Levy v. Hayward, 13414

• Decision Date: 05 September 1957
• Docket Number: No. 13414,13648.,13414
• Citation: 248 F.2d 152,101 US App. DC 232
• Parties: S. Leon LEVY, Appellant, v. Carlton HAYWARD, Director, Office of Personnel Management, Department of Commerce, and Louis Levine, Appellees. S. Leon LEVY, Appellant, v. W. Ney EVANS and John R. Franklin, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

101 US App. DC 232, 248 F.2d 152 (1957)

S. Leon LEVY, Appellant, v. Carlton HAYWARD, Director, Office of Personnel Management, Department of Commerce, and Louis Levine, Appellees.

S. Leon LEVY, Appellant, v. W. Ney EVANS and John R. Franklin, Appellees.

Nos. 13414, 13648.

United States Court of Appeals District of Columbia Circuit.

Argued May 6, 1957.

Decided September 5, 1957.

Petition for Rehearing Denied October 25, 1957.

Mr. S. Leon Levy, appellant pro se.

Mr. E. Tillman Stirling, Asst. U. S. Atty., for appellees. Messrs. Oliver Gasch, U. S. Atty., Lewis Carroll, Joseph M. F. Ryan, Jr., and Richard J. Snider, Asst. U. S. Attys., were on the brief for appellees in No. 13,414. Messrs. Donald E. Bilger and Harold D. Rhynedance, Jr., Asst. U. S. Attys., also entered appearances for appellees in No. 13,414.

Messrs. Oliver Gasch, U. S. Atty., Lewis Carroll and Joseph M. F. Ryan, Jr., Asst. U. S. Attys., were on the brief for appellees in No. 13,648.

Before WILBUR K. MILLER, BAZELON and WASHINGTON, Circuit Judges.

No. 13,414. PER CURIAM.

The District Court dismissed the complaint in this case on the ground that it fails to state a cause of action on which relief could be granted. The complaint, as amended, claims damages from the two defendants named for "deceit and misrepresentation, in pursuance to a long-standing conspiracy" with two others. The overt act alleged is that they, with intent to defraud and cheat plaintiff, gave false testimony as witnesses in a previous suit by plaintiff against the United States in the Court of Claims, 1953, 125 Ct.Cl. 145, certiorari denied 1954, 346 U.S. 931, 74 S.Ct. 321, 98 L. Ed. 422, and that this resulted in plaintiff's failure to recover in that suit a judgment entitling him to receive back salary following his discharge from the War Production Board with "its concomitant ruinous impact upon his professional standing and career." There is no allegation that the plaintiff has undertaken at any time or in any fashion to bring the matter of the alleged false testimony to the attention of the Court of Claims for its consideration and possible action.

Construing the allegations most favorably to the plaintiff-appellant and giving him the benefit of every permissible inference, we think that the complaint was properly dismissed for failure to state a cause of action on which damages could be awarded. See De Bobula v. Goss, 1951, 90 U.S.App.D.C. 28, 193 F.2d 35; Nalle v. Oyster, 1913, 230 U. S. 165, 182-183, 33 S.Ct. 1043, 57 L.Ed. 1439; Cunningham v. Brown, 1846, 18 Vt. 123, 46 Am.Dec. 140; Shultz v. Shultz, 1894, 136 Ind. 323, 36 N.E. 126; Dean v. Kirkland, 1939, 301 Ill.App. 495, 23 N.E.2d 180; Kantor v. Kessler, 1945, 132 N.J.L. 336, 40 A.2d 607; cf. Robinson v. Missouri Pacific Transp. Co., D.C. W.D.Ark.1949, 85 F.Supp. 235, 238. Appellant relies on Morgan v. Graham, 10 Cir., 1956, 228 F.2d 625, and Verplanck v. Van Buren, 1879, 76 N.Y. 247, but these cases involved fraudulent conduct beyond the giving of false testimony.

Affirmed.

No. 13,648. PER CURIAM.

The complaint in this case was filed on September 14, 1955. It claims damages from the defendants, as individuals and not as public officials, for depriving the plaintiff of his rights under the First Amendment with the intent of "trespassing and quashing by indirection" his claim against the United States for back salary following discharge from the War Production Board. It is alleged that at a hearing in the Court of Claims on this claim on February 5, 1951, plaintiff took the customary oath as a witness without objection...