SELECTIVE SERVICE SYSTEM, ET AL., APPELLANTS V. MINNESOTA PUBLIC INTEREST RESEARCH GROUP, ET AL. SELECTIVE SERVICE SYSTEM, ET AL., APPELLANTS V. BRADLEY BOE, ET AL. No. 83-276 In the Supreme Court of the United States October Term, 1983 On Appeal from the United States District Court for the District of Minnesota Jurisdictional Statement PARTIES TO THE PROCEEDING In addition to the Selective Service System, appellants in both cases include Major General Thomas K. Turnage, the United States Department of Education, and Terrel H. Bell. In addition to the Minnesota Public Interest Research Group, Inc., the appellees in the first captioned case are individuals using the pseudonyms John Doe, Richard Roe, and Paul Poe. In addition to the individual employing the pseudonym Bradley Boe, the appellees in the second captioned case are individuals using the pseudonyms Carl Coe and Frank Foe. TABLE OF CONTENTS Opinions below Jurisdiction Constitutional and statutory provisions involved Statement The questions are substantial Conclusion Appendix A Appendix B Appendix C Appendix D OPINIONS BELOW The opinion of the district court upon issuance of the preliminary injunction (App. A, infra, 1a-30a) is reported at 557 F. Supp. 937. The opinion accompanying the permanent injunction (App. B, infra, 31a-37a) is not reported. JURISDICTION The jurisdiction of the district court was based on 28 U.S.C. (Supp. V) 1331. The judgments of the district court (App. C, infra, 38a-41a) were entered on June 16, 1983. Notices of appeal (App. D, infra, 42a-45a) were filed on June 21, 1983, and June 27, 1983. The jurisdiction of this Court is invoked under 28 U.S.C. 1252. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 1. Article 1, Section 9, Clause 3 of the Constitution provides: No Bill of Attainder or ex post facto Law shall be passed. The Fifth Amendment to the Constitution provides: No person * * * shall be compelled in any criminal case to be a witness against himself * * *. 2. Section 1113 of the Department of Defense Authorization Act of 1983, Pub. L. No. 97-252, 96 Stat. 748, provides: (a) Section 12 of the Military Selective Service Act (50 U.S.C. App. 462) is amended by adding after subsection (e) the following new subsection: "(f)(1) Any person who is required under section 3 to present himself for and submit to registration under such section and fails to do so in accordance with any proclamation issued under such section, or in accordance with any rule or regulation issued under such section, shall be ineligible for any form of assistance or benefit provided under title IV of the Higher Education Act of 1965. "(2) In order to receive any grant, loan, or work assistance under title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et seq.), a person who is required under section 3 to present himself for and submit to registration under such section shall file with the institution of higher education which the person intends to attend, or is attending, a statement of compliance with section 3 and regulations issued thereunder. "(3) The Secretary of Education, in agreement with the Director, shall prescribe methods for verifying such statements of compliance filed pursuant to paragraph (2). Such methods may include requiring institutions of higher education to provide a list to the Secretary of Education or to the Director of persons who have submitted such statements of compliance. "(4) The Secretary of Education, in consultation with the Director, shall issue regulations to implement the requirements of this subsection. Such regulations shall provide that any person to whom the Secretary of Education proposes to deny assistance or benefits under title IV for failure to meet the registration requirements of section 3 and regulations issued thereunder shall be given notice of the proposed denial and shall have a suitable period (of not less than thirty days) after such notice to provide the Secretary with information and materials establishing that he has complied with the registration requirement under section 3. Such regulations shall also provide that the Secretary may afford such person an opportunity for a hearing to establish his compliance or for any other purposes." (b) The amendment made by subsection (a) shall apply to loans, grants, or work assistance under title IV of the Higher Education Act for periods of instruction beginning after June 30, 1983. QUESTIONS PRESENTED 1. Whether Section 1113 of the Department of Defense Authorization Act of 1983 -- which states that those who fail to register as required by the Military Selective Service Act shall be ineligible for assistance under Title IV of the Higher Education Act of 1965 -- is a bill of attainder. 