United States v. Seigel , 168 F.2d 143 ( 1948 )

EDGERTON, Associate Justice

(dissenting).

Congress authorized suit on behalf of the United States.¹ Suit was brought on behalf of the United States.² The claim in suit is a claim of the United States. In United States v. Summerlin the Supreme Court said: “The claim assigned to the Federal Housing Administrator acting on behalf of the United States became the claim of the United States, and the United States thereupon became entitled to enforce it.”³

In the complaint filed on behalf of the United States in the Summerlin case the United States was described as “petitioner.” Obviously the United States might have been described as “plaintiff” in the complaint filed on its behalf in the present case. That it was not so described is unimportant. As the Supreme Court said in State of Louisiana v. McAdoo, Secretary of the Treasury, “That the United States is not named on the record as a party is true. But the question whether it is in legal effect a party to the controversy is not always determined by the fact that it is not named as a party on the record, but by the effect of the judgment or decree which can here be rendered.”⁴ No one doubts that the judgment or decree which the District Court rendered will have the effect of determining rights of the United States. This action on behalf of the United States is therefore an action by the United States.⁵

The question is whether the United States can prosecute its own appeal in its own case in its own court. Since the United States was always “in legal effect a party to the controversy,” the present motion to substitute “the United States as nominal plaintiff-appellant” is probably unnecessary.⁶ But the motion is proper and should be granted. In ruling on a similar motion the United States Court of Appeals for the Fifth Circuit recently said: “It appearing that the appellant is no longer in office, and has no successor, and that the United States is and has always been the true party in interest, the motion to substitute the United States as appellant is hereby granted.”⁷

The court appears to hold that the United States cannot appeal because it took “no steps to become a party to the proceeding in the court below.” If steps to become a party to the proceeding are thought necessary, it should make no difference whether they were taken in the trial court or in this court. If it is thought that they must be taken in the trial court, the case should be sent back there for that purpose or else the supposed requirement should be dispensed with as useless circuity.

We need not consider whether, or with what consequences, a private litigant might be in a position somewhat analogous to the present position of the United States. No private litigant could be in a position analogous to that of the United States in one important respect. The United States cannot be sued or prevented from suing in its own courts without its consent. The sovereign is not just another litigant.

The District Court dismissed the complaint because the Administrator whose name it contained had left office and his successor’s name had not been substituted. This was erroneous. The suit might have been brought either in the name of the United States⁸ or in the name of the Office of Price Administration.⁹ The fact that the pleader chose to use an Administrator’s name as well as his title is unimportant. When a suit nominally by or against a public officer is “really and in substance” by or against the government he represents, “there is no sense or reason in allowing it to abate by the change of individuals in the office,” and it does not abate. Thompson v. United States, 103 U.S. 480, 484, 26 L.Ed. 521. No statute or rule has abrogated this rational "common law principle.

A suit based on a “duty * * * personal with the officer” abated, at common law, when he went out of office, and his successor could not be substituted as a party. United States v. Butterworth, 169 U.S. 600, 603, 18 S.Ct. 441, 442, 42 L.Ed. 873. But neither that doctrine nor the Rule of Civil Procedure which has been adopted in order to obviate it justifies dismissal of the present complaint. For there was nothing personal about the complaint or the Administrator’s duty on which it was based. During 1946, when there were two changes of Administrator, we are told that over 28,-000 enforcement suits, most of them for treble damages, were filed in federal courts. No Administrator could make personal decisions in regard to these thousands of suits. The Administrator “is plaintiff in name only As Administrator, he acts not for himself but for the office.”¹⁰ “The action of the Administrator, whoever is named, is not a personal one, but is one by virtue of his office.”¹¹

In the Butterworth case the Supreme Court suggested (169 U.S. at page 605, 18 S.Ct. at page 443, 42 L.Ed. 873), in reference to the “personal” sort of suit which abated when an officer left office, that “Congress should provide for the difficulty by enacting that, in the case of suits against the heads of departments abating by death or resignation, it should be lawful for the successor in office to be brought into the case by petition, or some other appropriate method.” Congress responded to this suggestion.¹² The current form of its response is Rule 25(d) of the Federal Rules of Civil Procedure. The history of the matter shows that the purpose of this Rule is not to prevent but to permit continuance of actions; not to abate actions that would have continued at common law but to continue actions that would have abated at common law. Its language is consistent with its purpose. It provides that “When an officer of the United States * * * is a party to an action and during its pendency dies, resigns, or otherwise ceases to hold office, the action may be continued and maintained by or against his successor, if within 6 months after the successor takes office it is satisfactorily shown to the court that there is a substantial need for so continuing and maintaining it.” [Italics suppled.] This might well be taken to apply only when the United States is not, and an officer is, the real “party.” But even if it be taken to apply to such an action as the present one,¹³ in which an officer is only a nominal party and the United States is the real party, the Rule does not require or even authorize dismissal of the action. The Rule provides that an action may be continued by or against an officer’s “successor”

