MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner sued in the District Court for a death gratuity under the Act of June 4, 1920, 41 Stat. 824, as amended, 34 U. S. C. § 943, claiming as the widow of a member of the naval service. Respondent, the defendant in the suit, was Paymaster General of the Navy. The relief asked was mandamus to compel him to pay the widow's allowance. The District Court held for petitioner, ordering respondent to pay her the amount of the allowance. 75 F.Supp. 902. That judgment was entered January 30, 1948. On March 18, 1948, notice of appeal was filed in the name of Rear Admiral W. A. Buck, Paymaster General of the Navy. On March 1, 1948, however, Buck had been retired and Rear Admiral Edwin D. Foster had succeeded him in the office.
Section 11 (a) of the Judiciary Act of 1925, 43 Stat. 936, 941, provided that ". . . where, during the pendency of an action . . . brought by or against an officer of the United States . . . and relating to the present or future discharge of his official duties, such officer dies, resigns, or otherwise ceases to hold such office, it shall
Neither party made any effort within the six months period
The complaint in this case makes no claim against Buck personally. Therefore we put to one side cases such as Patton v. Brady, 184 U.S. 608, dealing with actions in assumpsit against collectors for taxes erroneously collected. The writ that issued against Buck related to a duty attaching to the office. The duty existed so long and only so long as the office was held. When Buck retired from office, his power to perform ceased. He no longer had any authority over death gratuity allowances. Moreover, his successor might on demand recognize the claim asserted and discharge his duty. For these reasons it was held that in absence of a statute an action aimed at compelling an official to discharge his official duties abated where the official died or retired from the office.
Congress changed the rule. It provided by the Act of February 8, 1899, 30 Stat. 822, that no action by or against a federal officer in his official capacity or in relation to the discharge of his official duties should abate
The rule was again changed by § 11 of the Judiciary Act of 1925. The provision that no action should abate was eliminated. It was provided that the action might be continued against the successor on the requisite showing within the stated period. The revision effected a substantial change. The 1925 Act made survival of the action dependent on a timely substitution. Defense Supplies Corp. v. Lawrence Co., 336 U.S. 631, 637-638. And see Ex parte La Prade, 289 U.S. 444, 456. Thus, where there was a failure to move for substitution within the statutory period, the judgment below was vacated and the cause was remanded with directions "to dismiss the cause as abated."
It is argued that § 11 should be read as covering only those "actions brought against officials for remedies which could not be got in a direct suit against the United States." Such a reading requires more than a tailoring of the Act; it requires a full alteration. Section 11 applies to "an action. . . brought by or against an officer of the United States . . . and relating to the present or future discharge of his official duties." Many actions against an official relating to the "discharge of his official duties" would in substance be suits against the United States. If the rule of abatement and substitution is to be altered in the manner suggested, the amending process is available for that purpose.
Section 11 by its terms applies only during the pendency of an action. But an action is nonetheless pending within the meaning of the section though an appeal is being sought (see Becker Steel Co. v. Hicks, 66 F.2d 497, 499; United States ex rel. Trinler v. Carusi, 168 F.2d 1014), as was implicit in Matheus v. United States ex rel. Cunningham, supra. For in that case a writ of habeas corpus, denied by the District Court, had been granted by the Circuit Court of Appeals. While the case was in the Circuit Court of Appeals the time expired for substituting the successor of the custodian against whom the prisoner had brought the action. Yet, as noted above, the Court applied § 11, vacated the judgments, and ordered the proceeding dismissed as abated.
There is a difference in the present case by reason of the fact that the appeal was taken by Buck after his retirement and therefore without authority. The judgment concerned the performance of official duties for which Buck was no longer responsible. Hence he was not in position to obtain a review of it. See Davis v. Preston, 280 U.S. 406. In the Davis case this Court
Nor is there any barrier to our review of this ruling on abatement by 28 U. S. C. § 2105 which prohibits a
Petitioner loses her judgment and must start over.
MR. JUSTICE FRANKFURTER, with whom MR. JUSTICE JACKSON joins, dissenting.
Natural professional interest in trying to disentangle the legal snarl presented by this case would not justify me in enlarging my dissent from the Court's views. But the state of the law regarding litigation brought formally against an official but intrinsically against the Government is so compounded of confusion and artificialities that an analysis differing from the Court's may not be futile.
At the outset it is desirable to dispel a misconception regarding the legislation on abatement of suits in the federal courts. In 1899, Congress for the first time made provision for the continuance of a suit involving official conduct which abated by a succession in office during pendency of the suit. 30 Stat. 822. By § 11 of the Judiciary Act of 1925, Congress again dealt with this problem. 43 Stat. 936, 941. The Court finds that the provision of the 1925 Act "effected a substantial change." It does this on the basis of the analysis of the first enactment made in Defense Supplies Corp. v. Lawrence Warehouse Co., 336 U.S. 631, 637-638. According to what was there said, the Act of 1899 had a categorical command that "no action shall abate," which was eliminated in 1925. So to interpret the relation between the 1899 and the 1925 provisions is to misread legislation by quoting out of context and disregarding authoritative legislative history.
