Koepke v. Fontecchio

• Decision Date: 21 September 1949
• Docket Number: No. 12104.,12104.
• Citation: Koepke v. Fontecchio, 177 F.2d 125 (9th Cir. 1949)
• Parties: KOEPKE v. FONTECCHIO.
• Court: U.S. Court of Appeals — Ninth Circuit

177 F.2d 125 (1949)

KOEPKE v. FONTECCHIO.

No. 12104.

United States Court of Appeals Ninth Circuit.

September 21, 1949.

Ed Dupree, General Counsel, Hugo V. Prucha, Asst. Gen. Counsel, Nathan Siegel and Francis X. Riley, Sp. Lit. Attys., Office of Housing Expediter, Washington, D. C., for appellant.

Bent and Clapp, Los Angeles, Cal., for appellee.

Before GARDNER (Chief Judge Eighth Circuit, sitting by special designation), and HEALY and POPE, Circuit Judges.

GARDNER, Circuit Judge.

This was an action brought by appellee as plaintiff against appellant seeking a declaratory judgment that his housing accommodations were decontrolled by the Housing and Rent Act of 1947 as amended, and for an injunction restraining appellant from establishing and enforcing maximum rentals thereon. Appellant interposed a motion to dismiss the complaint on the grounds that (1) the Housing Expediter was an indispensable party; (2) the Housing Expediter being a resident of Washington, D. C., the suit must be there brought; (3) the suit is one against the United States, to which it has not consented; (4) the complaint fails to state a claim upon which relief can be granted. This motion was denied. Appellant then interposed answer and appellee filed motion for summary judgment, and the matter was heard on affidavits. The court entered judgment in favor of appellee as prayed in his complaint. The judgment contains, among other provisions, the following:

"It Is Ordered, Adjudged, and Decreed that there is no genuine issue as to any material fact; that on October 1, 1947, and at all times since that date, and at present, the premises hereinafter described were and have been, and are now being, used by plaintiff as a motor court within the meaning of the Housing and Rent Act of 1947, and on and since said date and at present said premises were not, and have not been, and are not controlled housing accommodations within the meaning of said Act; and that at all times since its effective date the said premises have been and are now being used by plaintiff as a motor court within the meaning of the Housing and Rent Act of 1948, and on and since said date and at present, said premises were not, and have not been, and are not controlled housing accommodations within the meaning of said Act; * * *."

The judgment enjoins defendant, his agents, servants and employees, and all persons acting in concert with him from fixing or purporting to fix the maximum rent or rents for the premises described.

Appellant seeks reversal of the judgment on substantially the following grounds: (1) there were material issues of fact presented by the pleadings and hence the court erred in entering summary judgment; (2) appellee had an adequate remedy at law and failed to exhaust his administrative remedies; (3) the premises were controlled accommodations; (4) Tighe E. Woods, the Housing Expediter, was an indispensable party to the action; (5) the United States being the real party in interest in the action and not having consented to be sued, it was error to enter judgment against appellant; (6) the complaint failed to state a claim upon which relief could be granted and hence should have been dismissed.

The purpose of the procedural rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A., providing for the rendering of summary judgment is to dispose of cases where there is no genuine issue of fact even though an issue may be raised formally by the pleadings. In the instant case there was no dispute as to the character of the premises nor the use that was being made of them by appellee. Neither was there any doubt as to when the premises assumed their present character. The court fixed that date from the undisputed evidence as October 1, 1947. We think there was no genuine issue as to any material facts and hence the record presented a proper case so far as procedure is concerned for the filing of a motion for summary judgment. Miller v. Miller, 74 App. D.C. 216, 122 F.2d 209. The fact that the case was properly heard on motion for summary judgment does not, of course, determine the correctness of the court's decision. As said by this court in Gifford v. Travelers Protective Ass'n, 153 F.2d 209, 211, "The question presented by a motion for summary judgment is whether or not there is a genuine issue of fact, and not how that issue should be determined. Ramsouer v. Midland Valley R. Co., 8 Cir., 1943, 135 F.2d 101." It is therefore necessary to consider whether the court erred in deciding the questions of law presented.

Another procedural question presented is the contention that the Housing Expediter was an indispensable party. We think the present case is ruled by Williams et al. v. Fanning, Postmaster of Los Angeles, 332 U.S. 490, 68 S.Ct. 188, 189, 92 L.Ed. 95. In that case the Postmaster General was held not to be an indispensable party in a suit wherein plaintiff sought an injunction to prevent the postmaster from carrying out a fraud order which had been issued by the Postmaster General. There, as in the instant case, it was argued that the subordinate officer might be left under a command of his superior to do what the court had forbidden him to do. In considering this issue the court said, "But that seems to us immaterial if the decree which is entered will effectively grant the relief desired by expending itself on the subordinate official who is before the court. It seems plain in the present case that that will be the result even though the local postmaster alone is sued. It is he who refuses to pay money orders, who places the stamp `fraudulent' on the mail, who returns the mail to the senders. If he desists in those acts, the matter is at an end. That is all the relief which the petitioners seek."

It is also urged that the suit is one against the United States. This contention...