618 (1965). But since as to the retroactivity issue I am also bound by Johnson v. New Jersey, 384 U. S. 719 (1966), I must judge that issue within the confines of Johnson, which does not appear to have been overruled by what was done in Desist v. United States, supra.

In the Johnson case we held that the “guidelines” of Miranda should apply to all “persons whose trials had not begun as of June 13, 1966,” 384 U. S., at 734, the date on which Miranda was handed down. Today, however, the Court holds that Miranda does not apply to persons whose retrials have commenced after that date, if the original trial had begun before Miranda was decided. I find it quite impossible to discern in the rationale of Johnson any solid basis for the distinction now drawn.

The Court states that the retroactivity rule adopted in Johnson was “an effort to extend the protection of Miranda to as many defendants as was consistent with society’s legitimate concern that convictions already validly obtained not be needlessly aborted.” Ante, at 219. I too believe that a desire not to interfere with trials which were concluded or already under way at the time of Miranda lay at the core of what was done in Johnson. See 384 U. S., at 732-735. But that rationale would seem to require application of Miranda to subsequent retrials, rather than the contrary result mandated by the Court. When a defendant has had his pre-Miranda conviction set aside on other than Miranda grounds and is being retried, there is by hypothesis no “conviction . . . validly obtained” which might be “needlessly aborted” by application of the Miranda standards. There is no ongoing trial in which the prosecution’s strategy might have been premised on pre-Miranda confession rules.

I am also left wholly unpersuaded by the Court’s statement that application of Miranda to retrials would impose an intolerable “evidentiary burden” on prosecutors, for the Court ignores the fact that Miranda will impose a very similar burden whenever a defendant’s first trial has for one reason or another been substantially delayed and its commencement carried beyond the Johnson cut-off date.

Apart from the two propositions just discussed, the Court offers nothing in justification of its trial-retrial distinction beyond the general observation that the retro-activity “technique” necessarily entails “incongruities” which must be tolerated because of “the impetus the technique provides for the implementation of long overdue reforms, which otherwise could not be practicably effected.” Ante, at 218. But surely it is incumbent upon this Court to endeavor to keep such incongruities to a minimum. This in my opinion can only be done by turning our backs on the ad hoc approach that has so far characterized our decisions in the retroactivity field and proceeding to administer the doctrine on principle. See my dissenting opinion in Desist, supra. What is done today leads me again, see ibid., to urge that the time has come for us to take a fresh look at the whole problem of retroactivity.

I would reverse the judgment of the Supreme Court of Delaware. It would be less than frank were I not to say that I cast this vote with reluctance, feeling as I do about the unsoundness of Miranda.

       The word “retrial’' is used in this opinion to refer only to a subsequent trial of a defendant whose original trial for the same conduct commenced prior to June 13, 1966, the day on which Miranda was announced.

       Petitioner’s remaining contentions have been adequately resolved by the court below. See Jenkins v. State, - Del. -, 230 A. 2d 262 (1967), and Jenkins v. State, - Del. -, 240 A. 2d 146 (1968).

