463 F2d 212 Powers v. N Mitchell

463 F.2d 212

Stephen Palmer POWERS, Plaintiff-Appellant,
John N. MITCHELL, as Attorney General of the United States,
et al., Defendants-Appellees.

No. 72-1301.

United States Court of Appeals,

Ninth Circuit.

June 30, 1972.

W. Edward Morgan, Tucson, Ariz., for plaintiff-appellant.

William C. Smitherman, U. S. Atty., Joseph S. Jenckes, V, Asst. U. S. Atty., Phoenix, Ariz., for defendants-appellees.

Before KOELSCH, TRASK and GOODWIN, Circuit Judges.


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Stephen P. Powers appeals a district court order denying a temporary restraining order against his impending induction into the armed forces. We affirm.


Powers registered with a local board in Connecticut. He is currently a graduate student at the University of Arizona. In 1970, he requested and received from his Connecticut board an I-A-O classification (conscientious objector available for noncombatant military service only). On November 18, 1970, his board ordered him for induction, but postponed induction until the end of the academic year.


On June 21, 1971, Powers requested that the board reopen his classification and change his I-A-O to I-O (conscientious objector available for alternate service). The board refused, and ordered Powers for induction on November 16. On November 15, he filed his complaint in the District Court for Arizona, seeking injunctive and declaratory relief setting aside his induction order. The District Court correctly denied relief.


The complaint was not properly before the District Court in Arizona. Holicky v. Selective Service Local Board No. 3, 328 F.Supp. 1373 (D.Colo., 1971). First, service of process could not be made upon the Connecticut local board because it is outside the territorial jurisdiction of the Arizona court. Fed. R.Civ.P. 4(f). Second, venue was improper because 28 U.S.C. Sec. 1391(e), which extends federal jurisdiction to "agencies," does not allow a federal court to extend its jurisdiction to a local federal agency such as a selective service board which is not within the court's territorial jurisdiction. Third, since any district court order would be directed to the local board, the board is an indispensable party, the absence of which requires dismissal of the complaint under Fed.R.Civ.P. 19(b). Neither the Attorney General nor the Selective Service Director have power to order a local board to rescind an induction order. Their presence as nominal defendants does not cure the defect of parties.


We need not reach the merits. Judicial review of the Connecticut board's refusal to reclassify Powers I-O was not available in the District of Arizona in these proceedings.