Petition for Writ of Certiorari — Oakland Raiders v. Office of Emergency Preparedness

Supreme Court brief1974

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Text

OakLAND Raters, a Limited Partnership,

3 Petitioner, :

ce ,

OFFICE OF EMERGENCY PREPAREDNESS, Cost oF LIVING

Covnon, Agencies of the Government of the

United States of America, Ratpx D.

Burns, an Individual, }

Respondents.

—_—_—

_ PETITION FOR A WRIT OF CERTIORARI ¢

to the Temporary Emergency Court of Appeals

of the United States

Herman Cook,

RatpPH A. LOMBARDI,

2150 Valdez Street,

Oakland, Celifornia 94612,

_ Attorneys for Petitioner.

PERNA - WALSH PRINTING CO.- S62 MISSION STRERT - SAN PRANCISCO, CA 84108

Subject Index

Page

| MUTE TCR TTT RELL URL ET Le 2

PR S65. Cea eG CEN ANAS CEN AOAC EERE DS MERON Ad KOS 2

SUEUNOE TOWNE: wea nck bans bbdonaseaeeedOesewesn anaes 2

RE Oe aac SSS SS RR AGES ESE HOES TAD TS PES Ee ee 2

Constitutional and Statutory Provisions and Executive

Se ee ane gat a Se ehh hoa eK WD DA SRAM A OO 4

SPN OS ae a ee ERAS. DHE ROL GR OSL AS RR wS

ee SP SEU WEUE canésicedcueneandeeeeacineade 7

By refusing to hold Execeutive Order 11615 invalid as

required by Section 706(2)(D) of the Administra-

tive Procedure Act, notwithstanding an assumption

that the President is an “ageney” within Section 551

of the APA and was engaged in “rule-making”

within Section 553 of the APA, the temporary

emergeney Court of Appeals has further perpetuated

a conflict among several Courts of Appeal as to the

effect of non-compliance with the requirements of the

Administrative Procedure Act as set forth in Seerion

ee Ec Caen Chae Xk KS ASE ERSEECRSNEERC ESO 840E 7

II.

The construction by the temporary emergeney Court of

Appeals, of Executive Order 11615 to require Raiders

to refund ainounts received prior to August 15, 1971

violated the eonstitutional prohibition against. ex post

facto laws and the taking of property without just

compensation, in confliet with decisions of this court 11

EEN Rawk ed cake ceheeein i sAWRCRE ENON DADO atussayess 15

Appendices

ne ee ron e a cak cna chsh nahn ice sees 1

re Eee ret Tee Te eee TTT ee eT eee eT ere 7

8 SPSS STE eOT TTPO E TORT TTT ERT ETT eer E eee §&

8g a oer rr eee eee tee Pe eee err 48

eee Peer ELT eT TTT eee Tee 54

Table of Authorities Cited

Cases Pages

Ainzleamated Meat Cutters v. Connally. 5

RRA) WONT Satu S Uc Nan onthe visite Beutet nid re, s

Appalachian Power Co, y, Environmental Protection

Agcney, 477 Fd 495 (4th Cin, 1973) ...00........... 9

Buekeve Power, Ine. y. Environmental Protection Ageney,

481 Fd 162 (6th Cir, 1973) .....0.....0006000....., 10

Burgess v. Salmon, 97 U.S. OST. 24 L.Ed. 1104 (1s7s) Sree sae &

Duquesne Light Co. vy. Environmental Protection Ageney,

Soe Ee PUG CR MOTEY ose on cok bsegs ba ceeccca ons 9

Fletcher ve Peek. 10 US. (6 Craneh) 87, 3 L.Ed, 162

ROME) Sasa eaKen ei GuN ssh RROpONaKASbubN Gabe Sauces eit 12

Kelly ve United States Department of Interior, 339 F.Supp.

ROS CRED, BUTE) oak cis ccvivnvnviecucoceneccee.: 10,11

Louisville Joint Stock Land Bank v. Radford, 295 U.S. DDO,

a a AE | |) 13, 14

National Motor Freight) Traffic Assn. ve United States, 268

F.usupp. 90 (DDC. 1967) afd, 393 U.S. 18 (1968) Ree 10

Pharmaceutical Manufacturers Assn. vy. Finch, 307 F.Supp.

Pl cries acaee SAT EET POL CRE Mee 10

Staley Mfe. Co. vo United States, 310 F.Supp. 485 (D.

PR GRO, SUE ee ae sereray evar ele lie 10

Texaco, Ine. ve Federal Pows r Commission, 412 F.2d 740

oe SON cere c cent set nee er 10

Constitutions

United States Constitution:

sshd Raa Messages Bobi Se EOE ee Pee ETTORE, 4

Eee MN 85 585 tafser cia vores ee oe 4

Tair or AUTHORITIES Cirep

Exceutive Order LIG15

SRS SCERAPRERECADA CCE EEE SO OG SO

Administrative Procedure

Section 55]

Act, Tithe 5 US.C.:

Section 55114)

Section 553

Section 553i) (B)

Section 706

Scetion T0G6(2) ( D)

hee th i en en ee eT se ee ee

Keonomie Stabilization Act Amendments of 1971, PLL.

210; 85 Stat. 743, See. 211 (2)

tite ee eS ee ee Oe ee ee ee te ee

ed ee eee ee ee 2 2 a ee ee ee

pee th ee ee eo ee ee ae ee ee eae eee

SCORVPIPVPTVAD A DRA BEDE DOES @ %

te eee ee ee a eo 2 ee ae 2 ee

In the Supreme Cot

OF THE

United States

OcTOBER TERM, 1974

—_—

No.

OAKLAND Rapers, a Limited Partnership,

Petitioner,

VS.

OFFICE OF EMERGENCY PREPAREDNESS, Cost OF LIVING

CounciL, Agencies of the Government of the

United States of America, Ratru D.

Berys, an Individual,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

to the Temporary Emergency Court of Appeals

of the United States

Petitioner, Oakland Raiders, a Limited Partnership,

prays that a writ of certiorari issue to review the judg-

ment of the Temporary Emergency Court of Appeals

of the United States entered in the above case on July

10, 1974.

OPINIONS BELOW

The opinion of the United States District Court for

the Northern District of California is not vet reported

and appears as Appendix A. No opinion was delivered

by the Temporary Emergeney Court of Appeals and

its judgment affirming the order of the District Court

appears as Appendix B.

JURISDICTION

The judgment of the Temporary Emergency Court

of Appeals was entered on July 10, 1974. The jurisdie-

tion of this Court is invoked under § 211(¢) of the Eeo-

nomic Stabilization Act Amendments of 1971, P.L.

92-210; 85 Stat. 743.

QUESTIONS PRESENTED

Preface

Petitioners herein sought declaratory judgment in

the District Court determining that petitioners were

not in violation of the Economic Stabilization Act of

1970 or Executive Order 11615 by virtue of the pre-

August 15, 1971, sale of season foothail tickets at prices

higher than those charged for 1970 season football tick-

ets. A similar action was filed by The Five Siniths,

Ine., owners and operators of the Atlanta Falcons pro-

fessional football club in the United States District

Court for the Northern District of Georgia against

William I¥. Holloway, et al. (TIECA No, 5-7). Two

related cases, Burt DeRicus, ct al. v. The Five Smiths,

”

fue, (TECA No. 5-6) and United States of America v,

The Five Smiths, Ine. (TECA No. 0-8) were consoli-

dated with Theo fire Smiths ease and all questions

raised in the three cases were cartified to the Tempo-

rary Emergency Comt of Appeals of the United

States. (The consolidated cases wil] hereinafter be

referred toas DeRicur.) On Sune 20, 1974, an opinion

was delivered by the TECA! in DeRicur and there-

after, on July 10, 1974, the TECA affirmed the judg-

ment of the Distriet Court in the instant case solely on

the authority of DeRicur.

