In Serfass v. United States, the defendant was indicted for refusing induction into the armed forces during the Vietnam War. Before trial, he moved to dismiss his indictment on grounds that it violated his Fifth Amendment rights against double jeopardy because he had previously been administratively discharged from military service due to a medical condition. The District Court denied this motion and Serfass appealed directly to the Supreme Court under a statute allowing such appeals in cases involving constitutional questions. The Supreme Court held that since Serfass had not yet been put in jeopardy (i.e., exposed to potential conviction), his appeal was premature and should have gone through normal appellate channels rather than coming directly before them. They also rejected his claim of double jeopardy, noting that administrative discharges are not equivalent to criminal prosecutions and thus do not trigger protections against being tried twice for the same offense.

In the dissenting opinion for SERFASS v. UNITED STATES, Justice Douglas argued that the majority's decision was inconsistent with previous rulings regarding double jeopardy. He believed that a defendant should not be subjected to two trials for the same offense, even if he had not yet been put in jeopardy during his first trial due to its dismissal before it began. According to Douglas, this interpretation of double jeopardy would allow prosecutors an unfair advantage by enabling them to dismiss and refile charges until they secured a favorable judge or jury. He also pointed out that such practices could potentially harass defendants and cause unnecessary delays in their trials. Therefore, he disagreed with the majority's ruling which allowed Serfass' retrial after his initial indictment was dismissed without prejudice prior to trial.