       At least eight States, including Delaware, decline to apply Miranda to post-Miranda retrials of cases originally tried prior to that decision. See People v. Worley, 37 Ill. 2d 439, 227 N. E. 2d 746 (1967) (dictum); Boone v. State, 3 Md. App. 11, 237 A. 2d 787 (Md. Ct. Sp. App.) (dictum), cert. to Md. Ct. App. denied, 393 U. S. 872 (1968); Chapman v. State, 282 Minn. 13, 162 N. W. 2d 698 (1968); State v. Vigliano, 50 N. J. 51, 232 A. 2d 129 (1967) (dictum); People v. Sayers, 22 N. Y. 2d 571, 240 N. E. 2d 540 (1968); State v. Lewis, 274 N. C. 438, 164 S. E. 2d 177 (1968) (dictum); Murphy v. State, 221 Tenn. 351, 426 S. W. 2d 509 (1968).
      At least nine other States have indicated in dicta that Miranda should be applied to such retrials. See Smith v. State, 282 Ala. 268, 210 So. 2d 826 (1968); State v. Brock, 101 Ariz. 168, 416 P. 2d 601 (1966); People v. Doherty, 67 Cal. 2d 9, 429 P. 2d 177 (1967); State v. Ruiz, 49 Haw. 504, 421 P. 2d 305 (1966); Dell v. State, 249 Ind. 231, 231 N. E. 2d 522 (1967); State v. McCarther, 197 Kan. 279, 416 P. 2d 290 (1966); Creech v. Commonwealth, 412 S. W. 2d 245 (Ct. App. Ky. 1967); State v. Shoffner, 31 Wis. 2d 412, 143 N. W. 2d 458 (1966). In State v. Bradshaw, 101 R. I. 233, 237, n. 1, 221 A. 2d 815, 817, n. 1 (1966), the court expressly declined to pass on the issue in an opinion reversing a conviction on other grounds, but it nevertheless suggested that under Johnson the defendant’s statement might not be admissible at his retrial.
      The United States Court of Appeals for the Seventh Circuit has held Miranda applicable, United States v. Phillips, 401 F. 2d 301 (C. A. 7th Cir. 1968); and that holding is supported by dicta in at least three other circuits. See United States v. Young, 388 F. 2d 675 (C. A. 9th Cir. 1968); Virgin Islands v. Lovell, 378 F. 2d 799, 802, n. 4 (C. A. 3d Cir. 1967); Gibson v. United States, 363 F. 2d 146 (C. A. 5th Cir. 1966). Without discussion, the Fourth Circuit appears to have reached a contrary result by implication. Moorer v. South Carolina, 368 F. 2d 458 (C. A. 4th Cir. 1966).

        E. g., United States v. Phillips, supra; People v. Doherty, supra.

        E. g., People v. Worley, supra; State v. Vigliano, supra.

        E. g., Smith v. State, supra; People v. Worley, supra; People v. Sayers, supra; Comment, The Applicability of Miranda to Retrials, 116 U. Pa. L. Rev. 316, 320 (1967); Comment, Post-Miranda Retrials of Pre-Miranda Defendants, 25 Wash. & Lee L. Rev. 108, 109 (1968).

       Our initial approach to prospective decision-making has undergone some modification. Compare Linkletter v. Walker, 381 U. S. 618 (1965), with Desist v. United States, 394 U. S. 244 (1969). With Johnson we began placing increasing emphasis upon the point at which law enforcement officials relied upon practices not yet proscribed; and, more recently, we have selected the point of initial reliance. See, e. g., Desist v. United States, supra; Stovall v. Denno, supra. In addition to being more consistent with the fundamental justification for not applying newly enunciated constitutional principles retroactively, this latest approach has obviated at least one administrative problem, the treatment of retrials. Our experience, therefore, has confirmed Mr. Justice Schaefer’s observation: “Sound growth can be promoted and erratic results avoided by focusing attention on the element of reliance that justifies the technique. Even when that is done there will not always be agreement as to the quality or degree of reliance that justifies a particular prospective limitation. But the area of disaffection will be narrowed if time before and time after are measured from the moment of reliance.” Schaefer, The Control of “Sunbursts”: Techniques of Prospective Overruling, 42 N. Y. U. L. Rev. 631, 646 (1967).

       In one recent case, for example, in which the court refused to apply Miranda to the defendant’s retrial, it noted: “The investigation of this brutal assault and the interrogation of defendant began in January 1955 — more than 12 years previous to this retrial. The evidence is clear that in 1955 defendant was warned of his constitutional rights in accordance with the requirements then prevailing.” State v. Lewis, 1 N. C. App. 296, 297-298, 161 S. E. 2d 497, 499 (1968).

       See, e. g., United States v. Phillips, supra (discretion abused by admitting unduly “prejudicial” evidence); State v. Ruiz, supra (“plain error” in trial court’s fact finding); Boone v. State, supra (insufficient corroboration of accomplice’s testimony).

       For purposes of this holding, it is immaterial whether state law treats a retrial as the continuation of the original trial, see, e. g., People v. Worley, supra, or as a completely new trial that proceeds as if the former trial never occurred. See, e. g., State v. Brock, supra. What is determinative is that the defendant is being tried for the same conduct that was the subject of a previously reversed conviction. A State is free, of course, for any reason it finds persuasive, to apply Miranda to a subsequent trial of a defendant whose original trial commenced prior to that decision. See Johnson v. New Jersey, supra, at 733.

