Bowdoin v. Malone

Decision Date25 October 1960
Docket NumberNo. 18222.,18222.
Citation284 F.2d 95
PartiesJames A. BOWDOIN et al., Appellants, v. Buford MALONE, Jr., and United States of America, Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Wm. Buford Mitchell, Forsyth, Ga., for appellants.

Raymond N. Zagone, Roger P. Marquis, Attys., Dept. of Justice, Washington, D. C., Perry W. Morton, Asst. Atty. Gen., Frank O. Evans, U. S. Atty., Floyd M. Buford, Asst. U. S. Atty., Macon, Ga., S. Billingsley Hill, Atty., Dept. of Justice, Washington, D. C., for appellees.

Before RIVES, Chief Judge, and CAMERON and BROWN, Circuit Judges.

CAMERON, Circuit Judge.

Appellants James A. Bowdoin, et al. filed an action in ejectment in a Georgia state court in the fictitious form of John Doe v. Richard Roe, as provided by the statutes of Georgia.1 Personal service was had upon appellee Buford Malone, Jr. by the sheriff of Jasper County, Georgia; service upon the United States was attempted by mailing copies of the petition to the Attorney General of the United States and to the United States Attorney, thus revealing that the "true claimants" were the appellees Buford Malone, Jr., and the United States of America.

The appellees removed the case to the United States District Court, Doe v. Roe, 186 F.Supp. 407, 408, where they moved to dismiss the complaint for failure to state a claim upon which relief could be granted; because the state court did not have jurisdiction over the United States or Malone, and the United States had not consented to be sued or waived its immunity from suit; and because Malone was being sued "as an agent and employee of the United States and as to him the suit is in substance and effect one against the United States; thus, the United States is an essential and indispensable party to the suit."2

The entire argument of both litigants assumes that the uncontroverted averments of the petition of the appellants are sufficient to require answer by the appellee Malone and to a trial, unless the court below properly granted his motion, as well as that of the United States, to dismiss because of want of jurisdiction. Both parties conceded in the trial court and before us that the United States was not legally before the Court and that the action against it should be dismissed. The sole question remaining, therefore, is whether this statutory action in ejectment states a claim against appellee Buford Malone, Jr., Forest Service Officer, United States Department of Agriculture, whose official duties required him to be, and who was in fact, in charge and possession of the land described in the ejectment action under color of his office representing the United States.

The court below granted Malone's motion to dismiss on the ground "that the court has no jurisdiction over Malone since the proceeding is in substance and effect against the United States and that the United States has not consented to be sued or waived its immunity from suit."3

It is manifest that the court below did not base its decision on what the District Court for the Eastern District of North Carolina did in the Jones case, but adopted only a portion of what the district court there said. The fact is that the Jones suit involved, not only ejectment, but partition of lands in which Jones claimed to own a two-thirds interest, which the United States had taken without paying compensation under the Fifth Amendment. It appears from the decision that Dennis, the agent in charge of the tract of land, did not move to dismiss and did not ask summary judgment. Only the United States filed such motions. The final paragraph of Jones (127 F.Supp. 33) shows the action taken by the court in that case: "It does not clearly appear that this Court has no jurisdiction to entertain the case in any of its aspects, and the Court, therefore, denies both motions of the United States to dismiss as upon summary judgment."

We will not, however, confine this opinion to differentiating the Jones case from the case before us, as the argument of appellees is pitched upon the assumption that, if the Lee case has not been entirely overruled, "there may be no cases at all in which United States v. Lee will permit suit today," — as was said in Jones and apparently adopted by the court below.

In comparing the case before us with decisions in other cases which will be discussed, and in determining whether the facts here come within the holding of United States v. Lee, 1882, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171 — much watered down under the opinion of the court below and the argument of appellee here — we must follow the general rule:4 "`* * * that a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. * * * Under the Rules of Civil Procedure a case consists not in the pleadings, but the evidence, for which the pleadings furnish the basis. Cases are generally to be tried on the proofs rather than the pleadings.'" This makes it necessary that the salient portions of the petition be set out.5

Under this petition and the statutes of Georgia above quoted it is apparent that appellants would be able to prove: That they were, on the crucial dates, the true owners of such title to the lands involved as would support the leasehold interest they sought to establish; that the United States did not own any title to the lands which would defeat appellant's claims; that appellee Malone was in wrongful possession of said lands as agent of a principal which did not have any claim thereto, and that he had ousted appellants of their rightful possession; and that, based upon said tortious acts of appellee Malone, appellants are entitled to money damages and the possession of the land during the claimed term of the leasehold.6

It is manifest from the Georgia statutes quoted and referred to, as well as the decisions cited, that the common law action of ejectment in Georgia involves possession alone, that the only process issuable to the victor is a writ of possession, together with damages, and that "the writ of possession shall not issue against third persons not known in the suit on which such writ of possession is founded, * * *." The sole question presented, therefore, is one of law: is appellee Malone, under the admitted facts, entitled to have the action against him dismissed solely on the ground that he is protected by the asserted sovereign immunity of the United States?

If the Lee case is still the law applicable to ejectment suits of this character, it is plain that the complaint before us states a claim upon which relief can be granted, and that the appellee Malone is not protected by any sovereign immunity of the United States which may be present in such circumstances. Indeed neither the court below nor appellee's counsel seem to question this statement. If they did, the Lee case would reject their argument entirely, because the facts of the Lee case and those of the present case are identical in their legal effect. A comprehensive look at the Lee case is indicated.7

The Arlington estate of General Robert E. Lee had, during The War Between The States, been seized for non-payment of taxes. Under the jury's findings these taxes had in fact been tendered by a friend, but the tax collector had interpreted his authority as permitting payment of the taxes only by the record owner. After the United States had seized the lands, it established a fort and cemetery thereon. The plaintiff, in whom title to the land vested if its seizure could not be justified, brought an action of ejectment against the agents of the government in possession of the estate. The trial court overruled the suggestion of the Attorney General of the United States that the trial court was without jurisdiction, based on the ground that the property was in the possession of the United States. The ejectment action was tried to a jury, which found against the government agents, deciding that the attempted proof did not establish title in the Government and that the agents' possession was not, therefore, legally justified. The Supreme Court affirmed, holding that the lower court was competent to decide the issues between the parties without the presence of the United States whose consent to be sued had been withheld.

A close reading of Lee reveals that, although some of the language of the opinion referred to taking property without just compensation, its real basis was that the government agents were ordinary tort feasors, not immunized for their wrongful trespass upon the plaintiff's property by the fact that they claimed to be acting on behalf of the government. It was admitted that Kaufman, Strong, et al. who were actually holding the land were doing so as agents in possession of the property of the United States. A few excerpts from the exhaustive Lee opinion will suffice to epitomize its holdings:

"This proposition that the court can render no judgment for the plaintiff and against the defendants because they hold the property as officers and agents of the United States, and that the property was appropriated to lawful public uses rests on the principle that the United States cannot be lawfully sued without its consent in any case, and that no action can be maintained against any individual without such consent, where the judgment must depend on the right of the United States to property held by such persons as officers or agents for the government. * * *" 106 U.S. at page 204, 1 S.Ct. at page 247.
"On the other hand, while acceding to the general proposition that in no court can the United States be sued directly by original process as a defendant, there is abundant evidence in the decisions of this court that the doctrine, if not absolutely limited to cases in which the United States are made defendants by name, is not permitted to interfere with the judicial enforcement of

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