I am not persuaded that any of the multifaceted approaches suggested in the various plurality opinions justify reversal of the district court. I am moved, therefore, to add to the existing proliferation of views a rather lengthy expression of my own position.
In my view, the dispositive question in this appeal is whether the local board’s refusal to reopen and consider appellant’s requested III-A deferment involved determinations of fact and an exercise of discretion or whether, instead, it was based on non-diseretionary standards mandated by statute or regulation. If the former, this civil action for pre-induction review of the board’s decision should be barred by the jurisdictional limitation of Section 10(b) (3) of the Military Service Act of 1967, 50 App. U.S.C. § 460(b) (3) (Supp. IV 1969), which provides there shall be no pre-in-duction review “of the classification or processing of any registrant.”1 If the latter, review should be permitted at this time under judicially recognized exceptions to the statute. Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968); Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970). And at the risk of appearing meretricious, I feel compelled, in light of the approaches taken by several of my brethren, to point up the obvious: our decision, as an appellate tribunal, must be based on the record compiled in the district court.
Alleging federal question jurisdiction, 28 U.S.C. § 1331, appellant sought to enjoin his local board from issuing an order for induction and requested, in the alternative, a reopening of his classifica*1141tion through mandamus against a federal official, 28 U.S.C. § 1361. The board responded with a motion to dismiss, based in part on the contention that the district court lacked jurisdiction over the subject matter. Appellant appealed from the district court’s dismissal of the complaint “pursuant to Fed.R.Civ.Pro. 12(b) (l)”2
The gravamen of appellant’s complaint is that he was denied due process in the consideration of his request for reopening. He argues that he established a prima facie case for a III-A deferment, based on “nonfrivolous allegations of facts that have not been previously considered by his Board, and that, if true, would be sufficient under regulation or statute to warrant granting the requested reclassification.” Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970). He correctly contends that “where the registrant has set out new facts which establish a prima facie case for a new classification, a Board must reopen to determine whether he is entitled to that classification,” Mul-loy, supra, and once the Board reopens, it is required by the regulations to “consider the new information which it has received [and to] again classify the registrant in the same manner as if he had never been classified.” 32 C.F.R. § 1625.11. This new classification would afford the registrant “the right * * of appearance * * * and appeal as in the case of an original classification.” 32 C.F.R. § 1625.13. It is the denial of a reopening and the resulting foreclosure of administrative review which appellant seeks to remedy by this action for an injunction or writ of mandamus.
Our task as an appellate court should be to decide whether the court below was correct — -based on the facts before it — in holding that it was without jurisdiction to entertain appellant’s action. We should, of course, be guided by the presumption that a federal court lacks jurisdiction until it has been demonstrated that jurisdiction exists,3 and by the recognition that Congress has the power to give, withhold, and restrict the jurisdiction of the lower federal courts.4 My *1142principal line of inquiry concerns, therefore, the applicability of Section 10(b) (3) and the effect of recent Supreme Court decisions construing the statute.
The record below discloses that appellant requested and received a II-S classification (student deferment) after July 1, 1967.5 In June, 1968, he was classified I-A and unsuccessfully appealed to the state board on the ground that he was entitled to 1-0 (conscientious objector) status. While this appeal was pending before the state appeals board, however, appellant by letter of November 17, 1968, notified his local board (1) that his wife was pregnant, and (2) that he wished “to appeal [his] classification of I-A on July 11, 1968,” for the reason that he was “entitled to the classification of III-A (BA).”
On November 22, a physician notified the board that he had examined appellant’s wife and made a “presumptive diagnosis of pregnancy.” Mrs. Hunt wrote on December 24 requesting the III-A reclassification for her husband, indicating that she was pregnant, that she had a “number of rectal problems.” “a spastic condition of the bowel tract.” “severe abdominal cramps and extreme tension resulting from my husband’s dealing with the Selective Service System,” and that “the nervous tension which has resulted from the potentiality of his being drafted led me to seek professional help.” A second physician told the board that he had been treating Mrs. Hunt “since August 1, 1968, with irritable colon syndromes, along with ano-rectal pathology,” and that she had undergone a hemorrhoidectomy on September 18, 1968. Still a third physician communicated with the board on December 30, 1968, diagnosing a positive pregnancy with an expected date of confinement of June 24, 1969. The first doctor wrote again the next day advising that Mrs. Hunt was “under emotional distress as a result of her concern over her husband’s possible induction.” Following the denial on appeal of his request for a I-O, and after the issuance of a new I-A classification, appellant wrote the board on April 18, 1969: “I wish to appeal my classification I-A dated April 7, 1969. I request you reclassify me in category III-A on the ground that:
“1 I am soon to be a father
“2 If I were inducted it would work a great deal of hardship on my wife and child.”
