Malone v. Bowdoin/Opinion of the Court

by Potter Stewart

United States Supreme Court

369 U.S. 643

Malone  v.  Bowdoin

 Argued: March 20, 1962. --- Decided: May 14, 1962

This litigation began in a Georgia court when the respondents filed a common law action of ejectment against the petitioner, a Forest Service Officer of the United States Department of Agriculture. ^[1] The basis for the suit was the respondents' claim that they were the rightful owners of certain land occupied by the petitioner. ^[2] The action was removed to a Federal District Court under the provisions of 28 U.S.C. § 1442(a), 28 U.S.C.A. § 1442(a). ^[3] The removal petition stated that the action 'involves lands that were acquired by the United States of America by deed on June 6, 1936,' that the petitioner's 'official duties as a Forest Service Officer required him to be, and he was, in charge and in possession of the land described in said ejectment suit,' and that 'all his acts in connection with the matters charged in said complaint were committed by him under color of his said office.'

The petitioner filed a motion to dismiss upon the ground that the suit was in substance and effect one against the United States, which had not consented to be sued or waived its immunity from suit. Noting that the respondents had conceded in a pretrial conference that the petitioner in occupying the land was acting solely as an official or employee of the United States, the District Court granted the motion to dismiss, relying upon Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628. ^[4] On appeal, the judgment was reversed, one judge dissenting, 5 Cir., 284 F.2d 95. ^[5] We granted certiorari to consider the scope of sovereign immunity in suits of this kind. 368 U.S. 811, 82 S.Ct. 35, 7 L.Ed.2d 20. We agree with the District Court that the doctrine of the Larson case required dismissal of this action, and we therefore reverse the judgment of the Court of Appeals.

For its view that the sovereign immunity of the United States did not bar the maintenance of this suit, the Court of Appeals found principal support in United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171. In that case the Virginia estate of General Robert E. Lee had been acquired by the United States for nonpayment of taxes, although the taxes had in fact been tendered by a third party. An ejectment action was brought against the governmental custodians of the land, upon which a federal military installation and a cemetery had been established. The trial court found that the tax sale had been invalid, and that title to the land was in the plaintiff. This Court upheld a judgment in favor of the plaintiff upon the trial court's finding that the defendants' possession of the land was illegal, holding that a suit against them under such circumstances was not a suit against the sovereign.

In a number of later cases, arising over the years in a variety of factual situations, the principles of the Lee case were approved. ^[6] But in several other cases which came to the Court during the same period, it was held that suits against government agents, specifically affecting property in which the United States claimed an interest, were barred by the doctrine of sovereign immunity. ^[7] While it is possible to differentiate many of these cases upon their individualized facts, it is fair to say that to reconcile completely all the decisions of the Court in this field prior to 1949 would be a Procrustean task.

The Court's 1949 Larson decision makes it unnecessary, however, to undertake that task here. For in Larson the Court, aware that it was called upon to 'resolve the conflict in doctrine' (337 U.S., at 701, 69 S.Ct. at 1467), thoroughly reviewed the many prior decisions, and made an informed and carefully considered choice between the seemingly conflicting precedents.

In that case a suit had been brought against the War Assets Administrator to enjoin him from selling surplus coal which, it was alleged, the Administrator had already sold to the plaintiff. The theory of the action was that where '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,' and that the officer 'may therefore be sued individually to prevent the 'illegal' taking or to recover the property 'illegally' held.' 337 U.S., at 692, 69 S.Ct., at 1462. The Court held that this theory was not adequate to support a conclusion that the relief asked was not relief against the sovereign.

Cutting through the tangle of previous decisions, the Court expressly postulated the rule that the action of a federal officer affecting property claimed by a plaintiff can be made the basis of a suit for specific relief against the officer as an individual only if the officer's action 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.' 337 U.S., at 702, 69 S.Ct., at 1467. Since the plaintiff had not made an affirmative allegation of any relevant statutory limitation upon the Administrator's powers, and had made no claim that the Administrator's action amounted to an unconstitutional taking, the Court ruled that the suit must fail as an effort to enjoin the United States.

While not expressly overruling United States v. Lee, supra, the Court in Larson limited that decision in such a way as to make it inapplicable to the case before us. Pointing out that at the time of the Lee decision there was no remedy by which the plaintiff could have recovered compensation for the taking of his land, ^[8] the Court interpreted Lee as simply 'a specific application of the constitutional exception to the doctrine of sovereign immunity.' 337 U.S., at 696, 69 S.Ct., at 1464. So construed, the Lee case has continuing validity only 'where there is a claim that the holding constitutes an unconstitutional taking of property without just compensation.' Id., at 697, 69 S.Ct., at 1465.

