Suits Against United States Officials.

United States v. Lee, a 5-to-4 decision, qualified earlier holdings that a judgment affecting the property of the United States was in effect against the United States, by ruling that title to the Arlington estate of the Lee family, then being used as a national cemetery, was not legally vested in the United States but was being held illegally by army officers under an unlawful order of the President. In its examination of the sources and application of the rule of sovereign immunity, the Court concluded that the rule “if not absolutely limited to cases in which the United States are made defendants by name, is not permitted to interfere with the judicial enforcement of the rights of plaintiff when the United States is not a defendant or a necessary party to the suit.”1021 Except, nevertheless, for an occasional case like Kansas v. United States,1022 which held that a state cannot sue the United States, most of the cases involving sovereign immunity from suit since 1883 have been cases against officers, agencies, or corporations of the United States where the United States has not been named as a party defendant. Thus, it has been held that a suit against the Secretary of the Treasury to review his decision on the rate of duty to be exacted on imported sugar would disturb the whole revenue system of the government and would in effect be a suit against the United States.1023 Even more significant is Stanley v. Schwalby,1024 holding that an action of trespass against an army officer to try title in a parcel of land occupied by the United States as a military reservation was a suit against the United States because a judgment in favor of the plaintiffs would have been a judgment against the United States.

Subsequent cases reaffirm the rule of United States v. Lee that, where the right to possession or enjoyment of property under general law is in issue, the fact that defendants claim the property as officers or agents of the United States does not make the action one against the United States until it is determined that they were acting within the scope of their lawful authority.1025 On the other hand, the rule that a suit in which the judgment would affect the United States or its property is a suit against the United States has also been repeatedly approved and reaffirmed.1026 But, as the Court has pointed out, it is not “an easy matter to reconcile all of the decisions of the court in this class of cases,”1027 and, as Justice Frankfurter quite justifiably stated in a dissent, “the subject is not free from casuistry.”1028 Justice Douglas’ characterization of Land v. Dollar, “this is the type of case where the question of jurisdiction is dependent on decision of the merits,”1029 is frequently applicable.

Larson v. Domestic & Foreign Corp.,1030 illuminates these obscurities somewhat. A private company sought to enjoin the Administrator of the War Assets in his official capacity from selling surplus coal to others than the plaintiff who had originally bought the coal, only to have the sale cancelled by the Administrator because of the company’s failure to make an advance payment. Chief Justice Vinson and a majority of the Court looked upon the suit as one brought against the Administrator in his official capacity, acting under a valid statute and therefore a suit against the United States. It held that, although an officer in such a situation is not immune from suits for his own torts, his official action, though tortious, cannot be enjoined or diverted, because it is also the action of the sovereign.1031 The Court then proceeded to repeat the rule that “the action of an officer of the sovereign (be it holding, taking, or otherwise legally affecting the plaintiff ’s property) can be regarded as so individual only if it is not within the officer’s statutory powers, or, if within those powers, only if the powers or their exercise in the particular case, are constitutionally void.”1032 The Court rejected the contention that the doctrine of sovereign immunity should be relaxed as inapplicable to suits for specific relief as distinguished from damage suits, saying: “The Government, as representative of the community as a whole, cannot be stopped in its tracks by any plaintiff who presents a disputed question of property or contract right.”1033

Suits against officers involving the doctrine of sovereign immunity have been classified into four general groups by Justice Frankfurter. First, there are those cases in which the plaintiff seeks an interest in property which belongs to the government or calls “for an assertion of what is unquestionably official authority.”1034 Such suits, of course, cannot be maintained.1035 Second, cases in which action adverse to the interests of a plaintiff is taken under an unconstitutional statute or one alleged to be so. In general these suits are maintainable.1036 Third, cases involving injury to a plaintiff because the official has exceeded his statutory authority. In general these suits are maintainable.1037 Fourth, cases in which an officer seeks immunity behind statutory authority or some other sovereign command for the commission of a common law tort.1038 This category of cases presents the greatest difficulties because these suits can as readily be classified as falling into the first group if the action directly or indirectly is one for specific performance or if the judgment would affect the United States.

