Malone v. Bowdoin/Dissent Douglas

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 contract to sell coal, a matter that courts had long left to damage suits. As I said in my separate concurrence in that case, any other rule would 'clog' government procurement 'with intolerable burdens.' 337 U.S., at 705, 69 S.Ct., at 1469.

Ejectment, on the other hand, is the classic form of action to try title. It takes place in the locality where the land is located. No judges are better qualified to try it than the local judges. It is a convenient and ready form of remedy for possession of land. Moreover, the United States, not being a party, is not bound by the state court decree. If it is aggrieved by the state or federal court ruling on title, it can bring its arsenal of power into play. Eminent domain-with the power immediately to take possession-is available.

If, however, the citizen must bow to the doctrine of sovereign immunity, he is precluded from any relief except a suit for damages under 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b) or 28 U.S.C. § 1346(a)(2), 28 U.S.C.A. § 1346(a)(2), or 28 U.S.C. § 1491, 28 U.S.C.A. § 1491. This places the advantage with an all-powerful Government, not with the citizen. He may, as the Court says go into court and get the value of his property. But he does not get his property, even though we assume, as we must, that the Government is not the rightful claimant.

The result is at war with our prior decisions. Those remedies with which the Court leaves the property owner are not 'special remedies' provided to 'displace those that otherwise would be at the plaintiffs command.' See Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549, 567, 42 S.Ct. 386, 388, 66 L.Ed. 762. As stated by Mr. Justice FRANKFURTER:

'when there is such a special remedy the suit against the     officer is barred not because he enjoys the immunity of the      sovereign but because the sovereign can constitutionally      change the traditional rules of liability for the tort of the      agent by providing a fair substitute. Crozier v. Fried, 224     U.S. 290, 32 S.Ct. 488, 56 L.Ed. 771; Richmond Screw Anchor     Co. v. United States, 275 U.S. 331, 48 S.Ct. 194, 72 L.Ed. 303. But the general statute permitting suit in the Court of     Claims in certain instances against the Government is not a      statute that provides that remedies otherwise at the      plaintiff's command are to be displaced. A holding that the     availability of an action for monetary damages in the Court      of Claims against the United States prevents a suit at law,      or, if the necessary requisites for equity jurisdiction are      present, in equity, against the governmental agent, would be      as novel as it is indefensible in the light of the settled      course of decisions. Indeed, this argument is not novel; it     has been explicitly negatived in at least two cases. See     Sloan Shipyards Corp. v. United States Fleet Corp., 258 U.S.      549, 567, 568, 42 S.Ct. 386, 388, 66 L.Ed. 762; Land v.     Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209.' Larson v. Domestic & Foreign Corp., supra, at 337 U.S.     722-723, 69 S.Ct., at 1478 (dissenting opinion).

What Mr. Justice Miller said in United States v. Lee, supra, 106 U.S. 220, 221, 1 S.Ct. 240, 261, needs repeating:

'No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government,     from the highest to the lowest, are creatures of the law and      are bound to obey it.

'It cannot be, then, that when in a suit between two citizens     for the ownership of real estate, one of them has established      his right to the possession of the property according to all      the forms of judicial procedure, and by the verdict of a jury      and the judgment of the court, the wrongful possessor can say      successfully to the court, 'Stop, here; I hold by order of      the president, and the progress of justice must be stayed.'      That, though the nature of the controversy is one peculiarly      appropriate to the judicial function, though the United      States is no party to the suit, though one of the three great      branches of the government to which by the constitution this      duty has been assigned has declared its judgment after a fair      trial, the unsuccessful party can interpose an absolute veto      upon that judgment by the production of an order of the      secretary of war, which that officer had no more authority to      make than the humblest private citizen.'

Sovereign immunity has become more and more out of date, as the powers of the Government and its vast bureaucracy have increased. Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 390, 59 S.Ct. 516, 518, 83 L.Ed. 784 et seq. To give the agent immunity from suit is, to use the words of Mr. Justice Holmes:

'a very dangerous departure from one of the first principles     of our system of law. The sovereign properly so called is     superior to suit for reasons that often have been explained. But the general rule is that any person within the     jurisdiction always is amenable to the law. If he is sued for     conduct harmful to the plaintiff his only shield is a constitutional rule of law      that exonerates him. Supposing the powers of the Fleet     Corporation to have been given to a single man we doubt if      anyone would contend that the acts of Congress and the      delegations of authority from the President left him any less      liable than other grantees of the power of eminent domain to      be called upon to defend himself in court. An instrumentality     of Government he might be and for the greatest ends, but the      agent, because he is agent, does not cease to be answerable      for his acts.' Sloan Shipyards v. United States Fleet Corp.,      supra, 258 U.S. pp. 566-567, 42 S.Ct. p. 388.

The balance between the convenience of the citizen and the management of public affairs is a recurring consideration in suits determining when and where a citizen can sue a governmental official. See Williams v. Fanning, 332 U.S. 490, 68 S.Ct. 188, 92 L.Ed. 95. The balance is, in my view, on the side of the citizen where he claims realty in the Government's possession and where there are ready means of adjudicating the title. If legal title is actually in the claimant, if the action of the official in taking possession under authority of the United States is ultra vires, what objectionable interference with governmental functions can be said to exist?

I am authorized to say that Mr. Justice HARLAN agrees with this opinion.