1. Plaintiff, a private corporation, brought suit in a Federal
District Court against the Administrator of the War Assets
Administration, an agency of the United States, in his official
capacity. The complaint alleged that the Administration had sold
certain surplus coal to the plaintiff, but had refused to deliver
it and had made a new contract to sell it to others. The prayer was
for an injunction prohibiting the Administrator, his agents and all
persons acting under their direction, from selling or delivering
the coal to anyone other than the plaintiff and for a declaration
that the sale to the plaintiff was valid and the sale to the second
purchaser invalid. There was no allegation that the contract of
sale was with the Administrator personally, no allegation of any
statutory limitation on his powers as a sales agent, and no claim
that his action constituted an unconstitutional taking of
property.
Held: The suit was one against the United States and,
in the absence of consent by the United States, the District Court
was without jurisdiction. Pp.
337 U. S.
684-705.
2. In determining whether a suit nominally against an office is
against the officer individually or against the sovereign, the
crucial question is whether the relief sought is relief against the
sovereign. Pp. 687-688.
Page 337 U. S. 683
3. If the actions of an officer do not conflict with the terms
of his valid statutory authority, then they are actions of the
sovereign, whether or not they are tortious under general law, if
they would be regarded as the actions of a private principal under
the normal rules of agency. A government officer is not thereby
necessarily immunized from liability if his action is such that
liability would be imposed by the general law of torts. But the
action itself cannot be enjoined or directed, since it is also the
action of the sovereign.
United States v. Lee,
106 U. S. 196,
distinguished. Pp.
337 U. S.
689-697.
4. The action of an officer of the sovereign (be it holding,
taking or otherwise legally affecting a plaintiff's property) can
be regarded as so "illegal" as to permit a suit for specific relief
against the officer as an 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.
Goldberg v. Daniels, 231 U.
S. 218, followed;
Goltra v. Weeks, 271 U.
S. 536, discussed. Pp.
337 U. S.
697-702.
5. Since the very basis of plaintiff's action is that the
Administrator was authorized to enter into a binding contract to
sell the Government's coal, there is no allegation of any statutory
limitation on his authority, as sales agent, to deliver only when
he believed he was required to do so under the contract, and there
is no claim that his action in refusing to deliver constituted an
unconstitutional taking of plaintiff's property, the
Administrator's action in so refusing was that of the United
States, and the effort to enjoin it must fail as an effort to
enjoin the United States. P.
337 U. S.
703.
6. In the absence of a claim of constitutional limitation, the
necessity of permitting the Government to carry out its functions
unhampered by direct judicial intervention outweighs the possible
disadvantage to the citizen in being relegated to the recovery of
money damages after the event. Pp.
337 U. S.
703-704.
7. It is not for this Court to examine the necessity of immunity
of the particular Government agency involved, since that is a
function of the Congress. Pp.
337 U. S.
704-705.
83 U.S.App.D.C. 13,165 F.2d 235, reversed.
A suit against the Administrator of the War Assets
Administration was dismissed by the District Court, for want of
jurisdiction, as a suit against the United States.
Page 337 U. S. 684
The Court of Appeals reversed. 83 U.S.App.D.C. 13, 165 F.2d 235.
This Court granted certiorari, and Larson was substituted for
Littlejohn as the party petitioner. 333 U.S. 872.
Reversed, p.
337 U. S.
705.
MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.
This suit was brought in the United States District Court for
the District of Columbia by the Domestic & Foreign Commerce
Corporation against Robert M. Littlejohn, the then head of the War
Assets Administration. [
Footnote
1] The complaint alleged that the Administration had sold
certain surplus coal to the plaintiff; that the Administrator
refused to deliver the coal but, on the contrary, had entered into
a new contract to sell it to others. The prayer was for an
injunction prohibiting the Administrator from selling or delivering
the coal to any one other than the plaintiff and for a declaration
that the sale to the plaintiff was valid and the sale to the second
purchaser invalid.
A temporary restraining order was issued
ex parte. At
the subsequent hearing on the issuance of a preliminary injunction,
the defendant moved to dismiss the complaint on the ground, among
others, that the court did not have jurisdiction because the suit
was one against the United
Page 337 U. S. 685
States. The motion was granted. The Court of Appeals reversed,
holding that the jurisdictional capacity of the court depended on
whether or not title to the coal had passed. [
Footnote 2] Since this was also one of the
questions on the merits, it remanded the case for trial. We granted
certiorari, 333 U.S. 872. [
Footnote
3]
The controversy on the merits concerns the interpretation to be
given to the contract of sale. The War Assets Administration
construed the contract as requiring the plaintiff to deposit funds
to pay for the coal in advance and, when an unsatisfactory letter
of credit was offered in place of a deposit, it considered that the
contract was breached. The respondent, on the other hand, construed
the contract as requiring payment only on delivery of the documents
covering the coal shipment. In its view, it was not obliged to
deposit any funds in advance of shipment, and therefore had not
breached the contract by failing to do so.
A second question, related to but different from the question of
breach, was whether legal title to the coal had passed to the
respondent when the contract was made. If the contract required the
deposit of funds, then, of course, title could not pass until the
contract terms were complied with. If, on the other hand, the
contract required payment only on the delivery of documents, a
question remained as to whether title nevertheless passed at the
time the contract was made.
Since these questions were not decided by the courts below, we
do not pass on them here. They are important only insofar as they
illuminate the basis on which it
Page 337 U. S. 686
was claimed that the district court had jurisdiction over the
suit. It was not alleged that the contract for the sale of the coal
was a contract with the officer personally. [
Footnote 4] The basis of the action, on the
contrary, was that a contract had been entered into with the United
States. Nor was it claimed that the Administrator had any personal
interest in this coal or, indeed, that he himself had taken any
wrongful action. The complaint was directed against him because of
his official function as chief of the War Assets Administration.
[
Footnote 5] It asked for an
injunction against him in that capacity, and against "his agents,
assistants, deputies and employees and all persons acting or
assuming to act under their direction." The relief sought was, in
short, relief against the Administration for wrongs allegedly
committed by subordinate officials in that Administration. The
question presented to the courts below was whether such an
injunction was barred by the sovereign's immunity from suit.
Before answering that question, it is perhaps advisable to state
clearly what is and what is not involved. There is not involved any
question of the immunization of Government officers against
responsibility for their wrongful actions. If those actions are
such as to create a personal liability, whether sounding in tort or
in contract, the fact that the officer is an instrumentality of the
sovereign does not, of course, forbid a court from taking
jurisdiction over a suit against him.
Sloan Shipyards Corp. v.
Emergency Fleet Corp., 258 U. S. 549,
258 U. S. 567
(1922). As was said in
Brady
Page 337 U. S. 687
v. Roosevelt S.S. Co., 317 U.
S. 575,
317 U. S. 580
(1943), the principle that an agent is liable for his own torts "is
an ancient one, and applies even to certain acts of public officers
or public instrumentalities." But the existence of a right to sue
the officer is not the issue in this case. The issue here is
whether this particular suit is not also, in effect, a suit against
the sovereign. If it is, it must fail, whether or not the officer
might otherwise be suable.
If the denomination of the party defendant by the plaintiff were
the sole test of whether a suit was against the officer
individually or against his principal, the sovereign, our task
would be easy. Our decision then would be that the United States is
not being sued here, because it is not named as a party. This would
be simple, and would not leave room for controversy. But
controversy there has been, in this field above all others, because
it has long been established that the crucial question is whether
the relief sought in a suit nominally addressed to the officer is
relief against the sovereign. [
Footnote 6] In a suit against the officer to recover
damages for the agent's personal actions, that question is easily
answered. The judgment sought will not require action by the
sovereign or disturb the sovereign's property. There is, therefore,
no jurisdictional difficulty. [
Footnote 7] The question becomes difficult,
Page 337 U. S. 688
and the area of controversy is entered, when the suit is not one
for damages, but for specific relief:
i.e., the recovery
of specific property or monies, ejectment from land, or injunction
either directing or restraining the defendant officer's actions. In
each such case, the question is directly posed as to whether, by
obtaining relief against the officer, relief will not, in effect,
be obtained against the sovereign. For the sovereign can act only
through agents and, when the agents' actions are restrained, the
sovereign itself may, through him, be restrained. As indicated,
this question does not arise because of any distinction between law
and equity. It arises whenever suit is brought against an officer
of the sovereign in which the relief sought from him is not
compensation for an alleged wrong, but rather the prevention or
discontinuance,
in rem, of the wrong. In each such case,
the compulsion which the court is asked to impose may be compulsion
against the sovereign, although nominally directed against the
individual officer. If it is, then the suit is barred not because
it is a suit against an officer of the Government, but because it
is, in substance, a suit against the Government over which the
court, in the absence of consent, has no jurisdiction.
The relief sought in this case was not the payment of damages by
the individual defendant. [
Footnote
8] To the contrary,
Page 337 U. S. 689
it was asked that the court order the War Assets Administrator,
his agents, assistants, deputies and employees and all persons
acting under their direction, not to sell the coal involved and not
to deliver it to anyone other than the respondent. [
Footnote 9] The district court held that this
was relief against the sovereign, and therefore dismissed the suit.
We agree.
There may be, of course, suits for specific relief against
officers of the sovereign which are not suits against the
sovereign. If the officer purports to act as an individual, and not
as an official, a suit directed against that action is not a suit
against the sovereign. If the War Assets Administrator had
completed a sale of his personal home, he presumably could be
enjoined from later conveying it to a third person. On a similar
theory, where the officer's powers are limited by statute, his
actions beyond those limitations are considered individual and not
sovereign actions. The officer is not doing the business which the
sovereign has empowered him to do, or he is doing it in a way which
the sovereign has forbidden. His actions are
ultra vires
his authority, and therefore may be made the object of specific
relief. It is important to note
Page 337 U. S. 690
that, in such cases, the relief can be granted, without
impleading the sovereign, only because of the officer's lack of
delegated power. A claim of error in the exercise of that power is
therefore not sufficient. And, since the jurisdiction of the court
to hear the case may depend, as we have recently recognized,
[
Footnote 10] upon the
decision which it ultimately reaches on the merits, it is necessary
that the plaintiff set out in his complaint the statutory
limitation on which he relies.
A second type of case is that in which the statute or order
conferring power upon the officer to take action in the sovereign's
name is claimed to be unconstitutional. Actions for habeas corpus
against a warden and injunctions against the threatened enforcement
of unconstitutional statutes are familiar examples of this type.
Here, too, the conduct against which specific relief is sought is
beyond the officer's powers, and is therefore not the conduct of
the sovereign. The only difference is that, in this case, the power
has been conferred in form, but the grant is lacking in substance
because of its constitutional invalidity.
These two types have frequently been recognized by this Court as
the only ones in which a restraint may be obtained against the
conduct of Government officials. The rule was stated by Mr. Justice
Hughes in
Philadelphia Co. v. Stimson, 223 U.
S. 605,
223 U. S. 620
(1912), where he said:
". . . in case of an injury threatened by his illegal action,
the officer cannot claim immunity from injunction process. The
principle has frequently been
Page 337 U. S. 691
applied with respect to state officers seeking to enforce
unconstitutional enactments. [Citing cases.] And it is equally
applicable to a Federal officer acting in excess of his authority
or under an authority not validly conferred. [
Footnote 11]"
It is not contended by the respondent that the present case
falls within either of these categories. There was no claim made
that the Administrator and his agents, etc., were acting
unconstitutionally or pursuant to an unconstitutional grant of
power. Nor was there any allegation of a limitation on the
Administrator's delegated power to refuse shipment in cases in
which he believed the United States was not obliged to deliver.
