PRETTYMAN, Associate Justice.
Chester Bowles, as Administrator of the Office of Price Administration, and on behalf
Bowles resigned from office effective February 25, 1946. More than a year passed, and no action was proposed or taken to substitute another party plaintiff or to continue or maintain the action, or to show the court that there was a need for so continuing or maintaining the action. Therefore, on April 18, 1947, appellee-defendant moved to dismiss the action upon authority of Rule 25(d) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and of Section 780, Title 28, of the United States Code. Still no action was proposed or taken by the United States or by anyone else to substitute a party plaintiff. The District Court granted the motion. Thereupon the United States, describing itself as "the real party in interest" in the case, but without seeking to be substituted as a party to the proceeding, filed a notice of appeal to this court. The transcript of the record was filed in this court August 1, 1947. On September 10, 1947, the United States filed in this court a motion to substitute itself "as nominal plaintiff-appellant" in the cause. Appellee moved to dismiss the appeal, upon the ground that no appeal had been taken by any party to the action. Disposition of the motions was reserved until argument upon the merits.
The United States says that the appeal is taken under Section 101, Title 17, of the District of Columbia Code. That statute gives the right of appeal only to parties to the action. It reads, "Any party aggrieved * * * may appeal * * *." Rule 73(a) of the Federal Rules of Civil Procedure provides that "a party may appeal". Rule 17(a) of the same Rules provides:
"Every action shall be prosecuted in the name of the real party in interest; but * * * a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought; * * *"
The latter clause describes what Bowles did in this case. The statute authorized him, the Administrator, to institute the action on behalf of the United States. He did so without joining the United States with him. The United States was never a party to the record in the court below. It never made any attempt to become a party. Without being or attempting to become a party, it simply filed a notice of appeal.
It has long been settled that one who is not a party to a record and judgment is not entitled to appeal therefrom.
It is sometimes said that not only parties to the record, but also their privies, may appeal, and that if the decree affects a person's interests, he may appeal.
We have found no case, and the United States has cited none to us, in which a person who had taken no steps to become a party to the proceeding in the court below, was permitted to appeal. The decisions dealing with that situation are, as we have indicated, contra the right to appeal.
We emphasize that we are not dealing with the question whether the United States can move to be substituted in the court where the case is. Many cases are cited to us upon that point.
But the question before us in the case at bar is whether the case is in this court — whether a person who was not a party to the record in the District Court and who made no effort to become a party there, can bring the case into this court simply by noting an appeal. He could not do so under the cases we have cited and discussed. If he could not, the case is not in this court and so a motion to substitute parties could not be entertained here.
Specifically, the question is whether Rule 17(a), governing the bringing of actions by parties other than the real party in interest, meant to rescind what has unquestionably been the rule and to provide that the real party at interest, on whose behalf an action is brought, need not formally become a party to the proceedings but can move in the case as though he were. Obviously, if he can appeal, he could, without becoming a party to the record, take any other action a party to the record could take. We can see nothing but chaos resulting from such a holding. Any exception which we might make in the case at bar would apply equally as well to any other person not joined as a party, but in whose behalf an action was instituted, and to all the other instances mentioned in Rule 17(a) — executors, administrators, guardians, trustees, and parties with whom or in whose names contracts are made for the benefit of others.
A person who has not submitted himself to the jurisdiction of a court, and who has not presented to the court his claim of interest in the controversy, ought not to be allowed to appeal from the judgment. The slightest regard for an orderly adjudication of contesting rights dictates that conclusion. The Supreme Court, in the cases we have cited, thought this matter important. Rules of procedure such as the one here pertinent are not mere naked technicalities. As we recently had occasion to observe, reasonable adherence to clear, reasonable and known rules of procedure is essential to the administration of justice.
We are told that in substance no injustice would result from ignoring the rules in this case. That may be, but it cannot justify the departure. Just as soon as rules of procedure are ignored in order to do substantial justice on the merits in a particular case, there are no rules. What is done in one case must be done in all. Of course, the prevention of manifest injustice may present another problem.
We are told that the United States is a different sort of litigant. It
We are told that many thousands of cases were pending in the courts when the Office of Price Administration ceased to exist, and it is urged upon us that large amounts of money claimed on behalf of the United States are involved in those cases. But we are not considering the right of the United States to present its petitions or motions to be made party to such actions and to prosecute them thereafter. That it has followed that course in many cases and has been sustained in it is evident upon reference to the cases cited supra note 11. In the present case, although it had ample time and notice, as our recitation of the procedural facts shows, it did not follow that course. It did not at any time submit itself to the jurisdiction of the court below, or seek to invoke what it now claims to have been its plain rights. It simply asserted itself as a party and acted accordingly. The court cannot, by ignoring or waiving requirements otherwise applicable and based upon sound and important principles of judicial proceeding, extricate it from the position in which it has placed itself. The protection of its claims was its responsibility. It had a plain course of action protective of its rights. It should have pursued it.
Since we think that this appeal is not properly before us, the appellee's motion to dismiss the appeal will be granted.
EDGERTON, Associate Justice (dissenting).
Congress authorized suit on behalf of the United States.
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
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.
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 States
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
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.
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."
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."
* No opinion for publication. 11748), motion granted July 7, 1947; Cf. Porter v. Hardin, 5 Cir., 164 F.2d 401.