Di Silvestro v. Gray, 194 F.2d 355 (D.C. Cir. 1952)

Annotate this Case
US Court of Appeals for the District of Columbia Circuit - 194 F.2d 355 (D.C. Cir. 1952) Argued December 10, 1951
Decided January 31, 1952
Writ of Certiorari Denied April 21, 1952

See 72 S. Ct. 765.

Joseph Di Silvestro, pro se.

Joseph Kovner, Atty., Dept. of Justice, Washington, D. C., with whom George Morris Fay, U. S. Atty. at the time the brief was filed, and Edward H. Hickey, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellee.

Charles M. Irelan, U. S. Atty. at the time of argument, and Joseph M. Howard, Asst. U. S. Atty., Washington, D. C., also entered appearances on behalf of appellee.

Charles H. Bergazin, Washington, D. C., filed a brief on behalf of the American Legion as amicus curiae, urging reversal.

Before WILBUR K. MILLER, FAHY and WASHINGTON, Circuit Judges.


The judgment of the District Court, dismissing the complaint, is affirmed. Appellant has had his day in court. Di Silvestro v. United States Veterans' Administration, D.C.E.D.N.Y. 1949, 81 F. Supp. 844, affirmed 2 Cir., 1949, 173 F.2d 933, amended complaint dismissed, D.C.E.D.N.Y. 1950, 10 F.R.D. 20, affirmed 2 Cir., 1950, 181 F.2d 502, certiorari denied 1950, 339 U.S. 989, 70 S. Ct. 1014, 94 L. Ed. 1390. Having lost the previous litigation on its merits, appellant cannot now relitigate his cause simply by choosing another forum and by naming as defendant the Administrator of Veterans' Affairs, in his official capacity as head of the Veterans' Administration, rather than (as previously) suing the Veterans' Administration as such. See also Baxter v. Pace, 89 U.S.App.D.C. ___, 193 F.2d 20.

So ordered.