The range of the 1899 Act was changed in 1925, which may have stimulated its redrafting. The change concerned not in the slightest the legal consequences to pending suits where the occupancy of an office of the United States was involved. The only modification made by the 1925 Act, apart from cutting down the time for substitution
The Act of 1899 was a response to this Court's suggestion. See United States ex rel. Bernardin v. Butterworth, 169 U.S. 600, 605.
This brings us to the circumstances of the case. The petitioner claims to be the lawful widow of a naval officer. She brought this action to recover a death gratuity allowance, amounting to $1,365, payable under the Act of June 4, 1920. 41 Stat. 824, as amended, 34 U. S. C. § 943. Jurisdiction was alleged under the Tucker Act, 24 Stat. 505, as amended, and other statutes. Nominally, the action was for mandamus to compel Buck, the Paymaster General of the Navy, to make payment. The District Court refused to grant relief by mandamus, but, in accordance with modern practice, granted what it thought to be the proper remedy. The judgment, after enjoining Buck from persisting in his refusal to make payment, concluded: ". . . and the defendant is directed to pay the plaintiff Thirteen Hundred and Sixty-five Dollars ($1,365.00) which is the amount equal to six months' pay at the rate received by the deceased at the time of his death."
1. I agree with the Court that this was not a personal action against Admiral Buck, and that the judgment was not against him as an individual. That suits against a collector of revenue for illegal exactions under the Revenue Acts are deemed personal actions enforceable as such against the collector is an anomalous situation in our law which calls for abrogation instead of extension. For the history of these actions, see Cary v. Curtis, 3 How. 236, and United States v. Nunnally Investment Co., 316 U.S. 258.
2. The starting point, then, is recognition of the fact that this was a suit to secure a money claim due from the United States, enforced against the officer who was the effective conduit for its payment. In short, this was a representative suit, and the crucial question, I submit, is the reach of the representative character of the suit.
The intrinsic and not merely formalistic answer to this question is of course entangled with the doctrine of sovereign immunity from suits. In scores of cases this Court
Under the Court of Claims Act, 12 Stat. 765, as amended, the plaintiff here could have gone to the Court of Claims.
This seems to me to be the spirit of the decision in Thompson v. United States, 103 U.S. 480. To be sure, Mr. Justice Bradley there differentiated his identification of an officer of a municipality with the municipality from the situation of an officer of the United States because normally the Government could not be sued. But when the Government does allow itself to be sued for the same cause of action for which suit was brought against him who for the purposes of the litigation is the United States, the reason for the differentiation disappears.
The differentiation remains in actions brought against officials for remedies which could not be got in a direct
Accordingly, I would recognize that the judgment of the District Court is in effect a money judgment against the United States and would allow the Government's notice of appeal the force it was intended to have as an effective instrument whereby the United States might obtain a review of that judgment. It would be nothing novel in the observance of decorous form by courts to note as a matter of record that the name of the Paymaster General of the Navy is now Fox and to proceed with the appeal on that basis.
A final question has to be faced—a question which should, in logic, have been treated first, for it concerns the
MR. JUSTICE CLARK, with whom MR. JUSTICE BLACK concurs, dissenting.
Since the duty sought to be enforced in this action attached to the office of Paymaster General and rested upon Admiral Buck only so long as he held the office, it is clear that petitioner's claim is against Buck in his representative
But I think that when the attorney for the Government called to the Court of Appeals' attention—after this suit had been pending there for more than a year—that the appeal had been taken by Buck after his retirement and that no appeal had been perfected by or on behalf of his successor, the court should have dismissed the appeal on its own motion.
It is the decision of this Court that the failure of the appellee to substitute the judgment defendant's successor under § 11 of the Judiciary Act of 1925 excuses the Government's prior failure to perfect a valid appeal from a final judgment against one of its officers. In short, the Court places on an appellee the burden of correcting his adversary's error. From this result I dissent.
Rule 25 (d), Rules of Civil Procedure, now provides: "When an officer of the United States, or of the District of Columbia, the Canal Zone, a territory, an insular possession, a state, county, city, or other governmental agency, 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. Substitution pursuant to this rule may be made when it is shown by supplemental pleading that the successor of an officer adopts or continues or threatens to adopt or continue the action of his predecessor in enforcing a law averred to be in violation of the Constitution of the United States. Before a substitution is made, the party or officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of the application therefor and accorded an opportunity to object."
