Chapman, Secretary of the Interior v. El Paso Natural Gas Co.

PRETTYMAN, Circuit Judge

(concurring in part).

I agree that the Secretary had no power to impose the disputed so-called stipulations of March and May, 1951, upon the remaining permits necessary to complete the line. And I agree that the court has the power and the duty to enjoin that proposed illegal action. I further agree that for the Secretary to refuse to issue these permits if the court enjoins the illegal stipulation would be an outrageous act in view of his formal official announcements of July 21 and August 18, 1950, his issuance of some permits, and the expenditure of millions of dollars by the permittees in reliance upon those announced terms. In my judgment the law ought to be that the official word of a Government officer acting within the scope of his authority should be the maximum in reliability — binding and not changeable at his wish. And I understand from the briefs before us that the Secretary will issue the permits upon the terms the courts approve.

But the Supreme Court in Larson v. Domestic & Foreign Corp. 8 has described the extent of the power of the courts where property of the United States is involved. It is clear that if an executive official refuses to perform an act which Congress has directed him to perform and as to which he has been left by the Congress with no discretionary choice, or if he refuses to perform a purely ministerial act, the court can compel him to act. But I do not find the present case in that posture. Within limits Congress gave the Secretary power to determine the conditions upon which permits would issue. That power involved a measure of discretion, and so, as-an initial matter, within the statutory limitations, it could not be controlled by the. courts. Then the question is whether the. Secretary was so bound by his announcements of July and August, 1950, the issuance of permits upon those terms, and the investments of the permittees in reliance-upon those announcements that he had no discretion left and the actual issuance of the remaining permits was merely a ministerial act. We must view that question in-the light of the Larson opinion.

In the Larson case there was a written-contract. As I read the opinion, the Court held that, even if the act of the officer in violation of the contract was tortious, and' even if an action on the contract for damages would lie against the United States,, nevertheless, if the disposition of the property was within the scope of the authority conferred upon the official by Congress,, the courts can neither enjoin nor direct the-act. The courts cannot compel the United States to comply with its contractual obligations. They can compel an officer to-comply with a statutory mandate; they can restrict him to his statutory authority; and they can award damages for breach of a contract or for a tort. But otherwise they have no jurisdiction over his acts in respect to property of the United States. In the-Larson opinion the Court specifically saidt

“We hold that if the actions of an officer do not conflict with the terms of his valid statutory authority, then they -are the actions of the sovereign, whether or not they are tortious under general law, if they would ¡be regarded as-the actions of a private principal under the normal rules of agency. A Government officer is not thereby necessarily immunized from liability, if his ac *55 tion is such that a liability would be imposed by the general law of torts. But the action itself cannot be enjoined or directed, since it is also the action of the sovereign.” 9

And the Court also said:

“Of course, a suit may fail, as one against the sovereign, even if it is claimed that the officer being sued has acted unconstitutionally or beyond his statutory powers, if the relief requested can not be granted by merely ordering the cessation of the conduct complained of but will require affirmative action by the sovereign or the disposition of unquestionably sovereign property.” 10

The issuance of a permit which contains no illegal condition is an act of the Secretary which does not conflict with the terms of his valid statutory authority. ' As such it is an act of the sovereign and cannot be directed by a court.

The court holds that the Secretary exhausted his discretion when he prescribed terms in August, 1950. But it seems to me that that rule would apply to his prescription of terms and not to the act of transfer itself. The latter act remained the act of the sovereign and so immune from judicial direction. I find nothing in the statute which makes the executory announcements of 1950 the equivalent of a license executed except for signature. Even if they amounted to a binding contract, or were such as would create an estoppel in ordinary matters, the actual issuance of the permits remained an act of the sovereign. No act of Congress, active representative of the sovereign, limited the Secretary to terms once announced, or reduced the discretion conferred upon him. Whatever exhaustion of discretion occurred was by his act, not an act of the Congress. The Secretary could not, as I understand it, translate the nature of his act. He might make a contract or commit a tort. But he could not by some act of his own strip the permits of their nature as a sovereign act. Congress could so act on behalf of the sovereign as to leave the Secretary nothing hut ,a ministerial duty, but the Secretary himself could not do that.

I would hope that the Supreme Court will agree with my brethren that I am wrong in my reading of the Larson opinion. But unless it does so1 I am bound by what I understand it to have said. Upon that basis I would enjoin the proposed stipulation as beyond the authority of the Secretary to impose, but I would not by specific mandate direct the issuance of the permits.

. 1949, 337 U.S. 682 . 69 S.Ct. 1457 . 93 L.Ed. 1628 .

. Supra, 337 U.S. at page 695 , 69 S.Ct. 1457 .

. Id., 337 U.S. at page 691 n. 11, 69 S.Ct. 1457 .