Domestic & Foreign Commerce Corp. v. Littlejohn

• Decision Date: 08 December 1947
• Docket Number: No. 9553.,9553.
• Citation: 165 F.2d 235
• Parties: DOMESTIC & FOREIGN COMMERCE CORPORATION v. LITTLEJOHN, War Assets Administrator and Surplus Property Administrator.
• Court: U.S. Court of Appeals — District of Columbia Circuit

165 F.2d 235 (1947)

DOMESTIC & FOREIGN COMMERCE CORPORATION v. LITTLEJOHN, War Assets Administrator and Surplus Property Administrator.

No. 9553.

United States Court of Appeals District of Columbia.

Argued September 30, 1947.

Decided December 8, 1947.

Messrs. T. Peter Ansberry and Stephen J. McMahon, Jr., both of Washington, D. C., for appellant.

Mr. Hubert H. Margolies, Atty., Department of Justice, of Washington, D. C., with whom Messrs. Edward H. Hickey, Special Assistant to the Attorney General, and George Morris Fay, United States Attorney, of Washington, D. C., were on the brief, for appellee. Messrs. J. Francis Hayden, Special Assistant to the Attorney General, and Sidney S. Sachs, Assistant United States Attorney, of Washington, D. C., entered appearances for appellee.

Before CLARK, WILBUR K. MILLER, and PRETTYMAN, Associate Justices.

CLARK, Associate Justice.

This action originated with a complaint for an injunction filed by the appellant in the District Court of the United States for the District of Columbia on April 29, 1947. Appellee here was named defendant in the complaint in his capacity as War Assets Administrator and Surplus Property Administrator. A temporary restraining order was issued on that date and the cause came on for hearing May 6, 1947, defendant (appellee here) having filed a motion to dismiss. On May 9, 1947, the lower court decreed that the motion for preliminary injunction be denied and granted the motion to dismiss the complaint. This appeal followed.

The facts giving rise to the complaint, briefly stated, are as follows: Appellant had purchased surplus coal from the War Assets Administration during 1946, and early in March 1947 received from the War Assets Administration an invitation to bid on 10,000 tons of coal which stated, "This coal is offered F.O.B. cars, Camp Maxey, north of Paris, Texas." On March 13 appellant answered by telegram, offering to buy the coal as offered and requested that "this tonnage be allocated to us on same terms and conditions and made a continuing part of our recent contract at same price." A letter from the War Assets Administration to appellant under date of March 19 expressed acceptance of the offer, stating in part, "Also, 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." (Italics supplied.) This letter requested that enclosed standard War Assets Administration forms, one being an offer to purchase and the other being a sales memorandum, be executed and returned, which request was complied with by appellant on March 28. Appellant's letter of transmittal accompanying the forms stated that $5,000 was being deposited at the Dallas bank that day and that the balance of the funds necessary to meet the invoices would be transferred to the Dallas bank when the shipment began.

War Assets Administration replied by telegram on April 1 informing appellant that the entire amount of $17,500 should be deposited in the Dallas bank prior to noon on April 4 or the sale would be cancelled. Although appellant arranged for an irrevocable letter of credit payable to War Assets Administration through the Dallas bank within the time specified, and so notified War Assets Administration, there was a further interchange of correspondence and on April 16 War Assets Administration informed appellant by telegram that the sale had been cancelled, holding appellant in default for failing to deposit immediately the full amount of $17,500 in the Dallas Bank.

Subsequently appellant learned that War Assets Administration had entered negotiations with another party for the sale of the coal involved here and filed the complaint, praying for an injunction against the sale of this coal to any person other than the plaintiff (appellant) and seeking a decree upon hearing of the cause that the sale to plaintiff is valid and in effect.

The court below was of the opinion that the complaint did not state a cause of action, after expressing openly the view that the suit was, in effect, one for specific performance involving the United States as an indispensable party, and, therefore, that the court lacked jurisdiction.

We have recently had occasion to scrutinize the doctrine of sovereign immunity as a "jurisdictional" problem,¹ and in doing so we deemed it expedient to adopt the careful analysis which had been made previously by Justice Stephens of this Court in his opinion (dissenting in part, concurring in part) in Franklin Tp. in Somerset County, N. J. v. Tugwell, 66 App.D.C. 42, 85 F.2d 208. For its obvious value in this case we repeat his finding, stated (66 App. D.C. 63; 85 F.2d 229) that:

"Where a plaintiff asserts that an officer of the Government is acting without power and that therefore his acts are invalid, the court in determining the preliminary jurisdictional question whether the United States is a necessary party (whether necessary parties are before a court is, of course, jurisdictional), is confronted with a peculiar procedural problem, or impasse, arising out of the fact that the determination of this question involves passing upon the very question involved in the merits. * * * Since a court must determine at the outset its jurisdiction to proceed, it is compelled to make a...