Kenneth H. Smith v. Stanley S. Resor , 456 F.2d 1109 ( 1972 )

456 F.2d 1109

Kenneth H. SMITH et al., Plaintiffs-Appellants,
v.
Stanley S. RESOR et al., Defendants-Appellees.

Nos. 26272, 26647.

United States Court of Appeals,
Ninth Circuit.

March 14, 1972.

Donald A. Jelinek, William Samsel, Berkeley, Cal., for Kenneth H. Smith, and others.

Robert L. Browning, U. S. Atty., San Francisco, Cal., for defendants-appellees Stanley S. Resor, and others.

Stanley J. Friedman, of Herzstein, Maier, Friedman & Lippett, San Francisco, Cal., for amicus curiae.

James L. Browning, Jr., U. S. Atty., Richard F. Locke, Asst. U. S. Atty., San Francisco, Cal., for defendants-appellants Stanley S. Resor, and others.

Before HAMLIN and MERRILL, Circuit Judges, and GRAY, District Judge.*

PER CURIAM:

1

No. 26,272 is an appeal from a decision of the United States District Court for the Northern District of California dismissing the complaint filed by certain of the plaintiffs for injunctive and declaratory relief. Appellants contend that the Army Regulation AR 63520 prohibiting the filing of applications for discharge based on conscientious objection at Overseas Replacement Centers is in violation of their rights under the Fifth and Sixth Amendments to the United States Constitution.

2

The contentions made by appellants have been considered and determined adversely to them in the recent decision of this court entitled Turpin, et al. v. Resor, et al., 9 Cir., 452 F.2d 240, decided December 15, 1971.

3

The defendants in the above case appealed from a portion of the judgment of the district court in which the district judge permitted certain of the other plaintiffs in the above action, to wit, Smith, Mazzelli, Burks and Martin, to file their application for conscientious objector discharge at the Oakland Army Base.1 The court having been informed that none of said four persons is now in the active service of the Army, it appears that the defendants' appeal is moot. Accordingly, that portion of the order of the district court permitting such applications to be filed at the Oakland Army Base is vacated. See, United States v. Munsingwear, 340 U.S. 36, at 39, 71 S.Ct. 104, 95 L.Ed. 36 (1950).

4

In No. 26,272 the judgment is affirmed. In No. 26,647 the judgment is vacated as moot.

*

Honorable William P. Gray, United States District Judge, Central District of California, sitting by designation

1

The Clerk has numbered that appeal No. 26,647