There was, it is true, an allegation that the Administrator was
acting "illegally," and that the refusal to deliver was
"unauthorized." But these allegations were not based, and did not
purport to be based, upon any lack of delegated power. [
Footnote 12] Nor could they be,
since
Page 337 U. S. 692
the Administrator was empowered by the sovereign to administer a
general sales program encompassing the negotiation of contracts,
the shipment of goods and the receipt of payment. A normal
concomitant of such powers, as a matter of general agency law, is
the power to refuse delivery when, in the agent's view, delivery is
not called for under a contract and the power to sell goods which
the agent believes are still his principal's to sell.
The respondent's contention, which the Court of Appeals
sustained, was that there exists a third category of cases in which
the action of a Government official may be restrained or directed.
If, says the respondent, an officer of the Government wrongly takes
or holds specific property to which the plaintiff has title then
his taking or holding is a tort, and "illegal" as a matter of
general law, whether or not it be within his delegated powers. He
may therefore be sued individually to prevent the "illegal" taking
or to recover the property "illegally" held.
If this is an adequate theory on which to rest the conclusion
that the relief asked is not relief against the sovereign, then the
respondent's complaint made out a sufficient basis for
jurisdiction. The complaint alleged that the respondent's contract
with the United States was an immediate contract of sale under
which title to the coal had passed. The coal was thus alleged to be
the respondent's coal, not the United States' coal. Retention of it
by the Administrator after demand was claimed to be a conversion;
sale to a third party would aggravate the conversion. Since these
actions were tortious, they were "illegal" in the respondent's
sense, and hence were contended to be individual actions, not
properly taken on behalf of the United States, which could be
enjoined without making the United States a party.
We believe the theory to be erroneous. It confuses the doctrine
of sovereign immunity with the requirement
Page 337 U. S. 693
that a plaintiff state a cause of action. It is a prerequisite
to the maintenance of any action for specific relief that the
plaintiff claim an invasion of his legal rights, either past or
threatened. He must, therefore, allege conduct which is "illegal"
in the sense that the respondent suggests. If he does not, he has
not stated a cause of action. This is true whether the conduct
complained of is sovereign or individual. In a suit against an
agency of the sovereign, as in any other suit, it is therefore
necessary that the plaintiff claim an invasion of his recognized
legal rights. If he does not do so, the suit must fail even if he
alleges that the agent acted beyond statutory authority [
Footnote 13] or unconstitutionally.
[
Footnote 14] But, in a suit
against an agency of the sovereign, it is not sufficient that he
make such a claim. Since the sovereign may not be sued, it must
also appear that the action to be restrained or directed is not
action of the sovereign. The mere allegation that the officer,
acting officially, wrongfully holds property to which the plaintiff
has title does not meet that requirement. True, it establishes a
wrong to the plaintiff. But it does not establish that the officer,
in committing that wrong, is not exercising the powers delegated to
him by the sovereign. If he is exercising such powers, the action
is the sovereign's, and a suit to enjoin it may not be brought
unless the sovereign has consented.
It is argued, however, that the commission of a tort cannot be
authorized by the sovereign. Therefore, the argument goes, the
allegation that a Government officer has acted or is threatening to
act tortiously toward the plaintiff is sufficient to support the
claim that he has acted beyond his delegated powers. It is on this
contention that the respondent's position fundamentally rests,
since it is admitted that, if the action to be prevented
Page 337 U. S. 694
or compelled is authorized by the sovereign, the demand for it
must fail as a demand against the sovereign. It has been said, in a
very special sense, that, as a matter of agency law, a principal
may never lawfully authorize the commission of a tort by his agent.
But that statement, in its usual context, is only a way of saying
that an agent's liability for torts committed by him cannot be
avoided by pleading the direction or authorization of his
principal. [
Footnote 15] The
agent is himself liable, whether or not he has been authorized or
even directed to commit the tort. This, of course, does not mean
that the principal is not liable, nor that the tortious action may
not be regarded as the action of the principal. It does not mean,
therefore, that the agent's action, because tortious, is, for that
reason alone,
ultra vires his authority. An argument to
that effect was at one time advanced in connection with corporate
agents, in an effort to avoid corporate liability for torts, but
was decisively rejected. [
Footnote 16]
Page 337 U. S. 695
There is therefore nothing in the law of agency which lends
support to the contention that an officer's tortious action is
ipso facto beyond his delegated powers. Nor, do we think,
is there anything in the doctrine of sovereign immunity which
requires us to adopt such a view as regards Government agencies.
If, of course, it is assumed that the basis of the doctrine of
sovereign immunity is the thesis that the king can do no wrong,
then it may be also assumed that, if the king's agent does wrong,
that action cannot be the action of the king. It is on some such
argument that the position of the respondent rests. It is argued
that an officer given the power to make decisions is only given the
power to make correct decisions. If his decisions are not correct,
then his action based on those decisions is beyond his authority,
and not the action of the sovereign. There is no warrant for such a
contention in cases in which the decision made by the officer does
not relate to the terms of his statutory authority. Certainly the
jurisdiction of a court to decide a case does not disappear if its
decision on the merits is wrong. And we have heretofore rejected
the argument that official action is invalid if based on an
incorrect decision as to law or fact, if the officer making the
decision was empowered to do so.
Adams v. Nagle,
303 U. S. 532,
303 U. S. 542
(1938). We therefore reject the contention here. We hold that, if
the actions of an officer do not conflict with the terms of his
valid statutory authority, then they are the actions of the
sovereign, whether or not they are tortious under general law, if
they would be regarded as the actions of a private principal under
the normal rules of agency. A Government officer is not thereby
necessarily immunized from liability if his action is such that a
liability would be imposed by the general law of torts. But the
action itself cannot be enjoined or directed, since it is also the
action of the sovereign.
Page 337 U. S. 696
United States v. Lee, 106 U. S. 196
(1882), is said to have established the rule for which the
respondent contends. It did not. It represents, rather, a specific
application of the constitutional exception to the doctrine of
sovereign immunity. The suit there was against federal officers to
recover land held by them, within the scope of their authority, as
a United States military station and cemetery. The question at
issue was the validity of a tax sale under which the United States,
at least in the view of the officers, had obtained title to the
property. The plaintiff alleged that the sale was invalid, and that
title to the land was in him. The Court held that if he was right,
the defendants' possession of the land was illegal, and a suit
against them was not a suit against the sovereign.
Prima
facie, this holding would appear to support the contention of
the plaintiff. Examination of the
Lee case, however,
indicates that the basis of the decision was the assumed lack of
the defendants' constitutional authority to hold the land against
the plaintiff. The Court said (106 U.S. at
106 U. S.
219):
"It is not pretended, as the case now stands, that the president
had any lawful authority to [take the land], or that the
legislative body could give him any such authority except upon
payment of just compensation. The defense stands here solely upon
the absolute immunity from judicial inquiry of everyone who
asserts authority from the Executive Branch of the
Government, however clear it may be made that the Executive
possessed no such power. Not only that no such power is given, but
that it is absolutely prohibited, both to the Executive and the
Legislative, to deprive anyone of life, liberty, or property
without due process of law, or to take private property without
just compensation."
"
* * * *
Page 337 U. S.
697
"
"Shall it be said . . . that the courts cannot give a remedy
when the citizen has been deprived of his property by force, his
estate seized and converted to the use of the Government without
any lawful authority, without any process of law, and without any
compensation, because the President has ordered it and his officers
are in possession?"
The Court thus assumed that, if title had been in the plaintiff,
the taking of the property by the defendants would be a taking
without just compensation, and therefore an unconstitutional
action. [
Footnote 17] On
that assumption, and only on that assumption, the defendants'
possession of the property was an unconstitutional use of their
power, and was therefore not validly authorized by the sovereign.
For that reason, a suit for specific relief, to obtain the
property, was not a suit against the sovereign, and could be
maintained against the defendants as individuals.
The
Lee case therefore offers no support to the
contention that a claim of title to property held by an officer of
the sovereign is, of itself, sufficient to demonstrate that the
officer holding the property is not validly empowered by the
sovereign to do so. Only where there is a claim that the holding
constitutes an unconstitutional taking of property without just
compensation does the
Lee case require that conclusion.
[
Footnote 18] The cases
which followed
Lee's
Page 337 U. S. 698
do not require a different result. There are a great number of
such cases and, as this Court has itself remarked, it is not "an
easy matter to reconcile all the decisions of the Court in this
class of cases." [
Footnote
19] With only one possible exception, however, specific relief
in connection with property held or injured by officers of the
sovereign acting in the name of the sovereign has been granted only
where there was a claim that the taking of the property or the
injury to it was not the action of the sovereign because
unconstitutional [
Footnote
20] or beyond the officer's statutory powers. [
Footnote 21]
Page 337 U. S. 699
Certainly the Court has repeatedly stated these to be the cases
in which such relief could be granted. [
Footnote 22] A contrary doctrine was stated in
Goltra v. Weeks, 271 U. S. 536
(1926). In that case, the United States had leased barges to the
plaintiff under a contract which gave it a right to repossess under
certain conditions. Believing that those conditions existed,
officers of the Government attempted to repossess the barges. The
Court held that a suit to enjoin them from doing so was not a suit
against the United States. The Court said that the taking of the
barges was alleged to be a trespass, and hence "illegal."
Therefore, the actions of the officers were personal actions, not
the actions of the United States, and injunction against them would
not be injunction against the United States. 271 U.S. at
271 U. S. 544.
For this conclusion, the Court relied entirely upon the opinion of
Mr. Justice Hughes in
Philadelphia Co. v. Stimson,
223 U. S. 605
(1912). The reliance was misplaced, since the opinion in
Page 337 U. S. 700
that case clearly and specifically rested on the claim that
there was a lack of statutory power to act, not simply on a claim
of tortious injury to the plaintiff. [
Footnote 23]
Opposed to the rationale of the
Goltra opinion is the
decision, by Mr. Justice Holmes in
Goldberg v. Daniels,
231 U. S. 218
(1913). There, as here, the question concerned the effect of a
claimed sale of Government surplus property. The plaintiff
submitted a sealed bid for a surplus war vessel, accompanied in
that case by a certified check as payment in advance. When the bids
were opened his was the highest. The Secretary of the Navy,
however, determined not to accept the bid, and refused to deliver
the vessel. The plaintiff brought mandamus. He alleged that the
sale was complete when the bids were opened, and that the ownership
of the vessel was therefore in him, and he asked that the Secretary
be compelled to deliver it. The lower courts examined the details
of the transaction and concluded that the sale was not complete
until the Secretary announced his acceptance of the bid. On appeal
here, it was expressly held that it was not necessary to decide
whether the lower courts were correct. The suit must fail as one
against the United States, the Court said, whether or not the sale
was complete. In so holding, the Court said, in effect, that the
question of title was immaterial to the court's jurisdiction.
Wrongful the Secretary's conduct might be, but a suit to relieve
the wrong by obtaining the vessel would interfere
Page 337 U. S. 701
with the sovereign behind its back, and hence must fail.
[
Footnote 24]
Both cases are pressed upon us. The petitioner argues, and
correctly, that the
result in the
Goldberg case
calls for a similar result in this case -- a dismissal of the suit
for want of jurisdiction. The respondent argues, with equal
correctness, that the
theory of the Goltra opinion -- that
an allegation that the actions of Government officers are wrongful
under general law is sufficient to show that they are
"unauthorized" -- calls for an affirmance of the decision below.
