422 F2d 861 Vasilj v. Local Board No

422 F.2d 861

George Mark VASILJ, Appellant,
v.
LOCAL BOARD NO. 134 et al., Appellees.

No. 23050.

United States Court of Appeals Ninth Circuit.

Dec. 22, 1969.

Ronald S. Barcume (argued), Newport Beach, Cal., for appellant.

James Stotter, II (argued), Herbert M. Schoenberg, Frederick M. Brosio, Jr., Asst. U.S. Attys., Wm. Matthew Byrne, Jr., U.S. Atty., Los Angeles, Cal., for appellees.

Before DUNIWAY and HUFSTEDLER, Circuit Judges, and PENCE,* district judge.

PER CURIAM:

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1

Appellant registered with Local Board No. 134 and was initially classified II-S. Subsequently the board classified him I-A, and ordered him to report for induction, from which a timely appeal was taken. The appeal board upheld the I-A classification and ordered appellant to report forthwith. Appellant then filed suit in the district court for damages and for an injunction to prevent his immediate induction into the armed forces. The district court held that it lacked jurisdiction in light of 50 U.S.C. App. 460(b)(3),1 and this appeal followed.

2

Plaintiff-appellant urges that section 460(b)(3) of 50 U.S.C. App. is unconstitutional, as violative of the due process clause of the Fifth Amendment. This issue is no longer open, having been decided adversely to this plaintiff by the case of Clark v. Gabriel, 1968, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418.

3

Further, plaintiff-appellant is found not to be within the coverage of the exception to section 460(b)(3) carved by the companion case of Oestereich v. Selective Service Board, 1968, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402.

4

For the foregoing reasons, the decision of the district court must be affirmed.

*

Honorable Martin Pence, United States District Judge, District of Hawaii, sitting by designation

1

Military Service Act of 1967, 50 U.S.C. App. 460(b)(3) provides, in relevant part:

'No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction * * *.'