(dissenting).
Once again we are confronted with the task of attempting to draw a rational line between those cases in which pre-induction judicial review is permitted, and perhaps even constitutionally required on the one hand, and those in which the Article III Courts must acknowledge that an enactment of Congress has deprived them of jurisdiction. Where that line will be drawn by a given federal judge or court often will reflect his or its basic attitude about constitutional issues which are as old as Cary v. Curtis, 44 U.S. (3 How.) 235, 11 L.Ed. 576 (1845) and Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 19 L.Ed. 264 (1868). Since I perceive it to be the highest duty of the Article III Courts to guard jealously their power to adjudicate claims of due process violation, I would give to Section 10(b) (3) of the Selective Service Act, 50 U.S.C. App. § 460(b) (3), the narrowest possible reading consistent with its text and with the decisions of the Supreme Court construing it. The issues involved in construing a statute which attempts to limit the power of the Article III Courts to grant judicial review are always dif*608ficult. The difficulties presented by Section 10(b) (3) are reflected in the collection of per curiam and signed opinions of the Supreme Court to which the majority opinion refers, and in one other per curiam decision of that Court to which the majority opinion does not address itself. That decision is Morgan v. Melchar, 405 U.S. 1014, 92 S.Ct. 1280, 31 L.Ed.2d 477 (1972) which vacates and remands to this court our own judgment in Morgan v. Melchar, 442 F.2d 1082 (3d Cir. 1971).
I do not agree that Fein v. Selective Service System, 405 U.S. 365, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972) is dispositive of this case. The Supreme Court could not have believed that Fein was dispositive of the issue presented in this case, for if it so believed it must of necessity have affirmed our judgment in Morgan.
Like this case, Morgan v. Melchar came before us on an appeal from an order granting a motion pursuant to Fed. R.Civ.P. 12(b). Thus both cases properly involve pleadings issues only, not the underlying merits of the claim for deferment or exemption. When Morgan v. Melchar was before us the majority opinion chose to disregard the fact that the case was before us solely on the pleadings and as an alternative ground for decision to look into the merits of Morgan’s claim. I considered that action usurpation by an appellate court both of the functions of the district court and of the function of the Selective Service System, 442 F.2d at 1090 (dissenting). Morgan also presented however, the precise pleading issue to which the majority opinion addresses itself.
That issue is the legal sufficiency of a complaint seeking pre-induction review which alleges that in violation of 32 C. F.R. § 1625.2 a local board, to which new information has been presented, which prima facie entitles a registrant to a reclassification, cast its decision as a refusal to reopen, and thereby deprived the registrant of the appeal rights to which he would otherwise have been entitled under 32 C.F.R. § 1625.13.
There is no question that these allegations set forth a claim that a local board acted illegally, not merely erroneously. Mulloy v. United States, 398 U.S. 410, 416-418, 90 S.Ct. 1766, 1771, 26 L.Ed.2d 362 (1970).
“Because of the narrowly limited scope of judicial review available to a registrant, the opportunity for full administrative review is indispensable to the fair operation of the Selective Service System. Where a prima facie case for reclassification has been made, a board cannot deprive the registrant of such review by simply refusing to reopen his file. Yet here the board did precisely that. .
“This is not to say that on all the facts presented to it the board might not have been justified in refusing to grant the petitioner a 1-0 classification; it is to say that such refusal could properly occur only after his classification had first been reopened. The board could not deprive the petitioner of the procedural protections attending reopening by making an evaluative determination of his claim while purportedly declining to reopen his classification.”
In Fein the Court did not deal with a Mulloy issue. It dealt not with a procedural irregularity but with an allegedly erroneous substantive decision in the Selective Service administrative process. Fein was afforded all the hearing and appeal rights which are set out in the statute and regulations. It seems clear to me, from the absence of any reference to Mulloy v. United States in the Fein opinion, and from the virtually simultaneous per curiam reversal and remand in Morgan v. Melchar, that the Supreme Court has consciously and deliberately refrained from announcing its final position on whether or not pre-induction judicial review is available in a ease where the Selective Service System deprives a registrant of an administrative procedural right.
