280 F.Supp. 78 (D.Wyo. 1968), Civ. 5194, Oestereich v. Selective Service System Local Bd. No. 11, Cheyenne, Wyoming

Docket Nº:Civ. 5194
Citation:280 F.Supp. 78
Party Name:Oestereich v. Selective Service System Local Bd. No. 11, Cheyenne, Wyoming
Case Date:February 06, 1968
Court:United States District Courts, 10th Circuit, District of Wyoming

Page 78

280 F.Supp. 78 (D.Wyo. 1968)

James J. OESTEREICH, Plaintiff,

v.

SELECTIVE SERVICE SYSTEM LOCAL BOARD No. 11, CHEYENNE, WYOMING, SelectiveService Appeal Board for the State of Wyoming, Col. Jack P. Brubaker, WyomingSelective Service Director, Defendants.

Civ. No. 5194.

United States District Court, D. Wyoming.

Feb. 6, 1968

Page 79

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.

KERR, District Judge.

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:

a. Plaintiff's action does not arise under the Constitution, laws or treaties of the United States. His complaint contains no allegations of facts that defendants subjected him to unreasonable, arbitrary or invidious discrimination, or that he was deprived of his constitutional rights under the First, Fifth, and Sixth Amendments of the Constitution of the United States. Federal jurisdiction is not conferred by the mere assertion of constitutional rights unsupported by factual allegations.

b. Plaintiff's allegation that the matter in controversy exceeds the value of $10,000.00 exclusive of interest and costs in made only for the purpose of invoking the jurisdiction of this court. Plaintiff seeks no monetary damages and does not allege facts which are determinative of the value

Page 80

of the rights sought to be gained by his action. His complaint and argument are concerned with intellectual freedom rather than with economic loss. The failure of jurisdiction of this court under 28 U.S.C. § 1331 appears on the face of the complaint for its failure to allege facts showing that the matter in controversy exceeds the sum or value of $10,000.00 exclusive of interest and costs, or to show facts from which such jurisdictional requirement may be inferred.

...

To continue reading

FREE SIGN UP
11 practice notes
  • 291 F.Supp. 177 (N.D.Cal. 1968), 49760, Hodges v. Clark
    • United States
    • Federal Cases United States District Courts 9th Circuit Northern District of California
    • August 14, 1968
    ...have held that § 460(b)(3) precludes judicial review by way of civil actions: Oestereich v. Selective Service Local Board No. 11, D.C., 280 F.Supp. 78, affd. 10 Cir., 390 F.2d 100, cert. granted May 20, 1968, 391 U.S. 912, 88 S.Ct. 1804, 20 L.Ed.2d 651; Breen v. Selective Service Local Boar......
  • 293 F.Supp. 266 (S.D.N.Y. 1968), 67 Civ. 4733, Kimball v. Selective Service Local Bd. No. 15, New York
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • June 12, 1968
    ...exemption from military service. 50 U.S.C. App. § 456(g). The Supreme Court has granted certiorari in Oestereich v. Local Board No. 11, 280 F.Supp. 78 (D.Wyo. Feb. 6, 1968) aff'd 390 F.2d 100 (10th Cir. Feb. 21, 1968), cert. granted, 391 U.S. 912, 88 S.Ct. 1804, 20 L.Ed.2d 651 (May 20, 1968......
  • 344 F.Supp. 974 (D.D.C. 1972), Civ. A. 42-72, Woodward v. Rogers
    • United States
    • Federal Cases United States District Courts District of Columbia
    • June 26, 1972
    ...Oath and thus an attack on the Oath was of necessity an attack on the statute). [7] See, e. g., Oestereich v. Selective Service System, 280 F.Supp. 78, 81 (D.Wyo.), aff'd, 390 F.2d 100 (10th Cir.), rev'd and remanded on other grounds, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968); Sardi......
  • 284 F.Supp. 749 (D.Conn. 1968), Civ. 12422, Breen v. Selective Service Local Bd. No. 16, Bridgeport, Connecticut
    • United States
    • Federal Cases United States District Courts 2nd Circuit District of Connecticut
    • March 13, 1968
    ...§§ 1981 and 1983, require state action; no state action is alleged here. See Oestereich v. Selective Service System Local Bd. No. 11, 280 F.Supp. 78 (D.Wyo.1968), aff'd, per curiam, 390 F.2d 100 (10 Cir. Nevertheless, this action does arise under the Constitution and laws of the United Stat......
  • Free signup to view additional results
11 cases
  • 291 F.Supp. 177 (N.D.Cal. 1968), 49760, Hodges v. Clark
    • United States
    • Federal Cases United States District Courts 9th Circuit Northern District of California
    • August 14, 1968
    ...have held that § 460(b)(3) precludes judicial review by way of civil actions: Oestereich v. Selective Service Local Board No. 11, D.C., 280 F.Supp. 78, affd. 10 Cir., 390 F.2d 100, cert. granted May 20, 1968, 391 U.S. 912, 88 S.Ct. 1804, 20 L.Ed.2d 651; Breen v. Selective Service Local Boar......
  • 293 F.Supp. 266 (S.D.N.Y. 1968), 67 Civ. 4733, Kimball v. Selective Service Local Bd. No. 15, New York
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • June 12, 1968
    ...exemption from military service. 50 U.S.C. App. § 456(g). The Supreme Court has granted certiorari in Oestereich v. Local Board No. 11, 280 F.Supp. 78 (D.Wyo. Feb. 6, 1968) aff'd 390 F.2d 100 (10th Cir. Feb. 21, 1968), cert. granted, 391 U.S. 912, 88 S.Ct. 1804, 20 L.Ed.2d 651 (May 20, 1968......
  • 344 F.Supp. 974 (D.D.C. 1972), Civ. A. 42-72, Woodward v. Rogers
    • United States
    • Federal Cases United States District Courts District of Columbia
    • June 26, 1972
    ...Oath and thus an attack on the Oath was of necessity an attack on the statute). [7] See, e. g., Oestereich v. Selective Service System, 280 F.Supp. 78, 81 (D.Wyo.), aff'd, 390 F.2d 100 (10th Cir.), rev'd and remanded on other grounds, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968); Sardi......
  • 284 F.Supp. 749 (D.Conn. 1968), Civ. 12422, Breen v. Selective Service Local Bd. No. 16, Bridgeport, Connecticut
    • United States
    • Federal Cases United States District Courts 2nd Circuit District of Connecticut
    • March 13, 1968
    ...§§ 1981 and 1983, require state action; no state action is alleged here. See Oestereich v. Selective Service System Local Bd. No. 11, 280 F.Supp. 78 (D.Wyo.1968), aff'd, per curiam, 390 F.2d 100 (10 Cir. Nevertheless, this action does arise under the Constitution and laws of the United Stat......
  • Free signup to view additional results