Oestereich v. Selective Service System Local Board No. 11

Petitioner, a theological student preparing for the ministry, was classified IV-D by his Selective Service Board in accordance with § 6 (g) of the Selective Service Act, which provides that "students preparing for the ministry" in qualified schools "shall be exempt from training and service" under the Act. He returned his registration certificate "for the sole purpose of expressing dissent from the participation by the United States in the war in Vietnam." His Board then declared him delinquent for failure (1) to have his registration certificate in his possession and (2) to provide the Board with notice of his local status, and changed his classification to I-A. Petitioner took an administrative appeal and lost, and was ordered to report for induction. He sued to restrain his induction, but the District Court dismissed the complaint and the Court of Appeals affirmed, in part on the basis of § 10 (b)(3) of the Military Selective Service Act of 1967, which states that there shall be no pre-induction judicial review "of the classification or processing of any registrant," judicial review being limited to a defense in a criminal prosecution or to habeas corpus after induction.

Held: Pre-induction judicial review is not precluded in this case. Pp. 235-239.

(a) There is no legislative authority to deny an unequivocal statutory exemption to a registrant who has qualified for one because of conduct or activities unrelated to the merits of granting or continuing the exemption, and delinquency proceedings cannot be used for that purpose. Pp. 236-237.

(b) Section 10 (b)(3) cannot be construed to impair the clear mandate of § 6 (g) governing the exemption for theological students. P. 238.

390 F.2d 100, reversed and remanded.

Melvin L. Wulf argued the cause for petitioner. With him on the brief were Alan H. Levine, John Griffiths, Marvin M. Karpatkin, Eleanor Holmes Norton, and William F. Reynard.

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