United States et al., Appellants, v. James Austin Imus, Appellee, 398 F.2d 816 (10th Cir. 1968)

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US Court of Appeals for the Tenth Circuit - 398 F.2d 816 (10th Cir. 1968) August 5, 1968

Robert V. Zener, Atty., Dept. of Justice (Edwin L. Weisl, Jr., Asst. Atty. Gen., William T. Thurman, U. S. Atty., and Alan S. Rosenthal, Atty., Dept. of Justice, on the brief), for appellants.

Richard J. Leedy, Salt Lake City, Utah, (Galen Ross, Salt Lake City, Utah on the brief) for appellee.

Before LEWIS, HILL and SETH, Circuit Judges.


The United States and others appeal from an order of the District Court for the District of Utah granting a preliminary injunction restraining the induction of appellee into the Armed Forces. Appellants assert the district court lacked jurisdiction to issue the injunction under the statutory limitations for judicial review contained in 50 U.S.C. App. 460(b) (3).

This court and others have interpreted the cited statute in accord with the present contentions of the appellants but the correctness of these decisions has been clouded by the granting of certiorari by the Supreme Court in Oesterich v. Selective Service System, Local Board No. 11, 10 Cir., 390 F.2d 100, cert. granted, 5/20/68, 391 U.S. ___, 88 S. Ct. 1804, 20 L. Ed. 2d 651. Under these circumstances we think the district court could properly retain its jurisdiction through preliminary injunction pending authoritative determination of the extent, if any, of such jurisdiction.