423 F2d 1291 McFadden v. Selective Service System Local Board

423 F.2d 1291

James F. McFADDEN et al., Plaintiffs-Appellants,

No. 23591.

United States Court of Appeals, Ninth Circuit.

February 12, 1970.

Richard Harrington (argued), San Francisco, Cal., for plaintiffs-appellants.

Jerry K. Cimmet (argued), Asst. U. S. Atty., Cecil F. Poole, U. S. Atty., San Francisco, Cal., for appellees.

Ephraim Margolin, San Francisco, Cal., Duane, Morris & Hecksher, Philadephia, Pa., Johnston, Platt, Klein & Horton, Oakland, Cal., amicus curiae.

Before CHAMBERS and KOELSCH, Circuit Judges, and POWELL,* District Judge.


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It is the court's view that McFadden, a registrant, is not entitled to a three-judge district court trial run on his constitutional views as to his draft classification. This is based on our reading of Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567; Oestereich v. Selective Service Board, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402; and Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968).


As to the 11 priests and one seminarian who appeal, we conclude that they are probably entitled to a three-judge district court to determine the issue they tender, if they show after a hearing that there is an imminent threat of their being prosecuted for their counselling. It may well be that Department of Justice policy now does not favor prosecution of counsellors, either professors or clergymen, at least until and unless the issues are resolved favorably to the Department on criminal appeals of convicted registrants which are almost certain to settle the constitutional questions.


The recent decision in United States v. Bowen, N.D.Cal., (No. 42,499, decided December 24, 1969) gives plausibility to the contention that the question the priests and seminarian present is a substantial one. If a real threat of imminent prosecution is found to exist, the district court should certify the necessity of a three-judge district court.


The order of the district court is reversed as to all appellants other than McFadden and Bowen (Bowen's appeal has already been decided here adversely to him 415 F.2d 1140) and the case is remanded for proceedings consistent herewith.


The order as to McFadden is affirmed.



The Honorable Charles L. Powell, United States District Judge for the Eastern District of Washington, sitting by designation