No such claim has been advanced in the present case. Nor has it been asserted that the petitioner was exceeding his delegated powers as an officer of the United States in occupying the land in question, ^[9] or that he was in possession of the land in anything other than his official capacity. This suit, therefore, is not within the class of cases in which, under Larson, specific relief can be obtained against a government officer. Accordingly, it was rightly dismissed by the District Court as an action which in substance and effect was one against the United States without its consent.

Reversed.

Mr. Justice FRANKFURTER took no part in the decision of this case.

Mr. Justice WHITE took no part in the consideration or decision of this case.

Mr. Justice DOUGLAS, dissenting.

Notes

1. The original pleading was in the fictitious common law form in use in Georgia, Ga. Code Ann. § 33-111, alleging that John Doe, as a lessee of the respondents, had entered the land in question and had been forceably ejected by Richard Roe. The petitioner and the United States were served with process, which was accompanied by a 'Notice to the Real Defendants,' stating that Richard Roe had 'acted as casual ejector only.' The subsequent dismissal of the United States as a petitioner is not challenged here.
2. This assertion did not appear on the face of the original pleadings because of their fictitious form. In a subsequent brief, however, the respondents explained the basis of their claim. They alleged that an 1857 will had devised a life estate in the land to Martha A. Sanders, with remainder over to her children, and that in 1873 Mrs. Sanders had devised the land in fee to mesne grantors of the United States, which had acquired title in 1936. Mrs. Sanders died in 1928, and the respondents claimed to be the remaindermen under the 1857 will.
3. 28 U.S.C. § 1442(a), 28 U.S.C.A. § 1442(a) provides:
4. The District Court's opinion is reported sub nom. Doe v. Roe, D.C., 186 F.Supp. 407.
5. A petition for rehearing was denied, 5 Cir., 287 F.2d 282.
6. Cunningham v. Macon & Brunswick R. Co., 109 U.S. 446, 452, 3 S.Ct. 292, 296, 297, 27 L.Ed. 992; Tindal v. Wesley, 167 U.S. 204, 17 S.Ct. 770, 42 L.Ed. 137; Scranton v. Wheeler, 179 U.S. 141, 152-153, 21 S.Ct. 48, 52-53, 45 L.Ed. 126; Philadelphia Co. v. Stimson, 223 U.S. 605, 619-620, 32 S.Ct. 340, 343-344, 56 L.Ed. 570; Goltra v. Weeks, 271 U.S. 536, 545, 46 S.Ct. 613, 616, 70 L.Ed. 1074; Ickes v. Fox, 300 U.S. 82, 96, 57 S.Ct. 412, 417, 81 L.Ed. 525; Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 50 51, 64 S.Ct. 873-874, 875, 88 L.Ed. 1121; Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209.
7. See Stanley v. Schwalby, 162 U.S. 255, 16 S.Ct. 754, 40 L.Ed. 960; Oregon v. Hitchcock, 202 U.S. 60, 26 S.Ct. 568, 50 L.Ed. 935; Naganab v. Hitchcock, 202 U.S. 473, 26 S.Ct. 667, 50 L.Ed. 1113; Louisiana v. Garfield, 211 U.S. 70, 29 S.Ct. 31, 53 L.Ed. 92; Goldberg v. Daniels, 231 U.S. 218, 34 S.Ct. 84, 58 L.Ed. 191; New Mexico v. Lane, 243 U.S. 52, 37 S.Ct. 348, 61 L.Ed. 588; Morrison v. Work, 266 U.S. 481, 45 S.Ct. 149, 69 L.Ed. 394; cf. Mine Safety Appliance Co. v. Forrestal, 326 U.S. 371, 374-375, 66 S.Ct. 219, 221, 90 L.Ed. 140; Wells v. Roper, 246 U.S. 335, 38 S.Ct. 317, 62 L.Ed. 755.
8. See 337 U.S., at 697, n. 17, 69 S.Ct., at 1465. Unlike the situation in the Lee case, there has been at all relevant times a tribunal where the respondents could seek just compensation for the taking of their land by the United States. That tribunal is the Court of Claims. United States v. Causby, 328 U.S. 256, 267, 66 S.Ct. 1062, 1064, 90 L.Ed. 1206.
9. If such a claim is to be made, 'it is necessary that the plaintiff set out in his complaint the statutory limitation on which he relies.' Larson v. Domestic & Foreign Corp., 337 U.S. 682, 690, 69 S.Ct. 1457, 1461. While this requirement could probably not have been precisely complied with here because of the fictitious form of pleading involved, no such claim was ever suggested at any state of the proceedings.