Fleming v. Borders
| Decision Date | 15 December 1947 |
| Docket Number | No. 11672-11678.,No. 11670,11670,11672-11678. |
| Parties | FLEMING v. BORDERS et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
165 F.2d 101 (1947)
FLEMING
v.
BORDERS et al.
Nos. 11670, Nos. 11672-11678.
Circuit Court of Appeals, Ninth Circuit.
December 15, 1947.
Ed Dupree, Acting General Counsel, Hugo V. Prucha, Chief Litigation Unit, Irving M. Gruber, Chief Appellate Atty., and Nathan Siegel, Sp. Appellate Atty., Office of Housing Expediter, all of Washington, D. C., for appellant.
No appearances for appellees.
Before DENMAN, BONE and ORR, Circuit Judges.
DENMAN, Circuit Judge.
Each of these cases was brought below by Philip B. Fleming, Administer of the Office of Price Administration, for injunctions against violations of the Housing Rent Regulations under the Emergency Price Control Act of 1942, as amended, 50 U.S.C. A. Appendix, § 901 et seq., for recovery of rents over-collected and for treble damages. In one of them a motion for dismissal was filed on the ground, inter alia, that the plaintiff had no legal capacity to sue.
In the case of Fleming, Administrator, etc., v. Findlay and Lenske, brought in the district court below for similar rent regulation violations, the district judge on February 15, 1947, filed his opinion stating, "I am dismissing this case which is one of several that have recently been filed so that the authority of General Fleming can be tested in an appellate court, if that is OPA's wish," and giving as the ground of dismissal that Fleming's appointment as such administrator had not been confirmed by the Senate and hence he had no power to sue for the alleged violations.
In the Findlay and Lenske case judgment of dismissal was entered on February 26, 1947. It was followed by judgments of dismissal in these other cases, five of them by the court sua sponte, on March 6, 1947. On March 17, 1947, Fleming appealed in the Findlay and Lenske case, an appeal this day decided reversing the judgment. Fleming v. Findlay, 9 Cir., 165 F.2d 79.
On April 28, 1947, the Supreme Court decided the case of Fleming v. Mohawk Co., 331 U.S. 111, 67 S.Ct. 1129. On May 16, 1947, Fleming, in each of the eight cases here on appeal, moved "the Court to vacate the judgment and dismissal in the above case and to reinstate the case on the docket," and in his points and authorities quoted some six pages of the Supreme Court's opinion in the Mohawk
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