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SIMONS v. UNITED STATES

No. 71-2263.

480 F.2d 805 (1973)

Yale SIMONS, Plaintiff, v. UNITED STATES of America, Defendant.

United States Court of Appeals, Ninth Circuit.

July 19, 1973.

Attorney(s) appearing for the Case

A. Alexander Katz, Phoenix, Ariz. (argued), for plaintiff.

Michael B. Scott (argued), William C. Smitherman, U. S. Atty., N. Warner Lee, Asst. U. S. Atty., Phoenix, Ariz., for defendant.

Sheldon Mitchell, American Civil Liberties Union, Phoenix, Ariz., for amicus curiae.

Before CARTER and HUFSTEDLER, Circuit Judges, and PREGERSON, District Judge.

OPINION

JAMES M. CARTER, Circuit Judge (dissenting):

The majority has made the following order:

"The cause is remanded to the district court for the limited purpose of its answering the following question:

"In dismissing the `petition' for lack of jurisdiction, did the court deem the `petition' theretofore amended to state a claim under the Tucker Act (28 U.S.C. § 1346(a)(2)), as requested by petitioner-plaintiff in his memorandum filed...

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