Opinion
1961
The amendment to Rule 25(d) raises difficult problems of construction. The following discussion of the rule prior to amendment and the effect of the amendment, by Professor Charles Alan Wright of the University of Texas Law School, is taken from his revision of volume 2 of Barron and Holtzoff, Federal Practice and Procedure, which will be published later this year. This discussion may be cited as: 2 Barron Holtzoff, Federal Practice and Procedure §§ 625, 626 (Wright ed. 1961).
TEXT OF RULE Rule 25. SUBSTITUTION OF PARTIES
(d) Public Officers; Death or Separation from Office.
(1) When a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.
(2) When a public officer sues or is sued in his official capacity, he may be described as a party by his official title rather than by name; but the court may require his name to be added. As amended April 17, 1961, effective July 19, 1961.
§ 625. Public Officers; Death or Separation from Office-The Rule Prior to 1961.
Section 625, Barron and Holtzoff Federal Practice and Procedure, vol. 2 (Wright ed. 1961).
Rule 25(d), as it stood before the 1961 amendment, provided in the most sweeping terms for the continuance of actions brought by or against public officers who died or were separated from office. The rule permitted substitution of the successor if within six months after he took office it were satisfactorily shown to the court that there was a substantial need for continuing and maintaining the action. The rule applied to state, county, and municipal officers, as well as to federal officers.
In an action to escheat lands brought by a State on the relation of a county attorney, the county attorney was a party within subdivision (d) of this rule. State of Oklahoma ex rel. McVey v. Magnolia Petroleum Co., C.C.A. 10th, 1940, 114 F.2d 111.
The application of the rule was far from clear and its practical operation extremely unsatisfactory. Substitution was at best a time-consuming formality. Abatement of the action, in some instances even after judgment, for failure to substitute one nominal party for another was an affront to justice and to ordinary canons of decent judicial administration.
Though the rule worked particularly poorly when the public officer was a defendant, it caused more than its share of difficulty even where the public officer had instituted the action as plaintiff.
Many courts construed the rule as a mandatory, inflexible requirement that where a public officer was plaintiff the government must substitute his successor within six months after his assumption of office and within that time show a substantial necessity for continuing and maintaining the action. This view was entirely consistent with the rigid rule applied to substitution upon the death of a party, where the Supreme Court held, and amended Rule 6(b) confirmed, that there could be no enlargement of time for substitution.
O. P. A. actions
29 F.Supp. 968114 F.2d 111
71 F.Supp. 199
6 F.R.D. 515
144 F.2d 585170 F.2d 692
259 F.2d 850
Bowles v. Kent County Motor Co., D.C.Del. 1947, 6 F.R.D. 515.
Under subdivision (d) of this rule relating to substitution of parties, when officer of government, institutes an action relating to his duties, his successor must determine whether the action should be continued, and, if he so determines, he must make the showing required by this rule so that he may be substituted and may continue the action, and, if he does not do so, action cannot be continued and maintained. Bowles v. Seigel, D. C.D.C. 1947, 7 F.R.D. 331, appeal dismissed 168 F.2d 143, 83 U.S.App.D.C. 88.
See Anderson v. Yungkau, 1947, 67 S.Ct. 428, 329 U.S. 482, 91 L. Ed. 436, discussed § 622 above.
Subdivision (b) of Rule 6 as amended, specifically prohibits the enlargement for taking of any action under Rule 25.
The rigidity of the rule was aggravated by uncertainty as to who was a successor who might be substituted. One court held that a person to whom the duties of the original officer were transferred might be substituted, while another court read the rule as requiring substitution of a successor to the identical office. This particular controversy was finally resolved by the Supreme Court, which held that the Temporary Controls Administrator, to whom, by executive order, had been transferred the functions of the former Price Administrator, was the successor of and could be substituted for the Price Administrator.
Porter v. American Distilling Co., D.C.N.Y. 1947, 71 F.Supp. 483.
Fleming v. Taylor, D.C.Tex. 1947, 70 F.Supp. 222.
Fleming v. Mohawk Wrecking Lumber Co., 1947, 67 S.Ct. 1129, 331 U.S. 111, 91 L.Ed. 1375.
Temporary Controls Administrator was successor in office of Administrator, Office of Price Administration, and could be substituted under subdivision (d) of this rule as a party in proceedings initiated by Price Administrator to compel compliance with subpoenas where substantial need for continuing and maintaining such action existed. Fleming v. Mohawk Wrecking Lumber Co., 1947, 67 S. Ct. 1129, 331 U.S. 111, 91 L.Ed. 1375.
Resort was had to various devices in order to relax the rigidity of the rule as applied to the substitution of numerous successors to the duties of enforcing price controls. In at least two districts blanket orders of substitution were entered without notice, and in one of these districts an ex parte order enlarged the time for substituting the officer who might succeed to the status of Price Administrator. One court allowed substitution by a nunc pro tunc order; another made the substitution in entering a summary judgment; and yet another dispensed with the showing of substantial need for continuing or maintaining the action. This it did by giving weight, in one case, to the bare assertion of necessity, and in the other case by accepting the government's demand for damages as adequate explanation of the need for continuing the action.
Where Price Administrator resigned February 25 and successor qualified next day, general order by senior judge entered March 21, directing that all pending actions by Price Administrator be continued in successor's name, was timely and properly made without necessity of notice to every party in pending actions. Bowles v. Weiner, D.C.Mich. 1947, 6 F.R.D. 540.
