Neely v. United States

ALDISERT, Circuit Judge. In its petition for rehearing, the government relies on two cases that were not raised in its brief. The government quotes from United States v. Testan, 424 U.S. 392, 400, 47 L. Ed. 2d 114, 96 S. Ct. 948 (1976), to the effect that ""the Tucker Act is merely jurisdictional, and grant of a right of action must be made with specificity."" But the government fails to quote the very next sentence in the opinion: ""The respondents do not rest their claims upon a contract; neither do they seek the return of money paid by them to the Government."" Ibid. This case, of course, is precisely a case where the plaintiffs ""seek the return of money paid by them to the Government"" and, accordingly, we are not persuaded that our decision here is inconsistent with Testan.