(dissenting).
The defendants here, through the actions of their National Director, violated a specific federal court order, directed at them, of which they were aware and which they unsuccessfully sought to stay at the district court level. I know of no government agency or any other litigant who is permitted to deliberately disregard with impunity a nonfrivolous federal court order. I therefore agree with the court below that the Selective Service System’s utter disregard of the mandate issued in Gregory v. Hershey, 311 F.Supp. 1 (E.D.Mich.1970) was “lawless,” and I must respectfully dissent.
In Gregory v. Hershey, supra, Judge Smith determined there was a valid class action pursuant to both subparagraphs (1) and (2) of Fed.R.Civ.P. 23(b). The Government did not appeal the class action determination by Judge Smith, but they did obtain a reversal on the district court’s interpretation of Selective Service Regulation 1622.30(a). See Gregory v. Tarr, 436 F.2d 513 (6th Cir. 1971), cert. denied, 403 U.S. 922, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). The plaintiff in this action, however, as a member of the defined class in Gregory v. Hershey, supra, was entitled to enforce the district court’s unstayed order during the period before the Sixth Circuit Court of Appeals’ decision.
The majority in this action have now determined that because of the lack of notice to absent class members in Gregory v. Hershey, supra, there never existed a valid class to which plaintiff Schrader could belong. Even accepting the wisdom of requiring notice in all representative actions under Fed.R.Civ.P. 23(b) (1) and (2), I do not find that determination dispositive in this case. At the time plaintiff Schrader requested reclassification from the Wisconsin Local Board, he was unquestionably a member of that class defined in Gregory, supra. Furthermore, at that time there was a final, unstayed decision of a federal district court mandating the National Director of the Selective Service System to classify all members of that class III-A. Not only did the National Director flagrantly disregard this mandate, but the Local Boards also proceeded to induct into the armed services those members of that class, including plaintiff, who were to be reclassified under that court order.
Even assuming the factual situation most favorable to these defendants, viz., that the defendants justified their refusal to reclassify plaintiff on two federal district court decisions which held Gregory, supra, not binding on absent class members1, such reliance is not legal excuse for defendants’ disregard of the federal court order. It is an immutable principle that if a competent court has issued an order not “transparently invalid or [having] only a frivolous pretense to validity,” then the parties should obey the order and not substitute disobedience for appeal. . . . Walker v. City of Birmingham, 388 U.S. 307, 315, 87 S.Ct. 1824, 1829, 18 L.Ed.2d 1210 (1967). See also Carroll v. President & Commissioners of Princess Anne, 393 U.S. 175, 179, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); United States v. United Mine Workers, 330 U.S. 258, 294, 67 S.Ct. 677, 91 L.Ed. 884 (1947); United States v. Shipp, 203 U.S. 563, 573, 27 S.Ct. 165, 51 L.Ed. 319 (1906). There has been no suggestion that Judge Smith’s determination of a proper class action was friv*78olous. Furthermore, the court below and the court in Whitmore v. Tarr, 331 F.Supp. 1369 (D.Neb.1970), correctly concluded that courts of collateral jurisdiction are bound by the pronouncements of the initial forum’s determination regarding the class and are not free to attack the class nature of the suit once it has been judicially determined. Therefore, those cases finding Gregory, supra, inapplicable to absent class members should have accepted Judge Smith’s factual determination and refrained from relitigating that issue. In fact, had the National Director properly carried out the unstayed mandate of Gregory, supra, those eases, including this one, which reopened the class action determination b.y Judge Smith, would have never existed — at least until Gregory was reversed on appeal. If the National Director disagreed with the decision of the district court in Gregory, his sole remedy lay with the Sixth Circuit Court of Appeals.2
The Sixth Circuit Court of Appeals in reversing Gregory, supra, noted that class actions enjoining the induction of others similarly situated throughout the nation can have “a far reaching and disruptive effect on the operation of the Selective Service System.” Gregory v. Tarr, 436 F.2d 513, 514 n. 2 (6th Cir. 1971). I would agree. However, the answer to the broad and sometimes gargantuan effects of this type class suit is not to ignore the order because it is found too pervasive. The remedy lies in limiting the power of a federal district court by amending the all-encompassing provisions of Fed.R.Civ.P. 23.
The issue in question here concerns more than the induction of plaintiff Schrader. The deliberate and flagrant disregard of a federal court order by an executive arm of the Government challenges the very separation of powers upon which our system of government is based.
I would affirm.
. Pasquier v. Tarr, 318 F.Supp. 1350 (E.D.La.1970), aff’d, 444 F.2d 116 (5th Cir. 1971) ; McCarthy v. Director of Selective Service, 322 F.Supp. 1032 (E.D.Wis.1970), aff’d on other grounds, 460 F.2d 1089 (7th Cir., 1972).
. The National Director unsuccessfully sought a stay of the district court’s mandate in Gregory, supra, at the district level but did not seek a stay from the Sixth Circuit pursuant to Fed.R.App.P. 8.