McKart v. United States, 395 U.S. 185 (1969)
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U.S. Supreme Court McKART v. UNITED STATES, 395 U.S. 185 (1969) 395 U.S. 185
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Armed Forces of the United States.[Footnote 1] 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.[Footnote 2] 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.
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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.[Footnote 3]
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Director, who requested the local board to reopen petitioner's classification.[Footnote 4] 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.[Footnote 5] 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
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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).[Footnote 6] The applicable Selective Service System Regulation,
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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.[Footnote 8]
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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.[Footnote 9] Application of the doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved.
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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."[Footnote 10] 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.
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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.
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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.[Footnote 12]
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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.[Footnote 13] The statute as it stood when petitioner was reclassified said nothing which would require registrants to raise all their claims before the appeal boards.[Footnote 14] 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.
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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.[Footnote 15] 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.[Footnote 16] Petitioner's failure to take his claim through all available administrative appeals only deprived the Selective Service System of the opportunity of having
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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.[Footnote 17] 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.[Footnote 18]
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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, (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,[Footnote 19]
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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.[Footnote 20] 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[Footnote 21] and may be criminally prosecuted for failure to comply.[Footnote 22] 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
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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.
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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.
It is so ordered.
FootnotesFootnote 1 "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).
Footnote 2 "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 line 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).
Footnote 3 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).
Footnote 4 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.
Footnote 5 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.
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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.
[Footnote *] 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.
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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).
[Footnote 1] 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
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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.
[Footnote 2] Compare Falbo v. United States, (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.
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This document cites
- Code of Federal Regulations - Title 32: National Defense - 32 CFR 1624.1 - Random selection procedures for induction.
- Code of Federal Regulations - Title 32: National Defense - 32 CFR 1624.2 - Issuance of induction orders.
- Code of Federal Regulations - Title 32: National Defense - 32 CFR 1624.3 - Age selection groups.
- Code of Federal Regulations - Title 32: National Defense - 32 CFR 1627.3 - Classification of volunteers.
- U.S. Supreme Court - Estep v. United States, 327 U.S. 114 (1945)
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