DOUGLAS, J., dissenting 406 U.S. made in the Act for FBI reports on claimants for conscientious objector exemptions, "in accordance with the statutory plan and the concepts of basic fairness which underlie all our legislation... the Department must furnish the registrant with a fair résumé of the FBI report." Simmons v. United States, 348 U. S. 397, 405. And, when the Act contemplated that the Department of Justice should recommend to a registrant's appeal board whether a conscientious objector exemption should be granted or denied, this Court held that "the over-all procedures set up in the statute and regulations, designed to be 'fair and just' in their operation, 62 Stat. 605, 50 U. S. C. App. § 451 (c), require that the registrant receive a copy of the Justice Department's recommendation and be given a reasonable opportunity to file a reply thereto." Gonzales v. United States, 348 U. S. 407, 417. In 1967, the provisions relating to Justice Department hearings and recommendations were deleted from the Act. The statutory mandate of § 451 (c), however, remains unchanged. And, "viewed against our underlying concepts of procedural regularity and basic fair play," id., at 412, the appellate procedures employed in this case cannot stand. "[I]t is procedure that marks much of the difference between rule by law and rule by fiat." Wisconsin v. Constantineau, 400 U. S. 433, 436. The use of adverse information not disclosed to the registrant is exactly analogous to the FBI report summary not disclosed to the registrant in Simmons, and the Justice Department recommendation kept from the registrant in Gonzales. The failure to disclose the use of such material vitiates petitioner's statutory right of appeal. For no appeal procedure can be "fair" where only one side has had an opportunity to present its case. Moreover, the very nature of the procedural error renders impossible the application of a "harmless error" test, and we so held in Simmons. Commenting on the effect of a finding that the petitioner therein had not been given a fair résumé of the adverse information in the FBI report, the Court explicitly stated: "This is not an incidental infringement of technical rights. Petitioner has been deprived of the fair hearing required by the Act, a fundamental safeguard, and he need not specify the precise manner in which he would have used this right—and how such use would have aided his cause-in order to complain of the deprivation." 348 U. S., at 406. (Emphasis added.) Unless we are to overrule these cases, which have found uniform acceptance by the lower courts (see, e. g., United States v. Thompson, 431 F. 2d 1265, 1271; United States v. Cabbage, 430 F. 2d 1037, 1039–1041; United States v. Cummins, 425 F. 2d 646; United States v. Owen, 415 F. 2d 383, 388-389), we must accept the Solicitor General's confession of error and reverse the judgment below. Miscellaneous Orders No. A-926 (71-6522). SCHWARTZ v. UNITED STATES. Application for stay of execution of sentence for civil contempt presented to MR. JUSTICE MARSHALL, and by him referred to the Court, granted. No. 71-718. MCGINNIS, CORRECTION COMMISSIONER, ET AL. V. ROYSTER ET AL. Appeal from D. C. S. D. N. Y. [Probable jurisdiction noted, 405 U. S. 986.] Motion for appointment of counsel granted. It is ordered that James J. McDonough, Esquire, and Matthew Muraskin, Esquire, of Mineola, New York, be, and they are hereby, appointed to serve as counsel for appellees in this case. May 30, 1972 406 U.S. No. 71-1511. NORVELL, ATTORNEY GENERAL OF NEW MEXICO V. APODACA; and No. 71-1512. BROWN ET AL. v. APODACA ET AL. Sup. Ct. N. M. Motions to expedite consideration denied. Reported below: 83 N. M. 663, 495 P. 2d 1379. No. A-1235 (71-1531). NOLAN V. JUDICIAL COUNCIL OF THE THIRD CIRCUIT OF THE UNITED STATES ET AL. Application for