therefore he could not maintain suit against the United States under the Declaratory Judgment Act to determine validity of proceedings fixing his retirement pay. 28 U.S.C.A. § § 1346 (a) (1, 2), 2201, 2202, 2671 et seq.

William J. Powers, Jr., pro se.

Robert Tieken, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before MAJOR, LINDLEY and SCHNACKENBERG, Circuit Judges.
LINDLEY, Circuit Judge.

Plaintiff brought suit in the District Court against the United States, praying a declaratory judgment of invalidity of the action of certain governmental agencies in determining his rights as a retired officer of the Army Reserve Corps. He sought a judgment decreeing that he had been unlawfully deprived of his rights, particularly his retirement benefit, and enjoining the Veterans' Administration from exercising any control over him. However, only the government was made defendant. The United States attorney interposed a motion to dismiss the complaint, for the reason, inter alia, that the court was without jurisdiction to grant the relief prayed. This motion the court allowed; whereupon plaintiff perfected his appeal.

After the appeal had come to us, plaintiff filed a motion praying that we decide the jurisdictional question in advance of hearing upon the merits, which we allowed. Consequently, the question submitted is whether the trial court rightfully held that it had no jurisdiction to enter a declaratory judgment against the United States granting the relief prayed. In plaintiff's own words, we are asked to approve a complaint for declaratory judgment against the government to review the acts of the Army Retiring Board and to determine that they were unlawful.

[1-3] We start with the premise that it is the plaintiff's burden to establish jurisdiction. In this connection, it is a vital circumstance that the Declaratory Judgment Act, 28 U. S. C. A. §§ 2201, 2202, does not create new substantive rights. As the Supreme Court said in United States v. West Virginia, 295 U. S. 463, 475, 55 S. Ct. 789, 793, 79 L. Ed. 1546. "It does not purport to alter the character of the controversies which are the subject of the judicial power under the Constitution." The Act merely provides an additional procedural remedy; it creates no new substantive rights. Consequently, a suit under the Act must present a recognizable previously existing justiciable controversy.-a controversy within the jurisdiction of the District Court, irrespective of the Declaratory Judgment Act. If plaintiff can show that he has a justiciable controversy with the United States, irrespective of the Act, he has then and then only a standing entitling him to maintain the suit. In other words, his action must be based upon statutes of the United States giving to the court jurisdiction to entertain and decide the particular controversy presented.

[4] In our opinion, plaintiff has failed to show that he has a cause of action cognizable in the District Court. In the first place, of course, the government cannot be sued without its consent. Mine Safety Appliances Company v. Forrestal. 326 U. S. 371, 66 S. Ct. 219, 90 L. Ed. 140; United States v. Geisler, 7 Cir., 174 F. 2d 992, certiorari denied 338 U. S. 861, 70 S. Ct. 103, 94 L. Ed. 528. This, plaintiff seems to admit, but he insists that under Section 1346 (d) (2) of the Judicial Code, 28 U. S. C. § 1346 (d) (2), commonly known as the Tucker Act, created by former statutes and preserved in the present code, the United States has consented to be sued in the District Court in such a case as this. The Tucker Act grants to the district courts authority to dispose of certain types of actions against the United States, but it expressly denies jurisdiction in certain others. The pertinent provisions:

"(d) The district courts shall not have jurisdiction under this section of: "(1) Any civil action or claim for a pension;

"(2) Any civil action or claim to recover fees, salary, or compensation for official services of officers or employees of the United States."

Plaintiff argues that his suit is not within the quoted provisions, for the reason that his is not a claim for a pension or for fees, salary, or compensation for official services, though he does seek a judgment that the action of the Army administrative agencies in determining his retirement compensation was unlawful. In a suit involving an action for disability compensation, the Fourth Circuit in Smith v. United States, 57 F. 2d 998 held that, under the Tucker Act, there could be no question but that a claim for disability is a claim for pension within the meaning of the statute, citing cases in support of its conclusion. More specifically, however, the Fifth Circuit, in United States v. Beaman, 61 F. 2d 493, held that an action against the United States by a Reserve officer

