393 U.S. 256
89 S.Ct. 424
21 L.Ed.2d 418
Ramsey CLARK et al.v.Charles Joseph Cuney GABRIEL.
No. 572.
Dec. 16, 1968.
Rehearing Denied Feb. 24, 1969.

See 393 U.S. 1112, 89 S.Ct. 853.
Solicitor General Griswold, Assistant Attorney General Weisl, Morton Hollander and Robert V. Zener, for appellants.
Norman Leonard, for appellee.
PER CURIAM.


1
Appellee's draft Board rejected his claim to classification as a conscientious objector and classified him I—A. His appeals within the Selective Service System were unsuccessful. After he was ordered to report for induction he brought an action in the United States District Court for the Northern District of California seeking to have his induction enjoined and to have the rejection of his claim to conscientious objector classification declared improper on the grounds that it had no basis in fact, that the Board had misapplied the statutory definition of conscientious objector, and that the members of the Board were improperly motivated by hostility and bias against those who claim to be conscientious objectors. The District Court entered a preliminary injunction preventing appellee's induction until after a determination of his claim on the merits.


2
In entering the preliminary injunction, the District Court held that it had jurisdiction to hear appellee's claim despite § 10(b)(3) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 460(b)(3) (1964 ed., Supp. III), which provides:


3
'No judicial review shall be made of the classification or      processing of any registrant by local boards, appeal boards,      or the President, except as a defense to a criminal      prosecution instituted under section 12 of this title, after      the registrant has responded either affirmatively or      negatively to an order to report for induction, or for      civilian work in the case of a registrant determined to be      opposed to participation in war in any form: Provided, That      such review shall go to the question of the jurisdiction      herein reversed to local boards, appeal boards, and the      President only when there is no basis in fact for the      classification assigned to such registrant.'


4
Acknowledging that this statute if applicable would prevent pre-induction review of appellee's classification, the District Court held that, so applied, § 10(b)(3) was unconstitutional because to provide for judicial consideration of the lawfulness of the Board's action only as a defense to a criminal prosecution would require that appellee pursue a 'tortuous judicial adventure' so beset by 'hazards' and 'penalties' as to result 'in no review at all.' The Government has appealed under 28 U.S.C. § 1252 which allows direct appeal to this Court of 'an interlocutory or final judgment, decree or order of any court of the United States * * * holding an Act of Congress unconstitutional in any civil action * * * to which the United States * * * or any officer * * * thereof * * * is a party.'


5
This Court has today, after full consideration, decided Oestereich v. Selective Service System Local Bd. No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402. Because the result here is dictated by the principles enunciated in that case, it is appropriate to decide this case summarily, reversing the District Court.


6
In Oestereich the delinquency procedure by which the registrant was reclassified was without statutory basis and in conflict with petitioner's rights explicitly established by the statute and not dependent upon an act of judgment by the board. Oestereich, as a divinity student, was by statute unconditionally entitled to exemption. Here, by contrast, there is no doubt of the board's statutory authority to take action which appellee challenges, and that action inescapably involves a determination of fact and an exercise of judgment. By statute, classification as a conscientious objector is expressly conditioned on the registrant's claim being 'sustained by the local board.' 50 U.S.C. App. § 456(j) (1964 ed., Supp. III).


7
Here the Board has exercised its statutory discretion to pass on a particular request for classification, 'evaluating evidence and * * * determining whether a claimed exemption is deserved.' Oestereich v. Selective Service System Local Bd. No. 11, supra, at 238, 89 S.Ct., at 416. A Local Board must make such a decision in respect of each of the many classification claims presented to it. To allow preinduction judicial review of such determinations would be to permit precisely the kind of 'litigious interruptions of procedures to provide necessary military manpower' (113 Cong.Rec. 15426 (report by Senator Russell on Conference Committee action)) which Congress sought to prevent when it enacted § 10(b)(3).


8
We find no constitutional objection to Congress' thus requiring that assertion of a conscientious objector's claims such as those advanced by appellee be deferred until after induction, if that is the course he chooses, whereupon habeas corpus would be an available remedy, or until defense of the criminal prosecution which would follow should he press his objections to his classification to the point of refusing to submit to induction. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305 (1944).


