over which he had no control.
The decision of our Court of Appeals in Hunt v. Local Board, 423 F.2d 576 (issued March 4, 1970) would compel us to make such a review, but we note that this judgment has been vacated on July 22, 1970 and the case restored to the calendar for rehearing en banc. (We note that Hunt did not involve a request to reopen classification after the Order to Report for induction).
Petrie v. United States, 407 F.2d 267 [9th Cir. 1969] which held that the failure to reopen upon the submission of facts which must be weighed to determine whether to reopen compels a reopening, with its right to subsequent administrative appeal. But this was a criminal prosecution for failure to report where the scope of the courts review it broader and where the court may consider the action of the board in the light of the facts presented to it. But to make such an inquiry in this case would require us to determine whether the registrant had presented such a prima facie case as to entitle him to a reopening. This is an area of discretion reserved to the board under the Regulations and we find no authority that permits us to do so in a pre-induction review.
In the entire case we can find no departure from the statutorily mandated procedures of the Local Board sufficient to allow this Court to entertain jurisdiction under Oestereich or Breen. Section 10(b)(3) therefore bars our consideration of this case at this stage.
In passing, while we have abstained from considering any factual issues which were presented to the Local Board in arriving at our decision, we cannot help but note one clear statutory bar to the classification which plaintiff sought in his attempt to have his classification reopened. He alleges that he presented a prima facie case of a change in status entitling him to a Class III-A deferment for hardship. Yet at no time does his file reflect any report of change of status as to dependents. His initial classification questionnaire, Series III on Dependents is marked "Does not apply", under the list of persons wholly or partially dependent on him for support are listed "None", and at no time has any information been submitted that this status has changed. 32 C.F.R. 1622.30(a) requires a showing of extreme hardship to designated relatives dependent upon him for support. Thus, were we permitted to pass upon the factual matters to determine if plaintiff had presented a prima facie case entitling him to reclassification, we would be compelled to find that he had not.
The within Opinion shall constitute the Findings of Fact and Conclusions of Law of the Court under Fed. R. of Civ. P. 52.
Defendant's Motion to Dismiss for want of jurisdiction will be granted.
And Now this 9th day of September, 1970, the Motion of Defendant to Dismiss the within action is Granted, and it is Ordered that this action be Dismissed.
It is further Ordered that a Stay of the Order to Report for Induction is Granted until September 22, 1970 to enable Plaintiff to apply to the Court of Appeals for further stay pending appeal of the within action.
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