Similar orders were entered in the Eastern District of New York. Porter v. Sands, D.C.N.Y. 1947, 74 F.Supp. 494.
Bowles v. Blue Ribbon Provisions, D. C.N.Y. 1947, 7 F.R.D. 603.
In action by Price Administrator for injunctive relief and treble damages where court had granted blanket order substituting successor Price Administrator as plaintiff and an ex parte order enlarging time of plaintiff to substitute whomsoever might succeed to status of successor Price Administrator, defendant was not entitled to dismissal of action on ground that cause of action had abated, even though defendant had not been given notice of substitution. Bowles v. Blue Ribbon Provisions, D. C.N.Y. 1947, 7 F.R.D. 603.
Where district judge signed ex parte blanket order substituting "Paul A. Porter" as plaintiff in place of "Bowles" in suits theretofore brought by "Bowles" or any predecessor, and thereafter judge signed order enlarging time of plaintiff to substitute as plaintiff whoever might succeed to status of "Porter", motion to substitute, as party plaintiff "Frank R. Creedon" as Housing Expediter, who succeeded to status of "Porter", would be granted, since judge's orders were not open to collateral attack and were not reviewable by judge of co-ordinate jurisdiction. Porter v. Sands, D.C.N.Y. 1947, 74 F.Supp. 494.
Where defendant's objections to substitution of Price Administrator's successor as party plaintiff were withdrawn within six months' period and motion for substitution was thereafter overlooked and no formal order of substitution was signed within the six months' period, motion for substitution would be granted nunc pro tunc as of date of withdrawal of objections. Bowles v. Kent County Motor Co., D.C.Del. 1947, 6 F.R.D. 515.
Where, after instituting action for treble damages, the then Administrator of Office of Price Administration had been succeeded by another, succeeding Administrator should be as plaintiff. Bowles v. Babar, D. C.Mich. 1944, 54 F.Supp. 453.
Where government official seeking to be substituted as party plaintiff in action instituted by his predecessor in office asserts that there is substantial need for continuing the action, the assertion should be given weight. Porter v. American Distilling Co., D.C.N.Y. 1947, 71 F.Supp. 483.
In action by Price Administrator for injunctive relief and treble damages, even though injunctive relief had become impossible, fact that the government sought to obtain damages was sufficient to explain need for continuing the litigation and to authorize substitution of plaintiff's successor as plaintiff. Bowles v. Blue Ribbon Provisions, D.C.N.Y. 1947, 7 F.R. D. 603.
A few decisions reasoned that in actions brought by a public officer in behalf of the United States, the action did not abate on the resignation of the officer. The officer was only a nominal party. The United States was the real party in interest, and could be substituted by amendment of the complaint without regard to the six months limitation of Rule 25(d).
Bowles v. Ell-Carr Co., D.C.N.Y. 1947, 71 F.Supp. 482.
Action instituted by Price Administrator in behalf of United States for violation of maximum price regulations was not dismissible for failure to show substantial need for continuing action in name of Temporary Controls Administrator within six months after he took office as Price Administrator's successor, under subdivision (d) of this rule, since the United States was the real party plaintiff. Porter v. Pure Oil Co., D. C.Pa. 1947, 7 F.R.D. 577.
Much flexibility in the addition of parties is permitted by Rules 15 and 17.
See Porter v. Maule, C.C.A.5th, 1947, 160 F.2d 1, 3.
United States substituted by amendment. U. S. v. Koike, C.C.A. 9th, 1947, 164 F.2d 157.
Porter v. Hirahara, C.C.A.9th, 1947, 164 F.2d 155.
In action which had been instituted and had proceeded in names of various federal officials designated as Administrators or Officers of Temporary Controls, United States was real party in interest from beginning and had substantial need for continuing and maintaining cause and could therefore be substituted as plaintiff as officials had no interest in subject matter and were purely nominal parties. U. S. v. Saunders Petroleum Co., D.C.Mo. 1947, 7 F.R.D. 608.
Judge Sanborn, writing for the Eighth Circuit, sought to give a sensible interpretation to the rule. In Fleming v. Goodwin he reasoned that the rule, like the statute which it superseded, was intended to cover only such actions, to which a public officer was a party, as would abate upon his separation from office. The common law rule had been that actions brought against public officers to compel performance of their official duties abated when the officer left office, Judge Sanborn could find no need to apply Rule 25(d) where the action was instituted by the officer. He argued that to relieve defendants, in actions brought on behalf of the government, of their statutory liability to the government, merely because of noncompliance with Rule 25(d), would be to glorify form over substance and reality.
C.C.A.8th, 1948, 165 F.2d 334, certiorari denied 68 S.Ct. 1338, 334 U.S. 828, 92 L.Ed. 1755.
R.S. §§ 952-956 and Act Feb. 13, 1925, c. 229, § 11, 43 Stat. 941 were repealed by Act of June 25, 1948, c. 646, § 39, 62 Stat. 992.
See Thompson v. U. S., 113 U.S. 480, 484, 485, 26 L.Ed. 521; U. S. ex rel. Bernadin v. Butterworth, 18 S.Ct. 441, 169 U.S. 600, 605, 42 L.Ed. 873; Murphy v. Utter, 22 S.Ct. 776, 186 U.S. 95, 100, 101, 46 L.Ed. 1070; referring to c. 121, 30 Stat. 822, 28 U.S.C.A. § 780; Ex parte La Prade, 53 S.Ct. 682, 289 U.S. 444, 456-458, 77 L.Ed. 1311. Cited in Fleming v. Goodwin, note 53 above.