2. Whether Section 1113 -- which also states that those who wish to receive Title IV assistance and who are required to register must file a statement of compliance with their colleges -- compels such persons to incriminate themselves in violation of the Fifth Amendment. STATEMENT 1. Section 3 of the Military Selective Service Act, 50 U.S.C. App. (Supp. V) 453, empowers the President, by proclamation, to require the registration of every male citizen and male resident alien between the ages of 18 and 26. Its purpose is to facilitate any conscription that may eventually be necessary. See 50 U.S.C. App. 454. Section 12 of the Act, 50 U.S.C. App. (& Supp. V) 462, imposes criminal penalties for violations of the Act, including failure to register. Although draft registration was discontinued in 1975, it was reactivated by President Carter on July 2, 1980. Proclamation No. 4771, 45 Fed. Reg. 45247 (1980). On September 8, 1982, Congress enacted and the President signed the Department of Defense Authorization Act of 1983, Pub. L. No. 97-252, 96 Stat. 718 et seq. Section 1113 of that Act was passed by an overwhelming bipartisan majority in each house after a full and vigorous debate. See 128 Cong. Rec. S4942-S4945 (daily ed. May 12, 1982); 128 Cong. Rec. H4756-H4772 (daily ed. July 28, 1982). It provides (96 Stat. 748): (f)(1) Any person who is required under section 3 to present himself for and submit to registration under such section and fails to do so in accordance with any proclamation issued under such section, or in accordance with any rule or regulation issued under such section, shall be ineligible for any form of assistance or benefit provided under title IV of the Higher Education Act of 1965. (2) In order to receive any grant, loan or work assistance under title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et seq.), a person who is required under section 3 to present himself for and submit to registration under such section shall file with the institution of higher education which the person intends to attend, or is attending, a statement of compliance with section 3 and regulations issued thereunder. Section 1113 directs the Secretary of Education, in agreement with the Director of the Selective Service System, to prescribe methods for verifying the statements of compliance required by subsection (f)(2), and to issue implementing regulations. Those regulations were issued in final form on April 11, 1983. 48 Fed. Reg. 15578 (to be codified at 34 C.F.R. Pt. 668). Section 1113 applies to loans, grants, and work assistance under Title IV of the Higher Education Act of 1965, 20 U.S.C. (& Supp. V) 1070 et seq. for periods of instruction beginning after June 30, 1983. /1/ The legislative record shows that Congress enacted Section 1113 in order to encourage registration and to promote a fair allocation of scarce federal aid dollars by not rewarding those who fail to register. 128 Cong. Rec. H4757 (daily ed. July 28, 1982) (remarks of Rep. Whitehurst); id. at H4758 (remarks of Rep. Solomon); id. at H4769 (remarks of Rep. Montgomery); id. at H4770 (remarks of Rep. Stratton); 128 Cong. Rec. S4943-4944 (daily ed. May 12, 1982) (remarks of Sen. Hayakawa); id. at S4945 (remarks of Sen Stennis and Sen. Jepsen). Supporters of Section 1113 emphasized that those who fail to register timely can still qualify for student aid by registering late. 128 Cong. Rec. H4757 (daily ed. July 28, 1982) (remarks of Rep. Whitehurst); id. at H4769 (remarks of Rep. Montgomery); 128 Cong. Rec. S4945 (daily ed. May 12, 1982) (remarks of Sen. Stennis). The statement of compliance forms in use accordingly do not require applicants to say when they registered. See 48 Fed. Reg. 15582 (1983) (to be codified at 34 C.F.R. 668.25); 129 Cong. Rec. S10544 (daily ed. July 21, 1983). 2. On November 23, 1982, the Minnesota Public Interest Research Group ("MPIRG"), a "college student-directed, nonprofit, Minnesota Corporation" (Complaint, Paragraph 3), filed a complaint seeking to enjoin the operation of Section 1113. On January 24, 1983, the district court dismissed MPIRG for lack of standing, but allowed three anonymous students (John Doe, et al.) to intervene as plaintiffs. MPIRG v. Selective Service System, 557 F. Supp. 923 (D. Minn. 1983); MPIRG v. Selective Service System, 557 F. Supp. 925 (D. Minn. 1983). /2/ The intervenors alleged that they reside in Minnesota, that they need financial aid to pursue their education, that they intend to apply for Title IV assistance, and that they are required to register with the Selective Service System but have failed to do so. Two days later three other anonymous students (Bradley Boe, et al.) filed a separate action making essentially the same allegations. The two cases were informally consolidated. On January 28, 1983, the district court denied appellees' joint motion for a temporary restraining order. On March 9, 1983, the district court preliminarily enjoined appellants from enforcing Section 1113, but allowed them to promulgate regulations pending final disposition of the two lawsuits (App. A, infra, 1a-30a). The court ruled that appellees had demonstrated a sufficient threat of irreparable injury because it was "inevitable" that they would "be denied financial assistance and, consequently, the opportunity to pursue their educations" (App. A, infra, 5a). The district court also found it likely that appellees would succeed on the merits in showing that Section 1113 ran afoul of the Bill of Attainder Clause and the privilege against compelled self-incrimination. Concerning the bill of attainder