Burns v. McCrary, 153
| Decision Date | 11 January 1956 |
| Docket Number | No. 153,Docket 23762.,153 |
| Parties | Frank BURNS, Joseph Gizowsky, Mac Krieger, Robert McCruden, Joseph Scrabonia, Henry D. Strube and John M. Tomchek, Plaintiffs-Appellees, v. Arthur A. McCRARY, Col., Commanding Officer, Signal Corps Pictorial Center, 35-11 35th Avenue, Long Island City, New York, William E. Leary, Major, Signal Corps Pictorial Center, 35-11 35th Avenue, Long Island City, New York, and Mary C. O'Connor, Chief Personnel Officer, Signal Corps Pictorial Center, 35-11 35th Avenue, Long Island City, New York, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
Samuel Resnicoff, New York City, for appellee.
Warren E. Burger, Washington, D. C., Leonard P. Moore, Brooklyn, N. Y., Paul A. Sweeney and John J. Cound, Washington, D. C., for appellants.
Before FRANK, HINCKS and LUMBARD, Circuit Judges.
Plaintiffs are civilians employed by the United States as Photographer Equipment Repairers at the Army Signal Corps Pictorial Center, in Long Island City, New York. Some of plaintiffs are veterans. On February 2, 1955, each of them received official notice that he would be reduced in grade on February 20, 1955. Before that date, each of plaintiffs filed an administrative appeal. The appeals of those who were veterans will be finally decided by the Civil Service Commission, Washington, D. C., and the appeals of those who were not veterans by the Secretary of the Army, Washington, D. C. While these appeals were pending and undecided, plaintiffs began this suit. They asked that the proposed reductions in grade be declared void and that the defendants be enjoined from carrying them out. On plaintiffs' motion, the district court granted a preliminary injunction. Defendants have appealed.
When this suit began and when the preliminary injunction issued, plaintiffs had not exhausted their administrative remedies. Such exhaustion is essential to the maintenance of such a suit.1 The final administrative decisions will be made by officials residing in Washington, D. C., who have not been served. Accordingly, the district court had no jurisdiction to grant either a temporary or a final injunction.2
Reversed and remanded with directions to dismiss for lack of jurisdiction.
To continue reading
Request your trial
-
Lodge 1858, American Federation of Gov. Emp. v. Paine
...Fitzpatrick v. Snyder, 220 F.2d 522, 524 (1st Cir.), cert. denied, 349 U.S. 946, 75 S.Ct. 875, 99 L.Ed. 1272 (1955); Burns v. McCrary, 229 F.2d 286, 287 (2d Cir. 1956); Hills v. Eisenhart, 256 F.2d 609, 610-611 (9th Cir.), cert. denied, 358 U.S. 832, 79 S.Ct. 53, 3 L.Ed.2d 70 (1958). 88 Air......
-
Hills v. Eisenhart, Civ. 7637.
...into issue. There is no doubt that failure to exhaust administrative remedies goes to the very jurisdiction of this Court (Burns v. McCrary, 2 Cir., 229 F.2d 286). For the foregoing reasons it is abundantly clear that plaintiffs have failed to bring themselves within the jurisdiction of thi......
-
Michaelson v. Herren
...to military boards as to actions taken within their jurisdiction.5 Bolger v. Marshall, 90 U.S.App. D.C. 30, 193 F.2d 37; Burns v. McCrary, 2 Cir., 229 F.2d 286; Burns v. Wilson, 346 U.S. 137, 142, 73 S.Ct. 1045, 97 L. Ed. 1508; McKinney v. Finletter, 10 Cir., 205 F.2d 761; Hunter v. Beets, ......
-
Hills v. Eisenhart
...291, 214 F.2d 878; Young v. Higley, 95 U.S.App. D.C. 122, 220 F.2d 487; Fitzpatrick v. Snyder, 1 Cir., 220 F.2d 522; Burns v. McCrary, 2 Cir., 229 F.2d 286. 5 To whom this advice was given the complaint did not say. 6 Whose letter this was the complaint did not say. 7 What agency this was t......