HUNTER
v.
UNITED STATES ET AL.
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The District Court correctly dismissed the action for want of jurisdiction, as the United States cannot be sued without its consent and the court lacked jurisdiction over the specific claims for reinstatement and back pay.
Plaintiff, a former Postmaster, sued the United States and the Postmaster General for reinstatement and back pay after his dismissal. The District Cou…
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PER CURIAM.
This is an appeal from the dismissal of an action brought against the United States and the Postmaster General for the reinstatement of the plaintiff as Postmaster at Alexander, North Carolina, and for the recovery of back pay from the time of his alleged wrongful dismissal. It is clear that the District Court was correct in dismissing the action for want of jurisdiction.
Not only does the case fall within the general rule that the United States cannot be sued without its consent, Siskind v. Morgenthau, 80 U.S.App.D.C. 249, 152 F. 2d 286; Love v. United States, 8 Cir., 108 F. 2d 43, 45, but insofar as it prays for reinstatement, the relief sought is in the nature of a mandamus which a District Court can only grant as ancillary to the exercise of some independently conferred jurisdiction, United States ex rel. Vassel v. Durning, 2 Cir., 152 F. 2d 455; Petrowski v. Nutt, 9 Cir., 161 F. 2d 938. Moreover, the prayer for back pay could not be entertained as District Courts are expressly denied jurisdiction of any civil action to recover salaries for official services of officers of the United States. 28 U.S.C.A. § 1346(d) (2) ; Kennedy v. United States, 5 Cir., 146 F. 2d 26; Foshay v. United States, D.C.S.D. N.Y., 54 F. 2d 668.
The case was properly dismissed also as to the Postmaster General because his official residence is in Washington and he was not subject to service of process in the Western District of North Carolina. Butterworth v. Hill, 114 U.S. 128, 5 S.Ct. 796, 29 L.Ed. 119; Berlinsky v. Woods, 4 Cir., 178 F. 2d 265.
Affirmed.
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Citator
Cited By
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Stroud v. Ezra T. Benson, 254 F.2d 448 (4th Cir. 1958)
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Martinez v. Seaton, 285 F.2d 587 (10th Cir. 1961)
Authorities Cited
- Butterworth v. Hill & Others, 114 U.S. 128 (U.S. 1885)
- Love v. United States, 108 F.2d 43 (8th Cir. 1939)
- Berlinsky v. Woods, 178 F.2d 265 (4th Cir. 1949)
- United States ex rel. Vassel v. Durning, 152 F.2d 455 (2d Cir. 1945)
- Petrowski v. Nutt, 161 F.2d 938 (9th Cir. 1947)
- Kennedy v. United States, 146 F.2d 26 (5th Cir. 1944)
- Siskind v. Morgenthau, 152 F.2d 286 (D.C. Cir. 1945)
- Foshay v. United States (S.D.N.Y. 1931)