"The action was, however, in substance and reality, at all times a controversy between the Government and the appellees. The only purpose of substitution in such a case is to keep the record straight so that the judgment finally entered will unquestionably bind the right parties. Such a substitution, we think, amounts to nothing more than a formal amendment to the title of the action to conform it to the truth." Fleming v. Goodwin, C.C.A.8th, 1948, 165 F.2d 334, 338, certiorari denied 68 S.Ct. 1338, 334 U.S. 828, 92 L.Ed. 1755.
See also Fleming v. Peoples Natural Gas Co., D.C.Pa. 1948, 8 F.R.D. 42.
Judge Sanborn's opinion had considerable impact. The Court of Appeals for the District of Columbia, though holding that the United States could not appeal where it was not a party of record, left open the question of whether the United States might have been substituted for the Price Administrator, as permitted in Fleming v. Goodwin. The Tenth Circuit, which earlier had abated an action brought by a public officer for noncompliance, subsequently overruled that decision and followed Fleming v. Goodwin. In addition to the Tenth Circuit, and later cases in the Eighth Circuit, Fleming v. Goodwin was purportedly followed by the Fourth Circuit, though that court held its reasoning applicable to a public officer as defendant.
U. S. v. Seigel, C.C.A. 1948, 168 F.2d 143, 83 U.S.App.D.C. 88, dismissing an appeal from Bowles v. Seigel, D.C.D.C. 1947, 7 F.R.D. 331, appeal dismissed 168 F.2d 143, 83 U.S.App.D.C. 88.
State of Oklahoma ex rel. McVey v. Magnolia Petroleum Co., C.C.A. 10th, 1940, 114 F.2d 111.
Where action for treble damages was instituted by Administrator of Office of Price Administration in behalf of the United States for sales of lumber in excess of prices fixed by maximum price regulation, the action did not abate on termination of incumbency of administrator who instituted action or on termination of incumbency of his successor, and an order substituting United States as party plaintiff was not a revival of action but substitution of the real party in interest. Northwestern Lumber Shingle Co. v. U. S., C.A. 10th, 1948, 170 F.2d 692.
See note 59 above.
Ralph D'Oench Co. v. Woods, C. A.8th, 1948, 171 F.2d 112.
U. S. v. Figur, D.C.Minn. 1948, 80 F. Supp. 140.
Where suit was brought against Federal Housing Administrator in his official capacity, fact that plaintiff did not seek amendment to have Housing Administration substituted for Administrator as defendant for more than six months after Administrator's retirement from office did not require dismissal of the suit under Rule 25(d), since amendment did not change real defendant in case, which was at all times the Housing Administration. Seven Oaks v. Federal Housing Administration, C.A.4th, 1948. 171 F.2d 947.
The Court of Appeals for the Seventh Circuit, however, refused to follow Fleming v. Goodwin. In Bowles v. Wilke the district court had refused to substitute the United States for the Price Administrator as party plaintiff and dismissed the action on the ground that it had abated for failure to make the substitution within six months under Rule 25(d). The appellate court held that it had no power to reverse the decision because of 28 U.S.C.A. § 2105, forbidding reversal for errors in ruling upon matters in abatement not involving jurisdiction, but stated that if the Supreme Court should find that it had such power, the decision of the district court was correct. The appellate court distinguished Fleming v. Goodwin on the ground that in that case the motion for substitution was filed within six months although the hearing on the motion did not occur until after that period and that therefore Rule 25(d) was complied with. The Supreme Court denied certiorari in this case.
Where incumbent as O.P.A. Administrator brought action charging violation of maximum price regulations, and successor failed within six months of taking office to apply for substitution as plaintiff, action "abated", and United States attorney could not thereafter move for substitution of United States as plaintiff upon termination of Office of Temporary Controls, the successor to the O.P.A. Bowles v. Wilke, C.A.7th, 1949, 175 F. 2d 35, certiorari denied 70 S.Ct. 104, 338 U.S. 861, 94 L.Ed. 528.
An interesting Supreme Court decision, which was relied upon in Bowles v. Wilke, should be noted here. The case of Defense Supplies Corporation v. Lawrence Warehouse Co. was decided under a statute dissolving the Defense Supplies Corporation which provided that no action lawfully commenced by or against that corporation should abate and that on motion or supplemental petition within 12 months after the dissolution the court might allow continuance of the action by or against the Reconstruction Finance Corporation. A judgment for the Defense Supplies Corporation was entered after dissolution but within the 12-month period. The Supreme Court held that since no motion was made within that period to substitute the RFC, the action abated at the end of 12 months from dissolution and the judgment was valid but the appellate court had no jurisdiction of an appeal therefrom, since the action abated after judgment and before appeal.
Defense Supplies Corp. v. Lawrence Warehouse Co., 1949, 69 S. Ct. 762, 336 U.S. 631, 93 L.Ed. 931, rehearing denied 69 S.Ct. 1151, 337 U.S. 921, 93 L.Ed. 1730.
The problem raised by Fleming v. Goodwin was never definitively settled, although in a particularly limited fact situation the Supreme Court ultimately did hold that the United States might be substituted for the Price Administrator, citing Fleming v. Goodwin favorably, and making the sensible observation: "Regardless of captions, the issues in these cases could not change and the real party-in-interest plaintiff has always been the same."