The local board acknowledged the receipt of “supporting documents” for the III-A claim from appellant’s wife and her physicians, but on May 2, 1969, advised him that, havin'g “considered the information in your file submitted while your file was at the Appeal Board and since it has been returned,” it “did not feel the information warranted reopening your case. Since you had requested and received a II-S deferment after July 1, 1967, you are not entitled to a III-A for fatherhood.”
Initially, I must reject the position, which I once shared,6 that the Military Selective Service Act of 1967 mandates an absolute right of administrative appeal from a local board’s refusal to reopen and consider a request for reclassification, irrespective of the quantum of evidence presented to the board. 50 App. U.S.C. § 460(b) (3) provides:
* * * Such local boards, or separate panels thereof each consisting of three or more members, shall, under *1143rules and regulations prescribed by the President, have the power within, the respective jurisdictions of such local boards to hear and determine, subject to the right of appeal to the appeal boards herein authorized, all questions or claims with respect to inclusion for, or exemption or deferment from, training and service * * *. The decisions of such local board shall be final except where an appeal is authorized and is taken in accordance with such rules and regulations as the President may prescribe. (Emphasis supplied.)
A fair reading of the statute compels the conclusion that the right to an administrative appeal from a decision of a local board is not absolute but is dependent upon the existence of regulations conferring such a right. The statute merely authorizes the creation of rights of appeal and provides that appeals which are permitted by regulation shall be “taken in accordance with such rules and regulations as the President may prescribe.” In the absence of provisions for an appeal, “the decisions of * * * local board shall be final.”
Clearly the regulations themselves are not open to the sweeping interpretation urged by appellant, particularly in light of Mulloy, supra, which established the necessity of proving a prima facie case as a prerequisite to reopening. Furthermore, the due process attacks on the regulations, based on their failure to provide for an appeal from a refusal of a local board to reopen,7 have proved unsuccessful, and the constitutionality of the regulations has been sustained. United States ex rel. La Charity v. Commanding Officer, 142 F.2d 381, 383 (2 Cir. 1944); United States v. Beaver, 309 F.2d 273, 277 (4 Cir. 1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963); Boyd v. United States, 269 F.2d 607, 611 (9 Cir. 1959); Klubnikin v. United States, 227 F.2d 87, 90-91 (9 Cir. 1955), cert. denied, 350 U.S. 975, 76 S.Ct. 453, 100 L.Ed. 846 (1956).
In determining the basis for the local board’s refusal to reopen and consider appellant’s request for the III-A classification — a determination that is critical to the jurisdictional issue of pre-induction review — separate attention must be given the two subsections of 32 C.F.R. § 1622.30.8 Subsection (a) deals with consequences of fatherhood; subsection (b), with hardship.
I turn first to the hardship claim based on § 1622.30(b). For appellant to prevail in seeking pre-induction review, he must, as I have indicated above, overcome Section 10(b) (3), a statute of jurisdictional limitation which has already withstood constitutional attack. The Supreme Court has found “no constitutional objection to Congress’ thus requiring that assertion of * * * claims * * * be deferred until after induction * * * or until defense of the criminal prosecution which would follow should he press his objections to his classification to the point of refusing to submit to induction. Estep v. United States, 327 U.S. 114 [66 S.Ct. 423, 90 L.Ed. 567] (1946); Falbo v. United States, 320 U.S. 549 [64 S.Ct. 346, 88 *1144L.Ed. 305] (1944).” Clark v. Gabriel, 393 U.S. 256, 259, 89 S.Ct. 424, 426, 21 L.Ed.2d 418 (1968).