The questions presented by this petition ave:

(1) Whether the Cowt properly declined to

hold unlawful and set aside Executive Order 11615

as required by Section 706(2)(D) of the Admin-

istrative Procedure Act notwithstanding a finding

by the TECA in DeRicuc that the President is

subject to Section 553 of the Administrative Pro-

cedure Act and a further finding that the proce-

dures set forth in that section were not observed.

(2) Whether the construction of Executive

Order 11615 to require refunds of price increases

for regular season games played between August

15, 1971 and November 13, 1971, hotwithstanding

that the tickets were sold prior to August 15. 1971

constituted an cr post facto law and the takine of

property without just compensation,

' Appendix C,

CONSTITUTIONAL AND STATUTORY PROVISIONS

AND EXECUTIVE ORDER INVOLVED

The following constitutional provisions are involved

in the case at bar:

“No Bill of Attainder or ex post facto Law shall

be passed.” Constitudion, Article 1, 9 9, eb 3.

“No person shall... be deprived of ... property

Without due process of law: nor shall private prop-

erty be taken for publie use without just compen-

sation.” Constitution, Amendment V.

In addition to the foregoing The Administrative

Procedure Act, 5 U.S.C. 88 551, 553, T06" and Execu-

tive Order 11615* are likewise involved,

STATEMENT OF CASE

This case arrives out of the issuance, on August 15,

197i, of Executive Order 11615, whieh order inposert

90-day wage and price controls which have become

known as Phase 1. It is the contention of petitioners

that the Order was not properly issued as required by

the Administrative Procedure Act and further that the

construction of the order adopted by the ‘Temporary

Emergency Court of Appeals insofar as it affects peti-

tioner constitutes an ar post facto law and the taking

of property without just compensation.

Petitioner (hereinafter referred to as Raiders) owns

and operates the professional football team: known as

the Oakland Raiders. Prior to February 1971 Raiders

*Appendix D.

’Appendix bE.

decided to increase the price of tickets to football

games during the 1971 season over those charged for

the 1970 season. In February of 1971, season ticket

applications setting forth the inereased prices were

forwarded to all 1970 Raider season ticket holders. The

bulk of 1970 season ticket holders renewed their tick-

ets for the 1971 season and the tickets of those who did

not renew were offered to, and accepted by, new season

ticket purchasers.

By June 30, L971, payment in full had been received

for in exeess of 48.0G0 season aa out of 54.000

total seats available, Between July 23 and July 27,

iNT, sccson tickets were mailed to ae respective sea-

son ticket holders,

On Angust 9 and August 14, 1971, Raiders plaved

homie pre-season football gales at the 1971 prices,

Raiders had historically charged 50¢ less for pre-

scason tickets than for regular season tickets,

tm August 15, 1971 the President issued Executive

Order 11615 imposing wage and price controls for the

9-day period August 15 to November 13, 1971. The

yovermment stipulated in DeRicue that no notice of

an intention to issue the Order was given prior to its

issuance, hor was a finding made and/or incorporated

in the Order that notice and public procedure thcreon

were impracticable, unnecessary, or contrary to the

public interest. (App. C, pages 28-29, 32.)

Raiders performed three regular season home

eunes during the Phase I period. Respondent con-

tends that, Inasmuch as tickets to the three eaines

were 90¢ more than to the two pre-season games

played prior te August 15. 1971 Raiders unlawfully

Increased prices durine Phase !

On November 16, 1971 Raiders filed this aetion to

determine the validity of the government contentions.

On January 2. 197! the Distriet Court for the

Northern District of California inade its order erant-

Ing sapanary judement te defendant. the Offiee of

Rimergeney Preparedness, sad ordered restitution of

We per ticket for the three regular season home

gumnes played between August 1 and Noverher 12,

1974.

On appeal, the Temporary Emergency Court of

Appertts, Without opllton, witiied the Judginent of

the District Court "on the authority of Lie iicwr vr.

The Five Sutihs, hue.” Ayyeudix ©,

In Dehicar the court considered the Administra-

tive Procedure Act CAPA) arguinent advanced ly

The Five Siiths, whieh argument was alse advanced

by Raiders and held that, assuming the President is

an “ageney” within Section 15 USC, 6551, of the

APA and further assnming be was engaged in rule-

making within Seetion 15 Uis.€. 6553 of the APA

When he issued Executive Order TI61S, the order would

not he sect aside even theught be Govermnent had

Stipulated that me notice of roleimaking was given

nor finding jade and or tucorporated in the order

that notice was “impractieable, mumecessiry, or cou-

trary to public interest.”

The court further held that the Exeeuive Order,

as construcd, did not violate the Colstitidonal po-

Inbition against cr post facto laws as it did hot pun-

ish The Five Smiths for prior conduct nor did it

constituie the taking of Property without just eom-

pensation as The Bive Siniths did not have a vested

and unqualified right to the proceeds of tickets sold

prior to August 15, 1971.

REASONS FOR GRANTING WRIT

BY REFUSING TO HOLD EXECUTIVE ORDER 11615 INVALID

AS REQUIRED BY SECTION 706(2)(D) OF THE ADMINIS-

TRATIVE PROCEDURE ACT, NOYWITHSTANDING AN

ASSUMPTION THAT THé PRESIDENT Is AN “AGENCY”

WITHIN SECTION 551 OF THE APA AND WAS ENGAGED

IN “RULE-MAKING” WITHIN SECTION 553 OF THE APA,

THE TEMPORARY EMERGENCY COURT OF APPEALS HAS

FURTHER PERPETUATED A CONFLICT AMONG SEVERAL

COURTS OF APPEAL AS TO THE EFFECT OF NON-

COMPLIANCE WITH THE RZQUIREMENTS OF THE AD-

MINISTRATIVE PROCEDURE ACT AS SET FORTH IN SEC-

TION 553 OF THE ACT.

The APA, 5 U.S.C. 68551, 553, eenerally requires

hat an ageney, prior to engaging in rule-making,

ublish general notice of such proposed rule-mnakine

i the Federal Register and thereafter afford inter-

‘ted persons an opportunity to participate in rule-

kine through submission of written data, views or

reiments,

I USC. § 706(2) (1D) states that a reviewing court

val]:

“Hold unlawful and set aside ageneyv aetion, Snd-

ines and conclusions found to be——

(1) without observance of procedure required

by law.”

The only relevant exception to Section 553. states

that the procedural requirements do not apply:

“(B) when the ageney for good cause finds Cand

Incorporates the finding and a brief statement

of reasons therefor in the rules issued) that no-

tice and public procedure thereon are impractice-

able, unnecessary or contrary te the public

interest.”