issue, the court said that Section 1113 "clearly singles out an ascertainable group based on past conduct(,)" and "legislatively determines the guilt of this ascertainable group" by "assum(ing) that all students who fail to submit the required statement possess a guilty intent to avoid registration requirements" (App. A, infra, 12a). The court identified the affected group as "nonregistered students -- * * * a group viewed by some as disloyal" (id. at 14a). It reasoned that their guilt was "legislatively determine(d)" because all who failed to submit a statement of compliance were automatically denied financial aid (id. at 12a). The court also viewed the denial of aid as punishment, because it "deprive(d) students of the practical means to achieve the education necessary to pursue many vocations in our society" (id. at 14a). The district court detected a "punitive intent" in the legislative record (id. at 18a), and rejected the government's argument that such an intent was nullified by the fact that nonregistrants could avoid the denial of aid by simply registering late. Concerning the self-incrimination issue, the district court found that the statement of compliance required by Section 1113 seeks information that "is clearly incriminating to nonregistrants and could also furnish a link in the chain of evidence used to prosecute the nonregistrant" (App. A, infra, 23a). The court believed that appellees were compelled to provide this information because they had "no option of receiving federal financial assistance in another way" (id. at 27a). In order to complete their education, the court stated, students are "forced" by Section 1113 "to participate in an administrative process, perhaps even a hearing, where they are asked to assist the government in its investigation of their registration status" (id. at 28a). In the court's view, the "denial of educational assistance is a sanction that makes assertion of the (Fifth Amendment) privilege costly, thereby compelling self-incrimination" (ibid.). After the district court issued its preliminary injunction, the parties in both cases filed cross-motions for summary judgment and supplemental briefs, which the court took under advisement. On June 16, 1983, the court issued a memorandum order and permanent injunction (App. B, infra, 31a-37a) based largely on its opinion of March 9, 1983. The permanent injunction was nationwide in scope (id. at 35a, 36a), despite the fact that neither action had been certified as a class action and all the individual plaintiffs were residents of Minnesota (App. A, infra, 2a). On June 29, 1983, this Court stayed the district court's June 16 order pending the timely docketing and final disposition of this appeal. THE QUESTIONS ARE SUBSTANTIAL The district court declared unconstitutional and enjoined nationwide the enforcement of a statutory provision designed to encourage maximum compliance with the registration requirements of the Military Selective Service Act and to promote a fair allocation of increasingly scarce federal aid dollars. The court interpreted Section 1113 as barring federal aid to students who did not register in the past, thus violating the Bill of Attainder Clause. But as Congress's debates, the Act's language, and the Secretary's regulations make clear, Section 1113 permits the award of Title IV aid to students who cure their past failure to register by doing so at the time they seek assistance. The court's erroneous construction of Section 1113 also led it erroneously to find the provision in conflict with the Fifth Amendment privilege against compelled self-incrimination. The order of the district court, if allowed to stand, will discourage compliance with Selective Service registration requirements and reward self-proclaimed lawbreakers. This Court should note probable jurisdiction to review that order and the district court's exercise of "the grave power of annulling an Act of Congress." United States v. Gainey, 380 U.S. 63, 65 (1965). 1. Section 1113 is not a bill of attainder forbidden by Article I, Section 9, Clause 3 of the Constitution. A bill of attainder is "a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." Nixon v. Administrator of General Services, 433 U.S. 425, 468 (1977). None of the three definitional elements -- specificity in identification, punishment, or lack of a judicial trial -- is contained in Section 1113. See United States v. O'Brien, 391 U.S. 367, 383 n.30 (1968). Because the statute makes benefits available to all qualified students who register at any time before applying, it does not punish any specific group. And because the statute simply dispenses funds from the public treasury on the basis of this rational legislative classification, there is no justification for requiring judicial process to determine eligibility. Cf. Weinberger v. Salfi, 422 U.S. 749, 772-774 (1975). a. Section 1113 does not adversely affect a specific and identifiable group any more than numerous other federal benefit provisions do. A good example is the Veterans' Benefits Act, 38 U.S.C. (& Supp. V) 1501 et seq. That Act grants (and withholds) educational benefits to statutorily defined classes in order to encourage service in the Armed Forces. 