Bill Rapp Turner, Appellant, v. United States of America, Appellee, 410 F.2d 837 (5th Cir. 1969)

The District Court correctly held that appellant had no vested right to the form of administrative procedure in effect on the date he appealed his 1-A classification and that the provisions of the Military Selective Service Act of 1967 were properly applied to his appeal.

Although this nation has, throughout its history, consistently accorded deference to those who conscientiously objected to military service,⁵  there is no constitutional right to exemption as a conscientious objector — it is merely a grant from Congress, extended out of respect for the religious or moral scruples of the individual and in recognition of the fact that to conscript those opposed to war would be detrimental to the morale of the military. United States v. Macintosh, 283 U.S. 605, 51 S. Ct. 570, 75 L. Ed. 1302; Girouard v. United States, 328 U.S. 61, 66 S. Ct. 826, 90 L. Ed. 1084. See also Imboden v. United States, 194 F.2d 508 (6 Cir. 1952), cert. den. 343 U.S. 957, 72 S. Ct. 1052, 96 L. Ed. 1357. The power "to declare war" necessarily connotes the plenary power to wage war with all the force necessary to make it effective. The power "to raise armies" necessarily connotes the like power to say who shall serve in them and in what manner. "From its very nature the war power, when necessity calls for its exercise, tolerates no qualifications or limitations * * *." United States v. Macintosh, 283 U.S. at 622, 51 S. Ct. at 574, 75 L. Ed. at 1309.

In United States v. Nugent, 346 U.S. 1, 73 S. Ct. 991, 97 L. Ed. 1417, the questions presented were whether, under the old statute, selective service registrants were entitled, at the Department of Justice hearing, to examine the FBI reports of investigations of their background and reputation for sincerity, and, if not, whether the statute, as so construed, amounts to a denial of due process of law. The Court answered both questions in the negative, stating at 346 U.S. 8, 73 S. Ct. 996, 97 L. Ed. 1424-1425 as follows:

"The Department of Justice takes no action which is decisive. Its duty is to advise, to render an auxiliary service to the appeal board in this difficult class of cases. Congress was under no compulsion to supply this auxiliary service — to provide for a more exhaustive processing of a conscientious objector's appeal

* * * * *

"The Selective Service Act is a comprehensive statute designed to provide an orderly, efficient and fair procedure to marshal the available manpower of the country, to impose a common obligation of military service on all physically fit young men. It is a valid exercise of the war power. It is calculated to function — it functions today — in times of peril. Even so, Congress took care to provide special treatment for those who could not reconcile participation in the defense effort with their religious beliefs — if those beliefs were a matter of sincere conviction." (Emphasis added)

Thus, it appears that the provision for a Department of Justice inquiry, hearing and recommendation was merely a specialized procedure for assisting an appeal board to reach a more informed judgment with respect to conscientious objector claims,⁶  and did not create substantive rights for claimants.

This special concern manifested by the Congress in calling for Department of Justice processing was unique to conscientious objectors and never granted for registrants of any other class.⁷  Prior to the adoption of the June 30, 1967, amendment, failure to conduct a Department of Justice hearing required reversal of a conviction for refusal to submit to induction. Bates v. United States, 348 U.S. 966, 75 S. Ct. 529, 99 L. Ed. 753, Per Curiam (1955); Sterrett v. United States, 216 F.2d 659 (9 Cir. 1954). Appellant contends that the amendment should apply prospectively only and not to a pending case, and also that to apply the change in law and regulations to him during the pendency of his appeal would be unjust since he, in anticipation of and relying upon being accorded a Department of Justice hearing, had refrained from personally appearing before the local board in support of his claim as a conscientious objector.⁸  In answer thereto, appellee urges that the 1967 amendment was merely remedial and procedural in nature and not subject to the general rule that, absent a clear legislative intent to the contrary, statutes are to be given prospective effect only.

