Safeway Stores v. Brown

• Decision Date: 12 October 1943
• Docket Number: No. 84.,No. 80,82,80,84.
• Citation: 138 F.2d 278
• Parties: SAFEWAY STORES, Inc., v. BROWN, Price Administrator (three cases).
• Court: U.S. Temporary Emergency Court of Appeals Court of Appeals

138 F.2d 278 (1943)

SAFEWAY STORES, Inc., v. BROWN, Price Administrator (three cases).

Nos. 80, 82, No. 84.

United States Emergency Court of Appeals.

Submitted October 8, 1943.

Decided October 12, 1943.

Writ of Certiorari Denied December 13, 1943.

Elisha Hanson and Eliot C. Lovett, both of Washington, D. C., for complainant.

George J. Burke, Gen. Counsel, Nathaniel L. Nathanson, Associate Gen. Counsel, William R. Ming, Jr., Chief, Court Review Price Branch, and Carl H. Fulda, John O. Honnold, Jr., John J. Downey, Jr., James A. Durham, and Henry S. Sellin, Attys., all of the Office of Price Administration, all of Washington, D. C., for respondent.

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

Writ of Certiorari Denied December 13, 1943. See 64 S.Ct. 266.

PER CURIAM.

Safeway Stores, Incorporated, the complainant, has filed three complaints in this court. In each complaint it avers that within the statutory period of sixty days it filed a protest against a specified maximum price regulation, that the Price Administrator did not within the period of thirty days after the filing of the protest or the period of ninety days after the issuance of the regulation either grant or deny its protest in whole or in part, notice such protest for hearing or provide the complainant an opportunity to present further evidence in connection therewith. Each complaint thereupon states that "the failure and refusal of the respondent to act upon complainant's protest are not in accordance with law, are arbitrary and capricious and constitute, in fact, a denial of the protest." The Price Administrator has moved to dismiss each complaint for want of jurisdiction upon the ground, inter alia,¹ that it appears from the face of the complaints that the complainant is not a person aggrieved by the denial or partial denial of his protest and is, therefore, not entitled to file a complaint in this court under the Emergency Price Control Act.

Section 203(a) of the act, 50 U.S.C.A. Appendix § 923(a), provides: "Within a reasonable time after the filing of any protest under this subsection, but in no event more than thirty days after such filing or ninety days after the issuance of the regulation or order * * * in respect of which the protest is filed, whichever occurs later, the Administrator shall either grant or deny such protest in whole or in part, notice such protest for hearing, or provide an opportunity to present further evidence in connection therewith."

Section 204(a), 50 U.S.C.A. Appendix § 924(a), provides: "Any person who is aggrieved by the denial or partial denial of his protest may, within thirty days after such denial, file a complaint with the Emergency Court of Appeals, created pursuant to subsection (c), specifying his objections and praying that the regulation, order, or price schedule protested be enjoined or set aside in whole or in part."

The complainant contends that since the statute made it the duty of the Price Administrator to take some action upon its protests within thirty days after their filing or within ninety days after the issuance of the regulations, whichever occurs later, the failure of the Administrator to take any action within those periods must be treated as amounting to such a denial of the protest as would afford it the right to file the complaints. We are satisfied that this contention cannot be sustained.

The language of Section 204(a) which we have quoted makes it clear that the jurisdiction of this court may only be invoked by a complainant when his protest has been denied by the Price Administrator in whole or in part. We think that this means that the protest must have been actually denied by an overt act of the Administrator. It must be remembered that the statute does not require the Administrator to take final action upon a protest within the periods mentioned. He may instead notice it for hearing or otherwise afford the protestant an opportunity to present further evidence in connection with it, in which event its final disposition will necessarily be deferred beyond the periods specified. Furthermore, it is obvious that in many cases it would be wholly impracticable for the Administrator to take considered final action on a protest within the periods specified in the statute. The fact that the act does not require such final action within those periods removes the basis for the complainant's theory that failure of the Administrator to take final affirmative action within the periods necessarily amounts to a rejection. Then also the act requires the Administrator, when denying a protest, to inform the protestant of the grounds of his decision. We think that it was the intention of Congress that not only the protestant but this court as well should have the benefit of such a statement of the reasons for the Administrator's action. Obviously it will not be available if he has not acted.

To adopt the view contended for by the complainant would in effect be to amend the statute so as to give this court jurisdiction not only in case of the denial or partial denial of a protest but also in case of failure of the Administrator within the periods of time specified in Section 203(a) to take either the final or procedural action with respect thereto which Section 203(a) authorizes him to take. It is of course within the power of Congress² to confer such additional jurisdiction upon this court but we may...