38 U.S.C. (& Supp. V) 1651, 1661. Section 1113 similarly grants (and withholds) educational benefits in order to encourage registration. In each case one presently ineligible for benefits can collect them by simply satisfying the statutory condition (service or registration). The group denied benefits is thus defined not by past action but on the basis of present and future choice. Although historically most bills of attainder named the people to whom they were to apply, a legislative act can be an attainder if its targets are particular persons who have engaged in "past and ineradicable actions * * *." Communist Party v. SACB, 367 U.S. 1, 87 (1961); see Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 319-320 (1867). By contrast, a statute is not an attainder if "(p)resent activity constitutes an operative element to which the statute attached legal consequences * * *." Communist Party v. SACB, supra, 367 U.S. at 87. The difference is that in the latter case it is impossible for the legislature to punish "specifically designated persons or groups" (United States v. Brown, 381 U.S. 437, 447 (1965)), because anyone is free to opt out of the disadvantaged group. /3/ Section 1113 for that reason does not punish any "specifically designated persons or groups." It applies to an individual only if he "fails" to register as required. "(C)onsistent with the statutory intent to encourage registration," see pages 5-6, supra, the Secretary has issued regulations permitting "any nonregistrant who was required to register but did not * * * (to) qualify for aid * * * if he registers with Selective Service and complies with the statement and verification requirements" during the payment period for which he seeks aid. 48 Fed. Reg. 15580, 15583 (1983) (to be codified at 34 C.F.R. 668.27(b)). Ineligibility for Title IV aid is thus "made to turn upon continuingly contemporaneous fact; (it) arise(s) only because, and endure(s) only so long as, an (individual) presently (engaged in conduct) of a described character." Communist Party v. SACB, supra, 367 U.S. at 87. The district court erroneously concluded that students who failed to register within 30 days of their 18th birthday were irrevocably disqualified from receiving Title IV assistance (App. B, infra, 33a-34a). That was so, the court said, because Section 1113 requires registration "'in accordance with any proclamation issued under (Section 3 of the Military Selective Service Act,)'" and Proclamation No. 4771 requires those born after January 1, 1963 to register within 30 days of their 18th birthday (App. B, infra, 33a, quoting 96 Stat. 748). The court recognized that the Secretary's regulations permit late registrants to receive aid, but said that in that regard they contradicted the plain meaning of the statute, and so were void (id. at 34a). But although it is possible to interpret Section 1113 as requiring registration within the time fixed by Proclamation No. 4771, it is also possible to read Congress's language ("in accordance with") as simply requiring registration in the manner required by any proclamation or regulation. /4/ See Proclamation No. 4771, 45 Fed. Reg. 45248 (1980) ("Persons who are required to be registered shall comply with the registration procedures and other rules and regulations prescribed by the Director of Selective Service."); 32 C.F.R. P 1615 ("Administration of Registration"). This interpretation is supported by the language in subsection (f)(4), also added by Section 1113. Subsection (f)(4) states that the Secretary shall issue regulations providing that any person to whom the Secretary of Education proposes to deny assistance * * * for failure to (register) * * * shall be given * * * not less than thirty days * * * to * * * establish() that he has complied with the registration requirement * * *. The most natural interpretation of that provision is that nonregistrants may, upon learning of their ineligibility for Title IV aid, still have at least 30 days within which to register and qualify. The Secretary has so interpreted it. See 48 Fed. Reg. 15583 (1983) (to be codified at 34 C.F.R. 668.27(b)(1)). See also id. at 15580. Any other construction of Section 1113 would in fact be perverse. The primary purpose of that section is to encourage registration by those who must register, but have not. To interpret it as unconditionally denying aid to those persons would make it impossible to accomplish that objective. Since this Court's "task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations" (CSC v. Letter Carriers, 413 U.S. 548, 571 (1973)), a proper respect for the work of Congress compels rejection of the district court's reading. b. Section 1113 also does not inflict "punishment" within the meaning of the Bill of Attainder Clause. "The fact that harm is inflicted by governmental authority does not make it punishment" proscribed by Article I, Section 9. United States v. Lovett, 328 U.S. 303, 324 (1946) (Frankfurter, J., concurring). "Figuratively speaking all discomforting action may be deemed punishment because it deprives of what otherwise