Donald Bruce McGarva v. United States

'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 recommendation and be given a reasonable opportunity to file a reply thereto.' Gonzales v. United States, 348 U.S. 407, 417, 75 S. Ct. 409, 99 L. Ed. 467.

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, '[v]iewed against our underlying concepts of procedural regularity and basic fair play,' Gonzales, supra, the appellate procedures employed in this case cannot stand. 'It is procedure that marks the difference between rule by law and rule by fiat.' Wisconsin v. Constantineau, 400 U.S. 433, 436, 91 S. Ct. 507, 27 L. Ed. 2d 515.

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 r esum e 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, 75 S. Ct. 397. (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, 3 Cir., 431 F.2d 1265, 1271; United States v. Cabbage, 6 Cir., 430 F.2d 1037, 1039-1041; United States v. Cummins, 8 Cir., 425 F.2d 646; United States v. Owen, 8 Cir., 415 F.2d 383, 388-389), we must accept the Solicitor General's confession of error and reverse the judgment below.