Seiden v. Larson

• Decision Date: 15 March 1951
• Docket Number: No. 10596.,10596.
• Citation: 88 US App. DC 258,188 F.2d 661
• Parties: SEIDEN et al. v. LARSON et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

88 US App. DC 258, 188 F.2d 661 (1951)

SEIDEN et al. v. LARSON et al.

No. 10596.

United States Court of Appeals District of Columbia Circuit.

Decided March 15, 1951.

Writ of Certiorari Denied June 4, 1951.

Norman Winer, New York City, of the Bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, with whom Wallace M. Cohen, Washington, D. C., was on the brief, for appellants.

Roger P. Marquis, Attorney, Department of Justice, Washington, D. C., with whom Asst. Atty. Gen., A. Devitt Vanech was on the brief, for appellees. George Morris Fay, U. S. Atty., and Joseph M. Howard, Asst. U. S. Atty., Washington, D. C., also entered appearances for appellees.

Before EDGERTON, PROCTOR and WASHINGTON, Circuit Judges.

Writ of Certiorari Denied June 4, 1951. See 71 S.Ct. 1017.

WASHINGTON, Circuit Judge.

This case involves an effort by former owners of real property, taken by the Government for war purposes, to reacquire it on a priority basis. The claim of plaintiffs (appellants) is based on section 23(d) (1) (A) of the Surplus Property Act of 1944¹ which provided, in substance, that former owners of "surplus real property * * * shall be entitled to purchase such property * * * at private sale * * *."

The property here involved has been declared to be surplus. But the appellees, who are officials of the General Services Administration (successor to the remaining functions of the War Assets Administration), have determined that it is not "real property" within the meaning of section 23(d) because it is war housing, excluded from the coverage of section 23(d) by the provisions of section 23(a) of the Act. Accordingly, appellees have refused to recognize appellants' claim of priority and have offered the property for public sale.

I.

On a 169 acre tract at Lido, Long Island, appellants owned and operated a resort, comprising a hotel, a golf course, swimming pools, an ocean beach and other accommodations. The Secretary of the Navy took possession of the entire tract on September 8, 1942, and formal condemnation proceedings were completed in 1945, when the United States took title and paid the sum due. The property was converted into the Lido Naval Training Station.² After the termination of hostilities, in May, 1947, the entire property was declared surplus, and was turned over to the War Assets Administrator for disposition. In November of that year the hotel site (the south 54½ acres of the tract) was sold to the appellants on a priority basis. All of the remaining property (115 acres in the northern part of the tract, encompassing primarily the former golf course) has been classified as "Non-Section 23" real property, i. e., as not within the statutory former-owner preference.

While appellants have objected to this classification as to the entire 115 acres, only a portion of the property is here in issue.³ It is a 79 acre tract now occupied, in part, by veterans' emergency housing built by New York State.⁴ Appellants have negotiated at length with appellees in an attempt to reacquire this tract, but appellees have refused to change its classification as "Non-Section 23" real property.

On December 21, 1949, appellees advertised the 79 acres of property for sale to the public, "subject to existing occupancy of 23.8 acres for veterans' emergency housing until September 30, 1954." The appellants responded to this advertisement by submitting a bid. They also brought suit in the United States District Court for the District of Columbia on December 29, 1949, to restrain the appellees from disposing of the property to anyone other than the appellants. On March 7, 1950, the District Court granted appellees' motions to dismiss the complaint and for summary judgment.⁵ It is from this judgment that appeal is taken.

II.