stay presented to MR. JUSTICE WHITE, and by him referred to the Court, denied. MR. JUSTICE BRENNAN took no part in the consideration or decision of this application. No. 71-1291. CHANDLER, U. S. DISTRICT JUDGE V. BATTISTI, CHIEF JUDGE, U. S. DISTRICT COURT. Motion for leave to file petition for writ of mandamus and/or prohibition denied. MR. JUSTICE MARSHALL took no part in the consideration or decision of this motion. Probable Jurisdiction Noted No. 71-1119. INDIANA EMPLOYMENT SECURITY DIVISION ET AL. v. BURNEY. Appeal from D. C. N. D. Ind. Probable jurisdiction noted. Reported below: 347 F. Supp. 218. Certiorari Granted No. 71-1178. GULF STATES UTILITIES Co. v. FEDERAL POWER COMMISSION ET AL. C. A. D. C. Cir. Certiorari granted. Reported below: 147 U. S. App. D. C. 98, 454 F. 2d 941. No. 71-1192. GOLDSTEIN ET AL. v. CALIFORNIA. App. Dept., Super. Ct. Cal., County of Los Angeles. Certiorari granted. No. 71-229. UNITED STATES v. DIONISIO; and No. 71-850. UNITED STATES v. MARA, AKA MARASOVICH. C. A. 7th Cir. Certiorari granted and cases to be argued in tandem. Reported below: No. 71-229, 442 F. 2d 276; No. 71-850, 454 F. 2d 580. No. 71-1371. ROSARIO ET AL. v. ROCKEFELLER, GovERNOR OF NEW YORK, ET AL. C. A. 2d Cir. Motion of Lawyers for McGovern for leave to file a brief as amicus curiae granted. Certiorari granted. Motion for summary reversal or, in the alternative, for expedited consideration on the merits denied. MR. JUSTICE STEWART would expedite consideration on the merits. Application for stay, presented to MR. JUSTICE MARSHALL, and by him referred to the Court, denied. MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, and MR. JUSTICE MARSHALL would grant the stay. Reported below: 458 F. 2d 649. No. 71-6042. WARDIUS v. OREGON. Sup. Ct. Ore. Motion for leave to proceed in forma pauperis and certiorari granted. Reported below: See 6 Ore. App. 391, 487 P. 2d 1380. Certiorari Denied. (See also No. 71-6341, supra.) No. 71-954. EPELDI ET AL. v. ENGELKING ET AL. Sup. Ct. Idaho. Certiorari denied. Reported below: 94 Idaho 390, 488 P. 2d 860. No. 71-1162. ROGERS ET AL. v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. C. A. 5th Cir. Certiorari denied. Reported below: 454 F. 2d 234. No. 71-1194. QUINN & CO., INC., ET AL. v. SECURITIES AND EXCHANGE COMMISSION. C. A. 10th Cir. Certiorari denied. Reported below: 452 F. 2d 943. No. 71-1195. GRIFFITH V. UNITED STATES. C. A. 5th Cir. Certiorari denied. Reported below: 453 F. 2d 1207. No. 71-1202. BROTHERHOOD OF PAINTERS, DECORATORS & PAPERHANGERS OF AMERICA, AFL-CIO, LOCAL 130 v. NATIONAL LABOR RELATIONS BOARD. C. A. 5th Cir. Certiorari denied. Reported below: 457 F. 2d 500. No. 71-1226. STRACHAN SHIPPING CO. ET AL. v. WEDEMEYER ET AL. C. A. 5th Cir. Certiorari denied. Reported below: 452 F. 2d 1225. No. 71-1248. CALIFORNIA V. ANDERSON. Sup. Ct. Cal. Certiorari denied. Reported below: 6 Cal. 3d 628, 493 P. 2d 880. No. 71-1294. ALPHONSE ET AL. v. W. M. KINNER TRANSPORT Co. ET AL.; and No. 71-1303. ZWEIFEL ET AL. V. PHARRIS ET AL. C. A. 5th Cir. Certiorari denied. Reported below: 452 F. 2d 700. No. 71-1297. SPEARS ET UX. v. ASHE. Ct. App. Md. Certiorari denied. Reported below: 263 Md. 622, 284 A. 2d 207. No. 71-1310. C. A. 10th Cir. 453 F 2d 1192. A. 71-1311. STA-RITE INDUSTRIES, INC. v. JOHNSON. SCHWARTZ v. JEWISH HOSPITAL Asso- CIATION OF CINCINNATI. denied. No. 71-1312. LAYNE ET AL. v. FLOYD COUNTY BOARD OF EDUCATION ET AL. Ct. App. Ky. Certiorari denied. Reported below: 474 S. W. 2d 397. No. 71-1314. VIVAUDOU v. ROYAL NATIONAL BANK OF NEW YORK. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. No. 71-5735. VAUGHN V. LAVALLEE, CORRECTIONAL SUPERINTENDENT. C. A. 2d Cir. Certiorari denied. No. 71-5887. CRUZ v. LAVALLEE, CORRECTIONAL SUPERINTENDENT. C. A. 2d Cir. Certiorari denied. Reported below: 448 F. 2d 671. |