Parker v. Sager

• Decision Date: 25 April 1949
• Docket Number: No. 9686.,9686.
• Citation: 85 US App. DC 4,174 F.2d 657
• Parties: PARKER v. SAGER.
• Court: U.S. Court of Appeals — District of Columbia Circuit

85 US App. DC 4, 174 F.2d 657 (1949)

PARKER v. SAGER.

No. 9686.

United States Court of Appeals District of Columbia Circuit.

Argued November 17, 1948.

Decided April 25, 1949.

Mr. Herman Miller, with whom Mr. Dorsey K. Offutt, who entered an appearance, was on the brief, for appellant.

Messrs. Frederick H. Livingstone and Robert E. Lynch for appellee.

Messrs. Nathan H. David and James H. Biscoe, who entered appearances, were on the brief for amici curiae.

Before STEPHENS, Chief Judge, and PRETTYMAN and PROCTOR, Circuit Judges.

STEPHENS, Chief Judge.

A résumé of the pertinent provisions of the District of Columbia Emergency Rent Act, Act of December 2, 1941, 55 Stat. 788, §§ 1, et seq., D.C.Code (Supp. VI 1948) §§ 45 — 1601, et seq., hereafter referred to as the Act, and a statement of the ruling of the Municipal Court of Appeals for the District of Columbia in a related case, Sager v. Stamps, 1944, D.C.Mun.App., 38 A.2d 113, are necessary to an understanding of the question presented in the instant appeal: Section 2(1) (c) of the Act provides that maximum-rent ceilings and minimum-service standards for housing accommodations, excluding hotels, in the District of Columbia shall be, for housing accommodations not rented on January 1, 1941, nor within the year ending on that date, "the rent and service generally prevailing for comparable housing accommodations as determined by the Administrator" — whose office was created by the Act. Section 4 of the Act authorizes any landlord or tenant to petition the Administrator to adjust the maximum-rent ceiling upon the ground that it is, due to peculiar circumstances affecting housing accommodations in question, substantially higher or lower than the rent generally prevailing for comparable accommodations; authorizes a landlord to petition the Administrator to adjust the maximum-rent ceiling or minimum-service standard or both to compensate for a substantial rise in taxes or other maintenance or operating costs or expenses or a substantial capital improvement or alteration since January 1, 1941; authorizes a tenant to petition the Administrator upon the ground that the service supplied to him is less than the service established by the minimum-service standard for his housing accommodations; and authorizes the Administrator to make appropriate adjustment orders under such petitions. Section 4 also makes petitions filed thereunder subject to the provisions of Sections 8 and 9 of the Act. Section 8 requires that a petition filed under Section 4 be referred to an examiner and that notice of such action shall be given in a manner to be prescribed by regulation; that the landlord or tenant shall be given an opportunity to be heard or to file written statements; that the examiner shall make findings of fact and recommend an appropriate order, that copies of such findings and order shall be served upon the parties to the proceeding in such manner as the Administrator may prescribe by regulation, that within five days after such service any such party may request that the recommended order be reviewed by the Administrator, and that, if there be no such request within such time, the findings and recommended order of the examiner shall thereupon be deemed to be the findings and order of the Administrator. Section 9 provides that within ten days after issuance of an order of the Administrator under Section 4 any party may file a petition to review the Administrator's action in the Municipal Court of the District of Columbia. Section 10 provides for the recovery of damages by a tenant if a landlord receives rent or refuses to render services in violation of any provision of the Act or of any regulation or order thereunder prescribing a rent ceiling or service standard.