An action was brought by the Price Administrator in his own name "for and on behalf of the United States." A subsequent executive order transferred various price administration functions to the Secretary of Commerce, but another executive order authorized the Attorney General to conduct certain price control litigation "in the name of the United States or otherwise as permitted by law." After these orders were promulgated the United States was substituted as plaintiff in the pending action, but the lower courts later held that the action must be dismissed for failure to substitute the Secretary of Commerce. The Supreme Court reversed, holding that exclusive power to maintain price enforcement actions was not vested in the Secretary of Commerce, and that since the real party in interest was the same, and no unfairness to the defendants would result, the action might be maintained in the name of the United States. U. S. v. Allied Oil Corp., 1951, 71 S.Ct. 544, 546, 341 U.S. 1, 5, 95 L.Ed. 697.
As has been seen, substitution of public officers as plaintiffs led to much difficulty. Substitution of public officers as defendants was even worse. The Supreme Court decisions in point led to intolerable results. The common law rule had been that actions against public officers abate when they leave office. This rule was so harsh that, at the suggestion of the Supreme Court, a statute was adopted in 1899 which stated that such suits should not abate but that the successor might be substituted. Again in response to a Supreme Court suggestion, the statute was revised in 1925 to include state officers, but on that revision the language "no suit shall abate" was omitted. Rule 25(d) as originally adopted followed very closely the 1925 statute.
See note 55 above.
Act of Feb. 8, 1899, c. 121, 30 Stat. 822.
The statute was in response to a suggestion by the Court in U. S. ex rel. Bernardin v. Butterworth, 1898, 18 S.Ct. 441, 443, 169 U.S. 600, 605, 42 L.Ed. 873.
Act of Feb. 13, 1925, c. 229, § 11, 43 Stat. 941 was repealed by Act June 25, 1948, c. 646, § 39, 62 Stat. 992.
The 1925 statute, which later became 28 U.S.C.A. 780 prior to the 1948 revision of the Judicial Code, was suggested by the Court in Irwin v. Wright, 1922, 42 S.Ct. 293, 295, 258 U.S. 219, 223, 66 L.Ed. 573.
Thus matters stood when the Supreme Court, in 1950, handed down the remarkable decision of Snyder v. Buck. Mrs. Snyder sued Admiral Buck, then Paymaster General of the Navy, to collect an allowance she claimed was due her as the widow of a member of the naval service. On January 30, 1948, the district court entered a judgment in her favor for $1365. The suit, as all members of the Supreme Court explicitly recognized, was in form against Buck but in substance against the United States. Government attorneys defended the suit; government funds would have been used to satisfy the judgment. On March 18th notice of appeal was filed in the name of Rear Admiral W. A. Buck, Paymaster General of the Navy. Unfortunately Admiral Buck had retired on March 1st and had been succeeded as Paymaster General by Admiral Foster. A bare majority of the Supreme Court held that the action abated when Buck retired and no substitution was made within six months. "Petitioner loses her judgment and must start over," the Court said. As a distinguished commentator put it, "the principle of justice seems to be that when one party's attorneys (or their stenographer) are at fault in failing to substitute the name of the successor officer, the court should penalize the opposing party."
1950, 71 S.Ct. 93, 340 U.S. 15, 95 L.Ed. 15.
Davis, Government Officers as Defendants: Two Troublesome Problems, 1955, 104 U.Pa. L. Rev. 69, 83.
Two justices dissented on the ground that while the appeal must fail for want of a proper substitution, the judgment entered against Admiral Buck while he was still in office should not be vacated. Two other justices would have recognized realistically that the judgment was in effect a money judgment against the United States and would have held the notice of appeal effective for the government to review that judgment.
In a later case the Court, on the authority of Snyder v. Buck, held that an action against a local postmaster abated where plaintiff failed to substitute within six months a regional operations director who was designated to take charge of the post office until a new postmaster was appointed.
Klaw v. Schaffer, 1958, 78 S.Ct. 1369, 357 U.S. 346, 2 L.Ed.2d 1368.
In a companion case the Court ordered dismissal of the complaint as abated for failure to substitute within six months the acting postmaster who was later appointed. Glanzman v. Schaffer, 1958, 78 S.Ct. 1370, 357 U.S. 347, 2 L.Ed.2d 1368.
Reluctantly following these decisions, the court in Vibra Brush Corp. v. Schaffer, C.A.2d 1958, 256 F.2d 681, 684, noted: "At best it would seem difficult for parties dealing with orders really emanating from Washington to keep track of changes in local postmasters, and almost impossible to know when and what special agents are left temporarily in charge."
The lower courts have not been happy with this rule. One district judge described it as "a harsh rule" and said "it all seems so foolish." The Second Circuit calls it "a trap for unsuspecting litigants which seems unworthy of a great government." Nevertheless the courts have reluctantly applied the rule. Unlike substitution for death under Rule 25(a), they have held, on the clear compulsion of Snyder v. Buck, that neither waiver nor estoppel can prevent application of the six-month limit.
Rossello v. Marshall, D.C.N.Y. 1952, 12 F.R.D. 352, 354, 355.
Vibra Brush Corp. v. Schaffer, C.A.2d 1958, 256 F.2d 681, 684.
Compare
271 F.2d 29
268 F.2d 531
79 S.Ct. 798359 U.S. 9593 L.Ed.2d 766
256 F.2d 677
242 F.2d 516
215 F.2d 297
11 F.R.D. 253
11 F.R.D. 106
11 F.R.D. 102
179 F.Supp. 209
See § 622 above.
