Standard Kosher Poultry v. Clark

• Decision Date: 17 September 1947
• Docket Number: No. 420.,420.
• Citation: 163 F.2d 430
• Parties: STANDARD KOSHER POULTRY, Inc. v. CLARK.
• Court: U.S. Temporary Emergency Court of Appeals Court of Appeals

163 F.2d 430 (1947)

STANDARD KOSHER POULTRY, Inc. v. CLARK.

No. 420.

United States Emergency Court of Appeals.

Motion to set aside judgment of dismissal, July 16, 1947.

On Motion for Reconsideration, August 18, 1947.

As Amended September 17, 1947.

Monroe Oppenheimer and Miller, Sher & Oppenheimer, all of Washington, D. C., for complainant.

Tom C. Clark, Atty. Gen. (Floyd L. Cook, Charles G. Mulligan, and Harry H. Schneider, Irving J. Helman, and James A. Durham, Attys., Dept. of Justice, all of Washington, D. C., on the brief), for respondent.

Before MARIS, Chief Judge, and MAGRUDER, McALLISTER and LINDLEY, Judges.

MAGRUDER, Judge.

On July 10, 1947, this court entered its order dismissing the present complaint, being of opinion that it was without jurisdiction to entertain the same. Complainant having moved for reconsideration of our order of dismissal, we shall now state briefly our reason for the action taken.

On October 25, 1945, the Price Administrator filed in the United States District Court for the Southern District of New York a treble damage suit against complainant, pursuant to § 205(e) of the Emergency Price Control Act, as amended, 50 U. S.C.A.Appendix, § 925(e), alleging that complainant had made sales in October, 1944, and subsequent periods, of kosher frozen eviscerated poultry at prices in excess of the maximum prices established by Revised Maximum Price Regulation No. 269 — Poultry, issued December 18, 1942 (7 F.R. 10708). Thereafter, on November 7, 1945, complainant filed with the Price Administrator a protest against the said RMPR 269. This protest was denied on October 11, 1946, whereupon complainant, claiming to be aggrieved by the order of denial, filed a complaint (No. 386) in this court. Pursuant to a stipulation between the parties for entry of judgment, this complaint was disposed of on February 17, 1947, by entry of our judgment which adjudged and declared that "the arbitrary refusal of the Administrator to grant Complainant an adjustment of its maximum prices under Section 1429.14(f) of Revised Maximum Price Regulation No. 269, to which it was entitled, made that regulation invalid insofar as it prescribed maximum prices for Complainant's sales of kosher frozen eviscerated poultry on and after May 22, 1944, the date of Complainant's application for adjustment." Shortly thereafter the enforcement action aforesaid was dismissed. There is now no enforcement action pending against the complainant, nor, according to respondent, is there "a possible one under consideration."

On March 26, 1947, complainant filed another protest against RMPR 269, seeking to have the regulation declared invalid in so far as it established maximum prices for complainant's kosher frozen eviscerated poultry during January and April, 1944. The protest set forth that, during these two months, under the alleged coercion of Food Distribution Order No. 91, complainant had been forced to make sales to the War Department of kosher frozen eviscerated poultry under "contracts" specifying dollars-and-cents prices corresponding to the applicable maximum prices under RMPR 269. This protest was not disposed of on the merits, but on May 6, 1947, the Temporary Controls Administrator (at that time the successor to the Price Administrator) entered an order dismissing the protest upon the technical grounds of mootness, laches, and res judicata.

Thereafter, on May 29, 1947, complainant filed in this court the complaint now in question (No. 420). The complaint was based upon the theory that complainant's compliance with the "letter orders" of the Army Quartermaster Corps in January and April, 1944, constituted a "taking" of its property in the constitutional sense, entitling it to "just compensation" under the Fifth Amendment; that if complainant should sue the United States under the Tucker Act, 28 U.S.C.A. § 41(20), for just compensation, it would be met by the proposition that the ceiling price validly established by an applicable price regulation represents the maximum limit of the "just compensation" which the government is obliged to pay for the property taken (Cudahy Bros. Co. v. United States, 7 Cir., 1946, 155 F.2d 905; that in such a suit for just compensation, the Court of Claims would be precluded, under § 204(d) of the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 924(d), from considering the validity of the ceiling prices established by RMPR 269, which matter is, by § 204(d), confined to the exclusive jurisdiction of the Emergency Court of Appeals and the Supreme Court upon review of our judgments on certiorari. Therefore, complainant sought a judgment by us declaring that RMPR 269, as applied to complainant's commodity in question, was invalid in January and April, 1944, thereby hoping to remove an...