United States v. Dismuke

• Decision Date: 19 April 1935
• Docket Number: No. 7675.,7675.
• Citation: 76 F.2d 715
• Parties: UNITED STATES v. DISMUKE.
• Court: U.S. Court of Appeals — Fifth Circuit

76 F.2d 715 (1935)

UNITED STATES v. DISMUKE.^*

No. 7675.

Circuit Court of Appeals, Fifth Circuit.

April 19, 1935.

William S. Ward, Atty., Department of Justice, of Washington, D. C., Geo. C. Sweeney, Asst. Atty. Gen., and T. Hoyt Davis, U. S. Atty., and H. G. Rawls, Asst. U. S. Atty., both of Macon, Ga.

W. A. Bootle, of Macon, Ga., for appellee.

Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.

HUTCHESON, Circuit Judge.

The suit was brought under the Tucker Act (28 USCA § 41 (20), to recover amounts claimed to be due plaintiff for accrued monthly installments on a civil service annuity under chapter 101, § 8 (a), Act of June 16, 1933, 48 Stat. 305, USCA, title 5, § 692d, and for a declaratory judgment as to future installments.¹

The complaint was that, though plaintiff had made his application as required, and had complied with all the other requirements of the statutes, his claim had been wrongfully and arbitrarily rejected on the ground that he did not render thirty years of allowable service, because his service as field deputy marshal from December 16, 1895 to April 30, 1902, could not count as allowable service as "field deputy marshals are regarded as employees of the marshal and not of the United States." The United States, insisting that the determination of any right or claim plaintiff may have has been exclusively remitted to administrative discretion and action, and that no consent to sue in respect of it has been given, objected to the jurisdiction of the court. It insisted, too, that, if there was jurisdiction to consider the claim, it ought to be rejected, because the administrative adjudication of it was right. The District Judge thought the claim justiciable under the Tucker Act. He tried it under that act, and awarded plaintiff the judgment he sued for, not only a money judgment for the installments he claimed had accrued, but a declaratory judgment establishing his right to future installments. This appeal attacks the jurisdiction of the court to render any judgment. It attacks its jurisdiction to render a declaratory judgment in a proceeding under the Tucker Act. It attacks the judgment as erroneous on the merits, if rendered with jurisdiction, because it allowed plaintiff to compute, as part of the necessary thirty years, the seven years he served as deputy field marshal.

We think it clear that the jurisdictional points are well taken. The District Court of the United States as to claims under the Tucker Act sits as a special tribunal exercising jurisdiction concurrent with the Court of Claims. U. S. v. Pfitsch, 256 U. S. 547, 41 S. Ct. 569, 65 L. Ed. 1084. When so sitting, it sits only to hear claims for actual damages on money demands. Perry v. U. S., 55 S. Ct. 432, 79 L. Ed. ___; Eugene Nortz v. U. S., 55 S. Ct. 428, 79 L. Ed. ___; Grant v. U. S., 7 Wall. 331, 19 L. Ed. 194; Marion & Rye V. R. Co. v. U. S., 270 U. S. 280, 46 S. Ct. 253, 70 L. Ed. 585. Demands, with certain named exceptions, founded upon the Constitution and laws of the United States, upon a regulation of an executive department, or any contract, express or implied, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, of equity, or of admiralty, if the United States were suable.

The United States argues that whether the civil service retirement annuity plaintiff is suing for be regarded as contractual, as providing for insurance benefits, or gratuitous, as part of a pension scheme, whether it be regarded as founded on a law of Congress, or upon a regulation of an executive department, it is perfectly plain from the whole structure of the plan "for the retirement of civil service employes" and the provisions of the acts putting it into effect that no suable right is granted by those acts, but, on the contrary, their operation and application is a matter of administrative discretion and action, which may not be interfered with or controlled by court action. In short, that such claim or right as these statutes give is not a suable right, but one for administrative determination. It argues that such a claim stands as do applications for reinstatement of lapsed policies under the World War Veterans' Act (43 Stat. 607), Meadows v. U. S., 281 U. S. 271, 50 S. Ct. 279, 74 L. Ed. 852, 73 A. L. R. 310; claims to review special assessments of war and excess profits taxes, Williamsport Wire Rope Co. v. U. S., 277 U. S. 551, 48 S. Ct. 587, 72 L. Ed. 985; claims for additional compensation for transportation; U. S. v. Atchison, Topeka & Santa Fe R. Co., 249 U. S. 451, 39 S. Ct. 325, 63 L. Ed. 703; and claims in compensation cases, Silberschein v. U. S., 266 U. S. 221, 45 S. Ct. 69, 69 L. Ed. 256; U. S. v. Williams, 278 U. S. 255, 49 S. Ct. 97, 73 L. Ed. 314, and as those stood under the Act of March 3, 1885 (23 Stat. 350), providing compensation for losses of personal property suffered by officers in the Army; U. S. v. Babcock, 250 U. S. 328, 39 S. Ct. 464, 63 L. Ed. 1011, entitled to purely administrative remedies to the exclusion of the courts. It argues that a consideration of the retirement legislation leaves no doubt of the congressional intent to commit its administration to the executive processes and officers the act names.

Beginning in 1920, the Congress instituted a complete administrative plan for the retirement on pay of civil service employees. This plan prescribes who should be eligible, fixed classes and the amounts applicable to each class. Provision is made for a deduction from the basic salary of each employee covered by the act, in accordance with the procedure prescribed by the Comptroller General to be deposited in the Treasury "to the credit of the civil service retirement disability fund." Provision is made, too, for crediting these deductions to the employee's individual account, and for the repayment of such amounts under certain conditions. Section 703a, USCA, title 5, provides that applications for annuities shall be in such form as the Commissioner of Pensions prescribes, and shall be supported by certificate from the head of the department in which the applicant has been employed. Section 717, USCA, title 5, provides: "Upon receipt of satisfactory evidence the Commissioner of Pensions shall forthwith adjudicate the claim of the applicant, and if title to annuity be established, a proper certificate shall be issued to the annuitant under the seal of the Department of the Interior." There is a provision, too, that any employee coming within the provisions of the Retirement Act shall be deemed to consent and agree to the deductions from his salary, and that payment of the salary less such deductions shall be an acquittance of all claims and demands for all regular services, except the right to the benefits which they may be entitled to under the Retirement Act. It is provided that the Civil Service Commission shall keep such record of appointments, transfers, etc., as may be deemed essential to the proper determination of rights under the Retirement Act, and shall furnish the Commissioner of...