United States v. Ziomek

• Decision Date: 17 October 1951
• Docket Number: 14390,No. 14421-14426.,No. 14365-14368,14365-14368,14421-14426.
• Citation: 191 F.2d 818
• Parties: UNITED STATES v. ZIOMEK and 10 other cases.
• Court: U.S. Court of Appeals — Eighth Circuit

191 F.2d 818 (1951)

UNITED STATES v. ZIOMEK and 10 other cases.

Nos. 14365-14368, 14390, Nos. 14421-14426.

United States Court of Appeals Eighth Circuit.

October 17, 1951.

Nathan Siegel, Special Litigation Atty., Office of the Housing Expediter, Washington, D. C. (Ed Dupree, General Counsel, and Leon J. Libeu, Asst. General Counsel, Office of the Housing Expediter, Washington, D. C., on the brief), for appellant.

James R. Anderson, St. Louis, Mo., for appellees, Jack and Loretta Moon, in case No. 14,424.

No appearances were entered or briefs filed on behalf of the appellees in the other cases.

Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

These are actions brought by the Housing Expediter in the name of the United States under §§ 205, 206(b) and 206(c) of the Housing and Rent Act of 1947, as amended, Public Law 574, 81st Congress, 2d Session, 50 U.S.C.A.Appendix §§ 1881-1902, against landlords charged with demanding and receiving rent for the use and occupancy of housing accommodations within the Defense-Rental Area of Kansas City, Missouri, in excess of the maximum legal rent on the housing accommodations in question.

Since the cases involve the same questions they have been consolidated for submission and decision in this court. A typical record has been filed in No. 14,367, United States v. Eberhart. It discloses that the plaintiff prayed

"1. That Plaintiff have judgment against the Defendant for three times all overcharges made, demanded, collected, accepted, or received within one year preceding the filing of this suit.

"2. That the Defendant be ordered and directed to pay to the Treasurer of the United States for and on behalf of all persons entitled thereto, all rents collected or received in excess of the maximum legal rents, or in the alternative, that such be paid to the Treasurer of the United States. That in the event the Court grants restitution to the United States for and on behalf of persons entitled thereto, the claim of the United States for treble damages may be reduced by the amount of restitution granted for violations occurring within one year immediately preceding the filing of this suit.

"3. That the Court issue without notice a temporary restraining order, and after due notice to the Defendant, a preliminary injunction, and upon final trial of this cause, a final injunction, restraining the Defendant, Defendant's agents, servants, employees, and all persons acting in concert or participation with any of them, from directly or indirectly soliciting, demanding, accepting or receiving any rent on all controlled housing accommodations, owned, operated, or managed by Defendant in excess of the maximum legal rent, or from otherwise violating the Housing and Rent Act of 1947, as heretofore or hereafter amended or superseded, and the Regulations issued pursuant thereto.

"4. For costs of this action and such other relief as the Plaintiff may be entitled."

The plaintiff made request for admission of facts to which the defendant made no response. Thereupon the plaintiff moved for summary judgment. The motion was sustained. The court accepted the allegations of the complaint as admitted and the facts called for as true, and a decree was entered granting only an injunction and restitution. The government appeals from the failure of the judgment to award damages.

The court filed an opinion holding that under the Housing and Rent Act of 1947 the court cannot enter judgment for damages and at the same time award restitution and decree an injunction. This conclusion is based upon the court's understanding of the opinion of the Supreme Court in Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332, and certain decisions of the Courts of Appeal.

We have reached the opposite conclusion, basing our conviction upon the statutes involved, the Rules of Civil Procedure, the cases cited below, and the Porter case as clarified and interpreted in the decision of the Supreme Court in United States v. Moore, 340 U.S. 616, 71 S.Ct. 524, 95 L.Ed. 582, which case was decided by the Supreme Court since the opinion of the trial court in these cases was written.

The government contends (1) that the courts below erred in refusing to apply the established rule that both damages and restitution may be awarded in an action brought pursuant to §§ 205 and 206(b) of the Housing and Rent Act of 1947, as amended, for rental overcharges; (2) that if the defendant fails to sustain his special defenses under § 205 of the 1947 Act by showing both that his action was free from willfulness and that he exercised practicable precautions to avert the violation, then the government should be entitled to a judgment for treble the amount of overcharges for the period of violation not barred by the one-year statute of limitations of § 205, and also a judgment for restitution for the entire period of violation except for the period that treble damages have been awarded; and (3) that if the defendant sustains his special defenses under § 205 of the Act, then the government should be awarded a judgment for single the amount of the overcharges for the period of violation not barred by the one-year statute of limitations of § 205, and in addition should be awarded a judgment for restitution for all overcharges except those for the period of violation for which single statutory damages have been awarded.

In an action such as this is, when the government asks for statutory damages, an injunction and restitution, whether the court shall award restitution of overcharges in whole or in part is a matter resting in the sound discretion of the court. Notwithstanding injunction and restitution are equitable remedies, whereas damages are ordinarily recoverable in actions at law, they may be joined in the same action either as independent or as alternate claims. Rule 18, Federal Rules of Civil Procedure, 28 U.S.C.A. Restitution may be granted in such an action as "another order" under § 206(b) of the Act; Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332, where it is said restitution of illegal rental "(1) * * * may be considered as an equitable adjunct...