Associated Industries v. Ickes

• Citation: 134 F.2d 694
• Parties: ASSOCIATED INDUSTRIES OF NEW YORK STATE, Inc., v. ICKES, Secretary of the Interior, et al.
• Decision Date: 08 February 1943
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

134 F.2d 694 (1943)

ASSOCIATED INDUSTRIES OF NEW YORK STATE, Inc., v. ICKES, Secretary of the Interior, et al.

Circuit Court of Appeals, Second Circuit.

February 8, 1943.

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LeBoeuf & Lamb, of New York City (Horace R. Lamb, of New York City, James S. Brock, of Brooklyn, and Homer Crawford, of New York City, of counsel), for petitioner.

Warner W. Gardner, Arnold Levy, Jesse B. Messitte, and Erwin B. Ellmann, all of Washington, D. C., for respondent.

Before SWAN, AUGUSTUS N. HAND and FRANK, Circuit Judges.

FRANK, Circuit Judge.

Petitioner, Associated Industries of New York, Inc., is a New York membership corporation, the members of which are New York industrial and commercial firms and corporations, many of which are substantial consumers of coal. It has filed a petition here to review orders made by respondents under the purported authority of the Bituminous Coal Act of 1937, 15 U.S.C.A. § 828 et seq. Respondents are the successors of the former National Bituminous Coal Commission, which was abolished in 1939, under the terms of the President's Reorganization Plan No. II, effective July 1, 1939, 53 Stat. 1433, 5 U.S.C.A. following section 133t, pursuant to the Reorganization Act of 1939, Public Resolution 19, 53 Stat. 561, when its functions were transferred to a bureau in the Department of Interior, designated by the Secretary of the Interior, that bureau being called the Bituminous Coal Division. Respondent Ickes is the Secretary of the Department of Interior. Respondent Wheeler is Director of the Bituminous Coal Division. We shall at times refer to the respondents as the "Commission," both in the interest of convenience, and because the Act retains that term. The orders in question direct the increase, by 20 cents per ton, of the minimum prices for bituminous coal, produced in Minimum Area No. 1,¹ and sold in a designated market area which includes New York State.

On May 15, 1938, the Commission began a proceeding entitled General Docket No. 15, in order to carry out the provisions of the Act which call for the establishment of minimum prices.² After extensive hearings, the Commission made determinations of the weighted average costs of producing coal in each production district. These figures were submitted to the district boards,³ which in turn suggested prices and price classifications for their respective districts as a basis for the coordination of prices among the various districts. A hearing was held on these proposals and, in December 1938 and January and February 1939, the Commission issued orders, establishing the minimum prices and price classifications, on which basis prices were to be coordinated. In order to fix coordinated price schedules, the final step in the price-fixing process, hearings were instituted in May 1939, and the trial examiners submitted their recommendations in March and April 1940 to the then Director of the Bituminous Coal Division. In May and June, 1940, he heard the arguments of approximately 289 petitioners, and, after reviewing the record, issued findings of fact and conclusions of law, and established minimum prices based thereon. Exceptions were filed with respondent Ickes, who, on September 24, 1940, approved them subject to certain modifications. On October 1, 1940, the prices finally became effective upon the order of respondent Ickes.

General Docket No. 21 — in which the orders sought to be reviewed were made on August 28 and September 30, 1942 — was a proceeding instituted by the Commission "for the purpose of revising the present minimum prices heretofore established in General Docket No. 15 * * *" A hearing was initiated on May 21, 1941, before an examiner of the Commission to determine the nature and extent of cost changes. Appearances were entered on behalf of the District Boards, 115 code members and 225 other persons, including the petitioner. Petitioner was served with notice of the hearing and actively participated therein. Petitioner after entering its appearance was granted leave to file a list of its members. The examiner submitted his report and respondent, Wheeler, the Director of the Commission, after hearing arguments thereon, issued determinations of the weighted cost of production in the various minimum price areas. Respondent Ickes then reviewed, at the behest of the petitioner and others, the methods and standards which Wheeler had employed in determining weighted average cost increases, and in an opinion dated April 13, 1942, held them to be suitable and proper. Hearings on the problem of adjustment of minimum prices, in the light of the changes that had taken place, were begun on May 5, 1942. Here also, petitioner entered an appearance and actively participated. On July 27, 1942, the examiner recommended that effective minimum prices established in General Docket No. 15 for Minimum Price Area I, for shipments into Market Areas 2 and 4, be increased by 20 cents per ton. Petitioner and others filed exceptions, and after hearing oral arguments and considering the briefs filed, the Director, on August 28, 1942, adopted the examiners' report subject to certain modification. At the same time he ordered the revised minimum prices to become effective on October 1, 1942. Petitioner and other participants in the proceedings then obtained a review by respondent Ickes of certain questions of law and policy. On September 30, 1942, he issued an order, affirming the determinations of the Director on such matters as were within the scope of the review. Pursuant thereto and to the Director's order of August 28, 1942, the adjusted minimum prices went into effect on October 1, 1942.

