It would needlessly burden this Opinion to discuss these cases separately, because the principle of law announced therein is unvarying and identical, and it is this: In order to impress an equitable lien upon a fund in the United States Treasury, it is necessary that there exist several elements, namely, the Treasury officials must be charged with the performance of no duty other than the ministerial duty of making disbursement of the fund. It must be such a duty as could be compelled by mandamus, or a receivership. The United States must not be in the position of a debtor or creditor, but the fund must be an especially earmarked account to which the Treasury officials are under no other responsibility than that of the ordinary stakeholder, and the United States must have no claim or interest in the fund.
Applying these principles to the instant case, there would seem to be no doubt that these necessary elements are lacking. Here the United States has a direct and real interest, namely, the retention of the fund to indemnify it and certain federal officials from liability arising out of the sale of GAF stock. Here the defendant Secretary has no right to make any disposition of the fund except upon the order of the Attorney General. Here the Attorney General is not a party to the suit, and if he were, clearly his duties in connection with the fund are not ministerial but involve discretion. Here neither the United States nor defendant Secretary is a mere stakeholder, but he is holding the funds for the benefit of the United States. Here the action is clearly one against the United States which has not consented to be sued.
The action, therefore, cannot be maintained because it fails to state a claim upon which relief may be granted, does not present the requisite facts for the establishment of an equitable lien and therefore does not provide the basis for substituted service of process as attempted.
Apparently realizing the unsupportable position in which he is placed under the law announced in the authorities above mentioned, plaintiff has filed a memorandum in which he states he is willing to postpone receipt of the moneys to which he is entitled until the Government is satisfied that such moneys can be disbursed without injury to its security interest in the fund. This proposed modification of plaintiff's suit would not alter its inherent character. It would still be one against the United States which has not consented to be sued, and is an attempt to assert a lien on, and thereby permit the court to acquire jurisdiction over, a fund, when, as and if it reaches a posture which might make it subject to a lien. I know of no juridical basis for such an action, but to support his position for a "postponed" lien which in effect, as stated, is the assertion of a cause of action which does not now exist, but which may exist at some future time, he has referred to two sections of the United States Code, namely, 40 U.S.C. §§ 308, 309, and 28 U.S.C. § 2410. On its face, 40 U.S.C. § 308 does not furnish the requisite consent. It provides that "[nothing] herein contained shall, however, be considered as recognizing or conceding any right to enforce by seizure, arrest, attachment, or any judicial process, any claim against any property * * * held * * * by the United States, or by any department thereof * * * or as waiving any objection to any proceeding instituted to enforce any such claim." Section 309 is based upon § 308 and, consequently, likewise does not furnish consent. This statute also involves the exercise of discretion by the Secretary of the Treasury.
Nor does 28 U.S.C. § 2410 supply consent. Subsection (a) which contains the pertinent provisions of § 2410 does not authorize a suit against the United States unless there are jurisdictional grounds independent of the statute. Remis v. United States, 273 F.2d 293 (1st Cir. 1960). Furthermore, the section is limited in purpose and application to situations involving the quieting of title or foreclosing of mortgages or other liens on real or personal property and clearing real estate titles of questionable or valueless Government liens. See Quinn v. Hook, 231 F. Supp. 718 (E.D.Pa.1964), aff'd, 341 F.2d 920 (3 Cir. 1965). See also, United States v. Brosnan, 363 U.S. 237, 80 S. Ct. 1108, 4 L. Ed. 2d 1192 (1960).
In view of the foregoing, it is unnecessary to reach the point raised by Interhandel that because of the denial of the contractual claims of plaintiff by sworn affidavits it is necessary, before a lien can attach, first to hold a hearing to determine the factual basis of their claim on which jurisdiction is predicated, under the authority of KVOS v. Associated Press, 299 U.S. 269, 57 S. Ct. 197, 81 L. Ed. 183; McNutt v. General Motors Acceptance Corporation of Indiana, 298 U.S. 178, 56 S. Ct. 780, 80 L. Ed. 1135; and Chase v. Wetzlar, 225 U.S. 79, 32 S. Ct. 659, 56 L. Ed. 990.
In the second suit brought by the executors of the estate of Dietrich A. Schmitz, deceased, against the defendants, plaintiffs, briefly stated, set forth that the deceased in 1930 was asked by Interhandel to represent it in all of its business interests in the United States, and was authorized by it to invest very substantial sums of money in various American corporations; that in 1929 he bought stock in the American I. G. Chemical Corporation, which later was merged with Agfa Asco Corporation and became GAF; that he performed numerous services for Interhandel to protect its interests after the vesting of the GAF stock, and that by his devotion to truth and faithfulness and loyalty to Interhandel he prevented the Government from obtaining evidence which would have defeated its claim for the return of the stock of GAF. They also allege that the deceased expended several hundreds of thousands of dollars in this connection, all inuring to the benefit of Interhandel, and that Interhandel promised to make him whole and to compensate him for his efforts on its behalf from whatever funds were ultimately recovered from the United States Government. They allege that the value of his services is $7,500,000.00, and that his losses amount to $2,500,000.00, and accordingly they claim that Interhandel is indebted to the estate in the amount of $10,000,000.00. They have prayers similar to those in the preceding case brought by Robert A. Schmitz, who is also one of the executors of this estate.
For the reasons hereinabove set forth in the suit brought by Robert A. Schmitz, individually, the same decision must be reached in this suit by the Executors of the Estate of Dietrich A. Schmitz, deceased.
Counsel will, therefore, present on notice orders in both cases dismissing the actions without prejudice to plaintiffs, if they are so advised, to present their claims in a new action if and when defendant Secretary has funds in his possession solely for distribution after release thereof by the Attorney General.