The opinion
*106 RIVES, Chief Judge
(dissenting).
The district court’s clear and able opinion reported in 186 F.Supp. 407 , 408 shows that “ * * * counsel for the plaintiff admitted at the pre-trial conference today that the above-quoted paragraphs 2 and 3 of the removal petition are true and correct.” 1 From that admission, the district court correctly concluded: “It does now appear, therefore, that Malone does not purport to act in the premises as an individual but solely as an official or employee of the sovereign.” 2 The appellants make no denial of any of these admissions of fact upon which the district court’s opinion and judgment were based.
Malone might not be immunized from personal liability in damages, but a writ to oust Malone from the possession which he holds solely on behalf of the United States would interfere with governmental functions. It seems to me that the full discussion in Larson v. Domestic and Foreign Corp., 1949, 337 U.S. 682 , 69 S.Ct. 1457 , demonstrates that this action was properly dismissed as a suit against the United States to which it had not consented. See also, Georgia R. & B. Co. v. Redwine, 1952, 342 U.S. 299, 304 , 72 S.Ct. 321 ; Leiter Minerals, Inc. v. United States, 1957, 352 U.S. 220, 226 , 77 S.Ct. 287 ; Stewart v. United States, 5 Cir., 1957, 242 F.2d 49, 51 ; Hart and Wechsler, The Federal Courts and the Federal System, pp. 1169-1180. I respectfully dissent.
. Those paragraphs read as follows:
“2. Before the commencement of this action and at all times hereinafter mentioned, petitioner Buford Malone, Jr. was a Forest Service Officer with the Forest Service, United States Department of Agriculture, and his official duties as a Forest Service Officer required him to be, and he was, in charge and in possession of the land described in said ejectment suit.
“3. At all times mentioned in said action, petitioner, Buford Malone, Jr., was acting solely under color of his office as a Forest Service Officer for the Forest Service, United States Department of Agriculture, and all his acts in connection with the matters charged in said complaint were committed by him under color of his said office.”
. Later in the opinion, the district court said:
“Under the Larson decision if it were contended that Malone were acting beyond a statutory limitation upon his power, it would be necessary for the complaint to set out the statutory limitation upon which plaintiff relies. 337 U.S. 682, 690 , [ 69 S.Ct. 1457 ]. Not only is there no such allegation, but there is a solemn admission that his official duties as a forest service officer required him to he and that he was in ehan-ge and in possession of the land involved.” (Emphasis supplied.)