Since we must therefore resolve the conflict in doctrine, [
Footnote 25] we adhere to the rule
applied in the
Goldberg case, and to the principle which
has been frequently repeated by this Court, both before and after
the
Goltra case: the action of an officer of the sovereign
(be it holding, taking or otherwise legally affecting the
Page 337 U. S. 702
plaintiff's property) can be regarded as so "illegal" as to
permit a suit for a specific relief against the officer as an
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. [
Footnote 26]
Page 337 U. S. 703
The application of this principle to the present case is clear.
The very basis of the respondent's action is that the Administrator
was an officer of the Government, validly appointed to administer
its sales program, and therefore authorized to enter, through his
subordinates, into a binding contract concerning the sale of the
Government's coal. There is no allegation of any statutory
limitation on his powers as a sales agent. In the absence of such a
limitation he, like any other sales agent, had the power and the
duty to construe such contracts and to refuse delivery in cases in
which he believed that the contract terms had not been complied
with. His action in so doing in this case was therefore within his
authority even if, for purposes of decision here, we assume that
his construction was wrong, and that title to the coal had, in
fact, passed to the respondent under the contract. There is no
claim that his constituted an unconstitutional taking. [
Footnote 27] It was therefore
inescapably the action of the United States, and the effort to
enjoin it must fail as an effort to enjoin the United States.
It is argued that the principle of sovereign immunity is an
archaic hangover not consonant with modern morality, and that it
should therefore be limited wherever possible. There may be
substance in such a viewpoint as applied to suits for damages. The
Congress has increasingly permitted such suits to be maintained
against
Page 337 U. S. 704
the sovereign, and we should give hospitable scope to that
trend. [
Footnote 28] But the
reasoning is not applicable to suits for specific relief. For it is
one thing to provide a method by which a citizen may be compensated
for a wrong done to him by the Government. It is a far different
matter to permit a court to exercise its compulsive powers to
restrain the Government from acting, or to compel it to act. There
are the strongest reasons of public policy for the rule that such
relief cannot be had against the sovereign. 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. As was early recognized,
"the interference of the Courts with the performance of the
ordinary duties of the executive departments of the Government
would be productive of nothing but mischief. . . . [
Footnote 29]"
There are limits, of course. Under our constitutional system,
certain rights are protected against governmental action, and, if
such rights are infringed by the actions of officers of the
Government, it is proper that the courts have the power to grant
relief against those actions. But in the absence of a claim of
constitutional limitation, the necessity of permitting the
Government to carry out its functions unhampered by direct judicial
intervention outweighs the possible disadvantage to the citizen in
being relegated to the recovery of money damages after the
event.
It is argued that a sales agency such as the War Assets
Administration is not the type of agency which requires the
protection from direct judicial interference which the doctrine of
sovereign immunity confers. We do not doubt that there may be some
activities of the Government which do not require such protection.
There are others
Page 337 U. S. 705
in which the necessity of immunity is apparent. But it is not
for this Court to examine the necessity in each case. That is a
function of the Congress. The Congress has, in many cases,
entrusted the business of the Government to agencies which may
contract in their own names and which are subject to suit in their
own names. In other cases, it has permitted suits for damages, but,
significantly, not for specific relief, in the Court of Claims. The
differentiations as to remedy which the Congress has erected would
be rendered nugatory if the basis on which they rest -- the assumed
immunity of the sovereign from suit in the absence of consent --
were undermined by an unwarranted extension of the
Lee
doctrine.
The cause is reversed with directions that the complaint be
dismissed.
It is so ordered.
[
Footnote 1]
Littlejohn resigned on November 28, 1947. On April 19, 1948, we
granted the Government's motion to substitute his successor, Jess
Larson, as petitioner here.
[
Footnote 2]
Domestic & Foreign Commerce Corp. v. Littlejohn, 83
U.S.App.D.C. 13, 165 F.2d 235 (1947).
[
Footnote 3]
The judgment of the Court of Appeals was not a final one, but we
considered it appropriate for review here since, in our view, the
jurisdictional issue was "fundamental to the further conduct of the
case."
See Land v. Dollar, 330 U.
S. 731,
330 U. S. 734
(1947).
[
Footnote 4]
Cf. Sloan Shipyards v. United States Fleet Corp.,
258 U. S. 549
(1922), where the question was whether a corporate agency of the
United States could be sued where it, not the United States, was
the contractor.
[
Footnote 5]
For this reason, there obviously was no objection to the
substitution in this Court of the present Administrator for his
predecessor, although all the actions complained of in the
complaint were taken during the predecessor's administration.
[
Footnote 6]
In re Ayers, 123 U. S. 443
(1887). As was said in
Minnesota v. Hitchcock,
185 U. S. 373,
185 U. S. 387
(1902):
". . . whether a suit is one against a State is to be determined
not by the fact of the party named as defendant on the record, but
by the result of the judgment or decree which may be entered. . .
."
[
Footnote 7]
There are, of course, limitations on the right to recover
damages from public officers.
See Gibson v. Reynolds, 172
F.2d 95 (1949);
Glass v. Ickes, 117 F.2d 273 (1940);
Harper, Torts (1933) § 298. These limitations are matters of
substantive law, applicable in suits indubitably addressed to the
officer, not the sovereign. They are not necessarily coincidental
with the limitations on the court's jurisdiction to hear a suit
directed against the sovereign.
See Jennings, Tort
Liability of Administrative Officers, 21 Minn.L.Rev. 263 (1937),
and note the differing treatment accorded the claim for
compensation and the claim for specific relief in
Belknap v.
Schild, 161 U. S. 10,
161 U. S. 27
(1896).
[
Footnote 8]
Whether such relief is obtainable from any Government officer on
the basis of the facts set out in the complaint is, as stated, not
the question here. But it may seriously be doubted whether damages
could, in any event, be recovered from Jess Larson, the present War
Assets Administrator, or from his predecessor, Robert M. Littejohn.
The complaint did not charge them with any personal wrongdoing, nor
even with knowledge of the alleged wrongdoing of their
subordinates.
Cf. Robertson v. Sichel, 127 U.
S. 507,
127 U. S.
515-516 (1888). Since the complaint did not ask for
damages, but for specific relief, the Administrator, in his
official capacity, was, of course, a proper party.
Cf. Williams
v. Fanning, 332 U. S. 490
(1947).
[
Footnote 9]
The complaint also asked for declaratory relief even more
clearly directed at the sovereign. It was asked that the court
declare that "the sale of this coal . . . is still valid and in
effect." The Administrator, an agent for a disclosed principal, was
not a party to the contract of sale.
See 2 Restatement,
Agency (1933) § 320. The request for an adjudication of the
validity of the sale was thus, even in form, a request for an
adjudication against the sovereign. Such a declaration of the
rights of the respondent
vis-a-vis the United States would
clearly have been beyond the court's jurisdiction.
See Stanley
v. Schwalby, 162 U. S. 255
(1896). We do not rest our conclusion here on the request for such
a declaration, since the district court could have granted only the
injunctive relief requested.
[
Footnote 10]
Land v. Dollar, 330 U. S. 731,
330 U. S. 739
(1947). Since jurisdiction in this type of case does rest on the
decision on the merits, there can be no question that dismissal of
a suit in which
"the alleged claim under the Constitution or federal statutes
clearly appears to be . . . made solely for the purpose of
obtaining jurisdiction or . . . is wholly insubstantial and
frivolous"
would be dismissal for lack of jurisdiction.
See Bell v.
Hood, 327 U. S. 678,
327 U. S.
682-683 (1946).
[
Footnote 11]
Of course, a suit may fail, as one against the sovereign, even
if it is claimed that the officer being sued has acted
unconstitutionally or beyond his statutory powers, if the relief
requested cannot be granted by merely ordering the cessation of the
conduct complained of, but will require affirmative action by the
sovereign or the disposition of unquestionably sovereign property.
North Carolina v. Temple, 134 U. S.
22 (1890).
[
Footnote 12]
This case must therefore be clearly distinguished from cases
like
Noble v. Union River Logging R. Co., 147 U.
S. 165 (1893). In that case, it was held that the
officer being sued lacked power to refuse delivery because, under
the statutory scheme, his predecessor's determination that the
plaintiff was entitled to delivery was binding. A similar case
would be presented here if the statute expressly provided that the
Administrator's interpretations of contracts should be binding and
irrevocable, and if a later, or subordinate, official refused to
follow a prior, binding interpretation. In such a case, the issue
would not be the correctness or incorrectness of the later decision
under general law, but simply the power of the official, under the
statute, to make a decision at all.
Cf. Ickes v. Fox,
300 U. S. 82
(1937).
[
Footnote 13]
Perkins v. Lukens Steel Co., 310 U.
S. 113,
310 U. S. 125
(1940).
[
Footnote 14]
Tennessee Electric Power Co. v. TVA, 306 U.
S. 118,
306 U. S.
137-139 (1939);
Mine Safety Co. v. Forrestal,
326 U. S. 371
(1945).
[
Footnote 15]
Thus, the Court said in
Hopkins v. Clemson College,
221 U. S. 636,
221 U. S. 643
(1911), " . . . neither a state nor an individual can confer upon
an agent authority to commit a tort,
so as to excuse the
perpetrator." (Emphasis added.)
See also 2 Mechem,
Agency (2d Ed., 1914) 1077.
[
Footnote 16]
See Philadelphia, Wilmington &
Baltimore R. Co. v. Quigley, 21 How. 202,
62 U. S.
209-210 (1859); 10 Fletcher, Cyclopedia Corporations,
1931, § 4877. The contention of the respondent in the present case
is remarkably similar to that made, as regards corporate agents, in
Chestnut Hill & Spring House Turnpike Co. v. Rutter, 4
Serg. & R. 6. The argument is reported as follows,
id.
at page 9:
"Now, a corporation never was and never can be authorized by law
to commit a tort; they can invest no one with power for that
purpose. If, therefore, an agent constituted for a legal purpose,
inflict an injury, the corporation is no more answerable than it
would be for an act of that agent done without any authority
whatever derived from it, because, being unauthorized to commit a
wrong, it is out of the scope of its corporate powers."
The argument was rejected by the Court.
See also Thayer v.
Boston, 19 Pick. 511, 515 (Mass. 1837).
[
Footnote 17]
The
Lee case was decided in 1882. At that time, there
clearly was no remedy available by which he could have obtained
compensation for the taking of his land. Whether compensation could
be obtained today in such a case is, of course, not the issue
here.
[
Footnote 18]
For this reason, the availability of a remedy in the Court of
Claims may, in some cases, be relevant to the question of sovereign
immunity. Where the action against which specific relief is sought
is a taking, or holding, of the plaintiffs' property, the
availability of a suit for compensation against the sovereign will
defeat a contention that the action is unconstitutional as a
violation of the Fifth Amendment.
Compare Hurley v.
Kincaid, 285 U. S. 95
(1932).
[
Footnote 19]
Cunningham v. Macon & Brunswick R. Co.,
109 U. S. 446,
109 U. S. 451
(1883). The ensuing years have not made the task less difficult.
See Brooks v. Dewar, 313 U. S. 354,
313 U. S. 359
(1941);
Land v. Dollar, 330 U. S. 731,
330 U. S. 738
(1947).
[
Footnote 20]
Thus, in
Tindal v. Wesley, 167 U.