seeking remedies under the Emergency Officers' Retirement Act, 38 U. S. C. A. §§ 581, 582, was not within the jurisdiction of the District Court. In Morgan v. United States, 5 Cir., 115 F. 2d 426, the court pointed out that compensation to members of the armed services arises not from contract, but from the statute as a token of the Government's benevolence, constituting a bounty which the Congress has the right to give or withhold, distribute or recall at its discretion, saying at page 427: "It is in essence indistinguishable from a pension, and jurisdiction over suits to enforce the payment of pensions against the United States is expressly withheld from the courts by the Tucker Act. Judicial Code, Sec. 24, subsection (20), 28 U. S. C. A. § 41, subsection (20)." And the Fifth Circuit, in Randolph v. United States, 158 F. 2d 787, certiorari denied 330 U. S. 839, 67 S. Ct. 980, 91 L. Ed. 1286, declared that an action against the United States by an Army Reserve officer to recover retirement pay as a Lieutenant Colonel was not maintainable in the District Court. In Almour v. Pace, 90 U. S. App. D. C. 63, 193 F. 2d 699, the Court of Appeals for the District of Columbia reached a similar conclusion.

[5] It follows from these authorities, we think, that plaintiff's reliance on the Tucker Act is ill founded; that suits involving the determination of the validity of proceedings fixing retirement pay are in their essence the same as actions involving pensions or suits to recover compensation by an officer of the United States. As to such actions, the government has not consented to be sued in the District Court; consequently, the trial court had no right to entertain the present action. Obviously, we are not concerned with the jurisdiction of the Court of Claims or of any other court or administrative body.

Plaintiff, if he is to succeed, must find his remedy in some other act of Congress. He directs our attention to various other statutes, none of which we think is applicable to the case before us. In other words, he has not suggested any statute which purports to lodge in the District Court a right to entertain a suit against the United States to establish the alleged illegal action of military officials in disposing of his statutory retirement rights. That the court had no jurisdiction to entertain the suit as one under the Federal Tort Claims Act, 28 U. S. C. A. §§ 1346, 2671 et seq., is clear, we think, from the Supreme Court decision, Feres v. United States, 340 U. S. 135, 71 S. Ct. 153, 95 L. Ed. 152.

We conclude that the District Court was without jurisdiction and rightfully dismissed plaintiff's suit. It therefore becomes unnecessary to have any further hearing. The judgment of the District Court is

Affirmed.

VA REGULATIONS, COMPENSATION AND PENSION

1310. Apportionments authorized

APPORTIONMENTS

Disability pension, disability compensation (including additional compensation for dependents provided by PL 877, 80th Cong., as amended by sec. 4, PL 339, 81st Cong.), emergency officers retirement pay, and on and after October 17, 1940, service pension and pension for service prior to April 21, 1898, amounting to more than [the monthly equivalent payabe for 20-percent serviceconnected disability,] will be apportioned according to the table provided in VA Regulation 1311, except where otherwise authorized or provided in this paragraph. (October 19, 1955)

(A) When the disabled person and his wife are not living together by reason of estrangement.

(B) Where the child or children are not in the custody of the disabled person. (C) Where action is being effected toward the appointment of a fiduciary for an incompetent or insane beneficiary. (June 16, 1945)

(D) In those cases where an incompetent veteran with a wife, child, or dependent parent, and for whom no guardian or other legal fiduciary has been appointed, is maintained in an institution by the United States or a political subdivision thereof, the disability pension payable under part III, Veterans Regulation No. 1 (a), unless paid in the discretion of the Administrator to the wife of such veteran for the use of the veteran and his dependents, will be apportioned, if otherwise in order, in accordance with the schedule set out below. Prior to authorizing an apportionment of disability pension as provided herein, adequate development will be accomplished for the purpose of determining the need therefor, and the evidence to establish the marital status, relationship, and dependency in the case of a parent, will be secured.

Where there is (are) —

A wife but no child or where all children are in her custody, portion to wife, $56.55 monthly.

A child but no wife, portion for child, $45.75 monthly.

Two or more children but no wife, portion for children (to be divided equally between them), $56.55 monthly.

A dependent parent but no wife or child, portion for parent, $45.75 monthly.

Two dependent parents but no wife or child (Apr. 27, 1955), portion for parents (to be divided equally between them), $56.55 monthly.

