Blanc v. United States, 369

• Decision Date: 28 May 1957
• Docket Number: Docket 24123.,No. 369,369
• Citation: 244 F.2d 708
• Parties: Edith BLANC, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

244 F.2d 708 (1957)

Edith BLANC, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 369, Docket 24123.

United States Court of Appeals Second Circuit.

Argued May 7, 1957.

Decided May 28, 1957.

Aaron Nussbaum, Brooklyn, N. Y., for appellant.

George Cochran Doub, Asst. Atty. Gen., Leonard P. Moore, U. S. Atty., Melvin Richter, and Herbert E. Morris, Washington, D. C., for appellee.

Before CHASE, HINCKS and LUMBARD, Circuit Judges.

PER CURIAM.

The appellant claimed benefits for herself and for her minor children under the Federal Employees' Compensation Act, 5 U.S.C.A. § 751 et seq., based on her contention that the death of her husband, who was a railway mail clerk in the Postal Transportation Service of the United States Post Office Department, was proximately caused by the performance of his duties while in the employ of the government. On December 17, 1950, while in Syracuse, N. Y., on what is called travel status he became ill and died two days later from what was diagnosed as acute anterior poliomyelitis.

Following the administrative denial of her claim, the appellant brought this suit for a declaratory judgment and for what she calls equitable relief which would amount to a review of the agency proceedings and a reversal of the decision. Her complaint was dismissed for lack of jurisdiction and she has appealed.

We find no merit in the appeal. The relief to which the appellant is entitled is no more than the enforcement of her claim made for benefits under the Federal Employees' Compensation Act. The Tucker Act, 28 U.S.C. § 1346(a) (2), gives the district court no jurisdiction to enforce such a claim. The consent of the United States to be sued under the Tucker Act is limited to suits for the recovery of a money judgment and any incidental relief in equity in aid of such a judgment. United States v. Jones, 131 U.S. 1, 9 S.Ct. 669, 33 L.Ed. 90; Clay v. United States, 93 U.S.App.D.C. 119, 210 F.2d 686; Lynn v. United States, 5 Cir., 110 F.2d 586. Nor does Section 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009, confer jurisdiction where, as here, review by the courts of administrative action is expressly and clearly prohibited. Ford v. United States, 5 Cir., 230 F.2d 533.

This prohibition, which is found in Section 42 of the Act, 5 U.S.C.A. § 793, provides that administrative action under the statute in allowing or denying beneficial payments "* * * shall be final and conclusive for all purposes and with respect to all questions of law and fact, and not subject to review * * * by any court by mandamus or otherwise * * *." It follows that the dismissal of the complaint for want of jurisdiction was without error.

At least since United States v. Babcock, 250 U.S. 328, 39 S.Ct. 464, 63 L.Ed. 1011 and Dismuke v. United States, 297 U.S. 167, 56 S.Ct. 400, 80 L.Ed. 561, it has been well settled that, when the government creates the right to assert a claim against it, it...