Footnotes

1021
United States v. Lee, 106 U.S. 196, 207–208 (1882). The Tucker Act, 20 U.S.C. § 1346(a)(2), now displaces the specific rule of the case, as it provides jurisdiction against the United States for takings claims. [Back to text]
1022
204 U.S. 331 (1907). [Back to text]
1023
Louisiana v. McAdoo, 234 U.S. 627, 628 (1914). [Back to text]
1024
162 U.S. 255 (1896). Justice Gray endeavored to distinguish between this case and Lee. Id. at 271. It was Justice Gray who spoke for the dissenters in Lee. [Back to text]
1025
Land v. Dollar, 330 U.S. 731, 737 (1947). [Back to text]
1026
Oregon v. Hitchcock, 202 U.S. 60 (1906); Louisiana v. Garfield, 211 U.S. 70 (1908); New Mexico v. Lane, 243 U.S. 52 (1917); Wells v. Roper, 246 U.S. 335 (1918); Morrison v. Work, 266 U.S. 481 (1925); Minnesota v. United States, 305 U.S.. 382 (1939); Mine Safety Co. v. Forrestal, 326 U.S. 371 (1945). See also Minnesota v. Hitchcock, 185 U.S. 373 (1902). [Back to text]
1027
Cunningham v. Macon & Brunswick R.R., 109 U.S. 446, 451 (1883), quoted by Chief Justice Vinson in the opinion of the Court in Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949). [Back to text]
1028
Larson, 337 U.S. at 708. Justice Frankfurter’s dissent also contains a useful classification of immunity cases and an appendix listing them. [Back to text]
1029
330 U.S. 731, 735 (1947) (emphasis added). [Back to text]
1030
337 U.S. 682 (1949). [Back to text]
1031
337 U.S. at 689–97. [Back to text]
1032
337 U.S. at 701–02. This rule was applied in Goldberg v. Daniels, 231 U.S. 218 (1913), which also involved a sale of government surplus property. After the Secretary of the Navy rejected the highest bid, plaintiff sought mandamus to compel delivery. This suit was held to be against the United States. See also Perkins v. Lukens Steel Co., 310 U.S. 113 (1940), which held that prospective bidders for contracts derive no enforceable rights against a federal official for an alleged misinterpretation of his government’s authority on the ground that an agent is answerable only to his principal for misconstruction of instructions, given for the sole benefit of the principal. In Larson, the Court not only refused to follow Goltra v. Weeks, 271 U.S. 536 (1926), but in effect overruled it. Goltra involved an attempt of the government to repossess barges which it had leased under a contract reserving the right to repossess in certain circumstances. A suit to enjoin repossession was held not to be a suit against the United States on the ground that the actions were personal and in the nature of a trespass. Also decided in harmony with the Larson decision are the following, wherein the suit was barred as being against the United States: (1) Malone v. Bowdoin, 369 U.S. 643 (1962), a suit to eject a Forest Service Officer from land occupied by him in his official capacity under a claim of title from the United States; and (2) Hawaii v. Gordon, 373 U.S. 57 (1963), an original action by Hawaii against the Director of the Budget for an order directing him to determine whether a parcel of federal land could be conveyed to that state. In Dugan v. Rank, 372 U.S. 609 (1963), the Court ruled that inasmuch as the storing and diverting of water at the Friant Dam resulted, not in a trespass, but in a partial, although a casual day-by-day, taking of water rights of claimants along the San Joaquin River below the dam, a suit to enjoin such diversion by Federal Bureau of Reclamation officers was an action against the United States, for grant of the remedy sought would force abandonment of a portion of a project authorized and financed by Congress, and would prevent fulfillment of contracts between the United States and local Water Utility Districts. Damages were recoverable in a suit under the Tucker Act. 28 U.S.C. § 1346(a). [Back to text]
1033
337 U.S. at 703–04. Justice Frankfurter, dissenting, would have applied the rule of the Lee case. See Pub. L. 94–574, 1, 90 Stat. 2721 (1976), amending 5 U.S.C. § 702 (action seeking relief, except for money damages, against officer, employee, or agency not to be dismissed as action against United States). [Back to text]
1034
Larson v. Domestic & Foreign Corp., 337 U.S. 682, 709–710 (1949) (dissenting opinion). [Back to text]
1035
Oregon v. Hitchcock, 202 U.S. 60 (1906); Louisiana v. McAdoo, 234 U.S. 627 (1914); Wells v. Roper, 246 U.S. 335 (1918). See also Belknap v. Schild, 161 U.S. 10 (1896); International Postal Supply Co. v. Bruce, 194 U.S. 601 (1904). [Back to text]
1036
Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936); Tennessee Electric Power Co. v. TVA, 306 U.S. 118 (1939) (holding that one threatened with direct and special injury by the act of an agent of the government under a statute may challenge the constitutionality of the statute in a suit against the agent). [Back to text]
1037
Philadelphia Co. v. Stimson, 223 U.S. 605 (1912); Waite v. Macy, 246 U.S. 606 (1918). [Back to text]
1038
United States v. Lee, 106 U.S. 196 (1882); Goltra v. Weeks, 271 U.S. 536 (1926); Ickes v. Fox, 300 U.S. 82 (1937); Land v. Dollar, 330 U.S. 731 (1947). See also Barr v. Matteo, 360 U.S. 564 (1959); Howard v. Lyons, 360 U.S. 593 (1959). Butz v. Economou, 438 U.S. 478 (1978); Carlson v. Green, 446 U.S. 14 (1980); Harlow v. Fitzgerald, 457 U.S. 800 (1982). [Back to text]