Moreno v. United States et al, 195 F.2d 208 (D.C. Cir. 1952)

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US Court of Appeals for the District of Columbia Circuit - 195 F.2d 208 (D.C. Cir. 1952) Argued February 21, 1952
Decided March 6, 1952

LaVern R. Dilweg, Washington, D. C., with whom T. Bruce Fuller and R. H. McNeill, Washington, D. C., were on the brief, for appellant.

David Orlikoff, Atty., Department of Justice, Washington, D. C., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Charles M. Irelan, U. S. Atty., was on the brief, for appellees. George Morris Fay, U. S. Atty. when the record was filed, Joseph M. Howard, Asst. U. S. Atty., and Thomas Walsh, Atty., Department of Justice, Washington, D. C., also entered appearances for appellees.

Before EDGERTON, PROCTOR, and BAZELON, Circuit Judges.


Appellant, a retired officer of the Army of the United States, filed a complaint for back pay, which the District Court dismissed. The court ruled that the claim was res judicata because of the judgment of the Court of Claims in Vicente Moreno v. United States, 93 F. Supp. 607, 118 Ct. Cl. 30. If the District Court had jurisdiction its action was correct for the reason it gave. If the District Court lacked jurisdiction by reason of 28 U.S.C. § 1346(d) which provides that "The district courts shall not have jurisdiction * * * of * * * (2) Any civil action to recover fees, salary, or compensation for official services of officers of the United States", its action was correct for that reason. Cf. Almour v. Pace, 90 U.S.App.D.C. ____, 193 F.2d 699. Since the question of jurisdiction does not affect the validity of the court's action we need not decide it.