The TECA in De Ricci (App. Cy page 30) assumed

the President is an “ageney” within the mean of the

Administrative Procedure Aet. Such an assumption

isa proper one, and is buttressed by the opinion of

Judge Leventhal in Amalgamated Meat Catters and

Batcher Work. v. Connally, 3937 F.Supp. 737 (1971)

(D.10.C.). page 761, wherein he noted:

“The leading students of the APA, whose anal-

yses are often cited by the Supreme Court, and

Who on seme matters are in conflict with each

other, seem to be in agreement that the term

‘ageney” In the APA ineludes the President—a

conclusion fortified by the eare taken to make

express exclusion of “Congress” and ‘the courts.”

The President is clearly subject to the requirements

of the Administrative Procedures Act and Executive

Order T1615 is, without doubt, a “rule” within the

meaning of Section 55108), a fact whieh was assumed

by the Temporary Emergency Court of Appeals.

Given the foregoing premise and the Government's

stipulation that no finding was made and/or incorpo-

rated in the Order by the President that notice and

public procedure thereon was impracticable, unneces-

sary, or contrary to public interest, the provisions of

the APA have clearly been violated.

The TECA, after the fact, then made a finding that

vood catise had existed for the issuance of the Order

Without findings and/or statement of impracticability

and declined to void the Order stating:

“We cannot agree that Congress intended to visit

such consequence upon a technical violation of

Section 553(b) where the reasons for exempting

the President’s action from the notice require-

ment are so obvious and compelling.” (App. C,

page 32.)

The Court then cited opinions of the Third and

Fourth Circuits in the cases of wippalachian Power

Co. ve. Buvironmental Protection Agcoucy, 4 Cir. 477

Bi2d 495 (1973) and Duquesne Light Co. v. Environ-

mental Preicction Agency, 3 Civ. 41 F.2d 1 (1973

refusing to declare invalid state Clean Air plans which

had been approved by the Administrator of the En-

Virenmental Protection Ageney without notice as

required by Seetion 553 of the APA,

The basis for such rulings, however, was a finding

that Congress intended to create an exception to the

requirements of Section 553 for the Clean Air Act

when it required publie notice and hearing at the

state level prior to adoption of state plans which

were thereafter submitted to the Administrator of

the EPA,

As stated in the Appalachian Power case, supra,

p. 903:

“This conelusion, however, is based on the as-

sumption that at the state hearing interested

parties were offered full opportunity to present

their contentions with respect to the proposed

plan .. .”

In determining the same question, that is the valid-

ity of approval by the Administrater of the EPA

of state Clean Air plans without notice and public

procedure, the Court of Appeals of the Sixth Circuit

in Buckeye Power, Ine. v. Environmental Protection

Agcucy, 481 F.2d 162 (1975) held the approval in-

valid.

Furthermore, in an earlier Third Circuit case, Ter-

aco wv. Federal) Power Commission, 412 F.2d 740

(1969) the court held that a regulation issued without

compliance with the Administrative Procedure Act

was invalid. Similar results have obtained in lower

Federal Court. See Kelly v. United States Department

of Interior, 339 PF. Supp. 1095 (h.D.Cal. 1972): Sta-

ley Mfg. Co. v. United States, 310 FL Supp. 485 (D.

Minn. 1970); Pharmaceutical Manufacturers Assoc. v.

Finch, 307 FP. Supp. 858 (D.Del. 1970): National

Motor Freight Traffic Association ve United States,

268 F. Supp. 90 (D.D.C. 1967), aff'd 393 ULS. 18

(1968).

In addition to perpetuating the conflict among sev-

eral Circuits regarding the effect of a violation of the

Administrative Procedure Act, the failure of the Tem-

porary Emergency Court of Appeals to invalidate the

Executive Order effectively denies enforcement of

the APA as mandated by Congress. As the Dis-

trict Court noted in Kelly wherein an administrative

regulation was held invalid for failure to comply with

the exception provisions of Section 553 (1h) ( 13):

“Upholding regulations which we think were

defectively issued, furthermore, emasculates the

Administrative Procedure Act. As the Court of

Appeals for the Ninth Circuit has said, ‘If notice

of a proposed rule is not published in the Fed-

eral Register at least thirty days pricr to Its

issuance, or if good cause is not found and pab-

lished for the immediate issuance of a rule, the

rule cannot be legally issued.” (Emphasis ours.)

Hotch vy. United States, supra, 212 F.2d 284. We

therefore find the amended regulations to have

been illegally issued.” 339 F. Supp. 1101-1102.

It is respectfully submitted that in order to resolve

the contlict among the several Circuits and further

to enforce the Congressional mandate contained in the

Administrative Procedure Act that a writ should issue

in the instant case.

II.

THE CONSTRUCTION BY THE TEMPORARY EMERGENCY

COURT OF APPEALS, OF EXECUTIVE ORDER 11615 TO RE-

QUIRE RAIDERS TO REFUND AMOUNTS RECEIVED PRIOR

TO AUGUST 15, 1971 VIOLATED THE CONSTITUTIONAL

PROHIBITION AGAINST EX POST FACTO LAWS AND THE

TAKING OF PROPERTY WITHOUT JUST COMPENSATION,

IN CONFLICT WITH DECISIONS OF THIS COURT.

The constitutional prohibition against ec post facto

laws is clear and such laws have been defined by this

Court as follows:

“The state legislature can pass no ex post facto

law. An or post facto law is one which renders

an act punishable in a manner in which it was

not punishable when it was committed. Such a

law may inflict penalties on the person, or may

inflict. pecuniary penalties which swell the public

treasury. The legislature is then prohibited from

passing a law by which a man’s estate, or any

part of it, shall be seized for a crime which was

not declared, by some previous law, to render him

liable to that punishment.” Fletcher v. Peck, 10

U.S. (6 Cranch) 87, 138 (1809).

The Temporary Emergency Court of Appeals in

DeRicur took the position that the Executive Order

could not be said to “punish” The Five Smiths within

the meaning of the cited cases. Raiders contend that

the case most nearly in point, Burgess v. Salmon, 97

U.S. (7 Otto) 381, 24 L.Ed. 1104 (1878) was improp-

erly ignored by the TECA.

In Burgess, a tobacco merchant taxpayer brought

a civil suit for refund against the Collector of Inter-

nal Revenue alleging that during the morning of

March 3, 1875, he had sold and delivered a quantity

of tobacco when the transfer tax on tobacco was 20¢

per pound, In the afternoon of March 3 the President

signed an amendment to the tax statute increasing

the rate to 24¢ per pound. The merchant then paid

the additional tax and sought his refund.

This Court held that the application of the amend-

ment to the sale and delivery of tobacco prior to its

effective date constituted an er post facto law and

stated :

“To impose upon the owner of the goods a erimi-

nal punishment, or a penalty of $377 for not

paying an additional tax of four cents a pound,

wouid subject him to the operation of an ex post

facto law.

An ex post facto law is one which imposes a

punishment for an act which was not punishable

at the time it was committed, or a punishment

in addition to that then prescribed. Carpenter

v. Pa., 17 How., 456,

Had the proceeding against Salmon & Hancock

been taken by indictment instead of suit for the

excess of the tax, and the one was equally author-

ized with the other, the proceeding would cer-

tainly have fallen within the description of an

ex post facto law.” 97 U.S. 384, 24 L.Ed. 1106.

