Doe v. Roe, Civ. A. No. 1584.

Decision Date29 December 1959
Docket NumberCiv. A. No. 1584.
PartiesJohn DOE (James A. Bowdoin et al.), Plaintiff, v. Richard ROE (Buford Malone, Jr. and United States of America), Defendants.
CourtU.S. District Court — Middle District of Georgia

W. B. Mitchell, Forsyth, Ga., for plaintiff.

Floyd M. Buford, Asst. U. S. Atty., Macon, Ga., for defendants.

BOOTLE, District Judge.

This suit in the fictitious form of ejectment was instituted in the Superior Court of Jasper County, Georgia, the real defendants being Buford Malone, Jr. and United States of America. It was thereafter removed into this court upon petition of both defendants, which petition alleged in paragraphs 2 and 3 thereof as follows:

"2. Before the commencement of this action and at all times hereinafter mentioned, petitioner Buford Malone, Jr. was a Forest Service Officer with the Forest Service, United States Department of Agriculture, and his 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.
"3. At all times mentioned in said action, petitioner, Buford Malone, Jr., was acting solely under color of his office as a Forest Service Officer for the Forest Service, United States Department of Agriculture, and all his acts in connection with the matters charged in said complaint were committed by him under color of his said office."

Thereafter, both defendants filed their motion to dismiss upon the grounds that the complaint fails to state a claim against the defendants upon which relief can be granted; 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 and "the complaint affirmatively shows that Buford Malone, Jr. is 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."

Counsel were heard at a pre-trial conference on October 2, 1959 and upon written briefs and upon an adjourned pre-trial conference held this day.

While the complaint does not affirmatively show that Malone is being sued as an agent and employee of the United States, counsel for the plaintiff admitted at the pre-trial conference today that the above-quoted paragraphs 2 and 3 of the removal petition are true and correct. It does now appear, therefore, that Malone does not purport to act in the premises as an individual but solely as an official or employee of the sovereign.

Relying upon the cases of United States v. Lee, 1882, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171; Sawyer v. Osterhaus, D.C.N.D.Cal.1912, 195 F. 655, 212 F. 765; and Land v. Dollar, 1947, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209, plaintiff claims...

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4 cases
  • Malone v. Bowdoin
    • United States
    • U.S. Supreme Court
    • 14 Mayo 1962
    ...act in the discharge of his official duty under an order of such House.' 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. 2......
  • Bowdoin v. Malone
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 25 Octubre 1960
    ...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 ......
  • Miracle v. Jacoby
    • United States
    • U.S. District Court — Western District of Arkansas
    • 30 Marzo 1961
    ...a federal Forest Service officer, involving some land of which he was in possession under color of his office. The District Court, 186 F.Supp. 407, dismissed the action, but the Court of Appeals reversed, holding that a judgment in the case would not involve title to the land, but involved ......
  • Bowdoin v. Malone
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 23 Febrero 1961
    ...to quiet title to land, or even to try title.5 The opinion rendered by the court below, appearing in the record and now reported in 186 F.Supp. 407, 408, shows that its judgment dismissing the action was predicated upon the petition of appellee Malone alone, stating: "Plaintiff frankly conc......

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