9
The motion of appellee for leave to proceed in forma pauperis is granted. The decision of the District Court is reversed, and the case remanded for issuance of an order dissolving the preliminary injunction and dismissing the action.


10
Reversed and remanded.


11
Mr. Justice DOUGLAS, concurring.


12
The evidence in this case, which I have set forth in an Appendix, makes plain, as the Court states, that the question whether the registrant should be classified as a conscientious objector turns on the weight and credibility of the testimony. I therefore agree that § 10(b)(3) of the Military Selective Service Act of 1967 precludes review of the action of the Board at this preinduction stage.


13
I would take a different view if this were a case where a registrant was moved from a CO (conscientious objector) classification to I—A because he made a speech, unpopular with the Board.


14
This would also be a different case if the registrant were a member of an institutionalized group,1 such as the Quakers, whose opposition to war was well known and the registrant, though perhaps unpopular with the Board, was a bona fide member of the group. Then, too, a Board would act in a lawless way2 if it moved a registrant from a CO classification to I—A and disregarding all the evidence denied him a CO classification.


15
But in my view it takes the extreme case where the Board can be said to flout the law, as it did in Oestereich v. Selective Service Bd., 393 U.S. 233, 89 S.Ct. 414, to warrant pre-induction review of its actions.


16
APPENDIX TO OPINION OF DOUGLAS, J., CONCURRING.


17
Charles Gabriel is 23 years old, son of a white father and Negro mother. He graduated from Berkeley High School, attended San Francisco State College for two years before being dropped; for the following year he tried to regain entrance to that College by attending its 'Extension School'; but when he was denied re-admission, he spent the next year at a City College from which he graduated. He registered with the Selective Service in 1963 at the age of 18. Two years later, at the age of 20, he applied for CO status. He was denied reclassification, and his three requests for a 'personal appearance' before the board over a nine-month period were disregarded. Finally, he was given an opportunity for a personal appearance after he complained to the State Headquarters. He was denied reclassification.


18
(A) Gabriel's Letter of August 13, 1965.


19
In 1965, after he obtained a copy of Form 150 by which a registrant files for conscientious objector status, Gabriel filled out the form and sent his local draft board an accompanying letter explaining his conscientious convictions:


20
'As a Negro I firmly believe the United States Government has      willfully let the Negro be deprived of his rights therefore      the debt of forced service claimed arbitrarily from all      eligible men for the purpose of fighting for the United      States rights is in the Negroes case void. Because he has not      been given the rights the United States fights for on its      citizens behalf.


21
'My beliefs are superior to my human relations with the U.S.      government and duties coming out of my beliefs are superior      to duties stolen from me by the U.S. government.


22
'I have voiced my opinions and beliefs freely. In Berkeley      H.S. in class in fall 1962 during the Cuban crisis I made a      speech against U.S. action in Cuba otherwise I haven't      bothered to record all the times I said what I thought.


23
'(listing activities): active CORE (1961—2) March on Wash DC      1963; Demonstrated against HUAC in Wash. D.C. 1959 I was in      and helped organize the Freedom Week Play in Berkeley H.S.      1963. Demonstrated in 1960 in support of sit-ins against      southern Wolworth Stores.


24
'All through my life I have been in contact with people who      did not believe in war or killing; who believed the U.S.      government and system was unjust. My parents their friends,      my friends, numerous books by liberal or leftist writers * *      * have been things that make me what I am.'


25
(B) Gabriel's Official Summary of his Personal Appearance.


26
After his personal appearance, Gabriel filed a copy of his summary of the hearing, as provided by Selective Service regulations.