The analogy to the instant case is clear, That is,

prior to the effective date of the Executive Order,

Raiders had sold and delivered over 48,000 season

tickets and had received payment therefor. To require

Raiders to now refund a portion of the consideration

received flies in the teeth of the above holding.

The holding of the TECA likewise disregards the

holding of this Court in Louisville Joint Stock Land

Bank v. Radford, 295 U.S, 555, 79 L.Ed, 1593 (1935)

wherein the Court unanimously held the Frazier-

Lemke Act to be an unconstitutional taking of mort-

gagees’ property rights without payment of just com-

pensation as it applied to existing mortgages, Joint

Stock Land Bank further clearly held that the extent

of pre-existing property rights held by the parties

thereto was a question of pre-existing state law.

In the instant case, pre-existing state law made a

ticket of admission té a public piace of amisement,

when sold; |

“.. at least an irrevocable license -to the pur

chaser of the ticket to oceupy a place therei

during the performance. (Greenberg vy. Westen

Turf Assn., 140 Cal. 360, [73 Pae. 1050].) Suel

a ticket, therefore, represents a right, positive on

conditional, as the case may be, according to the

terms of the original contract of sale. This rie ht

is clearly a right of property. The ticket whicl

represents that right is also necessarily a species

of property. As such, the owner thereof, in’ the

absence of any condition to the contrary in the

contract by which he obtaimed it, has the ¢lear

right to dispose of it; to sell ic to whom he pleases

and at such price as he can obtain.” Lie Parte

Quarg, AD Cal. TI Si, 84 PL TOG (1206),

Thus, prior to August 15, 1971, Raiders had the

same unqualified title to monies received from pur-

chasers of season tickets that all purveyors of goods

have once they have parted with their wares, that. is,

an absolute right to use the funds subject only to

a claim by the purchaser in the event there is a fail-

ure of consideration, Such rights were vested within

the meaning of the Joint Stock Land Bank ease and

the requirement that Raiders refund a portion of the

funds amounts to the taking of property without just

compensation in derogation of both the Constitution

and the decisions of this Court.

CONCLUSION

For the foregoing reasons a writ of certiorari should

issue to review the judgment of the Temporary Emer-

geney Court of Appeals.

Dated, Oakland, California,

August 5, 1974.

Respectfully submitted,

HERMAN Cook,

Raipeu A, LOMBARDI,

Attorneys for Pctitioner.

(Appendices Follow)

Appendix A

In the United States District Court

Northern District of California

No. C-71-2214 RFP

; )

Oakland Raiders, ete., oa

Plaintiff,

Vs. (

Office of Emergency Preparedness, et al.,

Defendants. J

[ Filed Jan. 25, 1974]

MEMORANDUM AND ORDER

Plaintiffs Oakland Raiders (Raiders) brought this

action seeking a declaratory judgment that their in-

crease In ticket prices fur the 1971 football season

did not violate the so-called “wage-price freeze” im-

posed by the President on August 15, 1971. The action

came on for hearing before the court on September

17. 1973, on a motion for summary judgment by the

defendants, namely, the Office of Emergeney Prepar-

edness (OEP), Cost of Living Council (COLC), and

Ralph D. Burns.

Tn early 1971, the Raiders sent out renewal applica-

tions to all their season ticketholders from the previ-

ous year; all ticket prices had been increased over the

1970 prices. By late June, over 48,000 seasen tickets

(out of a total stadinm capacity of 54,000) had been

purchased and paid in full. These tickets were mailed

to the purchasers in late July.

On August 9 and 14, 1971, the Raiders played their

first two exhibition games of the 1971 season at home.

On August 15, the President issued Executive Order

11615 (36 Fed. Reg. 15727), proclaiming the “wage-

price freeze”; the legal basis for the freeze was found

in the Economie Stabilization Act of 1970, PLL. 91-379,

S+ Stat. 799. The Raiders subsequently played two

nore exhibition games at home, then in October

played three regular season home football games at

ticket prices that were #50 over those charged for

the exhibition games, Thereafter, during Phase TT,

the Raiders played four additional home games.

Under the provisions of Executive Order 11615,

prices were to be stabilized at a level not exceeding

the highest prices pertaining to a substantial volume

of actual transactions during the 30-day “hase period”

ending August 14, 1971.

Defendants appear to concede, as indeed they must,

that the playing of two exhibition games during the

“base period” prior to August 15 was sufficient to

legitimize the increase over 1970 prices; and defend-

ants further appear to concede that the further in-

crease in ticket prices for regular season games over

the price charged for exhibition games was legitimate

under the Phase TT guidelines as to all games after

November 13, 1971. Thus the primary point of eon-

tention seems to be the validity of the $.50 price in-

crease for the three regular season home games played

during October 1971.

Regulations issued by the OEP in Eceononic Sta-

bilization Cireular No, 11, 36 Fed. Reg. 18515 (Sep-

tember 11, 1971), provide that “the freeze applies to

prices of advance sale tickets for sporting events oc-

eurring during the freeze.” If these regulations are

correct in their interpretation of the effects of the

freeze, then ticket prices for all sporting events oc-

curring during Phase | of the freeze would be re-

stricted to the highest level set by a substantial volume

of transactions during the base period prior to August

14: and since the term “transaction” is thereby deemed

to embrace the actual performance of the event rather

than the mere sale of tickets, the effect would be te

freeze ticket prices at the level of the tickets sold for

events actually occurring during the base period,

namely, the two exhibition games,

The Raiders have argued against this interpretation

of the freeze provisions on several grounds, including:

(1) that the OEP has misinterpreted the phrase

“actual transactions,” which should be read to include

only the ticket sale itself and not the performance of

the actual sporting event; (2) that the OEP is arhi-

trary in its treatment of sporting events, since it has

refused to roll back tuition increases by educational

institutions in situations where payment was made

hefore the freeze for delivery of services during the

freeze period; and (3) that the entive framework of

delegated authority established by the Economie Sta-

Iilization Act and Executive Order 11615 is uneon-

stitutionally broad,

Ax the Raiders recognize, all three of these argn-

ments have already been carefully considered and

rejected by other courts. In Uacversiiy of Southern

California (USC) v. Cost of Living Council, 472 F.2d

1065 (Temp. Emer.Ct.App. 1972), cart. dented... US.

tabi (Feb, 20, 1973), the Temporary Emergency Court

of Appeals upheld the OF P’s interpretation of “actual

transaction” as applied to advance sales of tickets for

sporting events and rejected the suggested analogy

to tuition Increases on the basis of the “particularly

singular nature of education as a whole.” 472 F.2d at

1071-72. The court also rejected attacks on the con-

stitutionality of the wage-price controls with an ap-

proving citation to Amalgamated Meat) Cutters v.

Connally, 337 FoSupp. 737 (DDC. 1971), in which

a three-judge court carefully examined all aspects

of the delegation of authority under the Economic

Stabilization Act and upheld the Act's constitutional-

itv. After disposing of these contentions the court held

that advance sale tickets for football games were in

fact subject to the freeze and remanded the case to

the District Court with indications that the refund

sought by the OF P should be granted.