Any increase in pension by reason of the veteran having attained the age of 65, having been rated permanently and totally disabled and in receipt of pension for a continuous period of 10 years or more or having qualified for pension under Public Law 149, 82d Congress, as amended, will be added to the amount allowed the dependents as hereinabove described. There will be paid to the Manager, if a VA hospital or center, or such other proper official in charge of the institution any sum remaining unawarded. When the apportionments provided herein are believed to work a hardship upon one or more parties in interest, recourse then may be had to the provisions of VA Regulation 1315 for a special apportionment under the approved procedure relating thereto. Running awards not consistent with the foregoing provisions will not be automatically reviewed for such purpose but will be adjusted when the particular case otherwise requires award action. (Oct. 28, 1954)

(E) Where it is determined that an institutional award in behalf of an incompetent or insane beneficiary is in order, pending action on a special apportionment under VA Regulation 1315. In such cases, and when no fiduciary has been appointed, none of the increases on account of dependents provided by Public Law 877, 80th Congress, as amended by section 4, Public Law 339, 81st Congress, will be reflected in the institutional award but such increases will be paid to the apportionee or apportionees in the full amount which is payable on his or their account. In other words, apportionments will be determined in accordance with the table contained in VA Regulation 1311 predicated solely upon the amount of basic disability compensation payable. After such determination is made there will be added to the share of the apportionee or apportionees the additional compensation payable on his or their account. The above basis of apportionment will be continued during the veteran's trial visit or other temporary absence in excess of 30 days. If a fiduciary has been appointed and is providing for the veteran's dependents, any increase in compensation on account of the provisions of Public Law 877, 80th Congress, as amended by section 4, Public Law 339, 81st Congress, will be paid to him. Upon the veteran's discharge from the institution, apportionments will be in accordance with the provisions of VA Regulation 1311 predicated upon the entire amount of disability compensation payable, both basic and additional on account of dependents. (Oct. 3, 1950)

1 Percentage for child or children will be deducted from percentage for wife and children (June 16, 1945). 2 Equally divided.

(B) When the wife is living separate and apart from the disabled person, and the child or children are living with her and the wife is entitled to an apportioned share of disability compensation, service pension, or emergency officers retirement pay, both on account of herself and the child or children, the benefit as provided in subparagraph (A) above will be paid to the wife in one monthly amount on account of herself and such child or children in her custody. (Mar. 4, 1947)

(C) Where the evidence of record shows that the veteran and his wife are separated, the whereabouts of the wife is unknown, and all reasonable means to locate the wife have been unsuccessful or where she states in writing that she desires no share of the award, or fails for 90 days or more to respond to correspondence from the VA informing her of her rights, which is not returned unclaimed, there will be no apportionment on her account except that amount authorized by Public Law 877, 80th Congress, as amended by section 4, Public Law 339, 81st Congress, to be paid on her account at such time as her whereabouts may be ascertained. If there are children not in the veteran's custody, the award will be apportioned according to the table provided in subparagraph (A) of this paragraph on the basis of the disabled person and child or children until such time as the whereabouts of the wife may be ascertained or she -expresses a desire to claim her share of the award. In such event, the award will be reapportioned on the basis of the disabled person, wife, and child or children. (Nov. 13, 1952)

(D) That part of the benefit which is payable to a veteran under Public Law 877, 80th Congress, as amended by section 4, Public Law 339, 81st Congress, by virtue of his having a dependent father or mother, or both, will be apportioned and paid directly to the dependent when it appears that the claimant has neglected or refused to contribute to his, her, or their support in substantially the amount which he, she, or they would receive if apportionment were made: Provided, That no apportionment will be made where the duly appointed guardian under orders of the court of appointment makes or has made like contribution for the support of the parent or parents (sec. 1 (B), PL 662, 79th Cong.). (Nov. 13, 1952)

1312. Apportionment not authorized

No apportionment will be authorized:

(A) Where the life of a disabled person has been found guilty of conjugal infidelity by a court of competent jurisdiction, except the additional amounts specifically authorized by Public Law 877, 80th Congress, as amended by section 4, Public Law 339, 81st Congress, to be paid on her account. (Nov. 13, 1952)

(B) (1) Where the child of the disabled person has been legally adopted other than by the disabled person, except the additional amount specifically authorized by Public Law 877, 80 Congress, as amended by section 4, Public Law 339, 81st Congress, to be paid on account of the child. This provision is not applicable to death benefits. (Nov. 13, 1952)

(2) Where the child is not in the custody of the disabled person by reason of the child's entry into the active military or naval service, even though by reason of his minority the veteran's compensation is still payable at a higher rate, and irrespective of whether compensation was apportioned for the child prior to his entry into the active military or naval service. (Aug. 20, 1941)

(C) Unless and until relationship and dependency is established in accordance with the requirements of the particular law and regulations and instructions issued pursuant thereto, under which the monetary benefit is payable. (Jan. 25, 1936)

(D) Where the disabled person or his guardian is rendering support which, in view of the circumstances present in the individual case, is considered fair and reasonable. (June 16, 1945)

