White v. ADMINISTRATOR OF GENERAL SERVICES ADMIN. OF US

• Decision Date: 23 March 1965
• Docket Number: No. 19427.,19427.
• Citation: 343 F.2d 444
• Parties: Joseph WHITE, Jr., Lois M. White, Anthony J. DeMetro, Betty J. DeMetro, Anthony Enea, Rose Enea, Frank A. Siino and Mary Siino, Appellants, v. ADMINISTRATOR OF GENERAL SERVICES ADMINISTRATION OF the UNITED STATES of America and Fred H. Johnston, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

343 F.2d 444 (1965)

Joseph WHITE, Jr., Lois M. White, Anthony J. DeMetro, Betty J. DeMetro, Anthony Enea, Rose Enea, Frank A. Siino and Mary Siino, Appellants, v. ADMINISTRATOR OF GENERAL SERVICES ADMINISTRATION OF the UNITED STATES of America and Fred H. Johnston, Appellees.

No. 19427.

United States Court of Appeals Ninth Circuit.

March 23, 1965.

Robert J. Rossi, Alfred A. Affinito, Pittsburg, Cal., for appellants.

Ramsey Clark, Asst. Atty. Gen., Roger P. Marquis, S. Billingsley Hill, Attys., Dept. of Justice, Washington, D. C., Cecil F. Poole, U. S. Atty., J. Harold Weise, Asst. U. S. Atty., San Francisco, Cal., for appellees.

Before MADDEN, Judge of the Court of Claims, and HAMLEY and KOELSCH, Circuit Judges.

MADDEN, Judge.

The appellants brought suit in the District Court requesting that court to issue a mandamus against the appellees ordering them to execute a deed, on behalf of the United States, conveying to the appellants a certain interest in land. They also requested relief by way of a declaratory judgment under the provisions of 28 U.S.C. §§ 2201 and 2202, and relief under the Administrative Procedure Act, 5 U. S.C. § 1009.

In their complaint in the District Court the appellants alleged that the United States invited bids for the purchase from the United States of two parcels of real property in Contra Costa County, California, subject to "an easement 20 feet in width granted to the Southern Pacific Company and lying equally on either side of two parallel existing railroad tracks" in the most northerly part of the parcels; that appellants' bid was accepted by the United States; that the appellants paid the $140,000 bid price and received a deed; that the deed described the property as subject to an easement 79 feet wide instead of 20 feet; that when the appellants later discovered the discrepancy between the deed and the invitation for bids they demanded a deed of the land subject only to the 20 foot easement; that appellees "wrongfully" refused to give them such a conveyance.

It would appear from the appellants' allegations that the appellees, as agents of the United States and acting as such, made a contract with appellants to convey certain land to them. Except as agents of the United States the appellees would have had no authority to make a contract to convey land belonging to the United States, or to make the deed which they did make, whether that deed was in compliance with the terms of the contract or not. The interest in the land which, the appellants say, should have been but was not conveyed to them by the deed is now in the United States, unless it has been conveyed to some person other than the appellants.

The object of the appellants in the instant suit is to get the title out of the United States and into the appellants. A suit with such an objective is a suit for specific performance, regardless of what may be said in the complaint which initiates the suit. And, the title to the interest which the court is asked to order to be conveyed to the appellants being now in the United States, the order would have to be made against the United States. It follows that the United States would have to be a party to the suit.

If the fact that the United States is not named as a party in the suit could be overlooked and, though not named, it were treated as the real party in interest, which it is, the suit would still have to be dismissed, because the United States has not consented to be judicially compelled to perform its contracts. From the beginning of its history, the United States asserted and maintained complete immunity from suit until Congress, by the Act of February 24, 1855, 10 Stat. 612, created the United States Court of Claims and gave consent for the United States to be sued for compensation for certain breaches of duty, one of which was breach of contract.¹ The Act of March 3, 1887, 24 Stat. 505, 28 U.S.C. § 1346, conferred a partly parallel jurisdiction upon the United States District Courts. Those statutes have never been regarded as having given consent that the United States could be ordered by a court to specifically perform a contract.

In the case of Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949), the United States had entered into a contract to sell coal to the plaintiff corporation, and the government agent who had made the contract for the United States refused to deliver the coal to the plaintiff, but entered into a contract to sell it to another person. The plaintiff, asserting that the title to the coal had passed to it and that the government agent was merely an individual tort feasor in refusing to deliver the coal, sought an injunction against the agent forbidding him to sell the coal to another person, and a declaratory judgment to the effect that the sale to the plaintiff was valid and the purported sale to the other person invalid. The questions, other than the question of consent to be sued, were whether the plaintiff was required by the contract to make a certain advance deposit in order to be...