The Raiders seek to distinguish their own situation

from the facts in USC vr. Cost of Living Council,

supra, on the grounds that the Raiders® tickets were

sold as part of a season ticket package rather than

as Individual game tickets: thus, they argue, it is im-

proper to assign a higher price to the regular season

tickets in the season ticket package than the price

assigned to the exhibition game tickets in the same

package. Pf this reasoning ts followed and the price of

the season ticket package is pro-rated evenly over all

the home games for the L97L season, regardless of

whether they were exhibition games or regular season

games, then it is evident that there was no price

increase from the exhibition tickets to the regular

season tickets, However, as defendants have pointed

ont. each ticket in the season ticket package has a

price printed on it equal to the price which would

have been charged for that ticket if purchased indi-

vidually at the gate prior to the game; moreover, the

stipulation of facts entered into by counsel for the

Raiders concedes that the total price of the season

ticket package equals the sum of the prices of each

individual ticket in the package.

It is therefore clear, and this court so finds, that

Raider ticket purchasers paid $.50 per ticket more for

regular season games than for exhibition games. For

the reasons stated above, this increased ticket price for

the three home games played in October 1971 violated

the terms of the wage-price freeze.

The remedy sought by OEP on its counterclaim

takes the form of a refund to identifiable ticket pur-

chasers and a reduction in ticket prices for the next

season until the remainder of the illegal overcharges

has been dissipated. Under the initial version of the

Economie Stabilization Act of 1970, the sole remedies

available to the government were a $5000.00 fine and

injunctive relief, including mandatory injunctions.

P.L. 91-379, 68 204, 205, It was not until the amend-

ments of December 22, 1971, that express authority

was given to the courts to order restitution of over-

charges as part of the relief available. PLL. 92-210,

§ 209, Nevertheless, in the USC case, supra, the Tem-

porary Emergency Court of Appeals heid that even

under the Act as it existed prior to the amendments,

“the power to issue mandatory injunctions includes

the power to order restitution or refund of funds held

in Violation of the regulations and rulings of the CLC

and the OP.” 472 F.2d at 1070. Thus there can be

ho question of this court's power to grant the relief

sought by the OEP herein,

On the basis of the entire record, including the

arguments submitted on behalf of all parties, this

court finds that there is no genuine issue as to any

material fact and that the defendants are entitled

to judgment as a matter of law. Accordingly,

IT IS HEREBY ORDERED AND ADJUDGED:

1. That the defendants’ motion be granted, and that

this summary judgment in their favor and against

the plaintiff be entered accordingly: and

2. That as part hereof, the plaintiff shall forthwith

make restitution by refunding all unlawful over-

charges (as identified above) to the affected ticket

purchasers; and, where such ticket purchasers are not

identifiable, plaintiff shall disgorge its unlawful gains

by reducing ticket prices for box offiee sales at home

games during the next regular season by the amount

of the illegal inerease, 1.e., $50, until the total amount

of reimbursements due unidentifiable ticket purchasers

is exhausted,

Dated: Done Dee, 28, 1973

Signed January 2, 1974

= Robert TH. Peckham

United States District Judge

Appendix B

Temporary Emergency Court of Appeals

for the United States

Oakland Raiders, !

Plaintiff-Appellant, |

Vs.

Office of Emergency Preparedness, Cost (No. 9-11

of Living Council, and Ralph D. Burns, |

Defendants-Appellees. |

[Filed July 10, 1974]

Appeal from the United States District Court

Northern District of California

ORDER

Herman Cook and Ralph A. Lombardi, Attorneys,

(Hardin, Cook, Loper, Engel & Bergez) Oakland, Cal-

ifornia for the Appellants.

Paul T. Michael, Attorney (Department of Justice,

Carla A. Hills, Assistant Attorney General and Stan-

ley D. Rose on the briefs) Washington, D.C., for the

Appellees.

Before: Carrer, CHRISTENSEN and Estes, Judges.

The judgment is affirmed on the authority of

DeRicur v. The Five Smiths, Ine. (T.E.CLA., June

20, 1974, No, 5-6, No. 5-7 and No. 5-8) a

Appendix C

Temporary Emergency Court of Appeals

of the United States

Burt DeRicux, ct al., ;

Plaintiff-Appellee,

Vs.

The Five Smiths, Ine.,

Defendant-Appellant.

No. 5-6

The Five Smiths, Ine.,

Plaintiff-Appellant,

Vs.

William H. Holloway, et al.,

Defendants-Appellees,

United States of America,

Plaintiff-Appellee,

si No. 5-8

The Five Smiths, Ine.,

Defendant-Appellant. 4

[ Filed June 20, 1974]

Emmet J. Bondurant, Kilpatrick, Cody, Rogers,

McClatchey & Regenstein (Martin FE. Kilpatrick,

Matthew H. Patton and Susan Cahoon, on the brief)

for appellant The Five Smiths, Ine.

James A, Kichelberger, Greene, Buckley, DeRieux

& Jones, for appellee Burt DeRieux.

Paul T. Michael, Attorney, United States Department

of Justice (Carla A. Hills, Assistant Attorney Gen-

eral, and Stanley D. Rose, Attorney, Department of

Justice, on the brief) for appellee United States of

America.

Before Tama, Chief Judge, Vax Oosrernout and

Hastinos, Judge:

These consolidated cases are before us pursuant to

§ 21i(¢) of the Economie Stabilization Act of 1970, as

amended! (the amended Act), upon certification by the

district court of substantial constitutional issues, We

granted the joint motion of the parties to have the

entire cases in Nos. 5-7 and 5-8 presented to us for

consideration, and subsequently ordered that No. 5-6

he consolidated therewith. Since it now appears that

all facts necessary for a complete adjudication of this

controversy have been stipulated,? we shall exercise

our discretion under §211(¢) to decide the cases in

their entirety at this time.®

At the heart of all three cases is a single question:

did the Atlanta Falcons professional football team

violate the Economic Stabilization Act by playing

football games during the “Phase I” price freeze at

prices which exceeded those charged for games played

during 1970? Phase I was initiated by Executive

ay ; USCA, § § 1904 n. (Supp. 1974).

“Vhe parties have jointly filed a stipulation of facts, with ex-

“ibits, to which plaintiff in No. 5-6 has filed a “caveat” reserving

thet right to present evidence on particular issues.

»Tnited States v. Ohio\ TE.ACLA,, 487 F.2d 936, 938 (1973),

t ren tes 12 UU SLLW. 3457 (Feb. 19, 1974): National Prtro-

loam Refiners Association v. Dunlop, TAELCLA., 486° F.2d 1388,

1591-1592 (1973).

APs

Order 11615, 36 Fed, Reg. 15727 (1971), and was

effective during the 90-day period from August 15

through November 13, 1971.

The Five Smiths, Ine. (the Faleons) operate the

Atlanta Falcons as a member of the National Foot-

ball League (NFL), In No, 5-6, the Faleons are de-

fendant in a class action brought by Burt DeRieux,

an Atlanta lawyer, on behalf of all season ticket hold-

ers for the 1971 Falcons football season, DeRieux

originally sought reimbursement of illegal over-

charges. By amendment to the complaint he now

additionally secks treble damages, attorneys fees and

costs under §210(b) of the amended Act.

