against the United States
because a judgment in favor of the plaintiffs would have been a judgment
against the United States.

Difficulties Created by the Lee Case

Subsequent cases repeat and reaffirm the rule of United States _v._ Lee
that where the right to possession or enjoyment of property under
general law is in issue, the fact that defendants claim the property as
officers or agents of the United States, does not make the action one
against the United States until it is determined that they were acting
within the scope of their lawful authority.[437] Contrariwise, the rule
that a suit in which the judgment would affect the United States or its
property is a suit against the United States has also been repeatedly
approved and reaffirmed.[438] But, as the Court has pointed out, it is
not "an easy matter to reconcile all of the decisions of the court in
this class of cases,"[439] and, as Justice Frankfurter quite justifiably
stated in a dissent, "the subject is not free from casuistry."[440]
Justice Douglas' characterization of Land _v._ Dollar, "this is the type
of case where the question of _jurisdiction_ is dependent on decision of
the _merits_,"[441] is frequently applicable.

Official Immunity Today

The recent case of Larson _v._ Domestic and Foreign Corp.,[442]
illuminates these obscurities somewhat. Here a private company sought to
enjoin the Administrator of the War Assets in his official capacity from
selling surplus coal to others than the plaintiff who had originally
bought the coal, only to have the sale cancelled by the Administrator
because of the company's failure to make an advance payment. Chief
Justice Vinson and a majority of the Court looked upon the suit as one
brought against the Administrator in his official capacity, acting under
a valid statute, and therefore a suit against the United States. It held
that although an officer in such a situation is not immune from suits
for his own torts, yet his official action, though tortious cannot be
enjoined or diverted, since it is also the action of the sovereign.[443]
The Court then proceeded to repeat the rule that "the action of an
officer of the sovereign (be it holding, taking, or otherwise legally
affecting the plaintiff's property) can be regarded as so individual
only if it is not within the officer's statutory powers, or, if within
those powers, only if the powers or their exercise in the particular
case, are constitutionally void."