Schanzer v. Bowles

• Decision Date: 17 March 1944
• Docket Number: No. 114.,114.
• Citation: 141 F.2d 262
• Parties: R. E. SCHANZER, Inc., v. BOWLES, Price Administrator.
• Court: U.S. Temporary Emergency Court of Appeals Court of Appeals

141 F.2d 262 (1944)

R. E. SCHANZER, Inc., v. BOWLES, Price Administrator.

No. 114.

United States Emergency Court of Appeals.

Heard March 3, 1944.

Decided March 17, 1944.

Richard A. Tilden, of Washington, D.C., (Feldman, Kittelle, Campbell & Ewing, of Washington, D. C., on the brief), for complainant.

Nathaniel L. Nathanson, Associate Gen. Counsel, of Washington, D. C. (John O. Honnold, Jr. and James A. Durham, Attys., Office of Price Administration, both of Washington, D. C., on the brief), for respondent.

Before MARIS, Chief Judge, and MAGRUDER, and LAWS, Judges.

Heard at Washington March 3, 1944.

MARIS, Chief Judge.

In this case the Price Administrator dismissed the complainant's protest as untimely filed and he has now moved to dismiss the complaint as not based upon the denial of a timely protest. It is agreed that the grounds of complainant's protest arose more than 60 days after the issuance of the regulations against which it protested and that its protest was filed more than 60 days after the grounds of protest arose. The case thus squarely raises the question whether Section 203(a) of the Emergency Price Control Act¹ authorized the filing of the protest under these circumstances. If the act requires that a protest based upon new grounds arising more than 60 days after the issuance of the regulation must be filed within 60 days after the grounds of protest arose, the protest in this case was filed too late, its dismissal by the Administrator as not timely was correct, and the complaint must be dismissed as not based upon the denial of a timely protest.

The solution of the question depends upon the construction to be placed upon the first two sentences of Section 203(a) of the act, which are as follows:

"Sec. 203(a). Within a period of sixty days after the issuance of any regulation or order under section 2, * * * or in the case of a price schedule, within a period of sixty days after the effective date thereof specified in section 206, * * * any person subject to any provision of such regulation, order, or price schedule may, in accordance with regulations to be prescribed by the Administrator file a protest specifically setting forth objections to any such provision and affidavits or other written evidence in support of such objections. At any time after the expiration of such sixty days any person subject to any provision of such regulation, order, or price schedule may file such a protest based solely on grounds arising after the expiration of such sixty days."

As we stated in Galban Lobo Co. v. Henderson, Em.App. 1942, 132 F.2d 150, certiorari denied 318 U.S. 756, 63 S.Ct. 530, 87 L.Ed. 1130, these provisions are imperfectly expressed. It is clear enough from the first sentence that a protest against a regulation not based on new grounds arising after its issuance must be filed within 60 days after the issuance of the regulation. It also seems clear from the language of the second sentence that if the grounds of protest arise more than 60 days after the issuance of the regulation a protest may be filed at any time after the grounds arise. This is the construction for which the complainant contends.

The Administrator, however, says that the matter is not quite so clear as this. He points out that new grounds of protest might well arise within 60 days after the issuance of the regulation, in which case, since no specific provision is made for a protest based upon such grounds, they would have to be asserted in a protest filed within the original period of 60 days after the issuance of the regulation. Thus, he says, if such new grounds arose on the 59th day the protestant would have only one day within which to file his protest. He urges that to construe the statute as giving but one day within which to file a protest if based upon grounds arising 59 days after the issuance of the regulation and an unlimited time if based upon grounds arising two days later is to give it an unjust and absurd interpretation.

We think it is true that there is no specific limitation imposed by the act upon the time of filing a protest based on new grounds arising within 60 days after the issuance of the regulation. But this is because the act, through an apparent oversight of its draftsman, does not purport to deal with such protests at all. Consequently the extent of the time limitation upon the filing of such a protest presents a much more difficult question. Perhaps, as the Administrator suggested in the Galban Lobo Co. case, such a protestant should have 60 days after the new grounds arose in which to file his protest. Perhaps, as the Administrator now suggests, the literal language of the statute requires that such a protest be filed within 60 days after the issuance of the regulation. On the other hand, since the statute does not specifically impose any time limitation on such a protest, perhaps there is none. These questions we must answer when they arise, but they are not presented by the present case. Here we are dealing with a protest based on grounds arising after the expiration of 60 days after the issuance of the regulation as to which the plain and unambiguous language of the second sentence of Section 203(a) states that it may be filed "At any time after the expiration of such sixty days."

It is true, as the Administrator urges, that if the plain meaning of the words used in a statute produces an unreasonable, absurd or futile result, plainly at variance with the policy of the legislation as a whole, the courts may follow the purpose of the statute rather than its literal words.² But unless it is quite clear that such a result will be produced the courts should give effect to the plain meaning of the words used in the statute.³ We think that this is especially true when it is sought by construction to read into a statute a limitation upon an aggrieved person's right to obtain relief from unlawful administrative action which the literal language of the act does not impose.

We are unable to say that the plain meaning of the language of the second sentence of Section 203(a), if followed, will clearly produce an unreasonable, absurd or futile result. The Administrator urges that it was the Congressional intention to impose a uniform limitation period of 60 days upon the filing of all protests and that any other construction would be unreasonable. We do not agree. The plain meaning of the words which Congress used does not so indicate. Moreover we can see valid reasons for making a distinction as to time of filing between a protest based on grounds inherent in the regulation itself as issued and one based on new grounds arising later.⁴

In the first case the impact of the newly issued regulation upon the businesses of the persons whom it affects is likely to be sharply defined. Grounds of protest are likely to be at once apparent. Furthermore it is vitally important in the public interest that the essential validity of the regulation be promptly established. In the second case, however, the new grounds for protest may develop by almost imperceptible degrees. For example, the regulation may become no longer generally fair and equitable and may, therefore, become subject to protest because of a general industry-wide increase in costs resulting in an unreasonable decrease in the profits realized by the industry.⁵ It may be virtually impossible to isolate within any period of 60 days the exact time at which the descending curve of profits has transformed the regulation from reasonable to unreasonable and has carried it from the zone of validity into that of invalidity. We think that Congress may well have thought it unreasonable to require a protestant in such a position to stake his whole right to relief upon the accuracy, within the narrow tolerance of 60 days, of his guess as to the point in time which the Administrator and this court would ultimately decide to be the turning point in his industry. It can hardly be gainsaid that the reasonableness of profits is one concept upon which the opinions of men may fairly differ widely.

It can, therefore, hardly be said to be unreasonable to permit one who desires to protest a regulation on new grounds arising more than 60 days after the issuance of the regulation to take such time as he may need for the filing of his protest. The fact that he cannot obtain relief for some months after it is filed should, as a matter of self interest, in most cases result in its being filed with reasonable promptness. If he delays unduly the defense of laches may be available to the Administrator. Likewise the fact that the initial validity of the...