*609The government at the oral argument on this case advanced the contention that the Court intended no more by the Morgan v. Melchar vacation and remand than that this court, rather than it, enter an order affirming the dismissal of the complaint on the basis of the Fein opinion. I cannot believe that the Supreme Court would act so purposelessly. If the Mulloy issue was in its view controlled by Fein, the per curiam order would have been an affirmance, for no other order would have made any sense. The remand in Morgan v. Melchar is an indication to this court that the pleading issue which that case presents is to receive our judicial consideration. If the issue were already foreclosed there would be nothing of a judicial nature left for us to act upon.
The majority opinion refers to the language in the Fein opinion which sets up a dichotomy between the (a) category of cases, in which entitlement to a classification is objectively certain, and the Selective Service System made a decision for reasons unrelated to the merits, and the (b) category, in which the objective certainty is lacking. 405 U.S. at 374-375, 92 S.Ct. 1062. It reads these categories as all encompassing. But the language is taken out of context, for the categories refer to decisions within the administrative process made in accordance with the specified procedures. Fein simply does not deal with deprivations of administrative procedural rights.
But even if Justice Blackmun did intend to encompass both erroneous decisions and procedural irregularities within the dichotomy which he set up in the Fein opinion, appellant’s allegations meet his test. He alleges that he presented new information which required the board to reopen and that the board, by improperly refusing to reopen, deprived him of administrative appeal rights. The existence of the appeal rights of which he claims to have been deprived is as objectively certain as any may be. Mulloy v. United States. The deprivation of these rights, if he was entitled to them, was as blatantly lawless as any of the deprivations of rights to which Justice Blackmun referred as falling within his category (a).
The majority opinion attempts to place the Mulloy type violation in Justice Blackmun’s category (b) on the ground that the appellant’s right to a reopening is not factually “conceded.” 466 F.2d at 607. The simple answer to such an attempt is that on the record before us the appellant’s right to a reopening is factually conceded. The case is before us solely on the complaint and the government’s motion pursuant to Fed.R. Civ.P. 12(b). The allegations of the complaint track the Mulloy decision. Appellant alleges that his employer has presented to the board information not previously considered which, if true, would be sufficient under the regulations to warrant granting the requested reclassification, but that the board refused to reopen. For purposes of the Rule 12(b) (1) motion the truth of these allegations must be deemed to be conceded. That being the case it is conceded for purposes of this appeal that the appellant has been wrongfully deprived of the appeal rights mandated by the statute, 50 U.S.C. App. § 10(b) (3), the regulations, 32 C.F.R. § 1625.13, and the case law, Mulloy v. United States.
The majority opinion holds that such lawlessness by the Selective Service System is beyond the reach of pre-induction judicial review. That holding is contrary to the judgment, at least, of this court in Hunt v. Local Board No. 197, 438 F.2d at 1128 (3d Cir. 1971). The difficulty of the issue presented by a deprivation of an administrative procedural right in a pre-induction situation is well illustrated by the fact that there is no opinion of the court in the Hunt case on which a majority agreed. Thus I do not contend that Hunt controls the result here. But I continue to adhere to *610the interpretation of § 10(b) (3) which I set forth in that case:
“It seems to me that the correct interpretation of 50 U.S.C. App. § 460(b) is this:
(1) The power of a Local Board to decide whether a change in circumstances entitled a registrant to a new classification is subject to administrative appeal whenever a prima facie claim is presented.
(2) The refusal of a Local Board to reopen when presented with such a prima facie claim is an abuse of discretion subject to judicial review. Mulloy v. United States, supra, and cases therein cited.