Parties' stipulation for and district court's order granting substitution of successor of resigning Secretary of Department of Health, Education and Welfare as defendant in action against her to review referee's decision denying plaintiffs' claims for old age and survivors' insurance benefits after expiration of six months from date of succession did not estop substituted defendant from moving to dismiss action for failure to make timely substitution of party defendant. Poindexter v. Folsom, C.A.3d, 1957, 242 F.2d 516.
Rule 25(a), is mandatory and allows no discretion to district judge, the rule having force of law, and if substitution of successor to office is not made within six months, action abates; and time limit may not be extended even by agreement of parties or by estoppel. Rossello v. Marshall, D.C.N.Y. 1952, 12 F.R.D. 352.
In Snyder v. Buck itself the government asked that the action not abate, but the Court said that neither agreement of the parties nor estoppel could prevent the abatement. 71 S. Ct. at 96, 340 U.S. at 19.
The only escape the lower courts have found from the rigor of Snyder v. Buck is in those cases where a person is seeking a declaratory judgment as to citizenship. There the Ninth Circuit ingeniously reasoned, and other courts have agreed, that the suit was not really for relief against a public officer, but rather for a declaration of status, and that failure to substitute the new Secretary of State did not require abatement. Unfortunately this theory is not available where plaintiff is seeking a money judgment or an injunction.
Acheson v. Fujiko Furosho, C. A.9th, 1954, 212 F.2d 284.
Lehmann v. Acheson, C.A.3d, 1954, 214 F.2d 403.
Tom Wing Po v. Acheson, C.A. 10th, 1954, 214 F.2d 661.
Chew Yin v. Acheson, C.A.7th, 1954, 216 F.2d 60.
The rule of Snyder v. Buck was apparently extended by the Supreme Court in an obscure per curiam opinion two years later. The case is McGrath v. National Association of Manufacturers. The N. A. M. sued McGrath, then the Attorney General, to enjoin prosecution for violation of a statute. A three-judge district court handed down an opinion of March 17, 1952, holding the statute unconstitutional, and judgment was entered on May 2d. On April 7th McGrath resigned. The government appealed from the judgment to the Supreme Court in the name of McGrath, or in the alternative, his successor, McGranery, or in the further alternative, the United States. In the jurisdictional statement, the government expressly requested that McGranery be substituted for McGrath. On October 2d, less than six months after McGrath's resignation, the N. A. M. filed a formal motion to substitute McGranery for McGrath. Yet on October 13th the Supreme Court ordered the judgment vacated and the case remanded to the district court with directions to dismiss the action as moot, citing Snyder v. Buck.
1952, 73 S.Ct. 31, 344 U.S. 804, 97 L.Ed. 627. Rehearing was denied, two justices dissenting. 73 S.Ct. 181, 344 U.S. 887, 97 L.Ed. 687.
The decision is difficult to understand. Snyder v. Buck hardly supports the result in the McGrath case, since Snyder v. Buck turned on the failure to make timely substitution but such substitution was sought in McGrath. Perhaps the principle which controlled decision was the rule, laid down in Ex parte La Prade, that if the successor in office does not continue or threaten to continue the conduct complained of there is no need for an injunction. Rule 25(d), prior to 1961, set up a procedure by which the plaintiff might show, by supplemental pleading or otherwise, that the successor threatened to continue the conduct complained of. It may be that the Court in McGrath considered that there had been no sufficient showing that the new Attorney General, McGranery, would attempt to enforce the statute, though this seems highly unrealistic when the Solicitor General was endeavoring to persuade the Supreme Court to hold the statute constitutional and vacate the injunction against its enforcement.
1933, 53 S.Ct. 682, 289 U.S. 444, 77 L.Ed. 1311.
Subdivision (d) of this rule requiring supplemental pleading to be filed upon substitution of United States officer's successor does not refer to the successor but to the opposite party, who must file supplemental pleading setting forth grounds for continuing action by or against successor. Bowles v. Weiner, D.C.Mich. 1947, 6 F.R.D. 540.
In action by Negro citizen against members of personnel board of county and director of board for redress for deprivation of civil rights guaranteed by the Fourteenth Amendment to the federal Constitution because they refused to permit Negro citizen to take examination for position of police patrolman of city solely because of his race and color, new board member, who became member of the board after the action was brought, could not be substituted as a defendant in place of member who resigned, in absence of showing that new member had adopted or continued or threatened to adopt or continue the action of his predecessor. Johnson v. Yeilding, D.C.Ala. 1958, 165 F.Supp. 76.
Suit for injunction against United States Attorney abated, despite a timely attempt to substitute his successor, where there was no showing of substantial need for continuing the cause. Danenberg v. Cohen, C.A. 7th, 1954, 213 F.2d 944.
Compare Chin Chuck Ming v. Dulles, C.A.9th, 1955, 225 F.2d 849, where it was held that the fact that the Attorney General appeared and moved to dismiss an action, after a new Secretary of State had taken office, was a sufficient showing that the new Secretary intended to adopt the action of his predecessors.
There is still one other complication which must be mentioned. When suit is brought for or against a board or other continuing agency, the suit continues as to the agency even though the membership of the agency changes, and there is no need to substitute the individual members of the agency. Unfortunately not every continuing agency is suable as such. Specifically the Supreme Court has held that the Civil Service Commission may not be sued eo nomine, and that the members of the Commission are indispensable parties to such a suit. As a necessary consequence of this, failure to make timely substitution of new members of the Commission has been held to work an abatement.
Board of County Commissioners. Commissioners v. Sellew, 1878, 99 U.S. 624, 25 L.Ed. 333.