S. 204,
167 U. S. 222
(1897), the Court stated that a suit to recover the Court stated
that a suit to recover possession of property owned by the
plaintiff and withheld by officers of a State was analogous to a
suit to enjoin the officers from enforcing an unconstitutional
statute. Any other view, the Court said, would lead to the
result
"that, if a state, by its officers . . . , should seize for
public use the property of a citizen without making or securing
just compensation for him, and thus violate the constitutional
provision declaring that no state shall deprive any person of
property without due process of law . . . , the citizen is
remediless so long as the state, by its agents, chooses to hold his
property. . . ."
And in
Scranton v. Wheeler, 179 U.
S. 141,
179 U. S.
152-153 (1900), the Court said that the state court
"was under a duty to inquire whether the defendant had or could
have any authority in law to do what he had done; and the suit was
not to be deemed one against the United States, because, in the
consideration of that question, it would become necessary to
ascertain whether the defendant could constitutionally acquire from
the United States authority to obstruct the plaintiff's access . .
. without making or securing compensation to him. . . ."
"The vital question therefore is . . . whether the prohibition
in the Constitution of the United States, of the taking of private
property for public use without just compensation, has any
application to the case. . . ."
[
Footnote 21]
See, e.g., Payne v. Central Pacific R. Co.,
255 U. S. 228,
255 U. S. 238
(1921), where the Court said that specific relief could be had
because the Government officers had "departed from a plain official
duty," "through a mistaken conception of their authority," and
Santa Fe Pac. R. Co. v. Fall, 259 U.
S. 197,
259 U. S. 199
(1922), where the contention was "that the Secretary went beyond
the powers conferred upon him by the statute." The cases are
myriad, and it is unnecessary to review them here.
[
Footnote 22]
Poindexter v. Greenhow, 114 U.
S. 270,
114 U. S. 288
(1884);
Philadelphia Co. v. Stimson, supra, p.
223 U. S. 605.
Although stated in reference to a suit for damages, the rule of the
Lee line of cases was thus summed up by Mr. Justice
Hughes, in
Yearsley v. W. A. Ross Constr. Co.,
309 U. S. 18,
309 U. S. 21
(1940):
"Where an agent or officer of the Government purporting to act
on its behalf has been held to be liable for his conduct causing
injury to another,
the ground of liability has been found to be
either that he exceeded his authority or that it was not validly
conferred."
(Emphasis added.)
[
Footnote 23]
The Court in the
Stimson case said, 223 U.S. at p.
223 U. S.
622:
"While the complainant's title lay at the foundation of the
suit, and it would be necessary for the complainant to prove it, if
denied, still, if its title to the land under water were
established or admitted to be as alleged, the question would remain
whether the defendant, in imposing restrictions upon the use of the
property, was acting by virtue of authority validly conferred by a
general act of Congress. This was the principal question which the
complainant sought to have determined."
[
Footnote 24]
The reasoning of the
Goltra case is also contradicted
by the conclusion reached by the Court in the converse case --
where a suit is brought against the United States, in which it is
claimed that the tortious actions of public officers, within the
scope of their delegated powers, are the actions of the United
States and give rise to a cause of action against it for breach of
an implied contract.
Portsmouth Co. v. United States,
260 U. S. 327
(1922), demonstrates that such suits cannot be defeated by arguing
that the officers' actions, because tortious, are outside of their
authority, and hence not actions of the United States.
Cf. Hooe
v. United States, 218 U. S. 322
(1910) (specific limitation on the agent's authority).
See also
United States v. Causby, 328 U. S. 256,
328 U. S. 267
(1946).
[
Footnote 25]
Whether the actual decision in the
Goltra case, on the
basis of the facts there presented, was correct or not is not
relevant to the disposition of the present case, and we express no
opinion on that question.
Goltra, unlike
Goldberg, does not present a parallel to the facts in the
case at bar. The action complained of there was a seizure with a
strong hand which was claimed to be unconstitutional as an
arbitrary taking of property without due process of law. Indeed,
the District Court took jurisdiction on the theory that the case
before it, like the
Lee case, was a case of
unconstitutional action. There is no such claim in the present
case.
[
Footnote 26]
In addition to
Goltra v. Weeks, supra, three other
cases are argued to be inconsistent with this principle:
Sloan
Shipyards v. United States Fleet Corp., 258 U.
S. 549 (1922);
Land v. Dollar, 330 U.
S. 731 (1947), and
Ickes v. Fox, 300 U. S.
82 (1937).
The
Sloan Shipyards case is entirely inapposite. The
suit there was against a corporate agency of the United States
which had not acted in the name of the United States, but in its
own corporate name and right. The Court held only that the fact of
agency did not immunize the agent from liability on its own
contracts.
In
Land v. Dollar, where the plaintiffs alleged that
they were entitled to stock held by the Maritime Commission because
the stock was received by the Commission only as a pledge, it was
contended that any other kind of acquisition would constitute a
violation of § 207 of the Merchant Marine Act, which allegedly gave
the Commission authority to acquire stock only as collateral. The
complaint therefore alleged that the members of the Commission
"acted in excess of their authority as public officers." 330 U.S.
at
330 U. S.
738.
The ground for decision in
Ickes v. Fox is not
altogether clear. The argument was made in that case that the
Secretary of the Interior had no statutory power to overrule a
determination of the rights of the plaintiffs made by his
predecessor in office. 300 U.S. at 86. The tortious injury to the
plaintiffs was also argued, in reliance on
Goltra v.
Weeks, as a basis for avoiding the sovereign's immunity. The
Court appears to have relied on both grounds without indicating
which was controlling. It said:
"The suits . . . are brought to enjoin the Secretary of the
Interior from enforcing an order, the wrongful effect of which will
be to deprive respondents of vested property rights not only
acquired under Congressional acts, state laws and government
contracts,
but settled and determined by his predecessors in
office."
(Emphasis added.) In support of the conclusion that the suit
could be maintained, the Court relied first on
Noble v. Union
Logging R. Co., 147 U. S. 165
(1893), a decision resting entirely on the officer's lack of
statutory power to overrule the decision of his predecessor.
[
Footnote 27]
There could not be, since the respondent admittedly has a
remedy, in a suit for breach of contract, in the Court of Claims.
Such a suit, indeed, would be based on the theory that the action
of the Administrator in refusing to deliver was the action of the
United States, and thus created a cause of action against it for
breach of contract. Only if the Administrator's action was within
his authority could such a suit be maintained.
Hooe v. United
States, 218 U. S. 322
(1910). It has never been suggested that a suit in the Court of
Claims for breach of an express contract could be defeated because
the action of the officer in breaching it constituted a tort, and
was therefore "unauthorized."
[
Footnote 28]
See Brooks v. United States, 337 U. S.
49 (1949).
[
Footnote 29]
Decatur v.
Paulding, 14 Pet. 497,
39 U. S. 516
(1840).
MR. JUSTICE DOUGLAS.
I think that the principles announced by the Court are the ones
which should govern the selling of government property. Less strict
applications of those principles would cause intolerable
interference with public administration. To make the right to sue
the officer turn on whether by the law of sales title had passed to
the buyer would clog this governmental function with intolerable
burdens. So I have joined the Court's opinion.
MR. JUSTICE RUTLEDGE concurs in the result.
MR. JUSTICE JACKSON dissents.
MR. JUSTICE FRANKFURTER, with whom MR. JUSTICE BURTON concurs,
dissenting.
Case-by-case adjudication gives to the judicial process the
impact of actuality, and thereby saves it from the hazards of
generalizations insufficiently nourished by
Page 337 U. S. 706
experience. There is, however, an attendant weakness to a system
that purports to pass merely on what are deemed to be the
particular circumstances of a case. Consciously or unconsciously,
the pronouncements in an opinion too often exceed the justification
of the circumstances on which they are based, or, contrariwise,
judicial preoccupation with the claims of the immediate leads to a
succession of
ad hoc determinations, making for eventual
confusion and conflict. There comes a time when the general
considerations underlying each specific situation must be exposed
in order to bring the too unruly instances into more fruitful
harmony. The case before us presents one of those problems for the
rational solution of which it becomes necessary, as a matter of
judicial self-respect, to take soundings in order to know where we
are and whither we are going.
The case before us is this.
The Government had some surplus coal at an Army camp in Texas.
On March 11, 1947, the War Assets Administration, through the
Regional Office in Dallas, Texas, invited a bid from the plaintiff,
respondent here, for purchase of the coal. The Dallas office
expressed thus its approval of the bid submitted by the plaintiff:
" . . . your terms of placing $17,500 with the First National Bank,
Dallas, Texas, for payment upon presentation of our invoices to
said bank are accepted." Thereupon, the plaintiff arranged for
resale of the coal and its shipment abroad. On April 1, 1947, the
Dallas office wired the plaintiff that, unless the sum of $17,500
was deposited in the First National Bank in Dallas by noon April 4,
"the sale will be cancelled and other disposition made." Though
claiming that this demand was in the teeth of the contract, the
plaintiff arranged for an irrevocable letter of credit payable
through the First National Bank of Dallas to the War Assets
Administration. The Dallas office now insisted that, unless cash
was deposited,
Page 337 U. S. 707
"the sale of 10,000 tons of coal . . . will be cancelled ten
days from this date." That office disregarded further endeavors by
the plaintiff to adjust the matter, and, on April 16, it informed
the plaintiff that the contract was canceled. Having learned that
the coal was to be sold to another concern, the plaintiff,
asserting ownership in the coal and the threat of irreparable
damage, brought this suit in the District Court of the United
States for the District of Columbia to restrain the War Assets
Administrator and those under his control from transferring the
coal to any other person than the plaintiff. [
Footnote 2/1]
After issuing a temporary restraining order, the District Court,
on May 6, 1947, dismissed the suit with this oral
Page 337 U. S. 708
observation:
"I am satisfied that this suit is, in effect, a suit for
specific performance, and the United States is a necessary party,
and this Court is without jurisdiction."
The Court of Appeals took a different view:
"Appellant . . . did not seek the court's aid to interfere in
the use of official discretion by the appellee. Such discretion was
exercised at the time the contract with appellant was entered into.
If that contract served to vest title immediately in appellant,
then it follows that the ruling in
Philadelphia Co. v.
Stimson, 223 U. S. 605, is controlling
here. . . . Clearly, then, it was incumbent upon the lower court in
determining its jurisdictional capacity to decide the ultimate
question of whether or not a contract of sale had been consummated
between appellant and appellee."
165 F.2d 235, 237.
The conflict between the District Court and the Court of Appeals
on these facts reflects fairly enough the seeming disharmony of the
numerous opinions in which this Court has dealt with the claim of
immunity of government from unconsented suit. As to the States,
legal irresponsibility was written into the Constitution by the
Eleventh Amendment; as to the United States, it is derived by
implication.
Principality of Monaco v. Mississippi,
292 U. S. 313,
292 U. S. 321;
see Block, Suits Against Government Officers and the
Sovereign Immunity Doctrine, 59 Harv.L.Rev. 1060, 1064-1065 (1946).
The sources of the immunity are formally different, but they
present the same legal issues.
The subject is not free from casuistry. This is doubtless due to
the fact that a steady change of opinion has gradually undermined
unquestioned acceptance of the sovereign's freedom from ordinary
legal responsibility. The vehement speed with which the Eleventh
Amendment displaced the decision in
Chisholm v.
Georgia, 2 Dall. 419 (1793), proves how deeply
rooted that doctrine was in the early days of the Republic.
See New
Page 337 U. S. 709
Hampshire v. Louisiana, 108 U. S.
76,
108 U. S. 86-88.
In the course of a century or more, a steadily expanding conception
of public morality regarding "governmental responsibility" has led
to a "generous policy of consent for suits against the Government"
to compensate for the negligence of its agents as well as to secure
obedience to its contracts.