      See my dissenting opinion in Miranda v. Arizona, 384 U. S. 436, 504 (1966), and my concurring opinion in Orozco v. Texas, 394 U. S. 324, 327 (1969).


author: Mr. Justice Black

text:
    UNITED STATES v. MONTGOMERY COUNTY BOARD OF EDUCATION et al.
    No. 798.
    Argued April 28, 1969.
    Decided June 2, 1969.

      Solicitor General Griswold argued the cause for the United States in No. 798. With him on the brief were Assistant Attorney General Leonard and Deputy Assistant Attorney General Lewin. Jack Greenberg argued the cause for petitioners in No. 997. With him on the brief were Fred D. Gray, James M. Nabrit III, Melvyn Zarr, Franklin E. White, and Elizabeth B. DuBois.

      Joseph D. Phelps argued the cause and filed a brief for respondents in both cases.

      Together with No. 997, Carr et al. v. Montgomery County Board of Education et al., also on certiorari to the same court.

   Mr. Justice Black

delivered the opinion of the Court.

In this action the United States District Court at Montgomery, Alabama, ordered the local Montgomery County Board of Education to bring about a racial desegregation of the faculty and the staff of the local county school system. 289 F. Supp. 647 (1968). Dissatisfied with the District Court’s order, the board appealed. A panel of the Court of Appeals affirmed the District Court’s order but, by a two-to-one vote, modified it in part, 400 F. 2d 1 (1968). A petition for rehearing en banc was denied by an evenly divided court, six to six, thereby leaving standing the modifications in the District Court’s order made by the panel. On petitions of the United States as intervenor below in No. 798, and the individual plaintiffs in No. 997, we granted certiorari. 393 U. S. 1116 (1969).

Fifteen years ago, on May 17, 1954, we decided that segregation of the races in the public schools is unconstitutional. Brown v. Board of Education, 347 U. S. 483 (Brown I). In that case we left undecided the manner in which the transition from segregated to unitary school systems would be achieved, and set the case down for another hearing, inviting the Attorney General of the United States and the Attorneys General of the States providing for racial segregation in the public schools to present their views on the best ways to implement and enforce our judgment. We devoted four days to the argument on this single problem, and all the affected parties were given the opportunity to present their views at length. After careful consideration of the many viewpoints so fully aired by the parties, we announced our decision in Brown II, 349 U. S. 294 (1955). We held that the primary responsibility for abolishing the system of segregated schools would rest with the local school authorities. In some of the States that argued before us, the laws permitted but did not require racial segregation, and we noted that in some of these States “substantial steps to eliminate racial discrimination in public schools have already been taken ... Id., at 299. Many other States had for many years maintained a completely separate system of schools for whites and nonwhites, and the laws of these States, both civil and criminal, had been written to keep this segregated system of schools inviolate. The practices, habits, and customs had for generations made this segregated school system a fixed part of the daily life and expectations of the people. Recognizing these indisputable facts, we neither expected nor ordered that a complete abandonment of the old and adoption of a new system be accomplished overnight. The changes were to be made “at the earliest practicable date” and with “all deliberate speed.” Id., at 300, 301. We were not content, however, to leave this task in the unsupervised hands of local school authorities, trained as most would be under the old laws and practices, with loyalties to the system of separate white and Negro schools. As we stressed then, “[I]t should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.” Id., at 300. The problem of delays by local school authorities during the transition period was therefore to be the responsibility of courts, local courts so far as practicable, those courts to be guided by traditional equitable flexibility to shape remedies in order to adjust and reconcile public and private needs. These courts were charged in our Brown II opinion, id., at 300, with a duty to:

“require that the defendants [local school authorities] make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date.”

The record shows that neither Montgomery County nor any other area in Alabama voluntarily took any effective steps to integrate the public schools for about 10 years after our Brown I opinion. In fact the record makes clear that the state government and its school officials attempted in every way possible to continue the dual system of racially segregated schools in defiance of our repeated unanimous holdings that such a system violated the United States Constitution.

