provision of the Constitution. Plaintiffs argue in support of their second theory that the terms of a Presidential Proclamation are being administered in a manner which violates the inherent spirit and intent of the Proclamation, and that such maladministration is a violation of law subject to judicial review and correction by issuance of equitable process by the Court.
The government asserts four separate arguments supporting their motion to dismiss: 1) that this Court lacks subject matter jurisdiction; 2) that the issues raised by the complaint present a non-justiciable political question; 3) that the Court should abstain from exercising its jurisdiction since the Plaintiffs have not submitted to the jurisdiction of the Court; and 4) that the due process and equal protection allegations of the complaint fail to state a claim upon which relief may be granted.
The Court finds that 28 U.S.C. § 1331(a) confers subject matter jurisdiction on this Court since Plaintiffs have sustained their burden of the requisite jurisdictional amount under the test established and followed in this Circuit. Gomez v. Wilson, 155 U.S. App. D.C. 242, 477 F.2d 411 (1973).
Recent case law makes clear to this Court that it can review an exercise of the pardon power to ascertain whether the conditions attached violate corollary constitutional provisions, Schick v. Reed, 419 U.S. 256, 95 S. Ct. 379, 42 L. Ed. 2d 430, 43 U.S.L.W. 4083 (1974); Hoffa v. Saxbe, 378 F. Supp. 1221 (D.D.C. 1974).
Further, it appears that the Court has jurisdiction to review the administration of the terms of a Presidential Proclamation to determine whether the inherent spirit and intent of the Proclamation is being followed, Ex parte Endo, 323 U.S. 283, 89 L. Ed. 243, 65 S. Ct. 208 (1944); Udall v. Tallman, 380 U.S. 1, 13 L. Ed. 2d 616, 85 S. Ct. 792 (1965); Peters v. Hobby, 349 U.S. 331, 99 L. Ed. 1129, 75 S. Ct. 790 (1955). The Courts have traditionally declined to anticipate a constitutional law question where a non-constitutional issue is presented for resolution of the dispute, Peters, supra, at 338, and thus Plaintiffs' second theory should be explored first.
The government, however, contends that the Court should not exercise jurisdiction in this case where plaintiffs are asking a determination on an issue that presents a non-justiciable political question, not appropriate for judicial resolution. Plaintiffs herein ask the Court to read the language used by President Ford in Presidential Proclamation 4313 "to do equity" as evidence of his intent to provide equal treatment for the three different groups of persons covered by the Proclamation and the three separate forums designated therein to deal with them.
In Baker v. Carr, 369 U.S. 186, at 217, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962), the Supreme Court set forth several factors each of which is evidence that an issue presents a non-justiciable political question. The Court finds that two of these factors are present in this case and that therefore the Court should refrain from undertaking such an examination. By asking this Court to review the words and context of the President's exercise of his pardon power in the Proclamation, Plaintiffs are asking this Court to literally read between the lines of the Proclamation. Clearly there is "a lack of judicially discoverable and manageable standards for resolving" such a question. And such a determination is impossible to make "without an initial policy determination of a kind clearly for non-judicial discretion." Therefore the Court holds that whether the President intended the procedures which are currently followed is a political question, not subject to judicial review.
The third issue in the Government's Motion to Dismiss is that the Court should exercise its discretionary power to "abstain" from exercising jurisdiction because plaintiffs, who are admittedly fugitives in Canada, are only willing to comply with a decree from this Court which is favorable to them. Molinaro v. New Jersey, 396 U.S. 365, 24 L. Ed. 2d 586, 90 S. Ct. 498 (1970); Dawkins v. Mitchell, 141 U.S.App.D.C. 213, 437 F.2d 646 (1970). While this argument is not without merit, the Court is of the opinion that absention would only delay the resolution of the important issues presented and thus the Motion to Dismiss on these grounds must be denied.
Plaintiffs contend that the Administrative Procedure Act requires that the Joint Alternate Service Board set forth its reasons for denial of written applications in individual cases pursuant to 5 U.S.C. § 555(e). However, the Court concludes that the Administrative Procedure Act is not applicable to the Joint Alternate Service Board. Although at first glance it would appear that the Board is an "agency" as that term is defined in 5 U.S.C. § 551(1), Schick v. Reed, 419 U.S. 256, 95 S. Ct. 379, 42 L. Ed. 2d 430, 43 U.S.L.W. 4083, (1974), makes clear that the pardon power cannot be "modified, abridged or diminished by the Congress." Imposing the procedural requirements of the Administrative Procedure Act upon the exercise of the pardon power would be in direct violation of this express language. Thus Plaintiffs' contention is without merit.
Plaintiffs' remaining contention is that military deserters are entitled to access to counsel 72 hours prior to any determination and a decision rendered by a military judge, pursuant to Army Regulations. The Court finds that the Joint Alternate Service Board is not an agency of the Army, but is rather a unique unit specially created to implement the Presidential Proclamation. If Plaintiffs who have deserted from the Army wish to have the benefits of these Army Regulations, the court martial procedure provides them. The Court fails to understand the applicability of these regulations to military deserters from any other branch of the armed forces. These contentions fail to state claims upon which relief can be granted.
The only matters left for resolution by the Court are the cross motions for summary judgment. Plaintiffs assert that the procedures established to carry out Presidential Proclamation 4313 violate the Fifth Amendment Due Process Clause. The cases make clear that a threshold consideration for due process analysis is whether there has been or will be any deprivation of life, liberty or property to trigger the operation of the Fifth Amendment. Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). Although the distinction between "right" and "privilege" is no longer constitutionally significant for such analysis, deprivation of some entitlement or significant right is required before the due process protections of the Fifth Amendment become operative. Graham v. Richardson, 403 U.S. 365, 374, 29 L. Ed. 2d 534, 91 S. Ct. 1848 (1971). Due to the unique position of "military deserters" and the unusually broad scope of the Presidential pardon powers, the Court finds that no such entitlement or significant rights are at stake here.
Plaintiffs assert two interwoven theories to support their contention that the Fifth Amendment Due Process Clause requires that "minimal due process" be afforded those military deserters who participate in the Clemency Program. Plaintiffs first argue that since the Joint Alternate Service Board grants a military deserter an undesirable discharge pending successful completion of the prescribed alternative service, at which time a clemency discharge is granted, and since either discharge classification affects one's future employability, "significant rights" are involved requiring minimal due process.
Plaintiffs rely principally upon two cases to support this assertion. In Roth, supra, the Supreme Court held that a non-tenured college teacher was not entitled to a due process hearing upon discharge but noted 408 U.S. at 573
[Where] a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.