Keifer & Keifer v.
Reconstruction Finance Corp., 306 U.
S. 381,
306 U. S. 396;
see also Borchard's bibliography in 20 A.B.A.J. 747, and
the materials in Judge Mack's opinion in
The Pesaro, 277
F. 473,
reversed, 271
U. S. 271 U.S. 562.
The course of decisions concerning sovereign immunity is a good
illustration of the conflicting considerations that often struggle
for mastery in the judicial process, at least implicitly. In
varying degrees at different times, the momentum of the historic
doctrine is arrested or deflected by an unexpressed feeling that
governmental immunity runs counter to prevailing notions of reason
and justice. Legal concepts are then found available to give effect
to this feeling, and one of its results is the multitude of
decisions in which this Court has refused to permit an agent of the
Government to claim that he is
pro tanto the Government,
and therefore sheltered by its immunity. Multitudinous as are these
cases and the seeming inconsistencies among them, analysis reveals
certain common considerations. The cases in which claim was made
that a suit against one who holds public office is in fact a suit
against the Government fall into well defined categories.
(
See the Appendix,
post, pp.
337 U. S.
729-732.) Though our opinions have not always been
consciously directed toward this classification, it is supported
not only by what was actually decided, but also by much that is
expressly said.
Our decisions fall under these heads:
(1) Cases in which the plaintiff seeks an interest in property
which, concededly, even under the allegation of
Page 337 U. S. 710
the complaint, belongs to the Government, or calls for an
assertion of what is unquestionably official authority. [
Footnote 2/2]
(2) Cases in which action to the legal detriment of a plaintiff
is taken by an official justifying his action under an
unconstitutional statute. [
Footnote
2/3]
(3) Cases in which a plaintiff suffers a legal detriment through
action of an officer who has exceeded his statutory authority.
[
Footnote 2/4]
(4) Cases in which an officer seeks shelter behind statutory
authority or some other sovereign command for the commission of a
common law tort. [
Footnote 2/5]
Page 337 U. S. 711
1. The series of cases which come within the first category
began with
Governor of Georgia v.
Madrazo, 1 Pet. 110 (1828). There, a claim was made
upon the Governor of Georgia, as Governor, for moneys in the
Treasury of the State and slaves in its possession. The Court, in
an opinion by Chief Justice Marshall, held that the State was
actually, though not formally, the defendant in the suit. This was
a departure by Marshall from what he had said a few years earlier
in
Osborn v. Bank of the United
States, 9 Wheat. 738, to the effect that the
Eleventh Amendment is "limited to those suits in which a State is a
party on the record."
Id. at p.
22 U. S. 857.
Such a formal test could not long survive experience, and it was
explicitly laid to rest in
In Re Ayers, 123 U.
S. 443,
123 U. S. 487,
et seq.
The crucial question in this class of cases is when does a suit
against one holding official office inevitably involve the exercise
of powers that are his as a functionary of Government. Marshall's
decision in the case of the
Governor of Georgia disposed
of this question with his sententious characterization of the
nature of the claim against the Governor: "The demand made upon
him, is not made personally, but officially."
Governor
of Georgia v. Madrazo, supra, 1 Pet. 110,
26 U. S. 123.
But the answer is not
Page 337 U. S. 712
always as manifest as it was in that case, for the Governor was
asked to surrender moneys actually in the State's treasury and
property in its possession. The fact that a defendant has no
personal connection with conduct for which redress is sought is an
indication that he is being sued because his position empowers him
to carry out the desired relief. On the other hand, the mere fact
that his official capacity is ascribed to the agent against whom
relief is sought is not conclusive that he is being sued as for his
sovereign.
See e.g., Perkins v. Elg, 307 U.
S. 325.
The pervasive manifestations of modern government beget
situations in which it is not always obvious whether the demand
made upon an individual is, in Marshall's phraseology, "not made
personally, but officially." Such an ambiguity as to the meaning of
particular circumstances is a commonplace task for the judicial
process. The governing principle is clear enough. If a defendant is
asked to transfer the possession or title of property which is the
Government's, judged by the conventional tests of possession or
ownership, or if he is asked to exercise authority with which the
State has invested him and the desired action is in fact
governmental action so far as an individual is ever
pro
tanto the impersonal government, such demands are effectively
demands upon the sovereign, which require the sovereign's consent
as a prerequisite to the grant of judicial remedies.
2. To the second category belong the cases where an official
asserts the authority of a statute for his action but the injured
plaintiff challenges the constitutionality of the statute.
Threatened injury will then be enjoined if the plaintiff otherwise
satisfies the requirements for equitable intervention.
Allen v.
Baltimore & O. R. Co., 114 U. S. 311;
Reagan v. Farmers' Loan & Trust Co., 154 U.
S. 362;
Ex parte Young, 209 U.
S. 123;
Rickert Rice Mills Co. v. Fontenot,
297 U. S. 110. So
also recovery may be
Page 337 U. S. 713
had of property in an action against an official when the
statute under which the seizure of the property was made is
unconstitutional.
Poindexter v. Greenhow, 114 U.
S. 270. In these cases, the suit against one holding
office is deemed "a suit against him personally, as a wrongdoer,
and not against the state."
Ex parte Young, supra,
209 U. S. 123,
209 U. S.
151.
These cases likewise apply a principle that is clear. There is
an appearance of inconsistency in some of the cases only because
opinions also are prey to the frailties of composition. Familiar
phrases are not always used with critical precision or with due
relevance to the circumstances of a particular case.
Specifically, there are instances where the unconstitutionality
of a statute was conceded, and yet the language of sovereign
immunity was invoked to bar suit.
See, e.g., North Carolina v.
Temple, 134 U. S. 22;
Christian v. Atlantic & N.C. R. Co., 133 U.
S. 233;
New York Guaranty & Indemnity Co. v.
Steele, 134 U. S. 230.
These cases do not qualify the principle of the cases in category
two. Regard for the facts of these cases brings them within the
first category because the nature of the relief requested makes
them either cases in which Government property would have to be
transferred, or cases where the person sued could satisfy the court
decree only by acting in an official capacity. The tortfeasor, that
is, is not immunized because he happened to hold office, but
because the tort cannot be redressed, or if threatened, averted,
without bringing into operation governmental machinery.
Thus, even though a plaintiff's rights under a bond are
unconstitutionally sought to be diminished, he cannot have his bond
respected if to do so a court would have to order the levying and
collecting of a tax. Only the State can exact taxes, and that
sovereign function cannot be enforced without the State's consent
by pretending
Page 337 U. S. 714
to sue a tax collector as an individual even though the
individual sued had the duty, under the statute, to collect the
tax.
North Carolina v. Temple, 134 U. S.
22. Again, if title to property is in the Government, a
suit to secure transfer of that property to the plaintiff will not
lie against an official sued as an individual, even though the
State acquired title by way of an unconstitutional statute.
Cunningham v. Macon & Brunswick R. Co., 109 U.
S. 446;
Christian v. Atlantic & N.C. R.
Co., 133 U. S. 233;
see Land v. Dollar, 330 U. S. 731,
330 U. S.
737-738. So, also, if the relief sought by an injured
plaintiff would involve, in part at least, destruction of the
Government's interest in property, that part of relief cannot be
granted even though a tort committed by a governmental agent gave
rise to the injury.
Belknap v. Schild, 161 U. S.
10;
Hopkins v. Clemson Agricultural College,
221 U. S. 636. To
the extent that relief can be granted without affecting property
rights of a State, not a consenting party to a controversy, an
action is not barred.
Hopkins v. Clemson Agricultural College,
supra, 221 U. S. 636,
221 U. S. 649;
see International Postal Supply Co. v. Bruce, 194 U.
S. 601,
194 U. S.
605-606.
Since the cases to which reference has just been made usually
involve State debts and money in a State treasury, they have served
to sponsor the proposition that a suit will not be permitted where
the relief sought would "expend itself on the public treasury or
domain, or interfere with the public administration."
Land v.
Dollar, 330 U. S. 731,
330 U. S. 738.
This is a way of saying that a court cannot entertain an action,
when the sovereign has not consented to be sued, if the judgment
sought from the court would require an official to do that which he
could only do by virtue of the fact that he is an official, that
quod hoc, he is the State. But the statement quoted does
not mean that the mere fact that a State's revenue is adversely
affected, is conclusive of a court's jurisdiction
Page 337 U. S. 715
to entertain suit against one who happens to hold a public
office. For example, in
Board of Liquidation v. McComb,
92 U. S. 531, a
bondholder was permitted to enjoin an issue of bonds which would
have reduced the value of his holdings because the issue was
authorized by a statute which offended the "impairment of
obligation" clause.
And see Allen v. Baltimore & O. R.
Co., 114 U. S. 311;
Atchison, T. & S.F. R. Co. v. O'Connor, 223 U.
S. 280. And suits have lain to obtain public lands where
the decree involved no discretion on the part of the individual
whom the decree bound.
Santa Fe Pac. R. Co. v. Fall,
259 U. S. 197;
Noble v. Union River Logging R. Co., 147 U.
S. 165;
Payne v. Central Pac. R. Co.,
255 U. S. 228.
The matter boils down to this. The federal courts are not barred
from adjudicating a claim against a governmental agent who invokes
statutory authority for his action if the constitutional power to
give him such a claim of immunity is itself challenged. Sovereign
immunity may, however, become relevant because the relief prayed
for also entails interference with governmental property or brings
the operation of governmental machinery into play. The Government
then becomes an indispensable party, and, without its consent,
cannot be implicated.
See Mr. Justice Brandeis in
Morrison v. Work, 266 U. S. 481,
266 U. S.
486-487.
It should also be noted that a cause of action which would, for
one reason or another, fail if brought against a private agent is
not saved because it is brought against one holding public office
purporting to act under an unconstitutional statute. The action may
fail because there is no "case" or "controversy," [
Footnote 2/6] or because the plaintiff
Page 337 U. S. 716
has not suffered invasion of a legally protected interest,
[
Footnote 2/7] or because the
foundation for equitable relief is wanting, [
Footnote 2/8] or because the particular defendant has
committed no wrong. [
Footnote 2/9]
Such situations present no problem of sovereign immunity, but
language pertaining to sovereign immunity sometimes creeps into
opinions disposing of them.
3. Recovery has been sustained where, although the official acts
under a valid statute, he actually exceeded the authority with
which the statute had invested him. An action then lies against the
agent because
"he is not sued as, or because he is, the officer of the
Government, but as an individual, and the court is not ousted of
jurisdiction because he
asserts authority as such officer.
To make out his defense, he must show that his authority was
sufficient in law to protect him."
Pennoyer v. McConnaughy, 140 U. S.
1,
140 U. S. 14;
Scully v. Bird, 209 U. S. 481;
Philadelphia Co. v. Stimson, 223 U.
S. 605. Here also, the traditional criteria for judicial
action are prerequisite;
see, e.g., Louisiana v. McAdoo,
234 U. S. 627, if
they are not satisfied the question of sovereign immunity does not
emerge. And if the relief necessarily implicates a resort to State
funds, the State becomes an indispensable party, and, without its
consent, the suit must fail.
See Louisiana v. McAdoo, supra;
Lankford v. Platte Iron Works, 235 U.
S. 461.
4. The fourth category of cases brings us to the controversy
immediately before the Court, and demands detailed analysis. These
are the cases, it will be recalled, in which an official seeks to
screen himself behind the sovereign in a suit against him based on
the commission
Page 337 U. S. 717
of a common law tort.