would be enjoyed" (ibid.). But in order to decide whether a statute imposes punishment, thereby bringing it within the potential reach of the Bill of Attainder Clause, a court must determine whether (1) any feature of the challenged statute falls within the historical meaning of legislative punishment, (2) "whether the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes(,)" and (3) "whether the legislative record evidences a congressional intent to punish." Nixon v. Administrator of General Services, supra, 433 U.S. at 475-476, 478. Section 1113 does not inflict any sanctions that fall within the historical meaning of legislative punishment. The consequence of failure to register is ineligibility for Title IV assistance. But the withholding of such a benefit is not comparable to the sanctions -- such as death, imprisonment, banishment, and uncompensated confiscation of property -- historically associated with bills of attainder. See Nixon v. Administrator of General Services, supra, 433 U.S. at 473-475. Rather it is -- like the withholding of social security benefits from deportees upheld in Flemming v. Nestor, 363 U.S. 603, 617 (1960) -- a "mere denial of a noncontractual governmental benefit." Legitimate and nonpunitive justifications for withholding such aid are readily apparent. Above all, Congress stressed that Section 1113 would encourage those required to register with the Selective Service System to do so. See pages 5-6, supra. Conditioning Title IV assistance on registration is a natural means to that end, since the class of individuals seeking student aid overlaps to a great extent the class of those required to register. Congress has frequently employed the Spending Power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives. This Court has repeatedly upheld against constitutional challenge the use of this technique to induce * * * private parties to cooperate voluntarily with federal policy. Fullilove v. Klutznick, 448 U.S. 448, 474 (1980) (opinion of Burger, C.J.). Section 113 also promotes a fair allocation of increasingly scarce federal aid dollars by rewarding with Title IV assistance only those students who have performed the legal duty imposed on them by the Military Selective Service Act. See 128 Cong. Rec. S4944 (daily ed. May 12, 1982) (remarks of Sen. Hayakawa). Finally, Section 1113 directly assists the Selective Service System in its enforcement of the registration requirement of the Military Selective Service Act. The government cannot rely solely on criminal prosecution to enforce registration, any more than it can rely solely on criminal prosecution to enforce other federal laws. It is legitimate for Congress to devise alternative legislative means, such as Section 1113, to promote maximum compliance with the registration requirement in order to meet the important national defense goals that underlie it. See Rostker v. Goldberg, 453 U.S. 57, 64-69 (1981). As we made clear above, pages 5-6, supra, the emphasis in the legislative history is on the goal of encouraging registration, not on punishing those who have failed in the past to register. Representative Solomon, the sponsor of the bill, introduced it by saying that "(t)here are some 700,000 young men in this country who have, for the most part, unintentionally failed to register" (128 Cong. Rec. H4757 (daily ed. July 28, 1982). It is unlikely that Congress wished to inflict harm on a group that it knew consisted largely of innocent nonregistrants. The more natural conclusion -- and one amply supported by the debate on Section 1113 -- is that Congress hoped to offer a reminder and inducement for such people to perform a duty that they had either overlooked or neglected. c. Given the plainly legitimate purpose behind Section 1113 (encouraging registration) and the obvious rationality of its classification (those who register may receive aid), it is unnecessary to insist on judicial procedures to implement the statute. Such procedures would be appropriate if the purpose of Section 1113 were to assign blame and mete punishment to nonregistrants, since "the legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons." United States v. Brown, supra, 381 U.S. at 445. But where there is no showing "of a 'bare congressional desire to harm a politically unpopular group,' * * * appellees(') * * * only constitutional claim is that the test they cannot meet is not so rationally related to a legitimate objective that it can be used to deprive them of benefits available to those who do satisfy that test." Weinberger v. Salfi, supra, 422 U.S. at 772 (citation omitted). Section 1113 assigns no blame to those who have failed to register. On the contrary, at least for purposes of Title IV aid, it excuses even those who have willfully defied the law by allowing them a second chance to comply. The question of blame and punishment for continued nonregistration is reserved for the courts in the context of a criminal prosecution under 50 U.S.C. App. (& Supp. V) 462. 