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B & S LENOX TRADE SCH. v. VETERANS' EDUC. APPEALS

UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK


March 8, 1955

B & S LENOX TRADE SCHOOL, Inc., Plaintiff-Petitioner,
v.
VETERANS' EDUCTION APPEALS BOARD, Defendant-Respondent

The opinion of the court was delivered by: BICKS

Petitioner B & S Lenox Trade School, Inc. has filed a petition to review and set aside a final administrative decision of the Veterans' Education Appeals Board entered at Washington, D.C., on November 8, 1952 which fixed

'* * * the tuition rate of $ .4959 per student hour * * * for the Applicant's course in Shoe Repairing, and (as) the rate to which the Applicant is entitled for the training of veterans in said course during the period from February 15, 1951, through February 14, 1952; * * *'

 Jurisdiction of this Court to entertain the petition is founded by petitioner on Section 2 of Public Law 610, 81st Congress *fn1" an Section 10 of the Administrative Procedure Act, 5 U.S.C.A. ยง 1009. *fn2"

 The Veterans' Education Appeals Board moves pursuant to Rule 12 of the Rules of Civil Procedure to dismiss the petition urging that the Court lacks jurisdiction over the subject matter because of absence of statutory provision for special review of the Board's decisions and over it because it has not been constituted a body corporate and the Congress has not authorized suit against it as a Board eo nomine.

 Assuming, arguendo, that judicial review is not precluded by statute and agency action is not by law committed to agency discretion, *fn3" the petition nonetheless must be dismissed because the Court lacks jurisdiction over the respondent.

 Congress has not authorized the Board to be sued eo nomine; neither is it the offspring of such a suable entity. *fn4" Suit therefore must be against the individual members of the Board, *fn5" and only where they can be served, which it would appear is the District of Columbia.

 Motion granted.


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