See Appendix, Part II, C,
post, p.
337 U. S. 732.
A plaintiff's right "under general law to recover possession of
specific property wrongfully withheld" may be enforced against an
official, and he cannot plead the sovereign's immunity against the
court's power to afford a remedy.
Land v. Dollar,
330 U. S. 731,
330 U. S. 736;
Belknap v. Schild, 161 U. S. 10,
161 U. S. 18-20;
Hopkins v. Clemson Agricultural College, 221 U.
S. 636,
221 U. S.
643.
The starting point of this line of cases is
United States v.
Lee, 106 U. S. 196.
Familiar as that case is, its controlling facts bear rehearsal. The
Arlington estate of General Robert E. Lee was seized for nonpayment
of taxes. These taxes had, in fact, been tendered by a friend, but
the official had interpreted his authority as permitting payment of
the taxes only by the record owner. After seizure, the United
States established a fort and cemetery on the land. The plaintiff,
in whom title to the Arlington estate vested if its seizure could
not be justified, brought an action of ejectment against the
governmental custodians of the estate. After the overruling of a
suggestion by the Attorney General of the United States that the
Circuit Court was without jurisdiction because the property was in
possession of the United States, the action was sustained against
the defendants, since they could not justify their possession by
proof of a valid title in the Government. This Court affirmed,
holding that the lower court was competent to decide the issues
between the parties without the need of impleading the Government
whose consent was withheld.
While there was some talk in the
Lee opinion, as well
as in some of the cases which followed that decision, about taking
property without compensation, the basis of the action was that the
defendants were ordinary tortfeasors, not immunized for their
wrongful invasion of the plaintiff's property by the fact that they
claimed to have
Page 337 U. S. 718
acted on behalf of the Government. [
Footnote 2/10] This group of cases is quite different
from those in which the plaintiff claimed that the defendant,
purporting to act in an official capacity, exceeded the authority
which a statute conferred upon him, or that the statute under which
he justified his action exceeded the power of the legislature to
confer such authority. In this class of cases, the governmental
agent had valid statutory authority, but he determined erroneously
the condition which had to exist before he could exercise it. The
basis of action in this class of cases is the defendant's personal
responsibility for the commission of a tort, which makes it
irrelevant that, by waiving the case against the governmental
agent, the plaintiff might choose to sue the Government as for a
contract. A detailed consideration of four recent cases should
leave no doubt regarding the settled course and decision in
conformity with this principle.
(a) In
Sloan Shipyards Corp. v. United States Fleet
Corp., 258 U. S. 549, the
controversy arose in connection with a contract between Sloan
Shipyards and the Fleet Corporation, a Government corporation. A
proviso in the contract authorized the United States to take over
the plant and complete the contract on Sloan Shipyards'
Page 337 U. S. 719
failure to perform. Under a statute, the United States could
also condemn the land and the business if that were deemed
necessary for the successful conduct of the war. That would bring
into play a right to compensation enforceable in the Court of
Claims. The Fleet Corporation seized the plant, but it was not made
manifest that the seizure of the plant was an exercise of the
Government's power of condemnation. Sloan Shipyards brought suit
for the return of the property. The lower courts treated this as a
suit for compensation, pursuable as such against the Government, in
the Court of Claims. This Court, speaking through Mr. Justice
Holmes, reversed, took the bill on its face as one based on the
wrongful acts of the Fleet Corporation, and, as such, entertainable
regardless of the fact that the conduct of the Fleet Corporation
might also give rise to a claim for compensation against the
Government. [
Footnote 2/11]
This decision, which had thorough consideration here, would have
to be overruled if the theory now proposed for this class of cases
is to be accepted. The crux of the Court's opinion leaves no room
for doubt:
"The plaintiffs are not suing the United States, but the Fleet
Corporation, and, if its act was unlawful, even if they might have
sued the United States, they are not cut off from a remedy against
the agent that did the wrongful act. In general the United States
cannot be sued for a tort, but its immunity does not extend to
those that acted in its name. It is not impossible that the Fleet
Corporation purported to act under the contract giving it the right
to take
Page 337 U. S. 720
possession in certain events, but that the plaintiffs can show
that the events have not occurred."
258 U. S. 258 U.S.
549,
258 U. S.
567-568.
(b) So, too,
Goltra v. Weeks, 271 U.
S. 536, would have to go by the board if the theory now
proposed were accepted. The Government had leased its barges for
operation by the plaintiff. Following a seizure of some of the
barges and a threat to seize the rest for alleged failure to comply
with the lease terms, the plaintiff brought a bill against the
Secretary of War and the Chief of Engineers to enjoin the
threatened seizure and to secure restoration of the barges already
seized. This Court found that it was error for the Court of Appeals
to hold that the United States was a necessary party, and to have
dismissed the bill for that reason. The governing principle was
thus formulated by Mr. Chief Justice Taft:
"The bill was suitably framed to secure the relief from an
alleged conspiracy of the defendants without lawful right to take
away from the plaintiff the boats of which by lease or charter he
alleged that he had acquired the lawful possession and enjoyment
for a term of five years. He was seeking equitable aid to avoid a
threatened trespass upon that property by persons who were
government officers. If it was a trespass, then the officers of the
government should be restrained whether they professed to be acting
for the Government or not. Neither they nor the Government which
they represent could trespass upon the property of another, and it
is well settled that they may be stayed in their unlawful
proceeding by a court of competent jurisdiction, even though the
United States, for whom they may profess to act, is not a party,
and can not be made one. By reason of their illegality, their acts
or threatened acts are personal and derive no official
justification from
Page 337 U. S. 721
their doing them in asserted agency for the Government."
271 U. S. 271 U.S.
536,
271 U. S.
544.
(c) This line of cases, beginning with
United States v. Lee,
supra, 106 U. S. 196, was
again followed in
Ickes v. Fox, 300 U. S.
82. There, a bill was sustained against the defendant,
the Secretary of the Interior, based on the claim that compliance
by the plaintiff with the terms of an agreement made with a
predecessor Secretary of the Interior rendered the Secretary's
action a trespass, and, as such, enjoinable, though the action was
justified as a governmental prerogative. In reaching this result,
the Court specifically referred to the principles formulated in
Goltra v. Weeks, above quoted.
(d) Only the other day, this Court decided
Land v.
Dollar, 330 U. S. 731.
There, it was ruled that a claim by the plaintiff for the recovery
of the possession of property physically controlled by members of
the United States Maritime Commission but alleged to have been
wrongfully withheld was not inherently a suit against the
Government, and gave jurisdiction to the court "to determine its
jurisdiction by proceeding to a decision on the merits" -- that is,
to determine whether the plaintiffs' claim that withholding of the
pledged property was, under the circumstances, tortious, and
therefore subject to relief against the agents as individuals. 330
U.S. at
330 U. S. 739.
The Court once more applied the principle of
United States v.
Lee, supra, reinforced by reference to the cases that apply
the
Lee doctrine, including
Sloan Shipyards Corp. v.
United States Fleet Corp., supra, Goltra v. Weeks, supra, and
Ickes v. Fox, supra. It also pointed out that the fact
that there existed a remedy in the Court of Claims against the
Government was irrelevant. 330 U.S. at
330 U. S.
738.
In each of these cases, this Court sanctioned a suit against an
officer of the Government merely because the officer misconceived
the facts, or misapplied the legal
Page 337 U. S. 722
principles, on which rested the plaintiff's right "under general
law to recover possession of specific property wrongfully
withheld."
Land v. Dollar, supra, 330 U.S. at
330 U. S. 736.
Under such circumstances, an officer acquires no immunity even
though he committed a tort while attempting to discharge what would
be his duty if he were correct on his assumption as to the
ownership of the property or as to the right to its possession
under the legal instruments governing the transaction.
See
Holmes, J., in
Miller v. Horton, 152 Mass. 540, 26 N.E.
100;
Belknap v. Schild, 161 U. S. 10,
161 U. S. 18-19;
Hopkins v. Clemson Agricultural College, 221 U.
S. 636,
221 U. S.
643-645;
Sloan Shipyards Corp. v. United States
Fleet Corp., 258 U. S. 549,
258 U. S. 567.
In this class of cases, the officer can escape liability only if
"special remedies have been provided by statute that displace those
that otherwise would be at the plaintiff's command."
Sloan
Shipyards Corp. v. United States Fleet Corp., supra, 258 U.S.
at
258 U. S. 567.
When there is such a special remedy, the suit against the officer
is barred not because he enjoys the immunity of the sovereign, but
because the sovereign can constitutionally change the traditional
rules of liability for the tort of the agent by providing a fair
substitute.
Crozier v. Fried Krupp Aktiengesellschaft,
224 U. S. 290;
Richmond Screw Anchor Co. v. United States, 275 U.
S. 331. But the general statute permitting suit in the
Court of Claims in certain instances against the Government is not
a statute that provides that remedies otherwise at the plaintiff's
command are to be displaced. [
Footnote 2/12] A holding that the availability
Page 337 U. S. 723
of an action for monetary damages in the Court of Claims against
the United States prevents a suit at law, or, if the necessary
requisites for equity jurisdiction are present, in equity, against
the governmental agent, would be as novel as it is indefensible in
the light of the settled course of decisions. Indeed, this argument
is not novel; it has been explicitly negatived in at least two
cases.
See Sloan Shipyards Corp. v. United States Fleet
Corp., 258 U. S. 549,
258 U. S.
567-568;
Land v. Dollar, 330 U.
S. 731,
330 U. S.
738.
"Sovereign immunity" carries an august sound. But very recently
we recognized that the doctrine is in "disfavor."
Federal
Housing Administration v. Burr, 309 U.
S. 242,
309 U. S. 245.
[
Footnote 2/13] It ought not to
be extended by discrediting
Page 337 U. S. 724
a long line of decisions. No considerations of policy warrant
the overruling of
United States v. Lee, supra, and the
cases which have applied it in giving a remedy for wrongdoing
without harm to any public interest that deserves protection. To
overrule the
Lee case would at least have the merit of
candor. To attempt to explain it on the ground that the Government
itself was not suable for the wrongdoing at the time of the
Lee decision is to invent a new theory to explain away a
decision which has held its ground for nearly seventy years.
This liability for torts committed by defendants even though
they conceive themselves to be acting as officials and for the
public good, rests ultimately on the conviction that the policy
behind the immunity of the sovereign from suit without its consent
does not call for disregard of a citizen's right to pursue an agent
of the government for a wrongful invasion of a recognized legal
right unless the legislature deems it appropriate to displace the
right of suing the individual defendant with the right to sue the
Government. The fact that the governmental agent cannot claim the
immunity of the sovereign, of course, does not spell liability,
under all circumstances, for the discharge of what he conceived to
be his duty.
See, e.g., Seavey v. Preble, 64 Me. 120;
Fields v. Stokley, 99 Pa. 306; the conflicting
considerations are presented in
Miller v. Horton, 152
Mass. 540, 26 N.E. 100. Similarly, equitable considerations bearing
on the propriety of granting
Page 337 U. S. 725
the extraordinary remedy of an injunction may here come into
play, as is true whenever a private claim cuts across the public
interest. [
Footnote 2/14] But
these are matters wholly beside the issue of sovereign
immunity.
Of course, where the United States is the owner in possession of
property, a court cannot interfere without the Government's
consent. But if it is to be denied that a court cannot decide the
question, when properly presented, whether property held by an
official belongs to the plaintiff,
Goltra v. Weeks, Sloan
Shipyards Corp. v. United States, Ickes v. Fox, Land v.