In Sager v. Stamps, cited above, the following was made to appear: Sager was the owner of a group of four family apartment buildings completed for occupancy in October 1941 and therefore not rented on January 1, 1941, nor within the year ending on that date, and hence subject to the provisions of Section 2(1) (c) of the Act above summarized. These buildings were rented upon completion; one of the tenants was Stamps. On August 27, 1942, purporting to act under Section 4 of the Act, Sager, as landlord, filed with the Administrator a petition requesting an adjustment in the maximum-rent ceiling upon the ground that it was substantially lower than the rent generally prevailing for comparable housing accommodations. The petition was heard by an examiner and testimony given by Sager and also by several tenants. On March 10, 1943, the examiner's findings and a form of order were filed. The examiner found that the existing rental was that generally prevailing for comparable housing accommodations. His recommended order was that certain items of service be furnished, restored or maintained and that the maximum-rent ceiling be the rent then being paid. The form of the examiner's order is printed in the margin.¹ Appended to the order was an unsigned notice that the findings and order "will be deemed to be the findings and order of the Administrator on the effective date set forth therein unless written request for review is filed prior thereto or unless a rehearing or extension of time is granted within the discretion of the Examiner or the Administrator." Copies of the examiner's findings and of the recommended order were served upon the parties by mail. The effect of the findings and order, if they had validity in the absence of action by the Administrator himself as distinguished from the examiner, was to deny Sager's petition as landlord for an adjustment in the maximum-rent ceiling, but to establish a minimum-service standard. Dissatisfied with the findings and order, Sager, after denial of a motion for rehearing and to set the findings and order aside, petitioned for review in the Municipal Court.² Motions to dismiss the petition for review were filed by the tenants, including Stamps, and by the Administrator. Grounds assigned were the failure to petition for court review within ten days after the issuance of the Administrator's order, and, by the Administrator, that the proceeding before him was in reality under Section 2 of the Act, not under Section 4, and that no court review of action taken under Section 2 is provided for in the Act. The motions to dismiss were granted by the Municipal Court. From the dismissal an appeal was taken to the Municipal Court of Appeals. That court, upon the ground urged by the Administrator, affirmed the dismissal. In its opinion the court took the view that the purpose of Section 2 of the Act is the establishment of maximum-rent ceilings and minimum-service standards, whereas that of Section 4 is to afford an opportunity for the adjustment of such ceilings or standards after establishment if either landlord or tenant regard them as inadequate or unfair. The court held that the proceeding initiated by Sager's petition could not be treated as one for an adjustment of a maximum-rent ceiling or minimum-service standard under Section 4 because no such ceiling or standard as defined in the Act was in existence; that in consequence the procedure and review provisions of Sections 8 and 9 were inapplicable and the proceeding must be treated as one under Section 2 in respect of which no provision for review is made by the Act. Although the court referred to it, it expressly declined to rule upon the question whether, in view of the requirement of Section 2 for a determination by the Administrator, the examiner's findings and recommended order became automatically the determination of the Administrator without showing of consideration and affirmative action by him.

The instant appeal arises from a suit instituted in the Municipal Court under Section 10 of the Act by Parker as tenant against Sager as landlord of the same housing accommodations as were the subject of the proceedings in Sager v. Stamps, above reviewed. The suit was for damages on account of Sager's failure and refusal, as alleged, to provide the minimum-service standard to which Parker claimed to be entitled under the Act and the recommended order and notice of the examiner involved in Sager v. Stamps. The theory of the suit was that the recommended order and notice established a maximum-rent ceiling and minimum-service standard, and Parker offered evidence tending to establish that Sager had failed and refused to render the service alleged thus to have been required. The Municipal Court gave judgment for Parker. Sager appealed to the Municipal Court of Appeals. That court reversed the judgment of the Municipal Court. Sager v. Parker, 1947, 55 A.2d 349. Parker then petitioned this court for the allowance of an appeal. On account of the importance of the question involved we allowed the appeal.

The Municipal Court of Appeals ruled that since, as expressly found by the examiner, the housing accommodations in question were first rented in October 1941, the provisions of Section 2(1) (c) of the Act were pertinent and that accordingly "the minimum service standard applicable is the `service generally prevailing for comparable housing accommodations as determined by the Administrator.' The question, therefore, is whether there has been such a determination by the Administrator." (55 A.2d at 350-1) The court said that the implication of the examiner's notice is that the order would not be submitted to the Administrator but would take effect merely by passage of time, and that the order does not purport to have been signed, approved, or adopted by the Administrator; that the record shows no affirmative act by the Administrator in the way of consideration or approval of the order. The court continued:

. . . Can that determination be accepted and adopted by the Administrator without personal consideration of the evidence on which the examiner arrived at his conclusion? There is no provision in the Act...