Lonnie F. Swartz, Jr. v. Melvin Laird , 431 F.2d 699 ( 1970 )

431 F.2d 699

Lonnie F. SWARTZ, Jr., Plaintiff-Appellant,
v.
Melvin LAIRD et al., Defendants-Appellees.

No. 19831.

United States Court of Appeals, Sixth Circuit.

Feb. 2, 1970, Certiorari Denied Oct. 12, 1970, See 91 S.Ct.
72.

Terrence R. Fitzgerald, Louisville, Ky., for appellant on brief.

Ernest W. Rivers, U.S. Atty., Kenneth J. Tuggle, Asst. U.S. Atty., Louisville, Ky., for appellees on brief.

Before PHILLIPS, Chief Judge, and WEICK and McCREE, Circuit Judges.

ORDER

1

Plaintiff-appellant enlisted in the Kentucky Army National Guard on or about November 13, 1965. By authority of Title 32 CFR, Chapter V, 564.18(e)(V), Army Reg. 135-91, he was discharged from the National Guard for failure to participate satisfactorily in required unit training and was reassigned to the regular Army, certified for active duty. He elected not to report for duty, assigning as his reason the delay in processing his request to be discharged from the National Guard because he had become a conscientious objector. This action was filed in the District Court against the Secretary of Defense, the Secretary of the Army, the Adjutant General of Kentucky, an official of the Kentucky Air National Guard and the Commanding General at Fort Meade, Maryland. The complaint sought a writ of habeas corpus, a writ of mandamus, a declaratory judgment and an injunction.

2

The District Court dismissed the petition on the ground that the Court lacked jurisdiction because plaintiff had failed to exhaust his administrative remedies and the Court did not have the power to interfere with military assignments to duty under the facts alleged in the complaint.

3

On appeal it is contended that the District Court erred in dismissing the complaint and in failing to convene a three-judge statutory court. The complaint does not attack the constitutionality of an act of Congress. We find that the appeal is without merit. The factual situation presented by the complaint differs from the facts involved in Schatten v. United States, 419 F.2d 187 (6th Cir., 1969).

4

It is Ordered that the decision of the District Court be and hereby is affirmed.

5

Entered by order of the Court.