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January 29, 1975

DONALD P. VINCENT et al., Plaintiffs,
JAMES R. SCHLESINGER et al., Defendants

The opinion of the court was delivered by: ROBINSON, DISTRICT JUDGE.

 Robinson, District Judge. By this action plaintiffs seek judicial review of President Ford's "Program for the Return of Vietnam Era Draft Evaders and Military Deserters" which was announced September 16, 1974, by Presidential Proclamation 4313. *fn1" The President's Clemency Program set forth a policy of "reconciliation" and applies to draft evaders, military deserters and those persons who were convicted of draft evasion, were given punitive or dishonorable discharge from the armed forces or were confined at that time for such offenses.

 This case contests only that portion of the Program that relates to military deserters. The five named individual plaintiffs are persons residing in Canada who are currently absent without authorization from the United States Army or Marine Corps who have received notice from the Clemency Processing Center at Fort Benjamin Harrison, Indiana, that they are eligible for processing under the President's Clemency Program. Plaintiffs War Resistor Information Program and Clemency Information Center are both unincorporated associations whose members are similarly absent without authorization from the armed forces, but who wish to participate in the program. Plaintiffs additionally claim they represent a class of all members of the United States armed forces who are absent without authorization, are eligible for process under the Clemency Program and have grounds for mitigation of the suggested two years alternative service. The defendants are the Secretary of Defense and the officials and subordinate officials of the armed forces who are responsible for the procedures of the Joint Alternate Service Board which was created to process military deserters in accordance with the provisions of the Presidential Proclamation.

 Plaintiffs challenge the procedures currently followed by the Joint Alternate Service Board in processing military deserters, asserting that the Board determinations affect substantial rights, hence "minimal due process" must be met. Specifically, the Plaintiffs allege that the Due Process Clause of the Fifth Amendment mandates that individual military deserters be given an opportunity to personally appear before the Board, that decisions be made in accordance with previously published standards and that some opportunity for review be available. In addition they argue that the clear language of the Proclamation and the Due Process Clause of the Fifth Amendment require that the same "mitigating factors" be considered for all three classes of individuals covered by the Program in determining whether less than two years of alternative service is appropriate in an individual case. Plaintiffs also rely upon Army Regulations to support their contentions that persons before the Board should have up to 72 hours to consult with counsel prior to submitting a resignation for an undesirable discharge which waives their right to any hearing or review. Similarly, Plaintiffs further contend that since a military deserter before the Board is submitting a "guilty plea" and Army Regulations require that such pleas be entered only after a hearing before a Military Judge, the Joint Alternate Service Board should provide a hearing presided over by a Military Judge. Finally, Plaintiffs assert that § 555(e) of the Administrative Procedure Act, 5 U.S.C. § 500 et seq. requires that a "brief statement of grounds for denial" be given in each individual case.

 The case is currently before the Court on Defendants' Motion to Dismiss and Plaintiffs' and Defendants' Cross Motions for Summary Judgment. Plaintiffs characterize their complaint as raising two alternative theories supporting the judicial review of the Clemency Program which they seek. The first theory is that the Court has jurisdiction to review and enjoin an exercise of the President's pardon power when the exercise of that power violates a corollary 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 ...

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