Malone v. Bowdoin

CourtUnited States Supreme Court
Citation8 L.Ed.2d 168,82 S.Ct. 980,369 U.S. 643
Docket NumberNo. 113,113
PartiesBuford MALONE, Jr., Petitioner, v. James A. BOWDOIN et al
Decision Date14 May 1962

Daniel M. Friedman, Washington, D.C., for petitioner.

William Buford Mitchell, Forsyth, Ga., for respondents.

Mr. Justice STEWART delivered the opinion of the Court.

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.


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.

United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171, serves a useful function and should be followed here. There, as here, the contest was over real estate which an officer of the Federal Government held against the claim of the plaintiff. Here, as there, if the federal agent's possession of the land is illegal the suit is not against the sovereign. Mr. Justice Miller, speaking for the Court, said:

'The instances in which the life and liberty of the citizen have been protected by the judicial writ of habeas corpus are too familiar to need citation, and many of these cases, indeed almost all of them, are those in which life or liberty was invaded by persons assuming to act under the authority of the government. * * *

'If this constitutional provision is a sufficient authority for the court to interfere to rescue a prisoner from the hands of those holding him under the asserted authority of the government, what reason is there that the same courts shall not give remedy to the citizen whose property has been seized without due process of law and devoted to public use without just compensation?' Id., at 218, 1 S.Ct., at 259.

United States v. Lee was a five-to-four decision. But as late as 1947 seven members of the Court agreed to the statement in Land v. Dollar, 330 U.S. 731, 737, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209, that '(w)here the right to possession or enjoyment of property under general law is in issue, and the defendants claim as officers or agents of the sovereign, the rule of United States v. Lee, supra, has been repeatedly approved.' Two years later in Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628, the case of United States v. Lee was attempted to be distinguished in the manner indicated by the Court. But the Larson decision was six to three, Mr. Justice Rutledge concurring in the result and my vote being the fifth. But I explained my concurrence on the following grounds:

'I think that the principles announced by the Court are the ones which should govern the selling of government property. Less strict applications of those principles would cause intolerable interference with public administration. To make the right to sue the officer turn on whether by the law of sales title had passed to the buyers would clog this governmental function with intolerable burdens. * * *' Id., at 705, 69 S.Ct., at 1469.

The holding in United States v. Lee has thus not been repudiated or necessarily restricted by anything decided prior to today.

The Court is quite correct in saying that all of our decisions in this field cannot easily be reconciled; and the same will doubtless be true if said by those who sit here several decades hence. The reason the decisions are not consistent is that policy considerations, not always apparent on the surface, are powerful agents of decision. Thus the Larson case was a suit for specific performance of a...

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