No. 5-7 is an action by the Falcons against the

Office of Emergency Preparedness (OEP), its Diree-

tor and Regional Director, the Cost of Living Council

(CLC), the Executive Director and individual mem-

bers of the CLC, and the Commissioner of Internal

Revenue, The complaint seeks declaratory and injune-

tive relief against the application and enforcemert of

the Phase [ freeze with respect to Faleons 1971 foot-

ball ticket prices,

Finally, No. 5-8 was brought by the United States

pursuant to 6205 of the original Economie Stabiliza-

tion Act of 1970* (the 1970 Act), to enjoin ticket price

violations and to require the Falcons to refund

unounts already illegally received,

The docket numbers of the cases reflect the order

in which they were filed during September, 1971, all

4Pub. L. 91-379, 84 Stat. 796 (Aug. 15, 1970),

in the Northern District of Georgia. Proceedings in

all three cases eventually were stayed, by agreement

of the parties, pending the outcome of similar litiga-

tion involving University of Southern California sea-

son football tickets. See University of Southern Cali-

fornia v, Cost of Living Council, T.VACLA,, 472 F.2d

1065 (1972), A petition for certiorari in University

of Southern California wes denied by the Supreme

Court on February 20, 1973. 410 U.S. 928. Thereafter,

the Government filed motions for sunmary judgment

in Nos, 5-7 and 5-8. Without reaching the merits of

the motions, the district court on February 6, 1974

certified the constitutional issues in all three cases to

this court.

In 1970, the Falcons’ management decided to raise

ticket prices for home games during the 1971 football

season, The price increases were announced in Janu-

ary, 1971, and amounted to $1.50 and $2.50 per game,

depending upon seat location. Prices were not raised

for a few “ground” and “field level” seats; however,

such seats represented a small percentage of the

58,000-seat capacity of Atlanta Stadium. Sales of sea-

son tickets at the new prices were commenced on

February 1, 1971, at which time the Falcons mailed

order forms for 1971 season tickets to past season

ticket holders, By the end of June, 41,590 season tick-

ets had been sold and fully paid for. These tickets

were mailed to purchasers on August 2, 1971, and all

were delivered prior to August 15, the date the freeze

went into effect,

The Falcons played five home games during the

freeze, the first of which was a pre-season “exhibi-

tion” game. Unlike many NFL teams, the Falcons did

not play any exhibition games at home prior to August

15. Of the total number of individual game tickets

eventually sold for the five games played during the

freeze, 217,151 were sold prior to August 15 (mostly

in the form of season tickets) and 45,601 were sold

thereafter. The amount of revenue from these five

games which is attributable to the challenged price

increases is $407,912.00, It is this sum (trebled = in

No. 5-6)* which is the subject of the present litigation.

The Falcons’ argument before this court may fairly

be described as a frontal assault upon two decisions

which have become fixtures in the scheme of economic

stabilization law. Awelgamated Meat Cutters &

Butcher Workmen v. Connally, DD.C., 337 FF. Supp.

737 (1971) (Meat Cutters), decided by a three-judge

district court prior to the establishment of the Tempo-

rary Emergency Court of Appeals, upheld the con-

stitutionality of the Economic Stabilization Act as it

existed in August, 1971, when Phase I was initiated.

Even more fundamental! to the development of the law

of this court has heen Currersity of Southern Califor-

nia ve Cost of Living Council, supra-(USC), The

‘ather narrow issue decided in that case—whether the

Phase I freeze applied to tickets sold prior to the

freeze for sporting events occurring during the freeze

SPossibly hheeaune DeRieux purports to represent season tieket

holders only, the recovery sought in 5-6 is somewhat less than three

times the $407,912.00 figure,

—apparently has not been laid to rest. See Manning

v. University of Notre Dame Du Lac, T.E.C.A., 484

F.2d 501 (1973); Oakland. Raiders v, Office of Emer-

gency Preparedness, ND. Calif. (No, C-71-2213, Jan.

2, 1974), appeal docketcd, T.E.CLA. No, 9-11 (March

21, 1974); and ef. Murphy ve O'Brien, TALCL., 485

F.2d 671 (1973). Broader reliance has come io he

placed upon a more general aspect of USC, namely,

the opinion’s analysis and application of the “great

deference test” in the context of economic controls

administration. USC, supra, pp. 1068-1069, See Cvited

States v. IBEW Local 11, VNLCLA,, 475 F.2d 1204,

1209 (1973); Plumbers Local 159 v. Construction L[n-

dustry Stabilization Committee, TRCN, 479 Pi2d

152, 1056 (1973); Baldwin County Electric Membe r-

ship Corp. v. Price € ‘ommission, T.V.CLA., 481 F.2d

920, 923, cert. denied, 414 U.S. 909 (1973): Pacific

Coast Meat Jobbers Association, Ine, v. Cost of Living

Council, T.E.C.A., 481 F.2d 1388, 1392 (1973); Wur-

phy v. O'Brien, supra, p. GTA; City of Groton ve Fc d-

cral Power Commission, V.V.C.A., 487 F.2d 927, 934

(1973); United States ve Ohio, TALCLA., 487 F2d

9336, 941 (1973), cert. granted, ...... US. .. (Feb. 19,

1974). See also United States v. Lich, TALC. 462

F.2d 1161, 1166 (1972), decided prior to USC.

In arguing that Meat Cutlers and USC were

wrongly decided, the Falcons offer five contentions

which form the principal issues conmion to all three

cases how under consideration :

(1) Properly interpreted, Executive Order

11615 does not forbid these price increases ;

(2) The Economic Stabilization Act of 1970,

as it existed during Phase T, represents an un-

constitutional delegation of legislative authority

to the executive branch of the Government ;

(3) Executive Order 11615 violated § 202(b)

of the Economic Stabilization Act;

(4) Executive Order 11615 and the regulations

issued thereunder violated §553 of the Adminis-

trative Procedure Act; and

(5) The application of Executive Order 11615

to forbid these price increases represents (a) an

unconstitutional bill of attainder or cc post facto

law; (b) an unconstitutional taking of property

Without just compensation; and (¢) an unconsti-

tutional deprivation of due process of law.

No, 5-6 raises a sixth issue, namely, whether either

the 1970 Act or the December 22, 1971 amendments

thereto® (the 1971 Amendments) created a_ private

right of action to recover for Phase T price violations

occurring prior to the enactment of the amendments.

Issues 1 and 2 only were actually litigated in USC

and Meat Cutters, Sith respect to such issues, the

Falcons urge that we overrule USC and refuse to fol-

low Meat Cutters. The Falcons have mounted their

attack with skill and resolve, as evidenced by their

principal brief of 155 pages. Still, we are not per-

suaded, We have concluded that the Falcons violated

a lawful Executive Order issued pursuant to a consti-

tutional statute, and that the ticket price ineveases

must be refunded,

SEeonomie Stabilization Act Amendments of 1971, Pub. ti.

92-210, 85 Stat. 745.

We have further concluded in No, 5-6 that viola-

tious of the Order which occurred during the Phase I

freeze period are not subject to private actions by

individual or class plaintiffs.

Executive Order 11615 and the relevant regulations

and interpretations issued thereunder are fully de-

scribed jn the (SC opinion, 472 F.2d at 1066-1067.