There the matter stood in Alabama in May 1964 when the present action was brought by Negro children and their parents, with participation by the United States as amicus curiae. Apparently up to that time Montgomery County, and indeed all other schools in the State, had operated, so far as actual racial integration was concerned, as though our Brown cases had never been decided. Obviously voluntary integration by the local school officials in Montgomery had not proved to be even partially successful. Consequently, if Negro children of school age were to receive their constitutional rights as we had declared them to exist, the coercive assistance of courts was imperatively called for. So, after preliminary procedural matters were disposed of, answers filed, and issues joined, a trial took place. On July 31, 1964, District Judge Johnson handed down an opinion and entered an order. 232 F. Supp. 705. The judge found that at the time:

“There is only one school district for Montgomery County, Alabama, with the County Board of Education and the Superintendent of Education of Montgomery County, Alabama, exercising complete control over the entire system. In this school system for the school year 1963-64, there were in attendance approximately 15,000 Negro children and approximately 25,000 white children. In this system the Montgomery County Board of Education owns and operates approximately 77 schools.
“From the evidence in this case, this Court further specifically finds that, through policy, custom and practice, the Montgomery County Board of Education, functioning at the present time through the named individual defendants, operates a dual school system based upon race and color; that is to say, that, through this policy, practice and custom, these officials operate one set of schools to be attended exclusively by Negro students and one set of schools to be attended exclusively by white students. The evidence further reflects that the teachers are assigned according to race; Negro teachers are assigned only to schools attended by Negro students and white teachers are assigned only to schools attended by white students.” 232 F. Supp., at 707.

Based on his findings, Judge Johnson ordered that integration of certain grades begin in September 1964, but in this first order did not require efforts to desegregate the faculty. The school board, acting under- the State’s school placement law, finally admitted eight Negro students out of the 29 who had sought transfers to white schools under the judge’s July 31 order. The judge refused to order admission of the 21 Negro students whose transfer applications had been rejected by the school officials.

The 1964 initial order of Judge Johnson was followed by yearly proceedings, opinions, and orders by him. Hearings, preceding these additional orders, followed the filing each year under the judge’s direction of a report of the school board’s plans for proceeding with desegregation. These annual reports and orders, together with transcripts of the discussions at the hearings, seem to reveal a growing recognition on the part of the school board of its responsibility to achieve integration as rapidly as practicable. The record, however, also reveals that in some areas the board was not moving as rapidly as it could to fulfill this duty, and the record shows a constant effort by the judge to expedite the process of moving as rapidly as practical toward the goal of a wholly unitary system of schools, not divided by race as to either students or faculty. During these years of what turned out to be an exchange of ideas between judge and school board officials, the judge, from time to time, found it possible to compliment the board on its cooperation with him in trying to bring about a fully integrated school system. Some of these complimentary remarks are set out in the opinion of the Court of Appeals modifying the judge’s decree. 400 F. 2d, at 3, n. 3. On the other hand the board did not see eye to eye with Judge Johnson on the speed with which segregation should be wiped out “root and branch” as we have held it must be done. Green v. County School Board, 391 U. S. 430, 438 (1968). The school board, having to face the “complexities arising from the transition to a system of public education freed of racial discrimination,” Brown II, 349 U. S., at 299, was constantly sparring for time; the judge, upon whom was thrust the difficult task of insuring the achievement of complete integration at the earliest practicable date, was constantly urging that no unnecessary delay could be allowed in reaching complete compliance with our mandate that racially segregated public schools be made nothing but a matter of past history. In this context of clashing objectives it is not surprising that the judge’s most recent 1968 order should have failed fully to satisfy either side. It is gratifying, however, that the differences are so minor as they appear to us to be.

In his 1968 order Judge Johnson provided for safeguards to assure that construction of new schools or additions to existing schools would not follow a pattern tending to perpetuate segregation. The order also provided for the adoption of nondiscriminatory bus routes and for other safeguards to insure that the board’s transportation policy would not tend to perpetuate segregation. The order provided for detailed steps to eliminate the impression existing in the school district that the new Jefferson Davis High School and two new elementary schools were to be used primarily by white students. The order also included a requirement that the board file in the near future further specific reports detailing the steps taken to comply with each point of the order. Nearly all of these aspects of the order were accepted by the school board and not challenged in its appeal to the Court of Appeals. Of the provisions so far mentioned, only one aspect of the provision relating to Jefferson Davis High School was challenged in the Court of Appeals, and after the Court of Appeals upheld Judge Johnson’s order on this point, the school board accepted its decision and did not seek review on the question here.

