The opinion
BROWNING, Circuit Judge
(dissenting):
This case is controlled by the holding of this court in Brede v. United States, 396 F.2d 155 (9th Cir. 1968), that a conviction under 50 U.S.C. App. § 462(a) (1964) based upon the violation of an order issued by a clerk cannot stand where the applicable Selective Service System regulations provide that orders of the type involved are to be issued by the local board.
The structure of the regulations relevant to the present case is simple and direct. Upon receiving a call from the State Director for a specified number of men to be delivered for induction, “each local board * * * shall select and order to report for induction the number of men required to fill the call from among its registrants. * * * ” 32 C.F.R. § 1631.7 (1967). The “local board shall prepare for each man an Order to Report for Induction,” specifying the date for reporting. 32 C.F.R. § 1632.1 (1967). “When the local board mails to a registrant an Order to Report for Induction * * * it shall be the duty of the registrant to report for induction at the time and place fixed in such order.” 32 C.F.R. § 1632.14 (a) (1967). If for any reason “a registrant fails to report for induction when it is his duty to do so, it shall thereafter be his continuing duty from day to day to report for induction. * * * ” Ibid. “Upon reporting for induction, it shall be the duty of the registrant * * * (5) to submit to induction.” 32 C.F.R. § 1632.14 (b) (1967).
The order issued by appellant’s local board fixed January 31, 1966 as the date upon which appellant was to report for induction. Under the regulations, it was appellant’s duty to report on the date fixed and to submit to induction. He was under no duty to report for induction prior to the date fixed, and he could scarcely be obligated to submit to induction before he was required to report for that purpose.
Nothing in the regulations authorized the clerk, rather than the board, to fix the date upon which appellant was required to report and to submit to induction. Since the clerk had no authority to fix or refix that date, the clerk’s order imposed no duty upon appellant.
The majority notes that the regulations provide that if induction is postponed, “the registrant shall report on the new date without having issued to him a new Order to Report for Induction.” 32 C.F.R. § 1632.2 (d) (1967). It is significant, however, that if the period of postponement is terminated before its expiration date, “the registrant shall then report for induction at such time and place as may be fixed by the local board.” 32 C.F.R. § 1632.2 (c) (1967)’. *134 If a postponed date for reporting for induction may be advanced only by the local board, how can it be inferred that the clerk is authorized to advance the date initially fixed by the board?
The majority suggests that “the proper authorities should be empowered to accede to a registrant’s request for earlier forwarding to his induction station.” Perhaps the local board has such authority, implied from the power of the board to specify any date which is “at least 10 days after the date on which the Order to Report for Induction * * * is mailed. * * * ” 32 C.F.R. § 1632.1 (1967). But here the local board did not act — the clerk did.