Updegraff v. Talbott
Decision Date | 12 April 1955 |
Docket Number | No. 6912.,6912. |
Citation | 221 F.2d 342 |
Parties | George C. UPDEGRAFF, Appellant, v. Harold E. TALBOTT, Secretary of the Air Force of the United States, Appellee. |
Court | U.S. Court of Appeals — Fourth Circuit |
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Harry L. Walker, Washington, D. C. (George C. Updegraff, Washington, D. C., pro se, on the brief), for appellant.
Sondra Kaplan, Atty., Dept. of Justice, Washington, D. C. (Warren E. Burger, Asst. Atty. Gen., L. S. Parsons, Jr., U. S. Atty., Norfolk, Va., and Benjamin Forman, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
This is an appeal from an order dismissing for lack of jurisdiction an action instituted by a former officer of the Army to require the Secretary of the Air Force to correct certain military records and lay them for action before the President of the United States. Appellant's object is to obtain the pecuniary benefits incident to retirement for disability received in the line of duty. He contends that records bearing upon his disability were improperly altered and that he was improperly denied retirement for disability received in the line of duty by both the Army Retiring Board and the Secretary of War's Disability Review Board. He asked mandatory injunction to require the Secretary of the Air Force to correct the records so as to show disability incurred in line of duty and to lay before the President, for the President's approval or disapproval, the proceedings and decisions of the Army Retiring Board and the Secretary of War's Disability Review Board. The facts as stated in the memorandum of the trial judge are as follows:
The facts upon which appellant asks correction of records are that the Clinical Record Brief, bearing date of January 1, 1944, when appellant was returned to temporary limited duty, shows that the word "yes", in answer to the inquiry as to whether the disability had been incurred in line of duty, had been cancelled and the words "No E.P.T.A.D." inserted. The initials mean "Existed Prior to Active Duty". It does not appear by whom this change in the clinical record was made.
Quite apart from the fact that the Army Retiring Board has twice given careful consideration to appellant's case, and that its action has been concurred in by the Surgeon General and approved by the Secretary of the Army, we think that the action was properly dismissed. What was sought was a court order controlling executive officers of the government with respect to the exercise of powers vested in them by statute. An action asking such relief is a suit against the government which cannot be maintained because the government has not consented to be sued in the courts with respect thereto and also because the district courts are without power to grant writs of mandamus or, in cases such as this, mandatory injunctions, which in such cases are in effect writs of mandamus. Krug v. Fox, 4 Cir., 161 F.2d 1013, 1018-1020; Ainsworth v. Barn Ballroom Co., 4 Cir., ...
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