Bowles v. Crew

• Decision Date: 31 March 1945
• Docket Number: No. 4140-BH Civil.,4140-BH Civil.
• Citation: 59 F. Supp. 809
• Court: U.S. District Court — Southern District of California
• Parties: BOWLES, Administrator, Office of Price Administration, v. CREW et al.

59 F. Supp. 809

BOWLES, Administrator, Office of Price Administration, v. CREW et al.

No. 4140-BH Civil.

District Court, S. D. California, Central Division.

March 31, 1945.

H. Eugene Breitenbach, William U. Handy, and Joseph K. Coady, Office of Price Administration, all of Los Angeles, Cal., for plaintiff.

Freston & Files and B. B. Vogel, all of Los Angeles, Cal., for defendant.

YANKWICH, District Judge.

The Administrator of the Office of Price Administration has sued the defendant, who is the operator of a gasoline service station, at Los Angeles, California, "at which petroleum products have been and now are sold at retail", charging him with the violation of Section 4(a) of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix § 904(a), and of Revised Maximum Price Regulation 137, as amended, 9 Federal Register 1117.

Specifically, the complaint avers that the defendant has sold automotive gasoline containing an octane number less than 75 ASTM at 20 cents per gallon, when the maximum price, under Section 6(a) of R. M.P.R. 137, is 18 cents per gallon. The complaint asks us to enjoin future violations.

The defendant, in addition to his answer, in which he denies the allegations of the complaint, has filed a cross-complaint for declaratory relief, in which he seeks a declaration that the regulation does not prohibit the sale of the type of gasoline involved at premium prices, or, if it does, that it is arbitrary, unreasonable, discriminatory, unconstitutional, illegal and void.

The Administrator has moved to dismiss the cross-complaint.

At the outset, we are confronted with the proposition that, as the Government enjoys immunity from suit, there is no right to file a cross-complaint against it in any action which it institutes. See: United States v. Shaw, 1940, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; United States v. United States Fidelity Co., 1940, 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894; United States v. Merchants Transfer & Storage Co., 9 Cir., 1944, 144 F.2d 324. Rule 13 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, has not altered the immunity of the United States from suit except in cases "now fixed by law." United States v. Biggs, D.C.Ill. 1942, 46 F.Supp. 8. A suit by the Office of Price Administration is, in reality, a suit by the Government, to which this principle would apply.

However, a more formidable obstacle in the path of the defendant is the fact that the Emergency Price Control Act of 1942, § 204, 50 U.S.C.A.Appendix § 924(a) to (c), has established a special court, the Emergency Court of Appeals, and has authorized it to review judicially all matters relating to price regulation. All the courts which have had occasion to rule on the matter have held that this is an exclusive remedy by which that court is lodged with the sole jurisdiction to determine legality, arbitrariness or constitutional validity of the Emergency Price Control Act and of orders and regulations made under it. See: Lockerty v. Phillips, 1943, 319 U.S. 182, 189, 63 S.Ct. 1019, 87 L.Ed. 1339; Yakus v. United States, 1944, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834; Bowles v. Willingham, 1944, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892; Henderson v. Kimmel, D.C.Kan.1942, 47 F.Supp. 635; Brown v. Lee, D.C.Cal.1943, 51 F.Supp. 85; Illinois Packing Co. v. Defense Supply Corporation, D.C.Ill.1944, 57 F.Supp. 8.

These decisions apply the general rule of administrative law that when a mode of review of administrative action is ordained which calls for resort to a particular tribunal, all other methods of review are excluded. This, because, in such cases, the manner ordained is the limit of the right to review. No other can be invoked. See cases cited above and my opinions in Northrop Corporation v. Madden, D.C.1937, 30 F.Supp. 993; Redlands Foothill Groves v. Jacobs, D.C.1940, 30 F. Supp. 995.

I believe that the language of the decisions is explicit enough to warrant the conclusion that the exclusiveness of the method of review cannot be impaired by the procedure which the litigant may adopt. In other words, it matters not whether he seeks an injunction, or a mere declaration of invalidity, or whether he does this by an action of his own or by way of cross-complaint. If he seeks a review before a tribunal other than the one on which the Congress has conferred the sole right, he has chosen the wrong forum.

In this case, the grounds of attack in the cross complaint are arbitrariness, unreasonableness, unconstitutionality.

The Congress, in Subdivisions (b) and (d) of Section 924 of 50 U.S.C.A.Appendix, has specifically designated the first two of these grounds of review as the exclusive province of the Emergency Court of Appeals. And the Supreme Court, in Lockerty v. Phillips, supra, has stated emphatically that the words "not in accordance with law" contained in these subsections cover both unconstitutionality and unconstitutional application of the statute.

But the defendant would have us find in Subdivision (m) of Section 902, Title 50 U.S.C.A.Appendix, added by the Act of June 30, 1944, warrant for the procedure to which he has resorted. He argues that this subsection is, in effect, a congressional modification of the interpretation placed by the courts upon the exclusiveness of the power of review.

At best, he says, this provision and Section 924 are contradictory, and the one of later origin should prevail. The subsection reads: "No agency, department, officer, or employee of the Government, in the payment of sums authorized by this or other Acts of Congress relating to the production or sale of agricultural commodities, or in contracts for the purchase of any such commodities by the Government or any department or agency thereof, or in any allocation of materials or facilities, or in fixing quotas for the production or sale of any such commodities, shall impose any conditions or penalties not authorized by the provisions of the Act or Acts, or lawful regulations issued thereunder, under which such sums are authorized, such contracts are made, materials and facilities allocated, or quotas for the production or sale of any such commodities are imposed. Any person aggrieved by any action of any agency, department, officer, or employee of the Government contrary to the provisions hereof, or by the failure to act of any such agency, department, officer, or employee, may petition the district court of the district in which he resides or...