Appellant's hardship, to the extent it may exist, resulted primarily from his failure to utilize the procedures before the local board available to all registrants; and his claim for denial or right cannot stand upon a mere change in the policy of Congress occasioned by the withdrawal of special procedures which it saw fit no longer to provide. Insofar as the amendment to § 6(j) is concerned, it unmistakably related to matters of procedure and remedy only and not of substance. No exception appears in the amendment for appeals pending at time of enactment, nor is other indication given that the amendment should be less than universally applied. Even if the amendment contained an ambiguity, which is not the case, its legislative history serves to remove all doubt.⁹  The Senate and House Committee reports disclose that the provision for Department of Justice processing of conscientious objector claims was eliminated to avoid substantial and unnecessary delays caused by the increased number of such appeals without corresponding significant advantages.¹⁰ 

The congressional committees were directly informed by the Attorney General that it would minimize uncertainty and avoid the risk of procedural defenses in prosecution "if a transitional provision were added * * * to specify the intent of Congress with respect to the proper procedure in pending appeals."¹¹  This recommendation was not adopted.¹²  We thus perceive no reason why purely administrative and procedural changes in laws presently operating to draft the manpower of this nation for military service should have other than a direct and immediate effect to accomplish the vital purpose of the legislation.

Granting that, in the absence of an expressed legislative intent, statutes affecting antecedent rights are ordinarily addressed to the future and to be given prospective effect only,¹³  that canon of construction must yield to the rule here controlling that changes in statute law relating only to procedure or remedy are usually held immediately applicable to pending cases, including those on appeal from a lower court. This last mentioned rule of statutory interpretation defers only to a contrary intention manifested from the wording of the statute or, if it is unclear, from its legislative history. Hallowell v. Commons, 239 U.S. 506, 36 S. Ct. 202, 60 L. Ed. 409 (1916); Bowles v. Strickland, 151 F.2d 419 (5 Cir. 1945); Bowles v. Miller, 151 F.2d 992 (10 Cir. 1951); Dargel v. Henderson, 200 F.2d 564 (Em. App.1952). In Hallowell, the Supreme Court held applicable to a suit pending in federal court to determine Indian heirship a statute vesting the Secretary of the Interior with jurisdiction of such controversies upon the reasoning that the statute enacted after suit was begun

"* * * made no exception for pending litigation, but purported to be universal, and so to take away the jurisdiction that for a time had been conferred upon the courts of the United States. * * * [The statute] takes away no substantive right, but simply changes the tribunal that is to hear the case. In doing so it evinces a change of policy, and an opinion that the rights of the Indians can be better preserved by the quasi paternal supervision of the general head of Indian affairs. The consideration applies with the same force to all cases, and was embodied in a statute that no doubt was intended to apply to all, so far as construction is concerned."

This Court in Bowles v. Strickland, supra, held that the action of the Price Administrator in wrongly instituting suit under the Emergency Price Control Act of 1942, 50 U.S.C.App. § 901, et seq., without first obtaining requisite approval of the Secretary of Agriculture was cured by an amendment eliminating that requirement, which was enacted during the pendency of the appeal to this Court. It was said: "As this amendment did not affect substantive rights, but related only to the procedural machinery provided to enforce such rights, it applied to pending as well as to future suits. See 50 American Jurisprudence, page 505, Section 482. A suit in process of appeal * * * is a pending suit."

Sterrett v. United States, 216 F.2d 659 (9 Cir. 1954), relied upon by appellant, is not applicable to the issue raised on this appeal. In that case the Court held that a change in Selective Service regulations to deny a Department of Justice hearing in certain classes of conscientious objector cases was unauthorized by, and contrary to, § 6(j) of the former statute, and it was not concerned with a change in the statute itself. But directly in point is the holding of the District Court in United States v. Haughton, 290 F. Supp. 422 (W.Wash.1968), in which conviction for refusal to be inducted was imposed by Judge Boldt in a clear and instructive opinion, based upon reasoning to which we subscribe, and concluding that no registrant had a vested right in the "auxiliary service" of a Department of Justice inquiry and hearing so as to survive the 1967 amendment to § 6(j). The Act must be and is so construed.

The judgment of the lower court is affirmed.