We have set out the pertinent section of the Order

below.’ In brief, the Order established a 90-day freeze

on prices, rents, wages and salaries, elective August

15, 1971. Permissible price levels were to be deter-

mined by reference to the nearest preceding 30-day

period during which a “substantial volume of actual

transactions” had occurred, Since the Falcons had not

played any home football games during the 30 days

preceding August 15, the definition of “actual trans-

actions” beeame crucial in determining the proper

“ceiling price” for their upcoming games. If a foot-

ball game “transaction” did not “occur” until the

eames were actually played, the ticket price charged

Section 1. (a) Prices, rents, wages, and salaries shall be

stabilized fora period of 90 days from the date hereof at levels not

erenter then the highest of those pertaining to a substantial volume

of actual transactions by each individual, business, firm or other

entity of any kind during the 30-day period ending August 14,

1971, for like or similar commodities or services. If no transactions

cecarved in that period, the ceiling will be the highest price, rent,

whiny or wage in the nearest preceding 30-day period in) which

transactions did oceur, No person shall charge, assess, or receive,

directly or indirectly in any transaction prices or rents in any form

Livhor than those permitted hereunder, and no person shall, di-

rectly or indirectly, pay or agree to pay in any transaction wages

or salaries in any form, or to use any means to obtain payment of

weees and salaries in any form, higher than those permitted here-

under, whether by retroactive increase or otherwise.”

during the 1970 season would establish the proper

ceiling price for L9T7L games.

Cost of Living Council Order No. 1, 36 Fed. Reg.

16215 (Aug. 20, 1971), delegated the CLC’s authority

to implement the Order to the CEP. Subsequently, the

OEP issued Economic Stabilization Regulation No.

1, 36 Fed. Reg. 16515 (Aug. 21, 1971, which elaborated

on the requirements of Executive Order LIG15, but was

nevertheless “very brief and basic in content.” USC at

1067. The Regulation defined various terms contained

in the Order and Regulation, but did net define the

phrase, “actual transactions.” By amendment dated

August 24, 1971, the Regulation announced that the

OEP would from time to time issue “circulars con-

taining implementing instructional material.” Cireu-

lar No. 7, issued September 2, stated that a service

transaction oceurs “when the service is performed.”

Nine days later, in Cirenlar No. 11, the OEP issued

the statement which was to become the focal point

of the USC case:

“The freeze applies to prices of advance sate

tickets for sporting events occurring during the

freeze.”

In USC we held that the “implied assertion that a

sporting event constituted a service,” and the conelu-

sion in Cirenlar No. 11 that the freeze applied to ad-

vance sale tickets for sporting events, represented “a

reasonable and consistent interpretation of the Execu-

tive Order, and one entitled to this court's respect.”

472 F.2d at 1072.

lL. Did USC correctly inicrpret Eerceutive Order

11615?

The Faleons advanee two diterpretative argumicits.

First, they argue that the sale and delivery of the sea-

son tickets prior to August 15 constituted completed

transactions within the meaning of the Executive

Order and Regulation, If so, the Faleons would lave

heen entitled both to retain the full aniounts already

received and to charge an equally high price for tick-

ets sold alter August 15 (sinee the pre-freeze sales

would have established the proper ceiling price). See-

oud, in the alternative, they contend that irrespective

of whether a higher ceiling price was established prior

to August 15, the Faleous did not “charge, assess ci

receive” a price after August 15 with respect to some

41,000 season tickets and therefore the prices of those

tickets were exenipt from the freeze,

It is conceded that (ONC fully disposed of the first

argument adversely te the Falcons. As for their see-

ond contention, the Faleons urge that the (SC court

was not presented with the precise argument here put

forward. In fact, in Part IV of (OSC, pp. 169-1070,

the court specifically considered and rejected a retro-

activity argument. While it is unelear whether the

words “charge, assess, or receive” were there etyen

the forceful emphasis accorded them by the Falcons.

it is beyond dispute that (SC undertook to authori

tatively interpret the Executive Ordey in light of a

nearly identical set of facts. The Faleons have net

brought to our attention any additional faeters Coarch

as legislative history) which were mot presented in

(sc. They rely entirely upon the text of the Order

itself, the relevant portion of which comprises a single

paragraph. Under these circumstances, (OSC must be

regarded as dispositive of both interpretative argu-

ments here raised.

We subscribe fully to the reasoning and holding

of USC, and deem it unnecessary to repeat what was

set forth in that opinion. in light of Faleons’ stren-

uous effort to upset COSC, and because of one factual

difference based on the Faleons’ status as a profes-

sional football team, some additional comments di-

rected to two of their arguments are nevertheless ap-

propriate.

First: The Faleons generally urge that the OEP

position with regard to ticket prices was inconsistent

with its rulings in other areas, cy., whiversity tui-

tion, and that even the ticket price policy was re-

versed for purposes of Phase [1]. The identical argu-

ments were considered and rejected in USC (pp. LOT

1072). We merely nete that when the agency was

again required to implement a general price freeze at

the outset of Phase TV, as opposed to the more flexi-

ble system of controls represented by Phase I], it

once again interpreted the freeze to apply to advance

ticket sales. See CLC Freeze Group Questions and

Answers Release No. 4.38 Fed. Reg. 16651 (1973);

and cf. Murphy v. O'Brien, supra,

The Faleons also contend that they were subject

to a particular inconsistency with regard to the sal-

aries paid to their foothall players. Faleons prayers

were employed under two separate contracts. The

first was a collective bargaining agreement negotiated

by the players’ union, the NFL Players Association.

This agreement established, tufer alia, the pay sched-

ule for the 1971 pre-season “exhibition” games. The

second agreement was the “standard player contract,”

the salary provisions of which varied and which were

negotiated on an individual player basis. The stand-

ard player contract provided compensation for the

players’ services during the regular season of football

play. Prior to August 15, the Faleons agreed to pay

£117,300 in increased salaries under standard player

contracts.

Sometime subsequent to September 7, 1971, OEP

Director George A. Lincoin issued an interpretative

ruling to the NFL Players Association. The ruling

recited that “[a]ecording to a decision of the CLC

on September 7, 1971," players who were already in

training camps prior to August 15 under 1971 stand-

ard player contracts were entitled to receive any in-

creases prescribed therein, We have not been in-

formed of any effort by the Falcons to contest this

ruling. The Faleons new argue, however, that the

ruling has placed the CEP “in the incongruous posi-

tion of advocating a price freeze on the sale of tick-

ets without a corresponding wage freeze on the sata-

ries of the players who performed in the same games.”

In USC, we stated that “[i]f the haste necessitated

[by the freeze] gave rise to unreasonable inconsisten-

cies in the administrative interpretations, or to actions

plainly without the purpose and scope of the Order,

then we will readily rectify them.” 472 F.2d at 1069,

We cannot say that the alleged disparity here repre-

sents an unreasonable inconsistency in the ageney’s

administration of the Grder. It is clear that the stand-

ard player contract was not limited to the regular foot-

ball season.” Conversely, in addition to setting sala-

vies for preseason games, the collective agreement

established minimum salaries for the recular season

as well, The collective agreement contemplated, and

indeed required, the signing of individual standard

player contracts. The two agreements thus covered

different aspects of a single period of employment.

Under the OFP rating, salary provisions contained

in the player contracts escaped the freeze only if per-

formance of this single cnployment service was begun

privy to August 15. In sum, the continuing service

required of a football player under these contracts is

sufficiently different from the discrete services per-

formed by the Faleons—iv., performance of foothall

games—to justify this result.

