Opinion
No. 223.
February 5, 1934.
Appeal from the District Court of the United States for the Eastern District of New York.
Mandamus proceeding by Nathan Amchanitzky against John A.T. Carrougher, as Acting Postmaster of Brooklyn, to compel defendant to draw a warrant on the Treasurer of the United States in the sum of $30.84 for compensation alleged to have been earned by petitioner as a substitute letter carrier. From a judgment dismissing the petition on the merits ( 3 F. Supp. 993), petitioner appeals, and Francis J. Sinnott, as Acting Postmaster of Brooklyn, is substituted as defendant.
Reversed and remanded, with directions.
Nathan Amchanitzky, of Brooklyn, N.Y., pro se.
Howard W. Ameli, U.S. Atty., of Brooklyn, N.Y. (Herbert H. Kellogg and Emanuel Bublick, Asst. U.S. Attys., both of Brooklyn, N Y, of counsel), for appellee.
Before SWAN, AUGUSTUS N. HAND, and MACK, Circuit Judges.
The defendant's motion to dismiss was grounded on (1) lack of jurisdiction, and (2) failure of the petition to state a cause of action. The District Court granted the motion upon the second ground without passing upon the former. 3 F. Supp. 993. It should have based dismissal upon lack of jurisdiction. The rule that District Courts of the United States have no jurisdiction in original cases of mandamus is too firmly established to require us to consider its origin or whether the point might, or should, have been decided otherwise. Knapp v. Lake Shore M.S. Ry. Co., 197 U.S. 536, 25 S. Ct. 538, 49 L. Ed. 870; Covington C. Bridge Co. v. Hager, 203 U.S. 109, 110, 27 S. Ct. 24, 51 L. Ed. 111. The appellant would have us differentiate these authorities because in them the defendant was not, as here, a federal officer. See Waldo v. Poe, 14 F.2d 749, 750 (D.C.W.D. Wash.). But the Supreme Court opinions do not permit us to take this distinction. Upon this controlling authority, the judgment must be reversed, and the cause remanded, with directions to dismiss for lack of jurisdiction. It is so ordered.