The opinion of the court was delivered by: LETTS
The plaintiff is a resident of Anchorage, Alaska, and is a veteran as defined by the Surplus Property Act of 1944, as amended, 50 U.S.C.A.Appendix, § 1611 et seq.
This is an action to enjoin the defendants Littlejohn, Krug, Gardner, and Johnson from transferring property designated as the Chilkoot Barracks Project to the defendants Homer or Veterans' Alaska Co-operative Company (hereinafter referred to as Veterans,) and to order the transfer of this property to the plaintiff.
The Chilkoot Barracks Project is an Army post in Alaska, title to which and possession of which is in the United States. The post has been declared surplus by the War Department. That part of the post area with which we are concerned consists of some 400 acres on Chilkat Peninsula, about a mile south of Haines and about 85 miles north of Juneau. On this post are some 60 permanent buildings and 10 temporary buildings, including barracks, hospital quarters, officers quarters, and such other construction as is usually to be found on an army post. It is no longer in use by the War Department because of the construction of larger and more efficient military establishments in the area. When in use, however, Chilkoot Barracks had a normal complement of some 400 men; at capacity, it accommodated approximately 1200 troops. Its acquisition cost, less depreciation, was $ 992,065. The Department of the Interior, named as the disposal agent for this property by the War Assets Administration, set a price of $ 100,000 on the post area with improvements, and $ 5,000 on the water system included in the area. When the City of Haines rejected the offer of the water system, it was included in the sale parcel.
The property was advertised for sale beginning March 27, 1946. Priority offers were to be filed by 10 A.M. on June 26, 1946. Three bids were filed by veterans. The plaintiff's bid was filed some hours after the deadline, but the defect was waived. One of the bidders withdrew, leaving only the plaintiff and the defendant Homer, as trustee for the Veterans. The Department decided, without hearings, that both were entitled to veteran's preference and ordered a drawing at Anchorage, Alaska, to determine which should prevail. 58 Stat. 778, § 23(f), 50 U.S.C.A.Appendix, § 1632(f); W.A.A. Reg. 5, Sec. 8305.12(k). The plaintiff's name was selected at the public drawing. The defendants, both before and after the drawing, protested the award to O'Harra. The Department of the Interior referred them to the War Assets Administration. The Bureau of Review of the War Assets Administration held a hearing to consider these protests on August 14, 1946. The plaintiff was not represented at hearing. But the Board of Review decided nothing other than to refer it to the Department of the Interior for a full hearing on the issues raised. The authorization for the hearing provided that both the plaintiff and the defendants were to be given an opportunity to be heard. The issues were framed in the letter of authorization from General Littlejohn, thus:
'That the criterion for the eligibility of each of the claimants for a veteran's priority in bidding for this property shall be: Have the claimants demonstrated to the satisfaction of the disposal agency that they actually intended and are equipped, in fact, to use all of the property for their own small business, agricultural or residential purposes -- rather than utilize part thereof for speculative purposes?'
If O'Harra met this test, he was to receive the property; if he did not and Veterans did, it should receive the award.
Hearings pursuant to this directive were held before Assistant Secretary of the Interior Gardner on September 16 and September 19. Although O'Harra appeared and was heard at both hearings, he was not represented by counsel at the first. His counsel, however, after examining the transcript of the first day's hearings stated: 'We are very satisfied with the way the proceedings went on Monday, and we have no objections.' Veterans and Homer were represented at both hearings by counsel.
On September 26, 1946, Assistant Secretary Gardner handed down an opinion in which he stated that though the plaintiff intended to use all the property for his own business, he was not engaged in a 'small business,' as that term is used in the statute and regulations. He also held that Veterans fulfilled all the requirements and that Chilkoot Barracks should be transferred to Veternas. An appeal to Mr. Secretary Krug was dismissed on October 3, 1946, and on October 12, 1946, the War Assets Administrator denied an appeal. On October 29, 1946, Assistant Secretary Gardner issued an opinion on reconsideration, adhering to the position he stated in his original opinion.
On November 4, 1946, the plaintiff filed a complaint in this court asking for the relief indicated above. On the same day he requested a temporary restraining order to prevent the defendants Littlejohn, Krug, Gardner, and Johnson from conveying the property to the defendants Homer and Veterans. Although none of the defendants had been served, and no service has yet been made, they had been notified that the application for a restraining order was to be made and they appeared at the hearing. The order was granted on condition that the plaintiff post security of $ 10,000. The security has been posted.
The parties have agreed that the motion on behalf of the defendants Littlejohn, Krug, Gardner, and Johnson for a dismissal of the suit for lack of jurisdiction or for summary judgment, would be heard at the same time as plaintiff's motion for a temporary injunction.
This suit cannot be maintained. To grant the relief sought would require an order for the transfer of properties, the entire title and interest in which is in the United States. The immunity of the sovereign has not been waived. The suit is in effect and in reality one against the United States, since any judgment rendered would necessarily be one against the United States. Minnesota v. Hitchcock, 185 U.S. 373, 22 S. Ct. 650, 46 L. Ed. 954; Louisiana v. Mcadoo, 234 U.S. 627, 34 S. Ct. 938, 58 L. Ed. 1506; Goldberg v. Daniels, 231 U.S. 218, 34 S. Ct. 84, 58 L. Ed. 191.
The court is powerless to restrain the United States from transferring its properties to Homer or Veterans and may not compel the transfer of the properties to plaintiff. The court cannot issue either of the requested mandates. To do so would require a judgment against the United States, which the court is without jurisdiction to enter. The United States is an indispensable party to any suit where it is sought to establish or acquire an interest in lands which it owns. Minnesota v. United States, 305 U.S. 382, 59 S. Ct. 292, 83 L. Ed. 235. In Minnesota v. Hitchcock, supra, the Supreme Court considered the precise jurisdictional question which is present in the suit at bar. It was sought to prevent the Secretary of the Interior from selling certain lands to which the State laid claim and to establish the right of the State to the land. The court held that such an action was necessarily a suit against the United States. At page 387 of 185 U.S., at page 655 of 22 S. Ct. it was said:
'Now, the legal title to these lands is in the United States. The officers named as defendants have no interest in the lands or the proceeds thereof. The United States is proposing to sell them. This suit seeks to restrain the United States from such sale, to divest the government of its title and to vest it in the state. The United States is therefore the real party affected by the judgment and ...