Dollar, and the other cases cited in Part II, C of the
Appendix,
post, p.
337 U. S. 732,
must be overruled.
Only the other day, we said:
"Where the right to possession or enjoyment of property under
general law is in issue, and the defendants claim as officers or
agents of the sovereign, the rule of
United States v. Lee,
supra, has been repeatedly approved. . . . In
United
States v. Lee, supra, record title of the land was in the
United States, and its officers were in possession. The force of
the decree in that case was to grant possession to the private
claimant. Though the judgment was not
res judicata against
the United States, . . . it settled as between the parties the
controversy over possession.
Page 337 U. S. 726
Precisely the same will be true here, if we assume the
allegations of the complaint are proved."
Land v. Dollar, supra, p.
330 U. S. 737.
When a pleading raises a substantial claim that the defendant is
wrongfully withholding from the plaintiff property belonging to
him, the defendant has not heretofore been permitted to shield
himself behind the immunity of the sovereign. Only after the
preliminary question of ownership is decided against the plaintiff
does the claim of sovereign immunity come into play. Only then can
it be said that the decree will affect property of the
sovereign.
The Court tries to explain away
Land v. Dollar, supra,
by suggesting that it was a case where the officers acted in excess
of their authority, although the opinion in that case makes clear
that, even if the officers had authority, there still remained the
issue whether the shares of stock were sold or pledged to the
United States. If the latter, to hold after satisfaction of the
pledge would be tortious, and the stock could be recovered in the
suit against the defendants. The Court seeks to avoid the decision
in
Ickes v. Fox, supra, by saying that the ground of
decision is not made clear. But not even these most dubious
arguments can explain away
Goltra v. Weeks, 271 U.
S. 536. Accordingly, the Court impliedly overrules that
decision. No reason of policy is vouchsafed for overruling a
decision that carries the authority that the
Goltra case
does. It was based on a long series of prior cases, it was decided
by a unanimous Court and delivered by a Chief Justice who brought
to the Court from his Presidential experience a partiality toward
freedom for executive action, as evinced by his opinion in the
contemporaneous case of
Myers v. United States,
272 U. S. 52. The
Goltra case has since been frequently, and always
approvingly, cited, most recently in
Land v. Dollar,
supra, as an application of the
Lee doctrine.
See also Ickes v.
Page 337 U. S. 727
Fox, 300 U. S. 82,
300 U. S. 97.
The
Goltra case is now thrown into the discard because it
did not cite
Goldberg v. Daniels, 231 U.
S. 218. That earlier case is deemed in conflict with the
later
Goltra decision, and therefore the later case, so we
are told, must yield to the earlier case. One would suppose that
the failure of a full-dress opinion in a later case, which was
thoroughly argued and not hastily decided, to cite an earlier
opinion would not be attributed either to the Court's unawareness
of the earlier opinion or its silent overruling of it. That the
Court could not have been unaware of the decision in the
Goldberg case is incontestably proved by the fact that it
was referred to in the briefs in the
Goltra case. That
there was not obvious inconsistency between the two decisions is
indicated by the fact that Mr. Justice Holmes, who wrote the
Goldberg opinion, joined in the
Goltra opinion.
It is too much to assume that there was concerted silence about the
Goldberg decision by the Court in
Goltra.
A more obvious explanation lies on the surface.
Goldberg was not cited in
Goltra for the
conclusive reason that
Goldberg had nothing to do with
Goltra. In the
Goldberg case, the Court, on the
basis of the pleadings before it, was dealing with a suit where
"the United States is the owner, in possession of the vessel."
231 U. S. 231 U.S.
218,
231 U. S.
221-222. Accordingly, the suit was not for a tortious
withholding of the plaintiff's property, and the Government's
immunity barred suit. In
Goltra, on the contrary, the
claim was for the delivery of property allegedly belonging to the
plaintiff and tortiously in possession of the individual
defendants, and the Court held that the plaintiff is entitled to
establish such a claim as he can, "even though the United States
for whom they [the defendants] may profess to act is not a party
and cannot be made one." 271 U.S. at
271 U. S. 544.
That is this case.
As is true of the present case, the right of control over
property may depend on compliance with the terms of a
Page 337 U. S. 728
contract. The fact of compliance may rest, certainly in the
first instance, in the judgment of a particular official. But that
would not authorize him to rescind a valid contract if there had
been full compliance. Of course, even that power may be conferred
by agreement or by statute. But, in the absence of such an
agreement, or such a provision in a statute, a plaintiff may have
redress against a defendant who has wrongfully rescinded a valid
contract fully performed if a property right of the plaintiff is
thereby tortiously affected. He may also have his day in court if
he denies the right of an official to determine definitively want
of compliance, when the issue of compliance is decisive of the
defendant's alleged wrongdoing. And these are precisely the issues
tendered by this complaint. It is no answer at this stage of the
case to say that it was, in fact, within the agent's authority to
do what he did. If a valid statute gives him power to withhold
property which belongs to another, or if he has the power to revest
title in the Government after a valid contract has vested it in
another, then, of course, he is free from liability. But these are
matters that go to the merits. The very purpose of this suit is to
determine whether what the governmental agent did here was within
his power. To decide whether the "authority is rightfully assumed
is the exercise of jurisdiction, and must lead to the decision of
the merits of the question."
United States v. Lee,
106 U. S. 196,
106 U. S. 219.
The issues outlined above are issues which may be contested against
a defendant, even though he hold office.
Noble v. Union River
Logging R. Co., 147 U. S. 165;
Payne v. Central Pacific R. Co., 255 U.
S. 228;
Santa Fe Pacific R. Co. v. Fall,
259 U. S. 197;
Land v. Dollar, 330 U. S. 731.
The District Court therefore had jurisdiction over the
controversy, because only after a consideration of the
Page 337 U. S. 729
merits of the respondent's claim could it be determined whether
the decree would affect Government property. Since that court has
jurisdiction, it can also determine whether a cause of action was
stated and whether there are any considerations which would cause a
court of equity not to grant the relief requested.
I would affirm the judgment of the Court of Appeals.
[
Footnote 2/1]
The prayer for relief in the complaint is as follows:
"(1) That this court issue its temporary restraining order
against the defendant, his agents, assistants, deputies, and
employees and all persons acting or assuming to act under their
direction, enjoining and restraining them from:"
"(a) Carrying into effect the purported illegal and unauthorized
cancellation of the sale to the plaintiff of this coal."
"(b) Reselling or attempting to resell this coal to any other
person whatsoever than the plaintiff, the legal owner thereof."
"(c) Delivering any or all of this coal to any other
person."
"(2) That, upon hearing of motion for a preliminary injunction,
that this Court continue the temporary restraining order as a
preliminary injunction."
"(3) That, upon final hearing, this Court make permanent the
preliminary injunction."
"(4) That, upon hearing, of this cause the Court decrees
that:"
"(a) The sale of this coal to the plaintiff by letter of War
Assets Administration, dated March 19, 1947, is still valid and in
effect."
"(b) That the purported sale to the Midland Coal Company is
illegal, because title to this coal is in the plaintiff."
"(c) That, in view of the delay and disruption of arrangements
caused by the purported cancellation, plaintiff shall have thirty
days from the date of this Court's final order in which to give
shipping instructions."
"(d) That the plaintiff may have such other further and
different relief as may to the Court seem proper and just in the
premises."
[
Footnote 2/2]
E.g., 26 U. S.
Madrazo, 1 Pet. 110 (1828);
Louisiana v. Jumel,
107 U. S. 711;
Cunningham v. Macon & Brunswick R. Co., 109 U.
S. 446;
Hagood v. Southern R. Co., 117 U. S.
52;
Christian v. Atlantic & North Carolina R.
Co., 133 U. S. 233;
North Carolina v. Temple, 134 U. S.
22;
New York Guaranty & Indemnity Co. v.
Steele, 134 U. S. 230;
Belknap v. Schild, 161 U. S. 10;
Oregon v. Hitchcock, 202 U. S. 60;
Murray v. Wilson Distilling Co., 213 U.
S. 151;
Hopkins v. Clemson Agricultural
College, 221 U. S. 636;
Louisiana v. McAdoo, 234 U. S. 627;
Lankford v. Platte Iron Works, 235 U.
S. 461;
Wells v. Roper, 246 U.
S. 335;
Morrison v. Work, 266 U.
S. 481;
see Land v. Dollar, 330 U.
S. 731,
330 U. S.
737-738.
[
Footnote 2/3]
E.g., 22 U. S. Bank of
the United States, 9 Wheat. 738 (1824);
Board of
Liquidation v. McComb, 92 U. S. 531;
Poindexter v. Greenhow, 114 U. S. 270;
White v. Greenhow, 114 U. S. 307;
Chaffin v. Taylor, 114 U. S. 309;
Allen v. Baltimore & O. R. Co., 114 U.
S. 311;
Pennoyer v. McConnaughy, 140 U. S.
1;
Reagan v. Farmers' Loan & Trust Co.,
154 U. S. 362;
Smyth v. Ames, 169 U. S. 466;
Mississippi R. Co. v. Illinois C. R. Co., 203 U.
S. 335;
Ex parte Young, 209 U.
S. 123;
Rickert Rice Mills Co. v. Fontenot,
297 U. S. 110.
[
Footnote 2/4]
E.g., Scully v. Bird, 209 U. S. 481;
Atchison, T. & S.F. R. Co. v. O'Connor, 223 U.
S. 280;
Philadelphia Co. v. Stimson,
223 U. S. 605;
Waite v. Macy, 246 U. S. 606;
Santa Fe Pac. R. Co. v. Fall, 259 U.
S. 197;
Work v. Louisiana, 269 U.
S. 250.
[
Footnote 2/5]
E.g., United States v. Lee, 106 U.
S. 196;
South Carolina v. Wesley, 155 U.
S. 542;
Tindal v. Wesley, 167 U.
S. 204;
Hopkins v. Clemson Agricultural
College, 221 U. S. 636;
Sloan Shipyards Corp. v. United States Fleet Corp.,
258 U. S. 549;
Goltra v. Weeks, 271 U. S. 536;
Ickes v. Fox, 300 U. S. 82;
Land v. Dollar, 330 U. S. 731. In
four cases before the
Lee case, suit was permitted against
the governmental agent for trespass to property under the claim
that it was owned by the Government without any discussion that a
question of sovereign immunity might be involved.
Meigs v.
M'Clung's Lessee, 9 Cranch 11 (1815);
Wilcox v.
Jackson, 13 Pet. 498 (1839);
Brown v. Huger, 21 How.
305 (1858);
Grisar v.
McDowell, 6 Wall. 363 (1867). And where the
sovereign immunity argument was raised, it was dismissed with
"it certainly can never be alleged that a mere suggestion of
title in a state to property, in the possession of an individual,
must arrest the proceedings of the court, and prevent their looking
into the suggestion, and examining the validity of the title."
United States v.
Peters, 5 Cranch 115 (1809);
See also The Davis, 10
Wall. 15 (1869).
[
Footnote 2/6]
See Fitts v. McGhee, 172 U. S. 516;
see Block, Suits against Government Officers and the
Sovereign Immunity Doctrine, 59 Harv.L.Rev. 1060, 1078, 1082
(1946).
[
Footnote 2/7]
Louisiana v. McAdoo, 234 U. S. 627;
In re Ayers, 123 U. S. 443.
[
Footnote 2/8]
Hawks v. Hamill, 288 U. S. 52;
Morrison v. Work, 266 U. S. 481.