Board of Loan Commissioners. Murphy v. Utter, 1902, 22 S.Ct. 776, 186 U.S. 95, 46 L.Ed. 1070.
State Board of Elections. Marshall v. Dye, 1913, 34 S.Ct. 92, 231 U.S. 250, 58 L.Ed. 206.
Board of county supervisors. Irwin v. Wright, 1922, 42 S.Ct. 293, 258 U.S. 219, 66 L.Ed. 573.
Anno., 102 A.L.R. 943, 956-958.
Blackmar v. Guerre, 1952, 72 S.Ct. 410, 342 U.S. 512, 96 L.Ed. 534.
Bovard v. Young, C.A. 1959, 265 F.2d 823, 105 U.S.App.D.C. 241.
Hicks v. Summerfield, C.A. 1958, 261 F.2d 752, 104 U.S.App.D.C. 286, certiorari denied 79 S.Ct. 798, 359 U.S. 959, 3 L.Ed.2d 766.
Rule 25(d), prior to the 1961 amendment, provided that before a substitution was made, the party or officer affected, unless expressly assenting thereto, must be given reasonable notice of the application therefor and accorded an opportunity to object. This did not mean that when a successor was substituted as plaintiff for a public officer, the adverse parties must be given reasonable notice and opportunity to object. It required only that such notice and opportunity be given to the successor proposed to be substituted.
In re Creedon, D.C.N.Y. 1947, 7 F.R.D. 546.
Bowles v. Goldman, D.C.Pa. 1947, 7 F.R.D. 12.
Bowles v. Weiner, D.C.Mich. 1947, 6 F.R.D. 540.
Dismissal of an action as abated by the death or resignation of a public officer was without prejudice, though in some instances the statute of limitations might bar a new suit.
Fix v. Philadelphia Barge Co., 1934, 54 S.Ct. 270, 290 U.S. 530, 78 L.Ed. 481.
State of Oklahoma ex rel. McVey v. Magnolia Petroleum Co., C.C.A. 10th, 1940, 114 F.2d 111.
The rule is probably otherwise, although the authorities are not too clear, where dismissal is for failure to substitute a private individual who has died, as required by Rule 25(a). See § 622 above.
§ 626. — The 1961 Amendment.
Section 626, Barron and Holtzoff Federal Practice and Procedure, vol. 2 (Wright ed. 1961).
The 1961 amendment of Rule 25(d) is a welcome attempt to bring improvement to an area of procedure which desperately needed it. The new rule provides for automatic substitution of public officers and also permits suit by the official title of the officer rather than by name.
The amended rule will become effective July 18, 1961. Justices Black and Douglas dissented from adoption of the amendment. See 27 FRD xv.
The rule should operate without difficulty where the public officer is the plaintiff. It will eliminate the needless formality of numerous orders of substitution where a public officer, who has instituted a great many actions, dies or resigns. There is no reason, in history or in legal theory, why the new rule should not be simply applied according to its terms where the officer is plaintiff.
The problems with substitution of plaintiffs under the former rule, developed in § 625 above, arose only because the rule purported to require formal substitution even where the officer had brought the action. It was not necessary that the rule so provide.
Unfortunately the matter is more complex where the officer is defending the action. Here the substitution of public officers becomes entangled with notions of sovereign immunity and the Eleventh Amendment, and with fictional devices the courts have developed to avoid those barriers to suit.
The new rule applies in any case in which "a public officer is a party to an action in his official capacity." The undefined term "public official" should cause no difficulty. Undoubtedly it refers to every officer of the United States, or of the District of Columbia, the Canal Zone, a territory, an insular possession, a state, county, city, or other governmental agency, just as did the prior rule. It is much less clear as to when the official is a party "in his official capacity." Of course a public officer may commit torts, make or break contracts, or otherwise get involved in litigation which has nothing to do with his official duties. In such a case Rule 25(d) has no application. If he dies substitution must be pursuant to Rule 25(a), and his resignation from office will have no effect on the action. There are some instances where the official's activity as an official may give rise to litigation in which judgment will be enforceable against his personal assets. Normally the officer is immune from suit for such activity, but if such an action does lie, it too is governed by Rule 25(a) rather than Rule 25(d).
The Committee's Note to the amendment says: "The general term `public officer' is used in preference to the enumeration which appears in the present rule. It comprises, Federal, State, and local officers."
See the statement to this effect in the Committee Note to the 1961 amendment, set out in the pocket part to volume 3A.
The situations just discussed are easily recognized and can be distinguished from those cases where the suit, though against the officer in name, is against the government in reality. Unfortunately the prior cases make a further distinction between those suits nominally against officers personally but in reality against the government, and suits nominally against officers in their official capacity but in reality against the government, a distinction which has correctly been termed a "legal quagmire." Though the distinction is quite unworkable in practice, and lacks any justification in reality, the courts have used it to achieve important results. The whole theory which permits the constitutionality of state action to be challenged by injunction, despite the Eleventh Amendment, is that the state officer who is about to pursue an unconstitutional course of conduct is stripped of his official or representative character and is being sued as an individual. The concept is entirely fictive. It leads to the remarkable result that the officer's conduct is "state action" for purposes of the Fourteenth Amendment, and thus unconstitutional, but "individual action" for purposes of the Eleventh Amendment, and thus not immune from suit. However fictional the reasoning, the procedure by which state action can be challenged in federal court has become too familiar a part of judicial review to be repealed at this time by a change in a procedural rule.