In the course of proceedings leading up to these orders, petitioner was permitted to examine witnesses, file briefs and make oral arguments; the Director in an order stated, "Associated Industries of New York State, Inc., has made a written request * * *"; the Acting Director in findings of fact expressly referred to exceptions and arguments made by petitioner, naming it; the Director noted contentions made by "two representatives of consumer interests, namely Bituminous Coal Consumers' Counsel and Associated Industries of New York"; respondent Ickes, in an order and opinion, discussed at length contentions advanced by petitioner, naming it repeatedly; a trial examiner stated in his report that "the consumer interests were also represented by counsel for the Associated Industries."

This petition seeks review under Section 6(b) of the Act, of the two orders of August 28, 1942 and September 30, 1942. It alleges, inter alia, that, in promulgating them, the respondents acted beyond the scope of the authority conferred upon them by the Act, and that the orders were based on findings of fact which are not supported by substantial evidence. The respondents have moved to dismiss the petition for want of jurisdiction.

The record is exceedingly voluminous and neither party has, in connection with this motion, given us any citations to any portions thereof. We have therefore not undertaken, at this time, to examine the record, but have relied, as to record facts pertinent on this motion, on statements of fact in the briefs of one party when not contradicted by the other.

1. By its very nature, respondents' motion to dismiss the petition requires us to assume, merely arguendo of course, that the situation is just as it would be if we had heard petitioner on the merits and were satisfied that respondents' orders were invalid because made in violation of respondents' statutory powers and for the precise reasons set forth in the petition. The motion to dismiss is not based on any contention as to the general non-reviewability of the orders or their validity, but solely on the contention that, assuming them to be invalid and reviewable, petitioner is not the kind of person entitled to seek court review. Respondents' basic position is frankly that consumers of coal can never appear in court to complain of such price-fixing orders, even if invalid, no matter how great the financial burdens imposed on those consumers by the increase in the cost of coal which will result from those orders. Respondents enthusiastically grant that Congress intended in the Act to safeguard the interests of consumers, but respondents say that those interests are, for purposes of court review, exclusively represented by a government official, the Bituminous Coal Consumers' Counsel, appointed pursuant to § 2(b) of the Act,⁴ and that that official, while authorized to do so, has not sought court review of these orders.

2. Section 6(b) of the Act expressly authorizes "any person aggrieved by an order issued by the Commission in a proceeding to which such person is a party" to seek review by a petition in an appropriate United States Circuit Court of Appeals. There is no possibility of denying that respondents, in the administrative proceedings which led to these orders, recognized petitioner as a party representing consumers. Respondents, in their briefs, indeed, ask us to assume, for purposes of this motion, that petitioner was thus a party.

Respondents, however, insist that petitioner is not a "person aggrieved" by the orders. They assert that those words mean merely to describe the kind of persons who, in the absence of § 6(b), would have had a "standing" to maintain a suit in a district court seeking to enjoin respondents from enforcing its order or a declaratory judgment with respect to the validity of those orders. In considering that contention, it is necessary to have in mind that an action in a Court of Appeals to review administrative orders under such a provision as that contained in § 6(b) is a suit begun in an appellate court, i. e., that such provision has the effect of conferring original jurisdiction upon an appellate court; such a proceeding is sometimes called an "appeal" but it is, of course, not the equivalent of an appeal from a lower ...