C. C. Divine v. United States

328 F.2d 305, 1964 U.S. App. LEXIS 6223

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 27, 1964
• Docket: 20962_1
• Status: Published

Opinion

PER CURIAM.

This is an appeal from the granting of a motion to dismiss pursuant to Rule 12, Federal Rules of Civil Procedure.

Appellant, plaintiff below, instituted this action against the United States in the United States District Court for the Southern District of Texas, the purpose of which was to obtain an order admitting or refusing to admit him to practice in the Federal Courts in the Southern District of Texas. He asserts that he has had an application for admission to practice in the Southern District pending without acceptance or denial for four years.

The district judge dismissed this action for the reasons that: “(1) The United States has not consented to be sued; (2) Service of summons on the United States Attorney did not confer jurisdiction in this action; and (3) The complaint fails to state a claim upon which relief can be granted”. We agree with the district judge.

It is'Jsufficient to say that the United States has not consented to be sued. Contrary to appellant’s assertions, consent is not found in 28 U.S.C.A. § 1343 (4) since there appears to be neither an authorization to commence such an action nor is there an act providing for the protection of the rights asserted. Nor may appellant find consent in 28 U.S.C.A. § 1346(2) since, contrary to his assertions, his claim is not founded upon an implied contract.

The judgment of the District Court is affirmed.