Love v. Royall, 13991.
| Decision Date | 02 February 1950 |
| Docket Number | No. 13991.,13991. |
| Citation | 179 F.2d 5 |
| Parties | LOVE v. ROYALL, Secretary of the Army |
| Court | U.S. Court of Appeals — Eighth Circuit |
Harold R. Love, pro se (Burdette W. Bergmann, Minneapolis, Minn., on the brief).
T. H. Wangensteen, Assistant United States Attorney, St. Paul, Minn. (John W. Graff, United States Attorney, St. Paul Minn., on the brief), for appellees.
Before SANBORN, JOHNSEN, and RIDDICK, Circuit Judges.
This is an appeal from an order dismissing the complaint of the plaintiff (appellant) in an action brought by him against the defendants (appellees) for a declaratory judgment and damages, based upon the claim that he was wrongfully separated from the service as a civilian employee of the War Department (Department of the Army) from December 27, 1944, to April 3, 1945.
The complaint, in substance, alleges that the plaintiff is a Veteran of the first World War, who has, under Civil Service, held many positions in the Government service, including the Navy and War Departments, and who, during the period in suit, was an employee of the War Department, entitled to retain his position, but that he was improperly denied his rights and separated from the payroll by certain officers of the Army who were on active duty. The plaintiff prayed for a declaration of his rights, "directed to the defendant Secretary of the Department of the Army," and for findings of fact to the effect that the plaintiff was "a permanent or indefinite preference eligible, who had completed a probationary or trial period employed in the civil service, the Navy Department and the War Department, of the United States, and at all times involved, had of record an official efficiency rating of good, and satisfactory conduct rating, with a permanent competitive classified status in the civil service of the United States"; that the plaintiff "was employed and had established his right to such employment, with the U. S. Civil Service Commission, and the War Department, as cost auditor, with compensation as provided by law for Civil Administrative Grade 9, on December 27, 1944"; and that his separation from the payroll during the period in suit was unlawful and ineffective. The plaintiff also demanded judgment for $1,000 damages "against the United States, its representative officer or agent, Kenneth C. Royall, the Secretary of the Department of the Army, and the Department of the Army, * * *."
The defendants moved for a dismissal of the complaint upon the following grounds: (1) that the United States has not consented to be sued in an action such as this, and cannot be joined as a co-defendant in any action brought under the Tucker Act, § 41(20), Title 28 U.S.C.A. now § 1346(a) (2), Title 28 U.S.C.A.; (2) that the action is not within the scope of the Federal Tort Claims Act, § 931, Title 28 U.S.C.A. now § 1346(b), Title 28 U.S.C.A.; (3) that...
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