2. The self-incrimination claim raised by appellees and accepted by the district court is frivolous. The primary objective of the privilege against compelled self-incrimination is to "insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime." Counselman v. Hitchcock, 142 U.S. 547, 562 (1892). The compulsion requirement "comes directly from the constitutional language directing that no person 'shall be compelled in any criminal case to be a witness against himself.'" South Dakota v. Neville, No. 81-1453 (Feb. 22, 1983), slip op. 9. Absent compulsion, the privilege does not attach. See Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977); Hoffa v. United States, 385 U.S. 293, 304 (1966). Here, there is no compulsion on appellees, for two reasons. In the first place, these cases are unlike all of those relied on by the district court -- each of which involved a summons, subpoena, or other form of legal compulsion to provide information to the government. /5/ Appellees, by contrast, have the option of simply not applying for federal aid, and so furnishing no information whatever to the government. There is a second, and more obvious, reason why appellees are not compelled to incriminate themselves. The district court found that Section 1113 forces them to choose between self-accusation and loss of Title IV aid, and that the threat of deprivation is sufficiently coercive to violate their Fifth Amendment privilege (App. A, infra, 27a-28a). But Section 1113 states that one who has not registered is not entitled to Title IV aid at all, whether he advises the government of his failure to register or not. That is a decision which, as we made clear in the last section, Congress is authorized to make. The "compulsion" envisioned by the district court is thus nonexistent, since it is inconceivable that anyone is compelled to apply for benefits for which he is ineligible. Appellees are no more forced to choose between self-accusation and loss of Title IV aid than they are forced to choose between self-accusation and loss of Veterans' Benefits; they simply have no right whatever to either form of assistance. If we are correct in believing that Section 1113 is not a bill of attainder, then the district court's Fifth Amendment holding has the untoward effect of enabling appellees to raid the federal treasury for money to which they are not entitled. /6/ 3. Although appellees never requested class certification, the district court's final injunction prohibited appellants from enforcing Section 1113 against any person anywhere in the United States (App. B, infra, 35a-36a). This Court, however, has made clear "that injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs." Califano v. Yamasaki, 442 U.S. 682, 702 (1979); Hartford-Empire Co. v. United States, 323 U.S. 386, 410 (1945). See also Dayton Board of Education v. Brinkman, 433 U.S. 406 (1977). The district court obviously confused the concept of scope of relief with the concept of personal jurisdiction. There is no dispute that where, as here, a district court has personal jurisdiction over a defendant, it has the power to enjoin him from taking action anywhere in the United States against the named plaintiff (Leman v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 451 (1932)), or in an appropriate case (see, e.g., Bailey v. Patterson, 323 F.2d 201 (5th Cir. 1963), cert. denied, 376 U.S. 910 (1964)) from taking action against non-parties in order to provide full relief to the parties. But even if a court is reviewing legislation that is "national in character and effect" (App. B, infra, 35a), it has no roving commission to correct putatively unconstitutional action whereever it may occur. Its role is limited to taking whatever steps are necessary to provide full relief to those who have invoked its jurisdiction. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175-176 (1803). Even in the class action context, where a defendant at least enjoys the opportunity of securing a favorable judgment that will bind all members of the plaintiff class, this Court has warned district courts to be cautious in certifying a nationwide class. Califano v. Yamasaki, supra, a case in which the Court approved a nationwide class certification, emphasized the "detrimental effect" that such certification can have in other contexts. 442 U.S. at 702. It is difficult to reconcile this Court's concern in Yamasaki with the district court's view that it had equitable authority to issue a nationwide injunction even without class certification. In these cases, where there has been no class certification, and where no other individuals have sought to join or filed suit elsewhere, there is no basis for nationwide injunctive relief. Of course once this Court has finally passed on the merits of appellees' claims, the issues will be resolved for both the appellants and all present and future nonregistrants. But it is not a district court's place, in a case like this, to usurp that role. If this Court should, for some reason, decline to note probable jurisdiction, the effect would be to insulate against all further review a nationwide determination rendered in a case where it was neither sought nor authorized. CONCLUSION Probable jurisdiction should be noted. Respectfully submitted. REX E. LEE Solicitor General J. PAUL MCGRATH Assistant Attorney General ANDREW L. FREY Deputy Solicitor General JOHN H. GARVEY Assistant to the Solicitor General NEIL H. KOSLOWE Attorney AUGUST 1983 /1/ Because of the district court's preliminary and final injunctions, the regulations did not go into effect until Justice Blackman issued a temporary stay on June 24, 1983. On July 6, 1983, the Secretary announced that schools could disburse Title IV aid through July 31, 1983 without first getting Statements of Registration Compliance from recipient students. 