The dispute in this action thus centers only on that part of the 1968 order which deals with faculty and staff desegregation, a goal that we have recognized to be an important aspect of the basic task of achieving a public school system wholly free from racial discrimination. See, e. g., Bradley v. School Board, 382 U. S. 103 (1965); Rogers v. Paul, 382 U. S. 198 (1965). Judge Johnson noted that in 1966 he had ordered the board to begin the process of faculty desegregation in the 1966-1967 school year but that the board had not made adequate progress toward this goal. He also found:

“The evidence does not reflect any real administrative problems involved in immediately desegregating the substitute teachers, the student teachers, the night school faculties, and in the evolvement of a really legally adequate program for the substantial desegregation of the faculties of all schools in the system commencing with the school year of 1968-69.” 289 F. Supp., at 650.

He therefore concluded that a more specific order would be appropriate under all the circumstances to establish the minimum amount of progress that would be required for the future. To this end his order provided that the board must move toward a goal under which “in each school the ratio of white to Negro faculty members is substantially the same as it is throughout the system.” Id., at 654. In addition, the order set forth a specific schedule. The ratio of Negro to white teachers in the assignment of substitute, student, and night school teachers in each school was to be almost immediately made substantially the same as the ratio of Negro to white teachers in each of these groups for the system as a whole. With respect to full-time teachers, a more gradual schedule was set forth. At the time the ratio of white to Negro full-time teachers in the system as a whole was three to two. For the 1968-1969 school year, each school with fewer than 12 teachers was required to have at least two full-time teachers whose race was different from the race of the majority of the faculty at that school, and in schools with 12 or more teachers, the race of at least one out of every six faculty and staff members was required to be different from the race of the majority of the faculty and staff members at that school. The goals to be required for future years were not specified but were reserved for later decision. About a week later Judge Johnson amended part of the original order by providing that in the 1968-1969 term schools with less than 12 teachers would be required to have only one full-time teacher of the minority race rather than two, as he had originally required.

It was the part of the District Court’s order containing this ratio pattern that prompted the modification of the order by the Court of Appeals. Agreeing that the District Court had properly found from “extensive hearings .. . that desegregation of faculties in the Montgomery County school system was lagging and that appellants [the school board] had failed to comply with earlier orders of the court requiring full faculty desegregation,” and noting that the testimony of school officials themselves indicated the need for more specific guidelines, the Court of Appeals nevertheless struck down parts of the order which it viewed as requiring “fixed mathematical” ratios. It held that the part of the order setting a specific goal for the 1968-1969 school year should be modified to require only “substantially or approximately” the 5-1 ratio required by Judge Johnson’s order. With respect to the ultimate objective for the future, it held that the numerical ratio should be eliminated and that compliance should not be tested solely by the achievement of specified ratios. In so holding, the Court of Appeals made many arguments against rigid or inflexible orders in this kind of case. These arguments might possibly be more troublesome if we read the District Court’s order as being absolutely rigid and inflexible, as did the Court of Appeals. But after a careful consideration of the whole record we cannot believe that Judge Johnson had any such intention. During the four or five years that he held hearings and considered the problem before him, new orders, as previously shown, were issued annually and sometimes more often. On at least one occasion Judge Johnson, on his own motion, amended his outstanding order because a less stringent order for another district had been approved by the Court of Appeals. This was done in order not to inflict any possible injustice on the Montgomery County school system. Indeed the record is filled with statements by Judge Johnson showing his full understanding of the fact that, as this Court also has recognized, in this field the way must always be left open for experimentation.

Judge Johnson’s order now before us was adopted in the spirit of this Court’s opinion in Green v. County School Board, supra, at 439, in that his plan “promises realistically to work, and promises realistically to work now.” The modifications ordered by the panel of the Court of Appeals, while of course not intended to do so, would, we think, take from the order some of its capacity to expedite, by means of specific commands, the day when a completely unified, unitary, nondiscriminatory school system becomes a reality instead of a hope. We believe it best to leave Judge Johnson’s order as written rather than as modified by the 2-1 panel, particularly in view of the fact that the Court of Appeals as a whole was evenly divided on this subject. We also believe that under all the circumstances of this case we follow the original plan outlined in Brown II, as brought up to date by this Court’s opinions in Green v. County School Board, supra, and Griffin v. School Board, 377 U. S. 218, 233-234 (1964), by accepting the more specific and expeditious order of Judge Johnson, whose patience and wisdom are written for all to see and read on the pages of the five-year record before us.