Section 11 of the Judiciary Act of 1925, 43 Stat. 936, 941, provided:
"(a) That where, during the pendency of an action, suit, or other proceeding brought by or against an officer of the United States, or of the District of Columbia, or the Canal Zone, or of a Territory or an insular possession of the United States, or of a county, city, or other governmental agency of such Territory or insular possession, and relating to the present or future discharge of his official duties, such officer dies, resigns, or otherwise ceases to hold such office, it shall be competent for the court wherein the action, suit, or proceeding is pending, whether the court be one of first instance or an appellate tribunal, to permit the cause to be continued and maintained by or against the successor in office of such officer, if within six months after his death or separation from the office it be satisfactorily shown to the court that there is a substantial need for so continuing and maintaining the cause and obtaining an adjudication of the questions involved.
"(b) Similar proceedings may be had and taken where an action, suit, or proceeding brought by or against an officer of a State, or of a county, city, or other governmental agency of a State, is pending in a court of the United States at the time of the officer's death or separation from the office.
"(c) Before a substitution under this section is made, the party or officer to be affected, unless expressly consenting thereto, must be given reasonable notice of the application therefor and accorded an opportunity to present any objection which he may have."
I am partly responsible for the misconception of finding a substantive change between the significance of the 1899 Act and the 1925 Act because I joined in Defense Supplies Corp. v. Lawrence Warehouse Co., 336 U.S. 631. It is not by way of extenuating my responsibility that I deem it pertinent to suggest that the nature and volume of the Court's business preclude examination of all the judicial and legislative materials of all opinions in which one concurs. In order that the energies of the Court may be concentrated on those cases for which adjudication by this Court is indispensable, I have been insistent in my view that the Court should be rigorous in limiting the cases which it will allow to come here. That it may so control its business, the Congress, by the Act of 1925, gave the Court—for all practical purposes—a free hand. See Ex parte Peru, 318 U.S. 578, 602-604.
Mr. Justice Van Devanter discussed only the effectiveness of the appeal, for the Court was faced with no problem of abatement. Congress had made clear its policy of protecting suitors against the pitfalls of abatement by passing the Winslow Act, 42 Stat. 1443, to make certain that the 1899 statute would not prevent recovery for persons injured or killed during the Government operation of the railroads. This statute allowed substitution of a successor agent at "any time before satisfaction of such final judgment, decree, or award." The broad legislative policy reflected in the Winslow Act points to a reliance upon substance, rather than form, in the present case.
"There shall be no reversal in the Supreme Court or in a circuit court of appeals upon a writ of error, for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court, or for any error in fact."
Section 22 of the Judiciary Act of 1789, 1 Stat. 84, provided:
". . . But there shall be no reversal in either court [i. e., the Circuit Court or Supreme Court] on such writ of error for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court, or such plea to a petition or bill in equity, as is in the nature of a demurrer, or for any error in fact. . . ."
The Reviser's Note to § 2105 indicates that "matters in abatement" was substituted for "plea in abatement" because of the change in terminology under the Federal Rules.
Appeal from the District Court in the instant case was governed by Federal Rule 73 (1946) which provided at all relevant times as follows:
"(a) . . . When an appeal is permitted by law from a district court to a circuit court of appeals the time within which an appeal may be taken shall be 30 days from the entry of the judgment appealed from unless a shorter time is provided by law, except that in any action in which the United States or an officer or agency thereof is a party the time as to all parties shall be 60 days from such entry, and except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment the district court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed. . . .
"A party may appeal from a judgment by filing with the district court a notice of appeal. Failure of the appellant to take any of the further steps to secure the review of the judgment appealed from does not affect the validity of the appeal . . . .
"(b) . . . The notice of appeal shall specify the parties taking the appeal . . . ."
It has been held that under Federal Rule 73 timely and proper notice of appeal goes to the jurisdiction of the Court of Appeals, United Drug Co. v. Helvering, 108 F.2d 637 (C. A. 2d Cir. 1940); Lamb v. Shasta Oil Co., 149 F.2d 729 (C. A. 5th Cir. 1945); Marten v. Hess, 176 F.2d 834 (C. A. 6th Cir. 1949); Tinkoff v. West Pub. Co., 138 F.2d 607 (C. A. 7th Cir. 1943); St. Luke's Hospital v. Melin, 172 F.2d 532 (C. A. 8th Cir. 1949); Spengler v. Hughes Tool Co., 169 F.2d 166 (C. A. 10th Cir. 1948); Walleck v. Hudspeth, 128 F.2d 343 (C. A. 10th Cir. 1942); see Maloney v. Spencer, 170 F.2d 231, 233 (C. A. 9th Cir. 1948); and that this requirement cannot be dispensed with by waiver or consent of the parties. See Lamb v. Shasta Oil Co., supra, at 730; Marten v. Hess, supra, at 835; St. Luke's Hospital v. Melin, supra, at 533. Compare Crump v. Hill, 104 F.2d 36 (C. A. 5th Cir. 1939) with Piascik v. Trader Navigation Co., 178 F.2d 886 (C. A. 2d Cir. 1949).