[
Footnote 2/9]
Fitts v. McGhee, 172 U. S. 516;
Worchester County Trust Co. v. Riley, 302 U.
S. 292.
[
Footnote 2/10]
The principle of the
Lee case cannot be explained away
by suggesting that, at the time it was decided, recovery could not
be had against the United States in the Court of Claims for the
misconduct of the governmental agent in seizing the Lee estate. The
short and conclusive answer is that recovery against the United
States could not be had today unless a whole series of cases is to
be overruled.
See, e.g., Tempel v. United States,
248 U. S. 121,
248 U. S. 130,
and the cases cited therein;
Russell v. United States,
182 U. S. 516,
182 U. S. 535;
Harley v. United States, 198 U. S. 229,
198 U. S. 235;
Hill v. United States, 149 U. S. 593;
United States v. North American Trans. & Trading Co.,
253 U. S. 330,
253 U. S. 335;
Juragua Iron Co. v. United States, 212 U.
S. 297. And there is nothing in the Federal Torts Claim
Act which would indicate that, under its provision, suit could be
brought. 28 U.S.C. § 2680(a).
[
Footnote 2/11]
This case is clearly apposite to the question whether in a suit
against an agent the defense of sovereign immunity is applicable.
To take away the immunity of a governmental corporation merely
prevents the corporation from claiming that it is immunized from
suit. But a suit will still not lie if a decree will affect the
Government's, rather than the corporation's, property.
[
Footnote 2/12]
When Congress has wished to displace the ordinary remedies
against the agent, it has used explicit language to do so.
See,
e.g., 56 Stat. 1013, 35 U.S.C. §§ 89-96; 36 Stat. 851, as
amended, 40 Stat. 705, 35 U.S.C. § 68. It is, of course, not a
denial of due process to make the remedy, even for unconstitutional
action of the agents who do the Government's work, solely against
the Government, instead of the agent who committed the wrong.
Cf. Coffman v. Federal Laboratories, Inc., 171 F.2d 94;
Richmond Screw Anchor Co. v. United States, 275 U.
S. 331;
Crozier v. Fried Krupp
Aktiengesellschaft, 224 U. S. 290. It
is upon such cases, interpreting specific provisions, stating that
relief should be only against the Government, that the Court relied
in
Yearsley v. Ross Construction Co., 309 U. S.
18. That case is based on the
Richmond Screw Anchor
Co. case and the
Crozier case, and is to be
understood in the light of them. In the
Yearsley case,
suit was brought against a governmental agent who had taken land
under a statute which authorized the taking of that particular
land. Impliedly, the owner was to be compensated for it in the
Court of Claims. The Court held that, in an authorized taking,
there is no liability on the part of the Government's
representatives who do the taking. The fact that there was entire
compensation provided for emphasized the exclusive character of the
remedy against the Government. In other words, the Court was
dealing with a situation like the one involved in the
Richmond
Screw Anchor Co. case. Thus, the
Yearsley case does
not touch the cases decided, before and since that decision, on the
basis of the
Lee line of cases. Moreover, in this case,
petitioner alleges that there was no authority on the part of the
defendant to rescind the contract. This Court has explicitly
rejected the theory that the Government could be sued for a tort in
such circumstances.
Tempel v. United States, 248 U.
S. 121,
248 U. S. 129,
and cases cited;
see also 28 U.S.C. § 2680(a).
[
Footnote 2/13]
"Whether this immunity is an absolute survival of the monarchial
privilege, or is a manifestation merely of power, or rests on
abstract logical grounds,
see Kawananakoa v. Polyblank,
205 U. S. 349, it
undoubtedly runs counter to modern democratic notions of the moral
responsibility of the State. Accordingly, courts reflect a strong
legislative momentum in their tendency to extend the legal
responsibility of Government and to confirm Maitland's belief,
expressed nearly fifty years ago, that "it is a wholesome sight to
see
the Crown' sued and answering for its torts." 3 Maitland,
Collected Papers, 263."
Great Northern Life Ins. Co. v. Read, 322 U. S.
47,
322 U. S. 57,
322 U. S. 59
(dissenting opinion).
See also Kennecott Copper Corp. v. State
Tax Comm'n, 327 U. S. 573,
327 U. S. 580,
327 U. S. 582
(dissenting opinion).
[
Footnote 2/14]
Of course, if control is sought over property which the
Government seeks to retain, the considerations as to whether the
equitable relief should be granted might be different.
Cf.
Louisiana v. Garfield, 211 U. S. 70;
Goldberg v. Daniels, 231 U. S. 218.
Here, however, that question is not involved, since the coal to
which the plaintiff asserts title is, according to the complaint,
to be sold to another dealer. As between the two, the plaintiff, if
it be a fact that he has fully complied with the contract, is
entitled to the property. The threatened transfer of property
wrongfully withheld from the plaintiff may be enjoined if the
conventional requirements of equitable relief are present.
|
337
U.S. 682app|
APPENDIX
Cases since 22 U. S. Bank of
the United States, 9 Wheat. 738 (1824), concerning suits against
governmental agents in which defense of sovereign immunity was
raised.
I. Cases in which jurisdiction was found wanting.
A. Plaintiff sought interest in property which concededly
belonged to the Government, or demanded relief calling for an
assertion of what was unquestionably official authority.
Governor of Georgia v.
Madrazo, 1 Pet. 110 (1828);
Louisiana v.
Jumel, 107 U. S. 711;
Cunningham v. Macon & Brunswick R. Co., 109 U.
S. 446;
Hagood v. Southern R. Co., 117 U. S.
52;
Christian v. Atlantic & N.C. R. Co.,
133 U. S. 233;
North Carolina v. Temple, 134 U. S.
22;
New York Guaranty & Indemnity Co. v.
Steele, 134 U. S. 230;
Belknap v. Schild, 161 U. S. 10;
Oregon v. Hitchcock, 202 U. S. 60;
Louisiana v. Garfield, 211 U. S. 70;
Murray v. Wilson, 213 U. S. 151;
Hopkins v. Clemson Agricultural College, 221 U.
S. 636;
Goldberg v. Daniels, 231 U.
S. 218;
Louisiana v. McAdoo, 234 U.
S. 627;
Lankford v. Platte Iron Works,
235 U. S. 461;
Wells v. Roper, 246 U. S. 335;
Morrison v. Work, 266 U. S. 481;
Minnesota v. United States, 305 U.
S. 382.
Page 337 U. S. 730
B. Decisions couched in terms of sovereign immunity or later so
interpreted, but which actually turned on other considerations.
1. No legally protected interest of the plaintiff was
affected.
Louisiana v. McAdoo, 234 U. S. 627;
Tennessee Electric Power Co. v. Tennessee Valley
Authority, 306 U. S. 118.
2. The particular defendant was unrelated to the plaintiff's
claim because he was not threatening plaintiff's interest.
In re Ayers, 123 U. S. 443;
Fitts v. McGhee, 172 U. S. 516;
Worchester County Trust Co. v. Riley, 302 U.
S. 292;
Mine Safety Appliance Co. v. Forrestal,
326 U. S. 371
(alternative reason).
3. Nature of the adjudication required presence of the sovereign
as a necessary party.
Christian v. Atlantic & North Carolina R. Co.,
133 U. S. 233;
Stanley v. Schwalby, 162 U. S. 255;
New Mexico v. Lane, 243 U. S. 52.
4. Case dismissed for want of ordinary requirements of equity
jurisdiction.
Hawks v. Hamill, 288 U. S. 52;
Morrison v. Work, 266 U. S. 481
(alternative ground).
C. Cases in which legislation specifically provided that only
the sovereign itself could be sued for action authorized by
statute.
Crozier v. Fried Krupp Aktiengesellschaft, 224 U.
S. 290;
Richmond Screw Anchor Co. v. United
States, 275 U. S. 331.
D. Cases in which the plaintiff pursued a statutory procedure
indicating consent to suit against the sovereign, and is therefore
bound by its limitations.
Page 337 U. S. 731
Smith v. Reeves, 178 U. S. 436;
Great Northern Life Ins. Co. v. Read, 322 U. S.
47;
Ford Motor Co. v. Department of Treasury of
Indiana, 323 U. S. 459;
Kennecott Copper Corp. v. State Tax Comm'n, 327 U.
S. 573.
II. Cases in which jurisdiction was entertained.
A. Cases in which an official justified his action under an
unconstitutional statute.
Osborn v. Bank of the United
States, 9 Wheat 738 (1824);
Board of
Liquidation v. McComb, 92 U. S. 531;
Poindexter v. Greenhow, 114 U. S. 270;
White v. Greenhow, 114 U. S. 307;
Chaffin v. Taylor, 114 U. S. 309;
Allen v. Baltimore & O. R. Co., 114 U.
S. 311;
Pennoyer v. McConnaughy, 140 U. S.
1;
Ex parte Tyler, 149 U.
S. 164;
Reagan v. Farmers' Loan & Trust
Co., 154 U. S. 362;
Scott v. Donald, 165 U. S. 58;
Scott v. Donald, 165 U. S. 107;
Smyth v. Ames, 169 U. S. 466;
Prout v. Starr, 188 U. S. 537;
Mississippi R. Co. v. Illinois C. R. Co., 203 U.
S. 335;
Ex parte Young, 209 U.
S. 123;
General Oil Co. v. Crain, 209 U.
S. 211;
Ludwig v. Western Union Telegraph Co.,
216 U. S. 146;
Western Union Telegraph Co. v. Andrews, 216 U.
S. 165;
Herndon v. Chicago, R.I. & Pac. R.
Co., 218 U. S. 135;
Truax v. Raich, 239 U. S. 33;
Tanner v. Little, 240 U. S. 369;
Greene v. Louisville & I. R. Co., 244 U.
S. 499;
Public Service Co. v. Corboy,
250 U. S. 153;
Sterling v. Constantin, 287 U. S. 378;
Rickert Rice Mills Co. v. Fontenot, 297 U.
S. 110.
B. Cases in which an officer exceeded his statutory
authority.
Rolston v. Missouri Fund Commissioners, 120 U.
S. 390;
Scully v. Bird, 209 U.
S. 481;
Atchison, T. & S.F. R. Co. v.
O'Connor, 223 U. S. 280;
Philadelphia Co.
v.
Page 337 U. S. 732
Stimson, 223 U. S. 605;
Waite v. Macy, 246 U. S. 606;
Payne v. Central Pac R. Co., 255 U.
S. 228;
Santa Fe Fac. R. Co. v. Fall,
259 U. S. 197;
Work v. Louisiana, 269 U. S. 250.
C. Cases in which an officer sought shelter behind statutory
authority or some other sovereign command for the commission of a
common law tort.
1. Cases in which an officer was not relieved of liability for
tort merely because he was acting for the sovereign.
Stanley v. Schwalby, 147 U. S. 508;
Scranton v. Wheeler, 179 U. S. 141;
Sloan Shipyards Corp. v. United States Fleet Corp.,
258 U. S. 549;
Goltra v. Weeks, 271 U. S. 536;
Ickes v. Fox, 300 U. S. 82;
Land v. Dollar, 330 U. S. 731.
2. Cases in which an officer was held liable for a common law
tort, but the opinion made reference to a situation involving an
unconstitutional taking.
United States v. Lee, 106 U. S. 196;
Noble v. Union River Logging R. Co., 147 U.
S. 165;
South Carolina v. Wesley, 155 U.
S. 542;
Tindal v. Wesley, 167 U.
S. 204;
Hopkins v. Clemson Agricultural
College, 221 U. S. 636.