605 F2d 209 Nicholson III v. Brown

605 F.2d 209

William Daniel NICHOLSON, III, Plaintiff-Appellee Cross-Appellant,
v.
Harold BROWN, Secretary of Defense, et al.,
Defendants-Appellants Cross- Appellees.

No. 77-1782.

United States Court of Appeals, Fifth Circuit.

Oct. 18, 1979.

Appeals from the United States District Court for the Northern District of Texas; William M. Taylor, Jr., Judge.

Leonard Schaitman, John M. Rogers, Attys., App. Section, Civ. Div., Dept. of Justice, Washington, D.C., Morton Hollander, Chief, Harland F. Leathers, Atty., Barbara Allen Babcock, Asst. Atty. Gen., App. Section, Dept. of Justice, Washington, D.C., for defendants-appellants cross-appellees.

Tom Thomas, Dallas, Tex., J. Byron Holcomb, Bremmerton, Wash., for plaintiff-appellee cross-appellant.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion, 5 Cir. 1979, 599 F.2d 639).

Before WISDOM, CLARK and FAY, Circuit Judges:

PER CURIAM:

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1

The final two sentences of the opinion issued July 26, 1979, are withdrawn.

2

In its earlier opinion the Court held that the Air Force did not act arbitrarily in denying Major Nicholson's application for exemption from active duty based on community essentiality as prescribed in Air Force regulations. The Court applied the standard for review that the plaintiff-appellee argued for and held that the Air Force determination that his services were not essential to his community had an Adequate basis in fact. The Air Force, therefore, did not violate the due process clause in its handling of Major Nicholson's application for exemption from active service.

3

The Court has again reviewed all of the contentions of the plaintiff-appellee. We hold that there is no merit to any of them.

4

The Petition for Rehearing is DENIED and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 16) the Petition for Rehearing En Banc is DENIED.