In cases of this sort, where the plaintiff challenges action by an administrative official relative to Government property, two questions are commonly posed at the outset: (1) Does the plaintiff have standing to sue, and (2) is the suit actually one against the United States, to which it has not consented? These questions are of necessity closely inter-related, and in fact they sometimes blend together. For if the suit is one against the United States and no consent to its maintenance has been given, it is clear that no one is entitled to sue, and the extent of the plaintiff's interest in the matter is immaterial.⁶ If the suit is not against the United States, the nature of the plaintiff's interest becomes relevant; the courts must decide whether that interest is such as to entitle him to judicial protection against the conduct of which he complains, on the part of the individual defendant he has sued.⁷

In the present situation appellants rely on section 23(d) of the Surplus Property Act, which provided that former owners of "surplus real property * * * shall be entitled to purchase such property * * * at private sale * * *", as giving them standing to maintain this suit.⁸ (Emphasis supplied.) There is no doubt that acquisition of the property here involved is of greater practical interest to appellants as former owners than to ordinary prospective purchasers, and that interests of this sort were recognized by Congress in the quoted provision. But if this suit is against the United States, that is not enough. "When the claims created are against the United States, no remedy through the courts need be provided. * * * To reach the dignity of a legal right in the strict sense, it must appear from the nature and character of the legislation that Congress intended to create a statutory privilege protected by judicial remedies." Stark v. Wickard, 321 U.S. at page 306, 64 S.Ct. at page 569. Since no such intent was manifested in the Surplus Property Act, either expressly or by implication,⁹ appellants have no "legal right" as against the Government. Regardless of what their status may be in some other context, if this is a suit against the United States, it cannot be maintained.

III.

The question whether a suit against an administrative officer named individually is in fact a suit against the United States has long been — and continues to be — a problem of great difficulty. One of the areas where it is most difficult to avoid the conclusion that the suit is in reality against the United States is where Government property is involved. Certainly "a proceeding against property in which the United States has an interest is a suit against the United States." State of Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 294, 83 L.Ed. 235. So too where the proceeding is not directly against the property but will affect the Government's interest in it: State of Minnesota v. Hitchcock, 185 U.S. 373, 22 S.Ct. 650, 46 L.Ed. 954. The Court there held: "* * * the legal title to these lands is in the United States. The officers named as defendants have no interest in the lands or the proceeds thereof. The United States is proposing to sell them. This suit seeks to restrain the United States from such sale, to divest the government of its title and vest it in the state. The United States is therefore the real party affected by the judgment and against which in fact it will operate, and the officers have no pecuniary interest in the matter." 185 U.S. at page 387, 22 S.Ct. at page 655. See, also, State of Oregon v. Hitchcock, 202 U.S. 60, 26 S.Ct. 568, 50 L.Ed. 935. Nor is this reasoning confined to situations where the plaintiff seeks to divest the Government of title. See Naganab v. Hitchcock, 202 U.S. 473, 476, 26 S.Ct. 667, 50 L.Ed. 1113. The Supreme Court, in summing up such decisions, indicated that "where the sovereign admittedly has title to property and is sued by those who seek to compel a conveyance or to enjoin disposition of the property, the adverse claims being based on an allegedly superior equity or on rights arising under Acts of Congress," suit cannot be maintained in the absence of consent on the part of the United States. Land v. Dollar, 330 U.S. 731, 737, 738, 67 S.Ct. 1009, 91 L.Ed. 1209.

In the instant case it is undisputed that the property in question belongs to the United States. Appellants contend, however, that under principles announced in the recent decision of the Supreme Court in Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628, this suit can be maintained. We do not think that the Larson decision aids appellants. Unlike the case here at hand, the Larson case was concerned with a situation where plaintiff claimed title, and alleged that the defendant Government official was tortiously withholding plaintiff's property. And the Court held that even under those circumstances, "* * * the action of an officer of the sovereign (be it holding, taking or otherwise legally affecting the plaintiff's property) can be regarded as so `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." 337 U.S. at page 701-702, 69 S.Ct. at page 1467. The Court did not hold that where Government property was concerned a showing of lack of statutory authority would suffice. To the contrary, it specifically noted that: "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." 337 U.S. 682, note 11, 69 S.Ct. 1457.¹⁰

The reason for this distinction is patent. The Government has a vital interest in the disposition of its property. On the other hand, where a Government official commits a trespass against a citizen's property, and is not...