United States v. Koike
| Decision Date | 31 October 1947 |
| Docket Number | No. 11575.,11575. |
| Citation | 164 F.2d 155 |
| Parties | UNITED STATES v. KOIKE. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ray J. O'Brien, U. S. Atty., and Maurice Sapienza, Asst. U. S. Atty., both of Honolulu, T. H., and Reynold Colvin, Asst. U. S. Atty., of San Francisco, Cal., for appellant.
Clarence Y. Shimamura, of Honolulu, T. H., for appellee.
Before DENMAN, BONE, and ORR, Circuit Judges.
This case is before us on appeal from an order dismissing an action brought under § 205(e) of the Emergency Price Control Act, as amended, 50 U.S.C.A.Appendix, § 925(e), to recover treble damages for violation of maximum price regulations on lumber.
The action was instituted in the district court of Hawaii by Paul Porter, Price Administrator, as plaintiff. Some time after the date of the alleged violations, price controls over lumber were lifted, and Porter ceased to hold office as Price Administrator.
On December 12, 1946 the President, exercising the authority conferred upon him by the First War Powers Act, 50 U.S.C.A. Appendix, § 601 et seq., issued Executive Order 9809, by which he purported to transfer the functions of the Price Administrator to the administrator of a newly created Office of Temporary Controls. Philip Fleming, as Temporary Controls Administrator, promptly moved the district court to substitute him as plaintiff under Rule 25(d), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The district court, however, was of the opinion that because of the limitations in § 201(b) of the Price Control Act, 50 U.S.C.A.Appendix, § 921(b), the President had no authority under the First War Powers Act to transfer the function of maintaining such actions to Fleming. That court was also of the opinion that Fleming was not a successor of Porter as required by Rule 25(d), and that no showing of a substantial need for continuing and maintaining the action had been made. The motion accordingly was denied, 69 F.Supp. 441, and the action was dismissed without having been brought to trial.
On June 1, 1947, while this appeal was pending, the Office of Temporary Controls was terminated by virtue of Executive Order 9841, 50 U.S.C.A.Appendix, § 601 note, and the functions which had been vested in the Temporary Controls Administrator were distributed among other departments and agencies. Executive Order 9842, 50 U.S.C.A.Appendix, § 925 note, which became effective on that date, provided:
The United States Attorney for the District of Hawaii, as attorney for appellant, has now submitted to this court a motion "on behalf of the United States" for summary reversal of the decision of the district court and for substitution of the United States as party plaintiff.
The first question before us is whether it was error for the district court to dismiss. Since the dismissal was entered, the Supreme Court has passed upon a substantially similar situation in Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 67 S.Ct. 1129, 1133. In that case the court held that Fleming was a successor in office of Porter, and might properly be substituted for him as a party under Rule 25. It was also held that § 201(b) of the Price Control Act, upon which the district court relied in the case before us, "in no way" restricted the authority of the President under the First War Powers Act to transfer Porter's general enforcement functions to Fleming.
It is contended, however, that the Mohawk case recognizes the necessity of showing a substantial need for continuing and maintaining an action before substitution may be had under Rule 25, and that no such showing has been made in the instant case. We do not agree. The complaint is accompanied by a bill of particulars, setting forth in detail the transactions which are alleged to have violated the Price Control Act. "Congress has explicitly provided that accrued rights and liabilities under the Emergency Price Control Act are preserved whether or not suit is started prior to the termination date of the Act." Fleming v. Mohawk, supra. Unless this action is allowed to proceed, "such rights as may exist" will be defeated, "contrary to the policy of the Act." This in itself is sufficient to establish a need for its continuing. Porter v. American Nat. Bank & Trust Co. of Chicago, 7 Cir., 161 F.2d 504.
The second question before us is whether we should now permit the substitution of the United States as plaintiff. It must be observed that...
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