I dissent.
I agree that our opinion and order require that the local rule be read as permitting admission of Tigar pro hac vice if he does not maintain an office for the practice of law in the District. However, the rule does not require his admis*436sion, assuming eligibility; it only permits it. It seems clear to me that Judge Curtis would not admit him if he believed that the rule permitted admission. I would not compel him to do so. Will v. United States, 1967, 389 U.S. 90, 104, 107, 88 S.Ct. 269, 19 L.Ed.2d 305 and Hooker v. United States District Court, 9 Cir., 1967, 380 F.2d 5, 6, make it clear that mandamus is not to be used to compel a judge to exercise his discretion in a particular way. That is what the majority is doing.
Both Munoz and Tigar maintain that Tigar is uniquely qualified in Selective Service law. I decline to weigh such a claim. The Munoz case is just another draft case of which a large number are tried in the California federal courts every year. I can and do take judicial notice that there are plenty of competent attorneys in the Central District of California whom Munoz can find to represent him and who know a great deal about draft cases.
I would concur in an order requiring that Judge Curtis comply with that portion of our order dealing with the meaning of the rule, and that he determine first, whether Tigar is eligible under the rule as so construed, and second, if he finds Tigar eligible, whether he will admit him. But I cannot agree to an order by this court that Tigar be admitted.
ON PETITION FOR REHEARING
Respondent’s petition for rehearing and suggestion of appropriateness of rehearing in banc filed on May 5, 1971, is untimely because it was filed after mandate was ordered issued. The court construes the petition as a petition to recall the mandate and suggestion of appropriateness of rehearing in banc. The petition having been considered on the merits, the petition is denied.
The memorandum opinion and order signed by a majority of the panel and the dissent, both filed April 21, 1971, are ordered published.
A judge in regular active service having requested that the court be polled on the question of the appropriateness of the suggestion for an in banc hearing, the poll was taken. A majority of the court’s judges in active status has determined that a rehearing in banc shall not be conducted, and it is so ordered.
Five of the judges in regular active service, Judges Chambers, Carter, Kil-kenny, Trask, and Choy, have directed that it be noted herein that they would have heard the cause in banc.
Judge Wright, who disqualified himself, has taken no part in the disposition of the cause.