DOUGLAS, Circuit Justice.
This application arises out of litigation which started in 1946 when petitioners filed suit in the Federal District Court for the Southern District of California, D.C., 68 F.Supp. 418, against the late John H. Fahey and others for the alleged wrongful seizure of the property of the Long Beach Savings and Loan Association, pursuant to § 5(d) of the Home Owners' Loan Act of 1933, as amended, 12 U.S.C.A. § 1464(d). The case was before this Court in Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030, in which we held § 5(d) to be constitutional. And see Ex parte Fahey, 332 U.S. 258, 67 S.Ct. 1558,
Petitioners intend to file petitions for writs of certiorari to secure review of those judgments. In order to preserve the status quo, the Court of Appeals ordered a stay of all proceedings in the District Court. One of the proceedings affected by that stay was a motion filed by petitioners for the substitution of parties defendant under Rule 25 (a) (1) of the Rules of Civil Procedure, 28 U.S.C.A.
Suit was brought against defendant Fahey "individually and in his representative capacity as Home Loan Bank Commissioner." In 1947, the Home Loan Bank Board succeeded to the powers of the Commissioner. Mr. Fahey remained on as a member of the Board which, together with its members, has been made a party defendant in this action. Substitutions and additions of parties have been made as changes in Board membership have occurred. Mr. Fahey died on November 19, 1950. By their motion under Rule 25(a)(1), petitioners seek to substitute the present members of the Board "individually" in the stead of Mr. Fahey in his "individual capacity."
If there were a substantial question presented I would grant the stay and allow the District Court to pass on the issue. But after oral argument and a consideration of the papers filed I have concluded that on the merits no substantial question is presented.
Rule 25(a) is derived in part from former 28 U.S.C. § 778, 42 Stat. 352, see Anderson v. Yungkau, 329 U.S. 482, 67 S.Ct. 428, 91 L.Ed. 436, which provided for substitution of the executor or administrator of a party who died during the pendency of an action. It is plain, I think, that Rule 25(a)(1) applies only to the substitution of legal representatives. That is not only clear from its history;
"(1) If a party dies and the claim is not thereby extinguished, the court within 2 years after the death may order substitution of the proper parties. If substitution is not so made, the action shall be dismissed as to the deceased party. The motion for substitution may be made by the successors or representatives of the deceased party or by any party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons, and may be served in any judicial district."