To be sure, this section has not received a literal interpretation. Exceptions to the Congressional restriction were found in Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), and Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970). But though it is true that Oestereich and Breen have permitted pre-induction review, they must be read in conjunction with Clark v. Gabriel, supra, the second of the Supreme Court’s pre-induction review trilogy which was decided on the same day as Oestereich. In Gabriel, the Court distinguished a ease in which the registrant “was by statute unconditionally entitled to exemption,” as in Oeste-reich, from one which “inescapably involves a determination of fact and an exercise of judgment,” 393 U.S. at 258, 89 S.Ct. at 426 and declared that if a case fits within the latter category, there may be no pre-induction review. Thus, jurisdiction to entertain appellant’s complaint should depend on whether the district court’s resolution of his claim to a prima facie case and entitlement to reopening entails a “determination of fact and an exercise of judgment,” as in Gabriel, or whether it requires a ruling on an alleged violation of a right over which the board has no prerogative, as in Oestereich and Breen.
Proeedurally, the prima facie case is a standard designed to determine whether the quantum of evidence presented is sufficient to support a finding. One charged with the duty to decide whether such a case has been made out must accomplish an exquisite intertwining of functions. He must act not only as a fact-finder, but also as an evaluator of those facts. The discretion utilized in the evaluating process is so refined that the determination of a prima facie case in civil and criminal trials is exclusively a judicial function. In selective service cases, a prima facie case is present “if a registrant has presented facts which, if true and uncontradicted by other information contained in the file, would be sufficient under the regulations to warrant granting his requested classification.” United States v. Burlich, 257 F.Supp. 906, 911 (S.D.N.Y.1966).
But the Supreme Court has clearly said that there may be no pre-induction review where it is necessary to review “the quantum of evidence necessary to sustain a Board’s classification,” Oestereich v. Selective Service System Local Board, supra, 393 U.S. at 238 n. 7, 89 S.Ct. at 417, or, as noted before, where the action of the board “inescapably involves a determination of fact and an exercise of judgment,” Clark v. Gabriel, supra, 393 U.S. at 258, 89 S.Ct. at 426. Consistent with this approach, the Court in Breen distinguished between “discretionary standards” and “explicit requirements for student deferments.”
This court’s decision in Bucher v. Selective Service System, Local Boards Nos. 2, etc., 421 F.2d 24 (3 Cir. 1969), did not enumerate different standards. We held that Section 10(b) (3) does not bar pre-induction judicial review where the regulations and the classification procedures pursuant thereto are challenged “on the grounds that they lack statutory authorization, and/or violate constitutional rights.” We were careful to add that “[t]he Section bars pre-induction review only where there is a challenge to the System’s resolution of' factual questions in the classification or processing of a draft registrant.” Id. at 27.
I cannot conclude that the circumstances of Mrs. Hunt’s condition amounted to hardship as a matter of law. The assessment and evaluation of these circumstances — supported by letters referring to her rectal and bowel problems, abdominal cramps, tension and nervousness because of her husband’s impending induction — were the responsibility of the local board, and it was for the board to decide whether such facts constituted a prima facie case of hardship justifying a reopening. This decision “inescapably *1145involve [d] a determination of fact and an exercise of judgment,” properly left to the local board. Clark v. Gabriel, supra, 393 U.S. at 258, 89 S.Ct. at 426. To accept the position of Judge Gibbons and sanction pre-induction review of this decision would be to permit “precisely the kind of ‘litigious interruptions of procedures to provide necessary military manpower’ (113 Cong.Rec., 15426 (report by Senator Russell on Conference Committee action)) which Congress sought to prevent when it enacted § 10(b) (3).” Clark v. Gabriel, supra, 393 U.S. at 258, 89 S.Ct. at 426.
Moreover, I detect no inclination by the Supreme Court to restrict the holding of Clark v. Gabriel and to extend the exceptions of Oestereich and Breen. Indeed, in Mulloy, the Court, citing Clark v. Gabriel, re-emphasized the policy of a “narrowly limited scope of judicial review.” In view of this strong and continuing policy, I am unable to accept Chief Judge Hastie’s suggestion that Section 10(b) (3) can be avoided merely by the use of mandamus. I am convinced that the congressional objective was to minimize “litigious interruptions” of selective service procedures, whether the interruption be cast in terms of a request for an injunction or for a writ of mandamus.
It may be suggested that appellee’s failure to file an answer amounted to an admission of the complaint’s averments, thus obviating the need for factual findings by the district court and removing the Clark v. Gabriel issue from the case. Paragraph 6 of Complaint alleged:
While the appeal was pending, plaintiff notified defendant of changed conditions which, prima facie, entitled plaintiff to a 3-A deferment.
