Powers v. United States, 11291.

• Decision Date: 18 February 1955
• Docket Number: No. 11291.,11291.
• Citation: 218 F.2d 828
• Parties: William J. POWERS, Jr., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

218 F.2d 828 (1954)

William J. POWERS, Jr., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 11291.

United States Court of Appeals, Seventh Circuit.

December 16, 1954.

Rehearing Denied February 18, 1955.

William J. Powers, Jr., pro se.

Robert Tieken, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before MAJOR, LINDLEY and SCHNACKENBERG, Circuit Judges.

LINDLEY, Circuit Judge.

Plaintiff brought suit in the District Court against the United States, praying a declaratory judgment of invalidity of the action of certain governmental agencies in determining his rights as a retired officer of the Army Reserve Corps. He sought a judgment decreeing that he had been unlawfully deprived of his rights, particularly his retirement benefit, and enjoining the Veterans' Administration from exercising any control over him. However, only the government was made defendant. The United States attorney interposed a motion to dismiss the complaint, for the reason, inter alia, that the court was without jurisdiction to grant the relief prayed. This motion the court allowed; whereupon plaintiff perfected his appeal.

After the appeal had come to us, plaintiff filed a motion praying that we decide the jurisdictional question in advance of hearing upon the merits, which we allowed. Consequently, the question submitted is whether the trial court rightfully held that it had no jurisdiction to enter a declaratory judgment against the United States granting the relief prayed. In plaintiff's own words, we are asked to approve a complaint for declaratory judgment against the government to review the acts of the Army Retiring Board and to determine that they were unlawful.

We start with the premise that it is the plaintiff's burden to establish jurisdiction. In this connection, it is a vital circumstance that the Declaratory Judgment Act, 28 U.S.C.A. §§ 2201, 2202, does not create new substantive rights. As the Supreme Court said in United States v. West Virginia, 295 U.S. 463, 475, 55 S.Ct. 789, 793, 79 L.Ed. 1546, "It does not purport to alter the character of the controversies which are the subject of the judicial power under the Constitution." The Act merely provides an additional procedural remedy; it creates no new substantive rights. Consequently, a suit under the Act must present a recognizable previously existing justiciable controversy, — a controversy within the jurisdiction of the District Court, irrespective of the Declaratory Judgment Act. If plaintiff can show that he has a justiciable controversy with the United States, irrespective of the Act, he has then and then only a standing entitling him to maintain the suit. In other words, his action must be based upon statutes of the United States giving to the court jurisdiction to entertain and decide the particular controversy presented.

In our opinion, plaintiff has failed to show that he has a cause of action cognizable in the District Court. In the first place, of course, the government cannot be sued without its consent. Mine Safety Appliances Company v. Forrestal, 326 U.S. 371, 66 S.Ct. 219, 90 L. Ed. 140; United States v. Geisler, 7 Cir., 174 F.2d 992, certiorari denied 338 U.S. 861, 70 S.Ct. 103, 94 L.Ed. 528. This, plaintiff seems to admit, but he insists that under Section 1346 (d)(2) of the Judicial Code, 28 U.S.C. § 1346 (d) (2), commonly known as the Tucker Act, created by former statutes and preserved in the present code, the United States has consented to be sued in the District Court in such a case as this. The Tucker Act grants to the district courts authority to dispose of certain types of actions against the United States, but it expressly denies jurisdiction in certain others. The pertinent provisions:

"(d) The district courts shall not have jurisdiction under this section of:

"(1) Any civil action or claim for a pension;

"(2) Any civil action or claim to recover fees, salary, or compensation for official services of officers or employees of the United States."

Plaintiff argues, that his suit is not within the quoted provisions, for the reason that his is not a claim for a pension or for fees, salary, or compensation for official services, though he does seek a judgment that the action of the Army administrative agencies in determining his retirement compensation was unlawful. In a suit involving an action for disability compensation, the Fourth Circuit in Smith v. United States, 57 F.2d 998 held that, under the Tucker Act, there could be no question but that a claim for disability is a claim for pension within the meaning of the statute, citing cases in support of its...