Snyder v. Buck/Dissent Clark
Mr. Justice CLARK, with whom Mr. Justice BLACK concurs, dissenting.

Since the duty sought to be enforced in this action attached to the office of Paymaster General and rested upon Admiral Buck only so long as he held the office, it is clear that petitioner's claim is against Buck in his representative capacity, not personally. After his retirement it was not within his power to comply with the District Court's injunction, and the judgment ceased to be enforceable against him.  Consequently Buck lacked standing to obtain review of the judgment on appeal.  Thus far I agree with the conclusions of the Court.

But I think that when the attorney for the Government called to the Court of Appeals' attention-after this suit had been pending there for more than a year-that the appeal had been taken by buck after his retirement and that no appeal had been perfected by or on behalf of his successor, the court should have dismissed the appeal on its own motion.  That is the action which this Court took in Davis v. Preston, 1930, 280 U.S. 406, 50 S.Ct. 171, 74 L.Ed. 514, when review had been allowed at the instance of a federal officer who, it later appeared, because of separation from office had not had standing to petition for certiorari. A unanimous court dismissed the writ as improvidently granted, stating:

'A motion is now made by Andrew W. Mellon, as Federal Agent, for his substitution in the present proceeding in the place of Davis. But the motion must be denied. The succession in office, as now appears, occurred before there was any effort to obtain a review in this Court. After the succession Davis was completely separated from the office and without right to invoke such a review * * *. Therefore his petition must be disregarded. The time within which such a review may be invoked is limited by statute and that time has long since expired. To grant the motion in these circumstances would be to put aside the statutory limitation and to subject the party prevailing in the (court below) to uncertainty and vexation which the limitation is intended to prevent.' Id., 280 U.S. at page 408, 50 S.Ct. at page 172, 74 L.Ed. 514. 

This Court now concludes that Davis v. Preston is inapposite because in that case, unlike the situation before us, applicable legislation prevented abatement of the suit against Davis following his separation from office. But the point made in the Davis case was simply that the succession in office had preceded Davis' effort to obtain review by this Court and pertinent statutes did not enable the former federal officer to invoke review of a judgment which was of no legal concern to him. And in this case since an appeal was not properly taken within the time allowed, it does not matter at this time whether the District Court judgment could be enforced by plaintiff against Buck's successor, by substitution of the latter as defendant or by other action. 

It is the decision of this Court that the failure of the appellee to substitute the judgment defendant's successor under § 11 of the Judiciary Act of 1925 excuses the Government's prior failure to perfect a valid appeal from a final judgment against one of its officers. In short, the Court places on an appellee the burden of correcting his adversary's error. From this result I dissent. 

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