of authority from the Congress to the Executive. Whether the conditions precedent were met involves an exercise of the discretionary determination by the Executive Branch of the government acting through the Administrator. Under the wording of the statute, it is not believed that the courts may inquire into whether the Administrator properly exercised the duties of his office. Even if a suit were authorized in the instant case, it is doubted that the courts could examine the question raised by this complaint. It is fundamental that the Judicial Branch of the government may not invade the Executive to inquire into the reasons behind executive action.
Further, section 1404a cannot be enlarged so as to authorize the suit in question, which seeks to set aside a deed of the United States. Plaintiffs quote at considerable length Shanks Village Committee Against Rent Increases v. Cary, 197 F.2d 212. Though that decision is from the Second Circuit, the opinion was written by Judge Biggs of this Circuit. That decision bears on the functions only of the Administrator in the operation of a housing project. It is not regarded as deciding the question now under discussion. In Gibbs v. United States, 4 Cir., 150 F.2d 504, it is held that Congress alone has the power to dispose of property of the United States. In discussing the disposal of housing constructed under the Lanham Act by the Administrator, 150 F.2d at page 508, the Court says:
'Congress, in whom alone resides power to dispose of property of the United States, Sioux Tribe of Indians v. United States, 316 U.S. 317, 62 S. Ct. 1095, 86 L. Ed. 1501 conferred power upon the Administrator to sell and convey housing property or in his discretion to transfer jurisdiction thereof to the Navy Department.'
It is, of course, well settled that the United States may not be sued with out its express consent. Carr v. United States, 98 U.S. 433, 25 L. Ed. 209; Morrison v. Work, 266 U.S. 481, 45 S. Ct. 149, 69 L. Ed. 394; Ickes v. Fox, 300 U.S. 82, 57 S. Ct. 412, 81 L. Ed. 525; United States v. Sherwood, 312 U.S. 584, 61 S. Ct. 767, 85 L. Ed. 1058. Jurisdiction over the United States cannot be presumed or even inferred. Continental Ins. Co. v. Rhoads, 119 U.S. 237, 7 S. Ct. 193, 30 L. Ed. 380; Ex parte Smith, 94 U.S. 455, 24 L. Ed. 165. Moreover it is error to join the United States with other party defendants without its consent. United States v. Sherwood, supra.
A similar case to the one at bar was decided on January 12, 1948 by the United States District Court for the Northern District of Indiana, South Bend Division, Van Deman v. United States, 119 F.Supp. 599. Judge Swygert, in a rather exhaustive discussion on the identical issue presented here, ruled that as the United States had not given its consent, it could not be sued, and the action there was dismissed.
Therefore, on the broad general proposition that Congress has not authorized this suit, the motion to dismiss the action will be granted.
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