48 Fed. Reg. 31175. This was done in order to ease the administrative burden on schools, which could as a result process aid requests in advance of securing the required statement. On July 21, 1983 the Senate voted to extend the grace period (disbursement of aid first, statement of compliance later) from July 31, 1983 through September 30, 1983. 129 Cong. Rec. S10552 (daily ed. July 21, 1983). We are informed that the conference committee considering the Department of Defense Authorization Act of 1984 has agreed to the Senate provision. S. Conf. Rep. No. 98-213, 98th Cong., 1st Sess. (1983). On July 22, 1983, the Secretary extended the grace period through August 31, 1983. 48 Fed. Reg. 33695. /2/ Richard Roe, one of the intervenors, has since decided not to apply for federal aid for the 1983-1984 school term (App. B, infra, 32a). /3/ In American Communications Association v. Douds, 339 U.S. 382 (1950), the Court sustained against a bill of attainder challenge Section 9(h) of the National Labor Relations Act, which denied certain benefits of the Act to unions whose officers failed to file affidavits disclaiming membership in the Communist Party. The Court noted that under Section 9(h) "(p)ast conduct * * * is not a bar to" signing the affidavit and obtaining the benefits of the Act (339 U.S. at 414). "(T)here is no one who may not, by a voluntary alteration of the loyalties which impel him to action, become eligible to sign the affidavit" (ibid.). That was, the Court found, the "decisive distinction" (id. at 413) from cases like Cummings, where "the basis of disqualification was past action or loyalty," and "nothing that those persons proscribed by its terms could ever do would change the result" (id. at 414). Cf. United States v. Brown, supra, 381 U.S. at 458 ("Section 504, unlike Section 9(h), disqualifies from the holding of union office not only present members of the Communist Party, but also anyone who has within the past five years been a member of the Party."). Whatever doubt may have been cast by Brown upon the validity of the holding in Douds, it is clear that this case presents none of the same difficulties. The "alteration of * * * loyalties" required by Section 9(h) of the NLRA entailed the abandonment of conduct that was arguably constitutionally protected. See Elfbrandt v. Russell, 384 U.S. 11 (1966); Noto v. United States, 367 U.S. 290 (1961). In this case, by contrast, the action required by Section 1113 is nothing more than performance of the legal duty to register. /4/ This is not to say that those subject to the Military Selective Service Act are free for all purposes to register whenever they please. Although failure to register within the time fixed by Proclamation No. 4771 does not disqualify the registrant for Title IV aid, it is a criminal offense punishable under 50 U.S.C. App. (& Supp. V) 462. As we advised the district court, however, no registrant has ever been prosecuted for late registration. /5/ Ullmann v. United States, 350 U.S. 422 (1956) (grand jury subpoena); Murphy v. Waterfront Commission, 378 U.S. 52 (1964) (subpoena to testify before Waterfront Commission); Quinn v. United States, 349 U.S. 155 (1955) (summons to testify before congressional committee); In re Gault, 387 U.S. 1 (1967) (juvenile defendant); Hoffman v. United States, 341 U.S. 479 (1951) (grand jury subpoena); Lefkowitz v. Cunningham, 431 U.S. 801 (1977) (grand jury subpoena); Lefkowitz v. Turley, 414 U.S. 70 (1973) (grand jury subpoena); Garrity v. New Jersey, 385 U.S. 493 (1967) (Attorney General's inquiry ordered by state supreme court); Spevack v. Klein, 385 U.S. 511 (1967) (subpoena duces tecum and order to testify at judicial inquiry); Marchetti v. United States, 390 U.S. 39 (1968) (statutory requirement to register and pay wagering tax); Leary v. United States, 395 U.S. 6 (1961) (statutory requirement to pay marijuana transfer tax); California v. Byers, 402 U.S. 424 (1971) (statutory requirement to stop and report car accident); Albertson v. SACB, 382 U.S. 70 (1965) (statutory registration requirement). /6/ We doubt that Congress entertained any intention of requiring applicants for Title IV aid to provide a statement that they had registered with the Selective Service System if registration is not a relevant qualification for Title IV assistance. Thus subsection (f)(2) is not severable from subsection (f)(1); and if we are mistaken in our conviction that the latter is not a bill of attainder, then the statement of compliance requirement would fall as well. The Fifth Amendment issue consequently has no independent significance. Appendix Omitted