Davis, Government Officers as Defendants: Two Troublesome Problems, 104 U.Pa. L. Rev. 69, 87. Professor Davis was there writing critically of an earlier proposal by the Advisory Committee which would have used the term "official capacity." The cases he discusses at the place cited undoubtedly do show that there is a judge-made distinction between these two classes of suits, at least in terms of labels.
Ex parte Young, 1908, 28 S.Ct. 441, 209 U.S. 123, 52 L.Ed. 714, 13 L.R.A., N.S., 932, 14 Ann.Cas. 764.
Ex parte La Prade, 1933, 53 S.Ct. 682, 289 U.S. 444, 77 L.Ed. 1311.
Two alternatives seem possible. Rule 25(d) may be construed as wholly inapplicable to those suits which are against the government in reality but nominally against him individually. Such a construction would be very unfortunate, for it would require the abatement of all such actions when the officer leaves office. The other possibility is to construe the rule as applicable to all suits which are against the government in reality, and to disregard the earlier cases which have distinguished between suits in this class which are against the officer as an individual and those which are against him in his official capacity. This would make it necessary to say, for state officers at least, that the suit is against him in his official capacity for purposes of Rule 25(d), though against him as an individual for purposes of the Eleventh Amendment, and would perhaps require similar reasoning where a federal officer was defendant and problems of sovereign immunity were involved. Such a solution is difficult to defend theoretically, but is surely desirable practically.
This would be in accord with the settled rule that if there is no statute or rule permitting substitution of public officers in particular circumstances, the common law rule of abatement must be applied.
See Davis, note 74 above, at 88-89.
Apparently the Civil Rules Committee anticipates the latter construction. Its note says: "The expression `in his official capacity' is to be interpreted in its context as part of a simple procedural rule for substitution; care should be taken not to distort its meaning by mistaken analogies to the doctrine of sovereign immunity from suit or the Eleventh Amendment. The amended rule will apply to all actions brought by public officers for the government, and to any action brought in form against a named officer; but intrinsically against the government or the incumbent thereof whoever he may be from time to time during the action. Thus the amended rule will apply to actions against officers to compel performance of official duties or to obtain judicial review of their orders. It will also apply to actions to prevent officers from acting in excess of their authority or under authority not validly conferred or from enforcing unconstitutional enactments. In general it will apply whenever effective relief would call for corrective behavior by the one then having official status and power, rather than one who has lost that status and power through ceasing to hold office."
The Committee cites at this point Philadelphia Co. v. Stimson, 1912, 32 S.Ct. 340, 223 U.S. 605, 56 L.Ed. 570.
The Committee cites at this point Ex parte Young, 1908, 28 S.Ct. 441, 209 U.S. 123, 52 L.Ed. 714, 13 L.R.A., N.S., 932, 14 Ann.Cas. 764, and Ex parte La Prade, 1933, 53 S.Ct. 682, 289 U.S. 444, 77 L.Ed. 1311.
CF.
67 S. Ct. 1009330 U.S. 73191 L.Ed. 120969 S.Ct. 1457337 U.S. 682 93 L. Ed. 1628
Though the theoretical difficulties are present, it would seem that a construction of the amended rule reading "official capacity" so as to exclude sovereign immunity or Eleventh Amendment cases would be not only unfortunate, but wrong, even if the Committee Note is put out of consideration, as of course it should not be. The old rule covered such cases. So does the amended rule, although the manner of substitution is different. The courts should construe the amended rule in the light of its obvious and salutary purpose to cover such cases.
Where the action is for or against a public officer in his official capacity, however this term may be construed, the rule provides affirmatively that the action does not abate upon his death, resignation, or otherwise ceasing to hold office, and that his successor is automatically substituted as a party. The rule says that proceedings following the substitution are to be in the name of the substituted party, but that any misnomer not affecting the substantial rights of the parties shall be disregarded, and while it authorizes the entry at any time of an order of substitution it states also that the substitution is not affected by the omission to enter such order. If, as not infrequently has happened in the past and presumably will happen in the future, the parties and the court are unaware of the change in the office, they can continue to litigate under the name by which the action was commenced, and the litigation will be entirely valid, unless, as happens rarely if ever, the failure to change the name affects the substantial rights of the parties. When and if question is raised, the name can be changed, no matter how much time has elapsed.
Rule 25(d)(1), as amended in 1961.
Thus such a decision as Snyder v. Buck, 1950, 71 S.Ct. 93, 340 U.S. 15, 95 L.Ed. 15, discussed § 625 above, should no longer be possible under the amended rule.
Rule 6(b), which prohibits the enlargement of time for action under Rule 25, will be no bar to substitution under Rule 25(d), though it will still apply to Rule 25(a). There can be no need for extension of time when Rule 25(d) allows the action to be taken "at any time." The Committee Note states the same result, though on a rather different analysis. The Note is set out in the pocket part to volume 3A.
