c284:No. 18219

BASTIAN, Circuit Judge
(dissenting).
Assuming arguendo that this court has jurisdiction to grant the relief requested (a matter of grave doubt, because it seems to me that under 28 U.S. C. § 1253 appellate jurisdiction is vested in the Supreme Court), I would not require the District Court to act until the Supreme Court resolves the constitutional issue in Schneider v. Rusk, 375 U.S. 893, 84 S.Ct. 173, 11 L.Ed.2d 123, decided by a three-judge court on May 21, 1963, 218 F.Supp. 302 (D.D.C.1963).
Inasmuch as the constitutional issue involved here is squarely before the Supreme Court in Schneider, it seems clear to me that the District Court exercised sound discretion in withholding action pending the Supreme Court’s determination of the issue. This same procedure is commonly used by this court when there is before it a question of law which is also under review by the Supreme Court.
Moreover, there has been no showing that any prejudice would result to the petitioner by awaiting action by the Supreme Court.

Passage view · GavelSight