Opinion
No. 14273.
Argued October 2, 1958.
Decided October 10, 1958.
Mr. Alan Johnstone, Washington, D.C., for appellant.
Mr. Louis M. Kaplan, Asst. U.S. Atty., with whom Messrs. Oliver Gasch, U.S. Atty., Carl W. Belcher and Thomas H. McGrail, Asst. U.S. Attys., were on the brief, for appellee.
Before BAZELON, FAHY and BURGER, Circuit Judges.
In the District Court appellant sought a declaratory judgment that the Secretary of the Army, appellee, acted without authority in requesting appellant to return sums previously paid to it by the United States under a construction contract, and also sought to have the Secretary enjoined from withholding funds that might become due to appellant under other construction contracts with the United States. The threatened withholding was alleged by appellant to arise from a claim by the Department of the Army that the sums, the return of which had been requested, had been mistakenly paid to appellant. The District Court dismissed the complaint on the Secretary's motion for summary judgment.
Upon the authority of Mine Safety Appliances Co. v. Forrestal, 326 U.S. 371, 66 S.Ct. 219, 90 L.Ed. 140, we think that in effect the suit was one against the United States to which it had not consented, and that accordingly the dismissal was proper.
Affirmed.