Since the rule makes substitution automatic, it does away with the requirement of the former rule that a showing be made of a substantial need for continuing and maintaining the action. To state this is not to solve the problem. The Committee Note says: "Where the successor does not intend to pursue the policy of his predecessor which gave rise to the lawsuit, it will be open to him, after substitution, as plaintiff to seek voluntary dismissal of the action, or as defendant to seek to have the action dismissed as moot or to take other appropriate steps to avert a judgment or decree." The Committee then cites, with the cryptic preface "contrast", four cases in which an action was held moot where there was no adequate showing that the successor intended to continue the policy of his predecessor, or that there was a substantial need for continuing the suit.85 Two of the cases involved state officers and two involved federal officers. Yet the problems involved seem quite different for the two kinds of officers. In Ex parte LaPrade86 the Supreme Court said that "it is to be borne in mind that Congress has authority to direct the conduct of federal officers in proceedings brought by or against them as such and may ordain that they may sue or be sued as representatives of the United States and stand in judgment on its behalf * * * but that Congress is not so empowered as to state officers." That case was a suit against a state attorney general to restrain enforcement of an allegedly unconstitutional statute. Though substitution was clearly authorized by the then-applicable statute, the Court held substitution improper since the successor officer was not liable on account of anything done or threatened by his predecessor "individually." The Court temporarily left open the question of whether the successor might be substituted if he adopted the attitude of his predecessor and was proceeding or threatening to proceed to enforce the statute, though it later held that on such a showing substitution could be had.87
See § 625 above.
It was in the light of that decision that original Rule 25(d) required a showing of substantial need for continuing the action, and set up a procedure by which the plaintiff could file a supplemental pleading to show that the successor was continuing or threatening to continue the conduct complained of. This provision of original Rule 25(d) was applicable to all suits against public officers, whether state or federal, though in the light of Ex parte LaPrade it need not have been.
The amended rule does away, as has been noted, with the requirement of such a showing. With federal officers the situation would seem now to be the same as it was when Ex parte LaPrade was decided. The rule has as much force as an Act of Congress and authorizes substitution of a successor federal officer in all cases. Presumably where the successor in fact does disavow the policy of his predecessor, he can make such a showing and if this does make the suit moot, tested by usual standards, it should be dismissed as such. The burden will be on the officer to show that the suit is moot.88
Where the suit is against a state officer, however, the mere fact that the rule purports to authorize substitution does not make such substitution proper, any more than did the statute in force when Ex parte LaPrade was decided. Substitution will still be within the letter of the rule, and will avoid much waste motion in the judicial process, but here it would seem that the action must be dismissed as moot unless the plaintiff makes the needed showing that the officer threatens to continue the policy of his predecessor.89 In summary, the rule should be held applicable and to permit automatic substitution both of federal and state officers, but the burden of showing whether there is a substantial need for continuing the action, if challenged by an assertion that the suit is moot, will be on the plaintiff if a state officer is involved, though on the officer where he is connected with the federal government.
Rule 25(d) purports to allow substitution at any time during the "pendency" of an action. Under the former rule, which in this respect is unchanged, it was held that an action was pending within the meaning of the rule even though an appeal was being sought.90 But the rule governs procedure only in the district courts, 91 and it has been held, correctly it would seem, that the district court lacks power to order substitution of parties after a notice of appeal has been filed.92 Thus if the notice of appeal has been filed the district court cannot make a substitution, and the rule is inapplicable to work an automatic substitution in the appellate court. If, therefore, the public official leaves office before a notice of appeal is filed, his successor is automatically substituted-subject to the problems of mootness discussed above — and the case may continue for or against the successor. It will not matter that the notice of appeal later filed erroneously designates the original officer.93 If after the notice of appeal is filed the official leaves office, Rule 25(d) will be of no effect, and any substitution must be in accordance with the rules of the appellate court in question.94 It is clearly desirable that the appellate courts conform their rules on substitution to Rule 25(d), as indeed many of them did in the past.
The situation just considered leaves one gap in the law unresolved. Suppose that the officer leaves office after judgment is entered, but that his successor is not appointed until after the time for appeal has run. The Supreme Court says that there is no authority for the former officer to appeal after he has left office.95 Yet his successor can hardly be automatically substituted until there is a successor. This would suggest that where judgment has gone against the public officer, either there is no means in this situation to obtain appellate review or that the whole action abates and must be begun anew. Either result is so undesirable as to be avoided if at all possible. One means of escape can be found in the decision under the former rule that an action abated for failure to substitute within six months a regional operations director who was designated, on resignation of a postmaster, to take charge of the post office until a new postmaster was appointed.96 Where a public official leaves office, presumably there will almost always be some other person who succeeds to his functions, either by express designation or by operation of law, until his successor is named. The person who does this can then be deemed to have been substituted under Rule 25(d)(1) in order to give validity to the notice of appeal, with the permanent successor, when named, then substituted, or deemed substituted as the case may be, in accordance with the rules of the appellate court.
Rule 25(d)(2) provides that when a public officer sues or is sued in his official capacity, he may be described as a party by his official title rather than by name, but that the court may require his name to be added. The usefulness of this provision will have to be determined by future litigation. There is no doubt that it is convenient to name an officer, rather than a person, and that this is frequently done today, with or without sanction.97 The Committee Note says that encouragement of this practice will help "to eliminate concern with the problem of substitution." Surely it will minimize formal proceedings to change the name on the pleadings. It will not end the problem of substitution, however, and indeed the provision might be more appropriate in Rules 10(a) or 17 than in the substitution rule. Wherever automatic substitution is possible under Rule 25(d)(1) there will be no difficulty. The successor will be deemed to have been substituted and the action will continue under his official title just as it began under his predecessor's official title. But if Rule 25(d)(1) is ineffective without more to work a substitution, then the action must be dismissed even though the title of the officer, rather than his name, is contained in the record.98
Where suit is for or against the officer by title, rather than by name, the name can be added at any time if it seems necessary or desirable to do so, either on motion or on the court's initiative without dismissal of the action. When "official capacity" is given the broad interpretation argued for above, the reality is that the suit is for or against the government. The manipulation of names is merely a technicality which should not interfere with substantial rights.