(E) Under VA Regulation 1310, where the [amount payable is not in excess of the monetary equivalent payable for a 20-percent service-connected disability]. (October 19, 1955)

(F) Under VA Regulation 1310, where the monetary benefit is payable under part III of the Veterans Regulation No. 1 series, except as provided in VA Regulation 1310 (D). (May 22, 1940)

(G) Of the additional amount authorized by the last paragraph of section 202 (3) or section 202 (5), World War Veterans' Act, 1924, as amended, or the additional amount payable under paragraph II (k), part I, Veterans Regulation No. 1 (a), as amended, or the corresponding peacetime rate; or in those cases where an amount in excess of that provided for total disability is payable, of any amount in excess of the rate prescribed for total disability. (Oct. 19, 1955)

(H) Where the wife, child, father, or mother of the disabled veteran is shown by evidence satisfactory to the Administrator of Veterans Affairs to be guilty of mutiny, treason, sabotage, or rendering assistance to an enemy of the United States or of its allies. (See VA Regulation 1069 (D).) (Oct. 28, 1954)

(I) For the purported wife of the veteran if it has been determined that she is living with another man in the reputed relationship of husband and wife. In such case, payment of the monetary benefit will be made to the veteran as though he had no wife. (Sept. 7, 1951)

1314. Action to be taken where payments have not been made under apportionments.

In apportioning disability pension, service pension, disability compensation, or emergency officers' retirement pay, the provisions of VA Regulations 1310 to 1317 will be applicable to all cases coming within the purview thereof where apportionments or division of pensions have been made but in which payments have not been made to the dependents for all periods affected. In the case of a division of pension, the act of March 3, 1899, will be applicable for all periods prior to October 17, 1940. (Feb. 24, 1941)

1315. Special apportionments.

Where it is clearly shown by competent evidence that the application of the provisions of VA Regulations 1276, 1310, and 1311, or the fact that no apportionment is authorized under VA Regulation 1312 will result in undue hardship upon the disabled person or any one of his dependents and relief can be afforded without undue hardship to the other persons in interest, the complete case file will be forwarded by the authorization officer or the attorney-reviewer with appropriate recommendation as to the exact manner of the proposed relief, to the Adjudication Officer, Assistant Adjudication Officer, or the Chief, [ Veterans Claims Division, Veterans Benefits Office, D. C., who will determine without regard to the provisions of Va Regulations 1276, 1310, 1311, and 1312, the disability pension, service pension, disability compensation, or emergency officers' retirement pay, which will be apportioned and the exact amount to be apportioned to each individual in interest. Should an appeal from such apportionment be received, the claims folder will be referred to the Adjudication Officer, Assistant Adjudication Officer, or the Chief, [ ] Veterans Claims Division, Veterans Benefits Office, in order that the special apportionment from which the appeal is taken may be reconsidered in the light of any additional evidence developed in connection with the appeal. When it is found that no change is warranted, VA Form 8, properly prepared, will be approved. Thereafter, regular appellate procedure will be for application (VA Manual M1-1, Revised). (Dec. 14, 1956)

1316. Effective dates of apportionments.

The effective date of an appointment will be the first day of the month next succeeding that in which the notice of estrangement, that the child or children are not in custody of the disabled person, or that the disabled person is not contributing to the support of a dependent parent, is received in the VA, and the disabled person's award wil be immediately adjusted in order to make payable to him or her only the apportioned amount to which he or she would be entitled under VA Regulations 1310 and 1311: Provided, that in initial awards benefits or apportionments will be granted over the entire period covered by the initial awards in accordance with the facts found. The effective date of an apportionment under VA Regulation 1310 (C) and (D) will be the date on which the veteran's award is suspended or the date from which an institutional award in his behalf is made: Provided, That in initial awards apportionments as authorized herein will be granted over the entire period covered by the initial awards in accordance with the facts found. (Jan. 26, 1949)

1317. Discontinuance of apportionments; effective dates.

Where disability pension, disability compensation, service pension, or emergency officers' retirement pay is apportioned between the veteran and his dependents and payments have been or are being made to the dependents subsequent to the date of cessation of the condition on which it is predicated, the effective date of discontinuance of the apportioned benefit to the dependent shall be the date of last payment and the award to the veteran will be adjusted accordingly; except that in the event of death, the date of death (upon the death of an apportionee, all or any part of the unpaid apportioned disability pension, compensation, or retirement pay will be paid to the veteran or to any other