if need is shown for “so” continuing it. The Rule does not provide that an action may not be continued by or against the United States, or the office, or the former officer, when no need for continuing it by or against his successor is shown. Such a provision should not be read into the Rule by implication. Moreover the implication is the other way. For paragraph (a) of this same Rule 25, which paragraph authorizes substitution for deceased parties in general, goes on to provide that “if substitution is not so made, the action shall be dismissed as to the deceased party.” Paragraph (d), which authorizes substitution for former public officers, does not go on to provide that if substitution is not so made the action shall be dismissed, either absolutely, as to the United States, as to the office, or even as to the former officer. A basic principle of construction requires us to suppose that this difference between paragraph (a) and paragraph (d) of Rule 25 is intentional.

If the history and context of Rule 25(d) left its meaning in doubt, which I think they do not, the doubt should be removed by Rule 1 of the Federal Rules of Civil Procedure, which requires that all the Rules be so construed as to produce just results. It would not be just to permit price-ceiling violators to profit because particular Administrators, or all Administrators, have gone out of office. Congress recognized this. In fixing the date for the termination of the Emergency Price Control Act, Congress added this qualification: “Except that as to offenses committed, or rights or liabilities incurred, prior to such termination date, the provisions of this Act and such regulations, orders, price schedules, and requirements shall be treated as still remaining in force for the purpose of sustaining any proper suit, action, or prosecution with respect to any such right, liability, or offense.”¹⁴ By Executive Order 9842, 50 U.S.C.A.Appendix, § 925 note, the President authorized the Attorney General, through his subordinates, to carry on such litigation. 12 Fed.Reg. 2646.

After this dissent was written, the Court of Appeals of the Eighth Circuit decided a similar case. Its opinion concludes: “To hold that this action abated upon the resignation of Chester Bowles as Price Administrator and was no longer maintainable because of the noncompliance by his successors with Rule 25(d), would, in our opinion, be to glorify form over substance and reality. The motion of the United States to be substituted as appellant is granted. The order appealed from is vacated, and the District Court is directed to try this case upon the merits.”¹⁵

1 “ * * * The Administrator may institute such action on behalf of the United States.” Emergency Price Control Act, as amended, § 205(e), 50 U.S.C.A. Appendix, § 925(e).

2 The first paragraph of the complaint is as follows: “I. Plaintiff, Chester Bowles, brings this action as Administrator of the Oflice of Price Administration, and on behalf of the United States.”

3 310 U.S. 414, 416, 60 S.Ct. 1019, 1020, 84 L.Ed. 1283.

4 234 U.S. 627, 629, 34 S.Ct. 938, 939, 58 L.Ed. 1508.

5 Porter, Price Administrator, v. Montgomery, 3 Cir., 163 F.2d 211, 214.

6 Cf. Bowles v. Goldman, D.C.W.D.Pa., 1947, 7 F.R.D. 12, 17.

7 Fleming v. Hardin * (C.C.A.5th, No. * No opinion for publication. 11748), motion granted July 7, 1947; Cf. Porter v. Hardin, 5 Cir., 164 F.2d 401.

8 United States v. Summerlin, supra note 3.

9 “There Is some point made of the fact that suit was brought against the Federal Housing Administration rather than against the Administrator. But ■when the statute authorizes suits by or against the Administrator ‘in his official capacity’ we conclude that that permits actions by of against the Federal Housing Administration.” Federal Housing Administration v. Burr, 309 U.S. 242, 249, 250, 60 S.Ct. 488, 84 L.Ed. 724.

10 Porter v. Maule, 5 Cir., 160 F.2d 1, 3.

11 Porter v. American Distilling Co., D.C.S.D.N.Y.1947, 71 F.Supp. 483, 488.

12 Act of February 8, 1899, c. 121, 30 Stat. 822, enlarged by the Act of February 13, 1925, c. 229, § 11(a), 43 Stat. 941, 28 U.S.C.A. § 780. Irwin v. Wright, 258 U.S. 219, 222, 42 S.Ct. 293, 66 L.Ed. 573; Ex parte La Prade, 289 U.S. 444, 456, 53 S.Ct. 682, 77 L.Ed. 1311.

13 Cf. Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 67 S.Ct. 1129.

14 56 Stat. 24, § 1(b), as amended, 60 Stat. 664, § 1, 50 U.S.C.A.Appendix § 901(b).

15 Fleming v. Goodwin, 8 Cir., 334 F.2d 165; citing United States v. Koike, & Cir., 164 F.2d 155.