243 F2d 108 Tamarkin v. Selective Service System Local Draft Board No Miami Florida
243 F.2d 108
Marvin Irving TAMARKIN, Appellant,
SELECTIVE SERVICE SYSTEM, LOCAL DRAFT BOARD, NO. 47, MIAMI, FLORIDA, et al., Appellees.
United States Court of Appeals Fifth Circuit.
March 29, 1957.
Leonard Edward Abel, Miami Beach, Fla., for appellant.
E. David Rosen, Asst. U. S. Atty., James L. Guilmartin, U. S. Atty., Lavinia L. Redd, Sp. Asst. to the U. S. Atty., Miami, Fla., for appellees.
Before TUTTLE, JONES and BROWN, Circuit Judges.
The appellant registered under the Universal Military Training and Service Act, 62 Stat. 604, 50 U.S.C.A.Appendix, § 451 et seq., with Local Draft Board No. 47 in Miami, Florida. He was classified 1-A. He was given a physical and mental examination, found acceptable and was so notified. Appellant claimed exemption as a conscientious objector, the claim was denied, he sought a review by the Appeal Board and by it he was again given a 1-A classification. Citing Selective Service Regulations, Sec. 1625.11 and Sec. 1628.10, 32 C.F.R. 331, 341, appellant claims he should have been given another physical examination before being ordered to report. He also asserts that Par. 18a, Army Reg. 601-270 and Par. 16, Local Board Memorandum of the Selective Service System, required that there be a waiting period of at least 21 days between a redetermination of his physical fitness and the date of his induction. The appellant brought suit against his Local Draft Board and its members, two of whom are sued by fictitious names, seeking preliminary and permanent injunctions against further procedures until he is given a physical examination and, if found physically qualified, a twenty-one day interval has elapsed. The district court entered an order denying a motion for a preliminary injunction and this appeal is from that order.
The operation of the Selective Service procedures cannot be impeded by injunctions in cases such as this. There is no right to a direct judicial review of orders of the draft boards. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428; Watkins v. Rupert, 2 Cir., 1955, 224 F.2d 47. The order is