JOSEPH S. LORD, III, District Judge.
This is an action brought under the Declaratory Judgments Act, 28 U.S.C. § 2201 et seq., and the Administrative Procedure Act, 5 U.S.C. § 1001 et seq., to challenge the validity of the plaintiff's removal from his Civil Service position as General Investigator in the Immigration and Naturalization Service. Since plaintiff was - after his dismissal - reappointed to a lower-paying position in the Service and has now retired from government employment, the relief requested involves only such additional compensation and other service benefits as he would have obtained and to which he would now be entitled if the administrative action resulting in his initial discharge was objectionable under the statutory standards of judicial review enumerated for us at 5 U.S.C. § 1009. See 5 U.S.C. § 652.
In an earlier version of this same suit, this court, by my late brother, Judge Grim, granted defendant's motion to dismiss on the ground of laches, 227 F. Supp. 790 (E.D.Pa., 1964), but that order was vacated by the Court of Appeals, 341 F.2d 291 (C.A.3, 1965), on the basis that the district court had no jurisdiction since plaintiff failed to join certain indispensable parties. Having joined the proper parties, plaintiff is entitled to have us "decide the case again upon the merits." Id. at 292. Plaintiff's argument that this decision is a mandate to try the case, precluding reassertion of the motion to dismiss, must be rejected as spurious. The Third Circuit has recently held that where indispensable parties have not been joined, the court is completely without jurisdiction to entertain the action. Provident Tradesmens Bank and Trust Co. v. Lumbermens Mutual Casualty Co. (C.A.3), 365 F.2d 802 (1966). Thus, Judge Grim's decision was a nullity; he lacked power to decide anything, including laches. Hence we must proceed as though the matter is before us de novo.
Defendants have moved to dismiss the amended complaint, alleging that "the final decision in the plaintiff's case at the administrative level was made by the Board of Appeals and Review of the Civil Service Commission on June 20, 1961 [and] that this action was not instituted until May 7, 1963, almost two years after the plaintiff had exhausted his administrative remedies and therefore * * * the plaintiff is guilty of laches." It is also asserted that since judicial review here is limited to the question of whether the plaintiff was afforded due process, an inspection of the administrative record leaves no issue of fact to be determined.
It has been urged by plaintiff's counsel that the defense of laches cannot properly be considered by the court for four reasons:
First, it is argued that there is an applicable statute of limitations of six years which governs suits against the United States for employes' salaries. Plaintiff's line of reasoning begins with the proposition that 28 U.S.C. § 1346, after its 1964 amendment, gives district courts concurrent jurisdiction with the Court of Claims in suits against the United States for salaries, wherein the amount in controversy is less than $10,000. 28 U.S.C. § 2501, dealing with procedure in the Court of Claims, provides that:
"Every claim of which the Court of Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues."