Public Contracts Act within which blacklisting might be imposed has expired. Plaintiffs also claim that all payments under the contracts have been made and therefore the Government is not able to withhold any sums from plaintiffs.
Defendants have moved to dismiss this suit, claiming (1) it is a suit against the United States without its consent; (2) that the administrative remedies have not been exhausted, as required before suit may be filed; (3) that the Attorney General is an indispensable party; and (4) that the remedies available to the Government are not barred by applicable Statutes of Limitation.
Several of the points made by the defendants need not be decided at this time for the reason that the complaint in this case is brought against improper parties defendant. The defendants named are officials of the Department of Labor, each of whom is sued in his individual capacity. The United States is not named, notwithstanding the sole relief sought is a declaratory judgment barring its possible rights (a) to deny for a period of time future contracts to plaintiff and (b) to bring suit against plaintiff for liquidated damages.
From my study of applicable legal authorities, it appears a suit against an employee of the United States in his individual capacity is permitted only when personal action on the part of the employee is required to be restrained or commanded. The employee is permitted to be sued in personam because a judgment against the United States will not accomplish the relief to which the plaintiff is lawfully entitled. In such a case, it is not important that other officials of the United States shall be advised of the suit, or be bound by it, for the reason that the action commanded against the individual will grant full and complete relief.
In the case at bar, counsel for plaintiff at the oral argument of the motion to dismiss expressly disclaimed seeking any relief by way of restraining the individual defendants or compelling them to do an act. As previously stated, what the suit seeks is a judgment barring possible claims by the United States. The United States is the primary party in interest. Its claims may be asserted by officials other than those named in the suit, and in the event they are asserted, judgment against the individual defendants sued in this case may not be pleaded as res judicata. By analogy, the present suit is comparable to one in which certain officers of a private corporation would be sued, where the object of the proceeding is to obtain a judgment barring substantial rights of the corporation. In such a case, it is obvious the suit would be dismissed for want of the proper party defendant.
This Court does not now pass upon the question as to whether the United States may be sued in the case at bar, as plaintiff contends is permissible under the Declaratory Judgment Act, 28 U.S.C.A. 2201, 2202. What is decided is that in any case where the sole relief sought is a declaratory judgment which will bar rights of the United States to bring a suit, it is required that the United States be named as party defendant, and plaintiff may not meet this requirement by suing certain public officials in their individual capacity.
The conclusions of the Court which have been stated require the motion to dismiss the complaint to be granted.
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