I find no merit in this technical argument. First, no answer was required since appellee’s motion to dismiss, served within the 60 day period and raising the Rule 12(b) defenses, was granted. And, although for the purposes of appellee’s motion to dismiss — asserting as one ground the failure to state a claim under Rule 12(b) (6) — “the well-pleaded material allegations of the complaint [were] taken as admitted,” “conclusions of law or unwarranted deductions of fact [were] not admitted.” 2A MOORE’S FEDERAL PRACTICE § 12.08 at 2266-69. It is clear that the existence vel non of a prima facie ease was the ultimate issue that appellant sought to establish, requiring the application of relevant law to given facts. This being so, it cannot fairly be said that appellant’s mere allegation of a prima facie case was taken as admitted by appellee.
Turning now to the fatherhood claim, it is arguable that 32 C.F.R. § 1622.30(a) establishes standards for the fatherhood deferment which are explicit and non-discretionary, and which can be applied in the absence of extensive factual findings. In United States v. Worstell, 419 F.2d 762 (3 Cir. 1969), we held that the II-S classification establishes a right to deferment for eligible registrants which may not be refused or withdrawn at the discretion of the local board. This right was analogized to the right to a IV-D ministerial exemption, the denial of which was subject to pre-induction review in Oestereich, supra. The Supreme Court subsequently made it clear in Breen, supra, that the II-S deferment is not to be treated differently from the IV-D exemption for the purposes of pre-induction review. In Bucher v. Selective Service System, Local Board Nos. 2 etc., supra, 421 F.2d at 34, we deemed it unnecessary, however, to decide whether the III-A classification “achieve [s] the dimension of statutory deferments akin to the statutory deferment status of the II-S (student) classification dealt with in Worstell,” since the invalidity of the delinquency reclas-sifications created the entitlement to pre-induction review despite the limitations of Section 10(b) (3). Here, too, I find it unnecessary to decide whether the refusal of a fatherhood deferment — like the denial of a II-S — is open to pre-induction review. Even in the case of a non-discretionary deferment, the registrant must, in order to obtain review, *1146show the court that his status formally complies with that defined by the regulation or statute. A bare allegation that the Board has denied him that to which he is entitled is insufficient to overcome the jurisdictional barrier. In this case, appellant’s charge that the board acted illegally in rejecting the fatherhood deferment was. on its face, insufficient.
Section 1622,30(a) provides that “a registrant who is classified in Class II-S after the date of enactment of the Military Selective Service Act of 1967 (June 30,1967) shall not be eligible for a classification in Class III-A under this [fatherhood] paragraph.” Evidence introduced by appellant himself demonstrated his ineligibility, establishing that he “requested and received a II-S deferment after July 1, 1967.” Moreover, I find no occasion to consider the correctness of Gregory v. Hershey, 311 F.Supp. 1 (E.D.Mich.S.D.1969), which suggests that the III-A is barred only by a II-S received as an undergraduate and not as a graduate student, because there was no evidence in the record before the district court that appellant’s II-S was obtained at a post-baccalaureate stage.
Judges Freedman, Seitz, and Adams do not, however, confine their review to that record. Instead, they rest their conclusions on information that was presented for the first time at oral argument before this court. “[T]he decisive facts which establish his [fatherhood] claim are now acknowledged. * * * This factor is not in dispute. It was agreed by the parties at bar that registrant’s II-S classification was based on his status as a post-baccalaureate student.” I agree with Judge Gibbons that we cannot “assume original jurisdiction rather than appellate jurisdiction to decide the fatherhood issue which was never decided by the district court.” Implicit in the grant of jurisdiction to this court to review decisions of the district courts, 28 U.S.C. §§ 1291 and 1292, is the basic concept that our scope of review is limited to matters of record. Fed.R.App.Pro. 10.
Therefore, even were I to assume the validity of the Gregory distinction, I would hold that appellant failed in the trial court to sustain the burden of proving the post-baccalaureate II-S status and, consequently, immunity from military service.