27
'This is a summary of my personal appearance before you on      Thursday, May 19, 1966. * * * The youngest, forty to      forty-five years old was fairly friendly during the meeting;      the oldest seemed neutral; the other three seemed fairly      unfriendly. * * * The oldest man referred to my letters as      'very pointed, belligerent.' I said, jokingly, that I wrote      the letters with the help of Ben Seaver and Alex Sliszka and      they should share the blame. Then there was an unfriendly      comment about Sliszka and Seaver. The youngest man read my      statement that said I was a Negro and didn't think I had my      rights. He asked if this wasn't the basis of most of my case.      I said, 'No. It was only part of it.' * * * Then one man      asked me if I was trying to 'beat the game.' * * * I said      that there were easier ways to avoid the draft and gave some      examples. * * * The man who asked me to reread my written      statement said, i.e. wasn't that answer subversive. I said      'maybe so but I believe I'm right.' * * * The oldest man      asked me if I'd fought in high school. I answered, 'No' and      he said, 'You must have been a real good boy.' He then asked      me between two and four times to 'eradicate' the thought from      my mind that I had gotten unfair treatment from the local      board.' (C) Department of Justice Re sume .


28
After being denied CO status, Gabriel appealed. And as is customary in such appeals, the Justice Department conducted an investigation into the sincerity of his beliefs. The following is a re sume of the investigating officer's report.


29
'A representative of Berkeley High School * * * stated that      he was a 'quiet rebel' but was mature for his age. * * *      Another representative at Berkeley High School stated that *      * * she recalls that he demonstrated a high regard for the      individual * * * and was extremely conscious of the role in      society of the American Negro. It was advised that the      registrant's mother * * * and step-father have been      politically active in such organizations as the Congress for      Racial Equality. * * * A representative of the Buildings and      Grounds Department, San Francisco State College, advised that      the registrant * * * had a reputation of being involved in      any movement which has doings with anti-war demonstrations or      activities. This representative stated that he never actually      witnessed the registrant in these activities but it is      general knowledge among employees around the campus. * * * An      official of the Magic Theatre, San Francisco, California      advised that * * * the registrant is against war and against      military service. It was further stated that the registrant      has discussed the Vietnam war and considers it unjust. * * *      One person interviewed in San Francisco, California advised      that she has resided here in an apartment building for the      last four or five years. She stated as she recalls, a young      Negro male resided with a young woman in an apartment in this      building about a year ago. She believes this individual may      have been the registrant. * * * A reference stated that he      has known the registrant since about 1963 * * * when they both were      students at San Francisco State College. * * * He further      stated that the registrant could well be a communist,      however, they have never discussed this. He advised that he      is aware that the registrant's mother and father are very      much against war and they are active in movements which are      against war. He further stated that the registrant is also      active in these movements and organizations, however, he did      not know the names of these organizations. It was also stated      that the registrant has mentioned that he is active in      anti-war groups and he believes he has participated in      anti-war marches. * * * Another reference stated * * * that      when (the registrant) went to report for his armed forces      physical examination he observed an anti-draft demonstration      occurring in front of the physical facilities and felt      compelled to take part in the demonstration, which he did.'


30
(D) Department of Justice Recommendation.


31
After conducting its investigation, the Department of Justice filed a 'recommendation' with the local board, suggesting that Gabriel be denied CO status:


32
'He said that he is definitely not a communist. * * * The      registrant advised that he is, and has been, consistently      nonviolent, and that he has never been a member of any      aggressive anti-war demonstrations. He said that, although he      was a member of the Vietnam Day Committee and the War      Resistance League, and has participated in peace marches, he      has always participated in a passive or peaceful manner.'


33
Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice WHITE concur in the judgment of the Court for the reasons stated in Mr. Justice STEWART'S dissenting opinion in Oestereich v. Selective Service Bd., 393 U.S., p. 245, 89 S.Ct., p. 421, 21 L.Ed.2d, p. 411, decided today.


34
Mr. Justice BLACK would note probable jurisdiction and set the case down for argument.



1
 Membership in a religious group is not, of course, the sole means of getting classification as a conscientious objector, as the exemption extends to anyone who has those conscientious objections, even though he is not associated with others. See United States v. Seeger, 380 U.S. 163, 172—173, 85 S.Ct. 850, 857 858, 13 L.Ed.2d 733.


2
 See White, Processing Conscientious Objector Claims: A Constitutional Inquiry, 56 Calif.L.Rev. 652, 660—667 (1968).