It is good to be able to decide a case with the feelings we have about this one. The differences between the parties are exceedingly narrow. Respondents, members of the Montgomery County school board, state clearly in their brief, “These respondents recognize their affirmative responsibility to provide a desegregated, unitary and nonracial school system. These respondents recognize their responsibility to assign teachers without regard to race so that schools throughout the system are not racially identifiable by their faculties . . . .” Brief for Respondents 11-12. Petitioners, on the other hand, do not argue for precisely equal ratios in every single school under all circumstances. As the United States, petitioner in No. 798, recognizes in its brief, the District Court’s order “is designed as a remedy for past racial assignment .... We do not, in other words, argue here that racially balanced faculties are constitutionally or legally required.” Brief for the United States 13. In short, the Montgomery County school board, and its counsel, assert their purpose to bring about a racially integrated school system as early as practicable in good-faith obedience to this Court’s decisions. Both the District Judge and the Court of Appeals have accorded to the parties and their counsel courteous and patient consideration; there is no sign of lack of interest in the cause of either justice or education in the views maintained by any of the parties or in the orders entered by either of the courts below. Despite the fact that the individual petitioners in this litigation have with some reason argued that Judge Johnson should have gone farther to protect their rights than he did, we approve his order as he wrote it. This, we believe, is the best course we can take in the interest of the petitioners and the public school system of Alabama. We hope and believe that this order and the approval that we now give it will carry Alabama a long distance on its way toward obedience to the law of the land as we have declared it in the two Brown cases and those that have followed them.

The judgment of the Court of Appeals is reversed, and the cases are remanded with directions to affirm the judgment of the District Court.

It is so ordered.

       The dissent from the original panel opinion is reported at 402 F. 2d 782.

       The dissents from the denial en banc of the petition for rehearing are reported at 402 F. 2d, at 784, 787.

       A substantial part of the history of the continued support by Alabama’s governor and other state officials for its dual system of schools, completely separating white and nonwhite students, faculty, and staff, can be found in the opinion of the three-judge court for the Middle District of Alabama in Lee v. Macon County Board of Education, 267 F. Supp. 458 (1967), affirmed by this Court under the title of Wallace v. United States, 389 U. S. 215 (1967).

       These orders were reported as follows: May 18, 1965, 10 Race Rel. L. Rep. 582; March 22, 1966, 253 F. Supp. 306; August 18, 1966, 11 Race Rel. L. Rep. 1716; June 1, 1967, 12 Race Rel. L. Rep. 1200.

       The Court of Appeals quoted the following excerpt from the testimony of Associate Superintendent W. S. Garrett:
      “Q. Well, under your plan, when do you estimate that faculty desegregation will be finally accomplished in terms of the objective of the court order removing—
      “A. Well, now, that is something I don’t know, because I don’t know w'hat the objectives of the court order are. That has never been laid down in any percentage fashion that I know of. It says that you will have reasonable desegregation of faculty and that you will strive toward having each faculty not recognizable as being staffed for a particular race. That is what I get out of it.
      “Q. Well, let—
      “A. So I— I can’t— this court order is in fairly general terms; I can’t answer that question.
      “Q. Well, you made the statement about having schools staffed so that they will not be recognizable as for a particular race; when do you expect that that will be accomplished ?
      “A. Well, that would depend on what the Board’s definition of that is, the court’s definition of that.
      “Q. Do you have a definition of that?
      “A. Not at this point; we have discussed that many times, and I do not have a definition of— of what that would mean.
      “Q. No one has told you, given you a definition in terms of mechanics, in terms of numbers, none of your superiors?

        “A. No, as far as I know, no other school personnel man in America has. I have talked to many of them. What we are striving to do is to make progress and keep going and hope that somewhere along the line we will have achieved the— what the court has in mind. But if you will look at that court order, you will see it doesn’t lay down the precise terms exactly what that means; it is a broad definition.”

       As we stated in Green v. County School Board, supra, at 439: “There is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every case. The matter must be assessed in light of the circumstances present and the options available in each instance. It is incumbent upon the school board to establish that its proposed plan promises meaningful and immediate progress toward disestablishing state-imposed segregation. It is incumbent upon the district court to weigh that claim in light of the facts at hand and in light of any alternatives which may be shown as feasible and more promising in their effectiveness.”