200 F2d 334 Reeber v. Rossell

200 F.2d 334



ROSSELL, et al.

No. 71, Docket 22465.

United States Court of Appeals Second Circuit.

Argued Nov. 12, 1952.

Decided Dec. 3, 1952.

Rogge, Fabricant & Gordon and Murray Gordon, New York City, attorneys and counsel for palintiff-appellant.

Myles J. Lane, U.S. Atty., Richard P. Donovan, Asst. U.S. Atty., Thomas V. O'Keefe and Terence J. McDonnell, Attorneys, Veterans Administration, New York City, for defendants-appellees.

Before AUGUSTUS N. HAND, and CHASE and CLARK, Circuit Judges.



Since the members of the United States Civil Service Commission have not been made parties to this action, the court was without jurisdiction to pass on the merits of the plaintiff's claim. Blackmar v. Guerre, 342 U.S. 512, 72 S.Ct. 410. The Blackmar decision apparently was not called to the attention of the court below, and only the merits were dealt with by Judge McGohey in his opinion dismissing the complaint, 106 F.Supp. 373. But in our view the reasoning of the Supreme Court in Blackmar v. Guerre, supra, evidently required a dismissal for lack of jurisdiction.


Accordingly, the judgment of the district court should be modified by directing the dismissal of the complaint for lack of jurisdiction and as so modified is affirmed.