In sum, I would hold that appellant did not establish the subject matter of jurisdiction of the district court because he failed to surmount the jurisdictional hurdle of Section 10(b) (3). He presented a request for a III-A hardship case which “inescapably involve[d] a determination of fact and an exercise of judgment” by the local board, and not an issue capable of framing as a purely legal question involving an alleged “departure by the Board from its statutory mandate.” Oestereich, supra, 393 U.S. at 238, 89 S.Ct. at 416. What appellant presented to the district court was a question inextricably tied to a special factual context, the resolution of which was discretionary with the local board and mandated by neither statute nor regulation. Appellant was not deprived of his hardship deferment in a “blatantly lawless manner.” And in asserting the right to a fatherhood deferment, he failed to demonstrate to the court below that his status was that designated by the regulation.
For all of the foregoing reasons, I would affirm the judgment of the district court.
VAN DUSEN, Circuit Judge, joins in this dissent.
. No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under § 12 of this title * * * after the registrant has responded either affirmatively or negatively to an order to report for induction. * * * *
. Appellee’s motion to dismiss was based on Fed.R.Civ.Pro. 12(b) (1), (2), (3), (5), and (6). Since it was, in part, grounded on subsection (6) (failure to state a claim upon which relief can be granted), it could have been treated as one for summary judgment subject to the provisions of Fed.R.Civ.Pro. 56. This is so because the court considered not only the pleadings but also eight separate exhibits which appellant introduced in support of his contention that entitlement to III-A deferment had been established as a matter of law. It was not improper for the court to have considered the exhibits in conjunction with its consideration of the Rule 12(b) (1) motion. Wide leeway is accorded the courts in this circuit in considering all matters of record relevant to subject matter jurisdiction. See, e. g., Berkowitz v. Philadelphia Chewing Gum Corp., 303 F.2d 585 (3 Cir. 1962).
From the transcript of the May 19, 1969, hearing, the following colloquy appears :
THE COURT: I think I understand your position on the motion to dismiss, and I will take the matter under advisement.
In the meantime, I suggest that you complete your record as to what you are going to prove on the merits.
MR. EGNAL: Your Honor, what I have here are the seven letters. Eight, not seven, letters were then introduced, without objection, as plaintiff’s exhibits. Certain statements purporting to be additional factual background were then given by plaintiff’s counsel who carefully and properly explained:
MR. EGNAL: * * * The factual recitation that I just gave you is not proved. I don’t know what Mr. Wright [government counsel] wants — I mean the proof would be in the file he has.
. Turner v. President, Directors and Company of Bank of North America, 4 Dal1. 8, 1 L.Ed. 718 (1799) ; WRIGHT, LAW OF FEDERAL COURTS, (2nd Ed. 1970) § 7, at 15.
. Ex Parte McCardle, 7 Wall. 506, 19 L.Ed. 264 (1868). In Cary v. Curtis, 3 How. 236, 245, 11 L.Ed. 576 (1845), the Court declared:
[T]he judicial power of the United States, although it has its origin in the Constitution, is (except in enumerated instances, applicable exclusively to this court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action *1142of Congress, who possesses the sole power of treating the tribunals (inferior to the Supreme Court), for the exercise of the judicial power, and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good. See cases collected in WRIGHT, supra, § 10, at 25 n. 28.
. The record does not indicate whether this student deferment was pre- or post-baccalaureate. See 32 O.F.R. 1622.25, 1622.26.
. Clark v. Commanding Officer, 3 Cir., 427 F.2d 7, 11-12 (1970) (Aldisert, X, concurring) .
. We are not presented in this case with the question of the right to an appeal from a de facto reopening clothed in the guise of a refusal to reopen. See Miller v. United States, 388 F.2d 973 (9 Cir. 1967).
. 32 C.F.R. § 1622.30 Class III-A: Registrant With a Child or Children; and Registrant Deferred by Reason of Extreme Eardship to Dependents.— (a) in Class III-A shall be placed any registrant who has a child or children with whom he maintains a bona fide family relationship in their home and who is not a physician, dentist or veterinarian, or who is not in an allied specialist category * * *, except that a registrant who is classified in Class II-S after the date of enactment of the Military Selective Service Act of 1967 shall not be eligible for classification in Class III-A under the provisions of this paragraph.
(b) In Class III-A shall be placed any registrant whose induction into the armed forces would result in extreme hardship (1) to his wife, divorced wife, child, parent, grandparent, brother, or sister who is dependent upon him for support, * * *