Oestereich v. SELECTIVE SERV. SYS. LOC. BD. NO. 11, CHEYENNE, WYO.
Decision Date | 06 February 1968 |
Docket Number | Civ. No. 5194. |
Citation | 280 F. Supp. 78 |
Parties | James J. OESTEREICH, Plaintiff, v. SELECTIVE SERVICE SYSTEM LOCAL BOARD NO. 11, CHEYENNE, WYOMING, Selective Service Appeal Board for the State of Wyoming, Col. Jack P. Brubaker, Wyoming Selective Service Director, Defendants. |
Court | U.S. District Court — District of Wyoming |
John A. King and Melvin L. Wulf, New York City, for plaintiff.
Robert N. Chaffin, U. S. Atty. for the District of Wyoming, and LeRoy Amen, Asst. U. S. Atty. for the District of Wyoming, for defendant.
ORDER SETTING ASIDE PRIOR ORDERS AND DISMISSING PLAINTIFF'S ACTION.
The above-entitled matter having come on regularly for hearing before the Court on January 22, 1968, plaintiff appearing by and through his counsel, John A. King and Melvin L. Wulf, and defendants appearing by and through Robert N. Chaffin, United States Attorney for the District of Wyoming, and LeRoy Amen, Assistant United States Attorney for the District of Wyoming, and the Court having heard the oral arguments of counsel for plaintiff and of counsel for defendants, and having carefully examined the record on file herein, including the pleadings and the affidavits of plaintiff and his counsel, and having examined the brief submitted by plaintiff's counsel and having studied the authorities relied upon by plaintiff's counsel and by counsel for defendants, and being fully advised in the premises, finds:
1. The prior Orders made and entered herein on January 22 and 23, 1968, are inconclusive and non-determinative of the issues raised by the pleadings and fail properly to adjudicate the rights of the parties herein, and should be set aside.
2. Plaintiff's pleading filed herein on January 19, 1968, contains no caption to identify his action. For the purposes of the hearing thereon and of this Order, said pleading is treated as a complaint and a motion for a temporary restraining order.
3. Plaintiff's jurisdictional allegations are mere conclusions unsupported by factual allegations in the complaint and his assertions of federal jurisdiction are unsubstantial, frivolous and without merit. His complaint fails to satisfy the jurisdictional requirements of 28 U.S.C. §§ 1331, 1343, and 2201 in the following particulars:
4. This Court has no jurisdiction to grant judicial review of the classification or processing of the plaintiff by the local board, the appeal board, or the President. Plaintiff does not challenge his classification as a defense to a criminal prosecution, and he has not responded either affirmatively or negatively to the order of December 27, 1967, to report for induction. The statutory conditions of Public Law 90-40 app...
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Oestereich v. Selective Service System Local Board No 11, Cheyenne Wyoming
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