Woods v. Ginocchio
| Decision Date | 17 February 1950 |
| Docket Number | No. 12234.,12234. |
| Citation | 180 F.2d 484 |
| Parties | WOODS, Housing Expediter v. GINOCCHIO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ed Dupree, Gen. Counsel, Hugo V. Prucha, Asst. Gen. Counsel, Cecil H. Lichliter, Sp. Lit. Atty., OHE., Washington, D. C., for appellant.
Emerson J. Wilson, Reno, Nevada, for appellee.
Before DENMAN, Chief Judge, and BONE and ORR, Circuit Judges.
The Expediter appeals from a judgment refusing him an injunction restraining appellee landlord from charging in excess of the maximum rent fixed upon the landlord's housing accommodation in Reno, Nevada, by the Rent Director for that area. The judgment denied further equitable relief, refusing to order the landlord to pay to her tenant the sum of $1100.00 alleged excess rentals charged her tenant.
The court, in denying the equitable relief, held that the premises were not within the Expediter's jurisdiction for the fixing of this maximum rent because they were additional housing accommodations created by conversion after February 1, 1947, and hence were not controlled housing accommodations within the Housing and Rent Act of 1947,1 hereinafter called the Act. Section 202 of that act provides:
"As used in this title —
* * * * * *
The grounds of the Expediter's appeal are (A) the landlord failed to exhaust the administrative remedy prescribed by the Expediter's regulations and hence could not raise the question of the latter's control of the premises, and (B) the court erroneously decided that the premises were not under the Expediter's jurisdiction.
A. The landlord, having the option either to seek an administrative ruling as to the Expediter's control of the premises or to wait and defend a suit by the Expediter on the ground of absence of such control, was entitled in this suit in equity to waive the continuance on the administrative proceeding created solely for his benefit and defend on that ground.
The regulation of the Expediter for this jurisdictional question was promulgated on August 22, 1947, (12 F.R. 5697). Unlike those for other issues under the Act, it gave to the landlord the option to pursue or not to pursue an administrative procedure in determining whether the premises were under the Expediter's control. Title 24, Part 825.1(b) (8) C.F.R. Cum.Supp. 1947, provides as to "Housing accommodations the construction of which was completed on or after February 1, 1947, or which are additional housing accommodations created by conversion on or after February 1, 1947," that "Every landlord of housing accommodations referred to in this subparagraph (8) may, at his option, file in the area rent office a report of decontrol on a form provided by the Expediter." (Emphasis supplied.)
This option given the landlord must be deemed to have controlling significance. Up to August 22, 1947, the landlord had no such option, the regulation prior thereto (12 F.R. 4331) being "That all housing accommodations referred to in this paragraph (8) shall be subject to this regulation unless the landlord files in the area rent office a report of decontrol on a form provided by the Expediter within 30 days after July 1, 1947, or within 30 days after the date of first renting, whichever is the later: and Provided further, That if a landlord fails to file said report of decontrol within the applicable specified period, such housing accommodations shall be and remain subject to the provisions of this regulation until the date on which he files said report."
The landlord started to exercise his option. He filed the application for decontrol, which the area rent director denied. He sought a reconsideration by the area rent director under the advice of the Area Rent Board. The latter advised against decontrol. The area director then sua sponte fixed the rent at $180.00 per month and ordered the repayment of the $1100.00. An informal appeal from denial of the decontrol was taken to and considered by the Regional Administrator. While the jurisdictional question was so under consideration the Expediter, on January 24, 1948, began this suit on the rent order.
The Emergency Price Control Act of 19422 required such an issue of jurisdiction to be decided by the Emergency Court of Appeals after pursuing an administrative procedure provided by the Expediter's regulations. The district court then had no power to determine that issue. Yakus v. United States, 321 U.S. 414, 433, 64 S.Ct. 660, 88 L.Ed. 834; Woods v. Kaye, 9 Cir., 175 F.2d 886, 888.
Under the instant Act of 1947, the Expediter agrees, the jurisdictional question ultimately is to be decided by the district court. That is to say, the landlord, having the option under regulation 825.1(b) (8), supra, not to pursue the administrative remedy, could have raised the issue as a defense to the Expediter's present suit, filed on January 24, 1948, without any other action on the former's part, or he could pursue his administrative proceeding to the decision of the litigating Expediter.
In this situation the Regional Administrator on February 10, 1948, decided the appeal on the jurisdictional question before him adversely to the landlord and advised that the "decision in this case rests with the court." This appears in the letter of February 10, 1948, to the landlord as follows:
Nine days after this letter, on February 19, 1948, the landlord appeared in this action and moved to dismiss it on the ground, inter alia, "That it does not appear on the face of the Complaint that the premises in question fall within the Act Definition `Controlled Housing Accommodations' as defined in Act and Regulation sued upon."
The motion was denied, and the landlord's answer then raised the same issue of the Expediter's jurisdiction. The expediter contended, in effect, that the landlord could not waive his right to continue to pursue his optional choice of obtaining the Expediter's decision in an administrative proceeding, despite the Regional Administrator's statement that the administrative process had ceased and the decision rested in the instant proceeding. The district court ruled against the Expediter, holding that the administrative process had terminated and that the issue of decontrol was before it. The Expediter then vigorously contested the landlord's contention that the premises were not under the former's jurisdiction.
The Expediter's briefs here treat the situation as if his regulations gave no option to the landlord. He cites Supreme Court decisions like the Yakus case, supra, stressing the value of regulations created by experts like the Expediter, whose subordinates in the administrative process, skilled in housing needs and requirements can best serve the purposes of Congress in determining rental amounts. Here the exact reverse is the view of the Expediter. He sees no necessity for the administrative process, and creates it only for the benefit of the landlord. One must respect an Expediter's views on expedition.
While we cannot agree with the letter of the Regional Administrator that the commencement of this suit deprives the landlord of the right to pursue his administrative remedy, we agree that the decision of the case is with the district court if the landlord waive the further pursuit of his optional administrative remedy and submit to the decision of the court.
Such a disposition of ...
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