(3) Such an abuse of discretion is a clear legal error and judicial review of that legal error is available not only in post-induction habeas corpus and criminal cases but also in pre-induction mandamus or injunction cases. Oestereich v. Selective Service Bd., supra; Breen v. Selective Service Bd., supra.” 438 F.2d at 1136.
Moreover the majority opinion nowhere comes to grips with the distinction drawn by Judge Hastie in Hunt between injunctive actions seeking to review Selective Service Systems decisions and actions in the nature of mandamus under 28 U.S.C. § 1361 to compel that agency to perform a mandatory duty. The Fein case was, of course, an injunction action seeking to review a decision made in accordance with the applicable regulations. It did not pose the problem of the interrelationships between 28 U.S.C. § 1361 and § 10(b) (3), 50 U.S.C.App. § 460(b). Even supposing that the interpretation of § 10(b) (3) which I urged in Hunt is precluded by the Fein decision, there remains the question whether, properly interpreted, that section was intended to limit the mandamus jurisdiction of the federal courts.
The significance of the distinction between an action to compel an administrative agency to follow its own rules and an action to review a decision made in accordance with those rules becomes apparent in the colloquy between the court and the attorney for the government in the oral argument of this case. In response to the question whether § 10(b) (3), as interpreted in Fein, prohibited pre-induction judicial relief from an order to report for induction issued by a local board which had never actually met to consider the registrant’s classification, government counsel answered affirmatively. The government’s position is that every disregard of administrative due process is entirely beyond the reach of any court except as a defense to a criminal prosecution for failure to report for induction or in post-induction habeas corpus. Originally, of course, Congress proposed that there be no review of a Selective Service System classification whatsoever. Act of Sept. 16, 1940, ch. 720, 54 Stat. 885. This attempt to insulate the draft from the due process clause of the Fifth Amendment was more than the Supreme Court could permit. In Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305 (1944), it held that post-induction habeas corpus relief remained available, and in Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946), it held that illegality of a classification was a defense to a criminal prosecution. Congress backed down, at least to the extent of acknowledging the availability of Estep type review in the defense to a criminal case. Act of June 30, 1967, Pub. L. No. 90-40, § 8, 81 Stat. 100. It still has not in as many words amended the statute to acknowledge the availability of Falbo type habeas corpus relief, although the government acknowledges that such relief is constitutionally required. In Oestereich v. Selective Service System, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1960) and Breen v. Selective Service System, 396 U.S. 461, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970), the Supreme Court, as it had earlier in Fal*611bo and Estep, balked at the notion that Congress could insulate blatantly lawless administrative conduct from judicial review until after a registrant submitted to induction or indictment. It avoided a serious problem of unconstitutionality by construing § 10(b) (3) to permit pre-induction judicial review in those cases.
I can think of few more blatantly lawless administrative actions than to deliberately frame a decision on a claim in the guise of a refusal to reopen so as to deprive one registrant of appeal rights which are available to other registrants. If § 10(b) (3) prohibits the federal courts from preventing the execution of orders resulting from such blatantly discriminatory lawlessness while the same statute imposes on the courts a duty of providing a criminal enforcement mechanism then the statute reaches, for me at least, the point beyond which Congress may not push the Ex Parte McCardle principle. See Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv.L.Rev. 1362, 1379 (1953).
I suspect that considerations such as these prompted the Court to remand Morgan v. Melchar so that we could in a pre-induction case involving a Mulloy claim, free from an improper excursion into original fact finding rather than appellate review, present the views of this court as to the proper construction of § 10(b) (3) in the light of Mulloy. That suspicion is reenforced when I see in the Mulloy opinion an approving reference to Townsend v. Zimmerman, 237 F.2d 376 (6th Cir. 1956). 398 U.S. at 415 n. 3, 90 S.Ct. 1766, 26 L.Ed.2d 362. Townsend granted pre-induction relief in a case involving failure to reopen. I do not believe that the Fein decision-intended to overrule, without any reference to it, Justice (then Judge) Stewart’s own opinion as a circuit judge in that case.
I would reverse.