Grounding his claim to federal jurisdiction on Section 1339, Title 28, U.S.C.A., and on the line of cases1 holding that suit may be brought against a subordinate officer alone when the act complained of is an invasion or denial of a right of the person sued, and the decree "will not require the superior officer to take action * * *", but "will effectively grant the relief desired by expending itself on the subordinate officer who is before the court, suit may be brought against him alone", the plaintiff Fite brought this suit against the local Postmaster at Dallas.

Alleging that the Postmaster, in violation of the Fifth Amendment and of the directions of the Postmaster General, was discriminating in respect of mail service against him and the business area in which he conducts his business, in favor of another business section, Down Town Dallas, plaintiff sought a mandatory injunction, temporary and permanent, to require the defendant to correct such discrimination.

Defendant's plea to the lack of jurisdiction of the court to direct the manner in which executive discretion and judgment of officers of the United States are or shall be, exercised, and his plea, that the Postmaster General was an indispensable party and the suit could not proceed without him, both overruled, the court awarded a preliminary injunction2 which was appealed to this court in cause No. 13290.

Thereafter many persons claiming to be similarly situated with plaintiff were allowed to intervene, and the case was fully heard on its merits and upon findings of fact and of law, the injunction was made permanent.3 An appeal was taken from that judgment, and, on application of the United States, both appeals were advanced and set for submission on the same day.

As to the first appeal, it was made to appear that the temporary injunction was no longer in force, having expired of its own terms by being substituted by the final and permanent order, and that the issues on that appeal had become moot.

The issues arising on the second appeal, both as to jurisdiction and on the merits, were fully argued orally and on briefs.

We will not concern ourselves with the matter of the merits of the appeal. For as the brief statement, in the margin, of the undisputed facts will show, the suit should have ben dismissed for want of jurisdiction because it was in fact and effect a suit against the United States.4 Undertaking as it did to deal with, to direct, and to control, the carrying out of policies of the United States in respect to its postal services, it was in substance and in fact a suit against the United States. The judgment, if effective, would have controlled the executive branch in the discretionary exercise of duties imposed, of functions conferred, upon it, and this being so, the United States not having consented to be sued, the suit was not maintainable.

It is clearly settled that an officer of the United States who unlawfully undertakes to deprive a citizen of a right is subject to suit in his personal capacity to prohibit him, or compel him to desist, from doing so. It is equally well settled that where the suit is not against him personally but to control or direct his action as an officer of the United States in respect of matters confided to his discretion, the suit is one against the United States and may not be maintained without its consent to be sued. Cases on this point are legion. We cite a few in the margin.5

Further, if the suit was not a suit against the United States as such, it still was one seeking a decree to control the actions of the Postmaster General. That officer was therefore an indispensable party and suit could not properly proceed without his presence.

Where the decree which is sought would effectively grant the relief desired by expending itself on the subordinate officer who is before the court, this court has without varying6 maintained the right of the citizen to obtain relief from oppressive actions of a subordinate officer done or threatened in violation of legal rights without requiring that his superior be made a party.

It has never held, in the face of the controlling authorities it could not hold, in a situation of the kind this evidence discloses, that a court had jurisdiction to direct or control the policies of the United States by suit against an official. Such a suit, though in form a suit against an individual, would in fact be a suit against the United States and could not be maintained without its consent. It has never held, it could not hold, in regard to matters confided to the discretion of the superior where the relief sought would require him to take action either by exercising directly power lodged in him or by having a subordinate exercise it for him, that a suit can be maintained, to control or direct action in such matters, against a subordinate alone without making the superior a party. The suit, if not a suit against the United States, as we think it is, is certainly a suit requiring the presence as an indispensable party of the Postmaster General, and it could not have been properly maintained without him.

The judgments appealed from were erroneously entered. They are reversed and the cause is remanded with direction to dismiss the suit for want of jurisdiction.