Rowland v. Tarr, 72-1367.

• Decision Date: 11 May 1973
• Docket Number: No. 72-1367.,72-1367.
• Citation: 480 F.2d 545
• Parties: Andrew ROWLAND, a minor by his guardian Lewis Rowland, et al., Appellants, v. Curtis TARR, National Director of Selective Service, et al.
• Court: U.S. Court of Appeals — Third Circuit

480 F.2d 545 (1973)

Andrew ROWLAND, a minor by his guardian Lewis Rowland, et al., Appellants, v. Curtis TARR, National Director of Selective Service, et al.

No. 72-1367.

United States Court of Appeals, Third Circuit.

Submitted April 24, 1973.

Decided May 11, 1973.

Harold E. Kohn, Stuart H. Savett, Donald L. Weinberg, Allen D. Black, Philadelphia, Pa., for appellants.

Carl J. Melone, U. S. Atty., Warren D. Mulloy, Asst. U. S. Atty., Philadelphia, Pa., for appellees.

Before VAN DUSEN, ALDISERT and ROSENN, Circuit Judges.

Submitted Under Third Circuit Rule 12(6) April 24, 1973.

OPINION OF THE COURT

PER CURIAM:

The question in this appeal from the dismissal of a complaint requesting convocation of a three-judge statutory court to test the constitutionality of the Military Selective Service Act, 50 U.S.C. App. § 451, et seq., is whether the district court erred in finding lack of jurisdiction.

The trial court 341 F.Supp. 339, found that some of the constitutional issues presented by appellants had already been authoritatively adjudicated adversely to the appellants' contentions thereby obviating the necessity of additional litigation. In other respects, the court found the claims to be political questions and, therefore, non-justiciable.

A district court is required to request the convocation of a three-judge court under 28 U.S.C. § 2282 where there is a challenge to the constitutionality of a federal statute, unless the constitutional attack is "`essentially fictitious,' Bailey v. Patterson, 369 U.S. 31, 33 82 S.Ct. 549, 551, 7 L.Ed.2d 512 (1962), `wholly insubstantial,' ibid., `obviously frivolous,' Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288 30 S.Ct. 326, 327, 54 L.Ed. 482 (1910), `obviously without merit,' Ex parte Poresky, 290 U.S. 30, 32 54 S.Ct. 3, 4-5, 78 L.Ed. 152 (1933)," Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (January 17, 1973); or unless "its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy," Ex parte Poresky, supra, 290 U.S. at 32, 54 S.Ct. at 4.

We have concluded that several of the counts presented by the appellants have already been conclusively adjudicated by the Supreme Court adversely to appellants and, therefore, were properly dismissed by the district court. Count I, claiming a taking of appellants' property without due process of law is foreclosed by Lichter v. United States, 334 U.S. 742, 755-758, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948); Count II, claiming involuntary servitude, by Arver v. United States, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349 (1918); Count IV, claiming an unconstitutional deprivation of various First and Fifth Amendment rights, by United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1969); Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971).

Count V is non-justiciable because of mootness. Appellants claimed that the Vietnam conflict was an illegal and unconstitutional war contrary to the principles of military, national, and international law. We take judicial notice that as of this date no one subject to the Military Selective Service Act will be called to serve in Vietnam and that American participation in that conflict has been...