George A. Hunt, Jr., Selective Service No. 9-45-45-1035 v. Local Board No. 197 , 438 F.2d 1128 ( 1971 )

OPINION OF THE COURT

PER CURIAM:

For different reasons, stated in separate opinions, five judges constituting a majority of the court have concluded that the judgment of the district court dismissing the appellant’s complaint cannot stand. Judges Freedman, Seitz and Adams think that the uncontested facts are such that we should not only reverse the dismissal of the complaint but also order that on remand judgment be entered for the appellant requiring that he be accorded selective service reclassification as III-A. Judges Hastie and Gibbons think that we should do no more than require that the district court consider and dispose of this controversy on its merits.

To achieve an otherwise lacking majority for a particular disposition of the appeal,¹ Judges Freedman, Seitz and Adams join Judges Hastie and Gibbons in voting for the less comprehensive disposition; namely, reversal and remand for appropriate action on the merits of the controversy.

It may be that, in the light of the circumstances pointed out in our several opinions, the parties will be able to agree upon a consent judgment that will obviate the necessity for adversary proceedings in the district court.

The judgment will be reversed and the cause remanded for consideration and disposition on the merits,

1 . Cf. Screws v. United States, 1945, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495.