292 F2d 267 McCann v. United States Civil Service Commission
292 F.2d 267
Donald J. McCANN, Plaintiff-Appellant,
UNITED STATES CIVIL SERVICE COMMISSION and United States Federal Aviation Agency as successor to Airways Modernization Board, Defendants-Appellees.
United States Court of Appeals Second Circuit.
Submitted June 19, 1961.
Decided July 18, 1961.
Donald J. McCann, plaintiff-appellant, pro se.
Alan S. Rosenthal and Ronald A. Jacks, Attys., Dept. of Justice, Washington, D. C., for defendants-appellees.
Before CLARK and SMITH, Circuit Judges, and DAWSON, District Judge.
We have denied plaintiff-appellant's peremptory "Motion for Declaratory Judgment," and now, on request and agreement of the parties, consider his appeal on the merits on the written memoranda submitted to that end. Plaintiff shows us no statute or contract requiring the defendants to transfer him to the Airways Modernization Board along with the project on which he was working. The decision not to transfer was a discretionary executive act not reviewable by the judiciary. See § 4 of the Airways Modernization Act, 71 Stat. 349, 351, 49 U.S.C. § 1211, since repealed. Thus, even if we assume that the district court had jurisdiction of the action and that venue was proper, the complaint failed to state any legal claim for relief, and dismissal of the action was necessary in any event.