If they are, then the courts have no jurisdiction, unless by the authority of Congress they have been accorded such.
The question is most certainly not a new one, but the line of demarcation is not easily drawn, and its repeated litigation has not served the purpose of clarification any too well.
Early in our law Chief Justice Marshall laid down the doctrine that the question as to whether a suit is against the sovereign (State) -- and as a consequence within the prohibition of the Eleventh Amendment -- is to be determined by the nominal parties of record. Osborn v. Bank of United States, 9 Wheat. 738, 857, 6 L. Ed. 204.
If that were the law today it would be determinative of the matter here. But while that case is still the law of the land in other respects, it is now finally settled the courts will look behind the designation of parties on the record and seek to determine who are the real parties to the litigation. New Hampshire v. Louisiana and New York v. Louisiana, 108 U.S. 76, 2 S. Ct. 176, 27 L. Ed. 656; Minnesota v. Hitchcock, 185 U.S. 373, 22 S. Ct. 650, 46 L. Ed. 954; In re Ayers supra; Ford Motor Company v. Department of Treasury, 65 S. Ct. 347, 89 L. Ed. -- .
And it makes no difference whether it is contended a State or the United States is or is not involved, the principle, in essence, is the same.
In litigation involving this principle two classes of cases have arisen. Pennoyer v. McConnaughy, 140 U.S. 1, 8, 9, 10, 11 S. Ct. 699, 35 L. Ed. 363.
The first, in which the action is brought against the officers of the sovereign representing its action and liability, thus making it though not a party of record, the real party against whom the judgment sought will function and operate so as to compel it to perform its contract, or respond to its other obligations. In re Ayers, supra; Hagood v. Southern, 117 U.S. 52, 6 S. Ct. 608, 29 L. Ed. 805; Louisiana v. Jumel, 107 U.S. 711, 2 S. Ct. 128, 27 L. Ed. 448.
The second, in which there is an invasion of a legal right, either on the part of the Government, or an officer of it, acting either under color of an unconstitutional statute, or in excess of the power validly conferred by a constitutional one.
It is to be noted however, that the right invaded must be a legal one ' * * * one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege * * * .' Tennessee Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 137, 138, 59 S. Ct. 366, 369, 83 L. Ed. 543.
What is the right sought to be enforced here?
It certainly is not one of property; the complainant has no right to the monies appropriated by Congress for the Navy Department.
There most certainly is no tortious invasion of any right of the complainant by the defendant Forrestal, nor is there any right arising out of any privilege conferred by statute.
And if, arguendo, it is urged that the complainant's case is bottomed on a right arising out of contract -- what is the nature of the relief sought?
Stripped of all legal verbiage, and reduced to its simplest terms, it is sought to force the United States, through Forrestal in his official capacity -- as its officer -- to perform its promise to pay.
The defendant Forrestal has no personal interest in the matter and no official authority to grant the relief asked. We conclude, therefore, that the United States is the real party in interest, for against it only would a decree be operative, and the suit thus being in substance one against the sovereign, this court has no jurisdiction.
The United States and they alone are to be affected by the relief here sought. The suit therefore in substance is one against the United States, In re Ayers, supra, and can be distinguished from those cases in which a definite right of the complainant has been invaded by the act of the officer in question.
Where the action in fact is one for the recovery of money from the sovereign, the latter ' * * * is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.' Ford Motor Co. v. Dept. of Treasury, supra (65 S. Ct. 350).
The cases cited by the complainant in support of its theory that the United States is not a necessary party can all be distinguished, in that they either are not apposite or fall within the second category referred to above. Tennessee Power Co. v. Tennessee Valley Authority, supra.
Again, a fortiori, ' * * * the right to proceed against an individual, even though an officer, to prevent a violation of the Constitution did not include the right to disregard (italics supplied) the Constitution by awarding relief which could not rightfully be granted without impleading (italics supplied) the United States * * * .' Cramp & Sons v. International Curtis Turbine Co., 246 U.S. 28, 40, 38 S. Ct. 271, 273, 62 L. Ed. 560.
The United States is a necessary party here for the decree sought would compel the payment of money out of the Treasury of the United States;
or compel the sovereign to perform specifically its contract
For if the plaintiff were to prevail the defendant Forrestal would be compelled to pay money out of the Treasury, the decree thus in effect compelling specific performance on the part of the Government of its contract. Thus, the United States is a necessary party, and the suit is, as a consequence, one against the United States and one over which this court has no jurisdiction.
We are not unmindful of the decision of a similar statutory court in this jurisdiction in Lincoln Electric Co. v. Knox, D.C., 56 F.Supp. 308, 309. It is to be noted, however, in that case that the court said ' * * * the right of the United States to withhold money owing to Lincoln is unaffected by anything which is asked for here * * * .' And there is no claim here that the defendant Forrestal (Knox) has the right to interfere with the contractual relationship existing between the complainant and its customers.
The present case can be distinguished further from the Lincoln case, supra, in that, as has been indicated, the relief here sought would compel the payment of money out of the Treasury, which of course demands as a prerequisite that the United States be made a formal party.
Disposing thus as we must, and have, of the jurisdictional question in limine raised, relative to the others we express perforce no opinion.
Motion to dismiss granted. Counsel will prepare proper order.