Snyder v. Buck

Mr. Justice Douglas delivered the opinion of the Court.

Petitioner sued in the District Court for a death gratuity under the Act of June 4,1920,41 Stat. 824, as amended, 34 U. S. C. § 943, claiming as the widow of a member of the naval service. Respondent, the defendant in the suit, was Paymaster General of the Navy. The relief asked was mandamus to compel him to pay the widow’s allowance. The District Court held for petitioner, ordering respondent to pay her the amount of the allowance. 75 F. Supp. 902. That judgment was entered January 30, 1948. On March 18, 1948, notice of appeal was filed in the name of Rear Admiral W. A. Buck, Paymaster General of the Navy. On March 1, 1948, however, Buck had been retired and Rear Admiral Edwin D. Foster had succeeded him in the office.

Section 11 (a) of the Judiciary Act of 1925, 43 Stat. 936, 941, provided that “. . . where, during the pend-ency of an action . . . brought by or against an officer of the United States . . . and relating to the present or future discharge of his official duties, such officer dies, resigns, or otherwise ceases to hold such office, it shall *17be competent for the court wherein the action, suit, or proceeding is pending, whether the court be one of first instance or an appellate tribunal, to permit the cause to be continued and maintained by or against the successor in office of such officer, if within six months after his death or separation from the office it be satisfactorily shown to the court that there is a substantial need for so continuing and maintaining the cause and obtaining an adjudication of the questions involved.”1

Neither party made any effort within the six months period2 to have Buck’s successor in office substituted for him. The Court of Appeals therefore ruled that the *18action had abated; it then vacated the judgment and remanded the cause to the District Court with directions to dismiss the complaint. 85 U. S. App. D. C. 428, 179 F. 2d 466.

The complaint in this case makes no claim against Buck personally. Therefore we put to one side cases such as Patton v. Brady, 184 U. S. 608, dealing with actions in assumpsit against collectors for taxes erroneously collected. The writ that issued against Buck related to a duty attaching to the office. The duty existed so long and only so long as the office was held. When Buck retired from office, his power to perform ceased. He no longer had any authority over death gratuity allowances. Moreover, his successor might on demand recognize the claim asserted and discharge his duty. For these reasons it was held that in absence of a statute an action aimed at compelling an official to discharge his official duties abated where the official died or retired from the office.3 See Secretary v. McGarrahan, 9 Wall. 298, 313; United States v. Boutwell, 17 Wall. 604, 607-608; Warner Valley Stock Co. v. Smith, 165 U. S. 28, 31; United States ex rel. Bernardin v. Butterworth, 169 U. S. 600.

Congress changed the rule. It provided by the Act of February 8, 1899, 30 Stat. 822, that no action by or against a federal officer in his official capacity or in relation to the discharge of his official duties should abate *19because of his death or resignation; and it provided a period in which substitution could be made.4 See LeCrone v. McAdoo, 253 U. S. 217; H. R. Rep. No. 960, 55th Cong., 2d Sess.

The rule was again changed by § 11 of the Judiciary Act of 1925. The provision that no action should abate was eliminated. It was provided that the action might be continued against the successor on the requisite showing within the stated period. The revision effected a substantial change. The 1925 Act made survival of the action dependent on a timely substitution. Defense Supplies Corp. v. Lawrence Co., 336 U. S. 631, 637-638. And see Ex parte La Prade, 289 U. S. 444, 456. Thus, where there was a failure to move for substitution within the statutory period, the judgment below was vacated and the cause was remanded with directions “to dismiss the cause as abated.”5 United States ex rel. Claussen v. Curran, 276 U. S. 590, 591; Matheus v. United States ex rel. Cunningham, 282 U. S. 802. This was a declared policy of Congress not to be altered by an agreement of the parties6 or by some theory of estoppel. Nor did the application of § 11 turn on whether the judgment rendered prior to the death or resignation of the official was for or against the plaintiff. The inability of one who no longer holds the office to perform any of the official *20duties would indeed only be emphasized by the rendition of the coercive judgment.

It is argued that § 11 should be read as covering only those “actions brought against officials for remedies which could not be got in a direct suit against the United States.” Such a reading requires more than a tailoring of the Act; it requires a full alteration. Section 11 applies to “an action . . . brought by or against an officer of the United States . . . and relating to the present or future discharge of his official duties.” Many actions against an official relating to the “discharge of his official duties” would in substance be suits against the United States. If the rule of abatement and substitution is to be altered in the manner suggested, the amending process is available for that purpose.

Section 11 by its terms applies only during the pend-ency of an action. But an action is nonetheless pending within the meaning of the section though an appeal is being sought (see Becker Steel Co. v. Hicks, 66 F. 2d 497, 499; United States ex rel. Trinler v. Carusi, 168 F. 2d 1014), as was implicit in Matheus v. United States ex rel. Cunningham, supra. For in that case a writ of habeas corpus, denied by the District Court, had been granted by the Circuit Court of Appeals. While the case was in the Circuit Court of Appeals the time expired for substituting the successor of the custodian against whom the prisoner had brought the action. Yet, as noted above, the Court applied § 11, vacated the judgments, and ordered the proceeding dismissed as abated.

There is a difference in the present case by reason of the fact that the appeal was taken by Buck after his retirement and therefore without authority. The judgment concerned the performance of official duties for which Buck was no longer responsible. Hence he was not in position to obtain a review of it. See Davis v. Preston, 280 U. S. 406. In the Davis case this Court *21dismissed a writ of certiorari granted under such circumstances. The argument is that the Court of Appeals should have done no more in the present case. The difference is that the Davis case was a suit against the Federal Agent under the Federal Employers’ Liability Act, 35 Stat. 65, in which a judgment was rendered against him. An Act of Congress made special provision for substitution in those cases.7 The Court, however, held that this statute did not affect in any manner the appellate jurisdiction of this Court. But that Act preserved those judgments against abatement by reason of the death or retirement of the Federal Agent and allowed substitution at any time before satisfaction of the judgment. Therefore, on remand of the cause in the Davis case the successor Federal Agent could be substituted and the judgment enforced against him. On remand of the present cause there would be no way of substituting the successor, as the suit had abated in the District Court. Vacating the judgment of the District Court was therefore the proper procedure.

Nor is there any barrier to our review of this ruling on abatement by 28 U. S. C. § 2105 which prohibits a *22reversal by the Court of Appeals or this Court for error in ruling upon matters in abatement “which do not involve jurisdiction.” The absence of a necessary party and the statutory barrier to substitution go to jurisdiction.

Petitioner loses her judgment and must start over.

Affirmed.