189 F2d 255 Bruner v. United States
189 F.2d 255
United States Court of Appeals Fifth Circuit.
June 1, 1951.
Denmark Groover, Jr., Thos. W. Johnson, Macon, Ga., for appellant.
Irvin M. Gottlieb, Atty. Department of Justice, Washington, D. C., John P. Cowart, U. S. Atty., James H. Fort, Asst. U. S. Atty., Macon, Ga., for appellee.
Before HUTCHESON, Chief Judge, and SIBLEY and STRUM, Circuit Judges.
Brought under the Tucker Act, 28 U.S.C. § 1346(d) (2), to recover moneys claimed to be due plaintiff for services rendered under contract with the United States and not paid for, plaintiff's suit was met by a motion to dismiss on the ground that, under the controlling decision in this circuit, Kennedy v. United States, 146 F.2d 26, plaintiff was an officer of the United States, and the court was without jurisdiction.
The district judge, on evidence sufficient to support his conclusion, found: that the plaintiff was appointed by the Secretary of War, pursuant to Art. II, Sec. 2, Clause 2, of the Constitution; that he was an officer of the United States; and that the court was without jurisdiction of his claim. So determining, he dismissed the suit on that ground, and this appeal followed.
We agree that the case is ruled by Kennedy v. United States, supra, and that the judgment should be affirmed.