
    ALBION McD. COFFEY v. THE UNITED STATES
    [No. 42456.
    Decided March 4, 1935]
    
      Mr. Samuel T. Ansell for the plaintiff.
    
      Mr. Louis R. Mehlinger, with whom was Mr. Assistant Attorney General George C. Sweeney, for the defendant.
   MEMORANDUM BY THE COURT

• The plaintiff, during all the period involved in this action, was a retired officer in the Medical Corps of the United States Army and brings this suit to recover fees for services performed by him in examining applicants for enlistment. It appears that at one of the Army recruiting offices no medical officers were stationed or available for the purpose of examining the applicants for enlistment, and plaintiff was verbally requested by the officer in charge to make the necessary examinations. He did so, and now seeks to recover the fees provided for such services in the Army regulations.

The Army regulations provide that undér the circumstances described above a civilian physician may be employed for the purpose of making the necessary physical examination of applicants for enlistment, and also fix the amount of compensation therefor. If plaintiff had been a civilian, it may be he could recover, but in United States v. Tyler, 105 U. S. 244, and other Supreme Court decisions, it has been held that a retired officer is not a civilian, but still in the military service. The law provides for his being paid a specified sum accordingly, but we can find no law or regulation of the War Department that authorizes the employment of a retired officer to perform the services involved herein, and without such authority his claim cannot be sustained. It will therefore be ordered that plaintiff’s petition be dismissed.  