The opinion
SWYGERT, Chief Judge
(dissenting).
There is a single question to be decided by this court: whether Operations Bulletin 338 is authority for Local Board 121 to have denied Acker the mandatory classification of II-A as an apprentice in a properly qualified apprentice program. If Operations Bulletin 338 validly restricts the deferment, then section 10(b)(3), 50 U.S.C. App. § 460(b)(3), bars preinduction judicial review of the denial of the II-A classification. If the Bulletin impermissibly restricts the granting of the deferment, then prein-duction judicial review is proper since, according to the stipulated facts, Acker was legally qualified for the deferment.
The majority avoids this issue and holds that since the district court did not specifically hold that Operations Bulletin 338 was invalid, the deferment was dis-cretional and therefore the court had no jurisdiction to make a preinduction review of the denial of the deferment. 1
The President, under authority of 50 U.S.C. § 456 (h)(2), promulgated 32 C.F. R. § 1622.22(b) (1970) which provides in pertinent part: “In Class II-A shall be placed any registrant satisfactorily . . . engaged in an approved apprentice training program. . . .” (emphasis added.) Acker was engaged in such a program and the language of the regulation mandates that he be given the deferment. Operations Bulletin 338 which was issued by the Director of the Selective Service System attempts to restrict the regulation by applying the “anti-pyramiding” restrictions of 50 U. S. C. App. § 456(h)(1) to 50 U.S.C. App. § 456(h)(2) and 32 C.F.R. § 1622 .-22(b) (1970). If the President wanted to limit apprenticeship deferments to those who had not had a II-S student deferment or to those who did not graduate from college, he could have so provided in the regulation. The authoriz *658 ing statute does not allow the Director of the Selective Service System to issue such regulations, only the President. The Director’s attempt to do so indirectly through Operations Bulletin 338 is accordingly invalid.
Since Acker was entitled to a II-A classification and was denied that classification by “administrative action, based on reasons unrelated to the merits of the claim ... to the deferment,” 2 section 10(b)(3) does not foreclose preinduction judicial review. 3
McCarthy v. Director of Selective Service System, 460 F.2d 1089 (7th Cir. 1972), cited by the majority does not support the majority’s holding since McCarthy unlike Acker had a questionable claim to a II-A deferment for he was only a part time teacher whereas Acker had met all the requirements of being in a qualified apprentice program. We said in dicta that the local board’s reliance on Local Board Memorandum No. 96 4 was “not tantamount to the clearly unauthorized actions of the local boards in Oestereich and Breen, which relied on extraneous factors not in any way germane to respective statutory qualifications for exemption or deferment.” 460 F.2d at 1092 .
The anti-pyramiding purpose of Operations Bulletin 338 was extraneous to the issue of whether Acker’s employment in the apprentice program was “found to be necessary to the maintenance of the national health, safety, or interest.” 5 Local Board Memorandum No. 96 was, however, germane to the question of whether McCarthy’s employment as a teacher was necessary to the maintenance of the national health, safety, or interest. In this case, the local board had a duty to classify Acker' as II-A since' he met all of the regulatory criteria.
For the reasons stated above, I respectfully dissent.
. The majority fails to explain why they hold that the complaint must be dismissed by the district court since the complaint alleges the invalidity of the Bulletin and the district court did not rule on this issue. If plaintiff is not to receive a ruling on the validity of the Bulletin in this court, the least that is required is that he be allowed a ruling- in the district court. For if plaintiff is correct, and I believe that he is, the deferment is mandatory and not discretionary, and the district court therefore had jurisdiction.
. Fein v. Selective Service System, 405 U.S. 365, 374, 375 , 92 S.Ct. 1062 , 31 L.Ed.2d 298 (1972).
. Oestereich v. Selective Service System, 393 U.S. 233 , 89 S.Ct. 414 , 21 L.Ed.2d 402 (1968), allowed preinduction judicial review where the registrant was entitled to an exemption. Breen v. Selective Service Board, 396 U.S. 460 , 90 S.Ct. 661 , 24 L.Ed.2d 653 (1970), allowed such review where the registrant had a statutory right to a deferment. The fact that Acker’s right to the deferment is provided by regulation pursuant to statute does not differentiate his case from the others.
. “A full-time graduate student shall not be considered for occupational deferment because he is engaged in teaching part time.” 460 F. 2d at 1091 .
. 50 U.S.C. App. § 456(h) (2).