Second: The Faleons argue that (OSC erroneously

focused on the provisious of the Executive Order

which relate to ceiling price, and ignored the portion

of the Order which describes the actual conduct to be

‘Paragraph 1 of the contract provides that “[t]he term of this

contract shall be from the date of exeeution hereof * * *.° The OEP

ruling was expressly limited to players “who have signed 1971

contracts.” Paragraph 2 of the contract recites the player's agree-

ment “during the term of this contract to report promptly for the

Club's training sessions and, at the Club's direction, to render his

full time services during such training sessions and to participate

in all practice sessions and in all League and other football games

scheduled for or by the Club.” Further, Paragraph 3 expressly

provides that the Club shall pay beard, lodging and travel ex-

penses for away-from-home training or games during the pre-

season period,

prehibited. The language relied upon is contained in

the third sentence of §1(a) of the Order, quoted

supra n. 7. In pertinent part, the third sentence pro-

vides that “[nJo person shall charge, assess, or receive

* * * in any transaction prices * * * in any form

higher than those permitted hereunder * * *.” Closely

related to this contention is the argument that USC

erred in according “great deference” to an agency

interpretation which is in alleged conflict with the

clear meaning of the quoted language. That meaning,

the Falcons assert, is that prices which have been

fully collected prior to August 15 are beyond the

Order's reach.

We begin by emphasizing that there is textual sup-

port for the OEP’s interpretation of the Order, the

Falcons’ contention to the contrary notwithstanding.

The Order proscribes higher prices “in any transac-

tion.” For ceiling price purposes, the Order expressly

looks to price “pertaining to * * * actual transac-

tions.” It is not unreasonable to construe the third

sentence of the Order to incorporate this same con-

cept, ie, to proseribe higher prices which pertain

to future transactions, even though payment may al-

ready have been conditionally received. Just as a

service transaction may reasonably be said to “oceur”

at the time of performace, a price may be deemed

to be “charged” as of that same date. Cf. CLC Release

No. 4, supra, 38 Fed. Reg. 16651. This is particularly

true when it is realized that under the Falcons’ alter-

native interpretation, patrons who had purchased tick-

ets well in advance of the freeze would pay hisher

prices to sit side by side with fans who bought tickets

after August 19, ‘Thus, even if we were to yield to

the Falcons’ insistence that we interpret the Order

de novo, it is not at all clear that we would reach a

result different from that of the OEP.

The point ef (O8C was that such a de novo analysis

by the courts is both unnecessary and improper. “In

delegating to the agencies the duty to develop the very

definitions of the words used in the Order, the broad-

est possible delegation of power was given.” USC at

1068. The delegation by the 1970 Act itself was no

less broad. Congress, in § 202(a), had said only that

prices might not be reduced below the levels of May

25, 1970." See USC at 1070. It is no abdication of

our constitutional role for this court to recognize the

breadth of the delegations invelyved In this particular

statute and this particular Order, The Supreme Court

has stated in the context of an earlier price control

statute that “the ultimate criterion is the administra-

tive interpretation, which becomes of controlling

weight unless it is plainly erroneous or inconsistent

with the regulation.” Bowles veo Scminole Rock &

Sand Co., 325 US. 410. 414 (1945). As discussed

wi 902, Presidential authority

(a) The President is authorized to issue such orders and regu-

lations as he may deem appropriate to stabilize prices, rents, wages,

and salaries at levels not less than those prevailing on May 25,

1870, Such orders and regulations may provide for the making of

such adjustments as may be necessary to prevent gross inequities.”

The Faleons emphasize that the cited quotation is followed by

this sentence: “The legality of the result reached by this process,

of course, is quite a different matter.” The “legality” referred to is

the reenlation’s validity under the enabling statute and the Con-

stitution. 325 U.S. ut 414, 418-419. As noted above, the Act itself

requires only that prices be stabilized at levels not below those of

May 25, 1970. The coustitutional validity of the Order as inter-

preted and applied is discussed elsewhere in this opinion.

above and as fully explained in USC, Circular No. 11

was not “plainly erroneous or inconsistent” with Ex-

ecutive Order 11615. Accordingly, ve hold once again

that such ticket price increases violated the Executive

Order.

2, Was the 1970 Act an anconstitutional dclcegation

of legislative power?

Relying upon A. L. A. Schechter Poultry Corp. v.

United States, 295 U.S. 495 (1935), and Panama Re-

fining Co. v. Ryan, 293 U.S. 388 (1935), the Falcons

urge that the 1970 Act is void as representing an un-

coustitutional delegation of legislative power to the

President. it is conceded that subsequent to Schechter,

no federal statute had been held unconstitutional by

the Supreme Court on that basis. Among the statutes

to survive a delegation challenge was the Emergency

Price Control Act of 1942. Yakus v. United States,

321 U.S. 414 (1944).

In Almalgamated Meat Cutters & Butcher Work-

men v. Connally, D.D.C., 337 F. Supp. 737 (1971),

supra, a three-judge district court upheld the 1970

Act in the face of a delegation challenge. Several

other district courts have reached the same result.”

The exhaustive and learned opinion by Judge Leven-

thal in Meat Cutters has been favorably cited by this

court on several occasions. See United States v. Lich,

supra, p. 1165; USC, supra, p. 1070; T BEW Local 11

See, ¢.gq., California Teachers Association v. Newport Mesa

Vitéed Schoo! District, C.D. Calif.. 333 F. Supp. 436, 446-447

(W9T1): United States v. Cincinnati Transit, Inc., S.D. Ohio, 337

F. Supp. 1068, 1072 (1972).

v. Boldt, TAACA,, 481 F.2d 1392, 1395, cort. denied,

414 U.S, 1092 (1973). It appears, however, that this

is the first occasion upon which our court has been

called to directly decide the delegation question. This

jikely is due in part to the fact that the 197L Amend-

ments appear to have climinated any doubt as to the

Act’s validity under Article L of the Constitution.

We are in substantial agreement with the reasoning

of Meat Catters, and concur in the result there

reached. It would serve only to unduly prolong this

opinion were we to further elaborate our views on this

subject. Accordingly, on the authority of Meat Cat-

ters, we hold that the Economic Stabilization Act of

1970, as it existed on August 15, 1971, was not an wn-

constitutional delegation of legislative power to the

President.

3. Did Exceutive Order 11615 violate § 202(b)

of the Economic Stabilization Act?

As originally enacted on August 15, 1970, the Eeo-

nomic Stablization Act did not restrict the President's

authority to institute selective economic controls. Ae-

cordingly, on March 29, 1971, the President issued

Executive Order 11588, 36 Fed. Reg. 6339, which pro-

vided for the stablization of wages and prices in a

single industry (the construction industry) Less than

two months later, Congress amended § 202 of the 1970

Act to add the following provision:

“(b) The authority conferred on the President

by this section shall not be exercised with respect

to a particular industry or segment of the eecn-

omy unless the President determines, alter taking

into account the seasonal nature of employment,

the rate of employment or underemployment, and

other mitigating factors, that prices or wages in

that industry or segment of the economy have in-

creased at a rate which is grossly disproportion-

ate to the rate at which prices or wages, have

increased in the economy generally.” Pub. L. 92-

15, 85 Stat. 38 (May 18, 1971).

This provision remained in effect until the enactment

of the 1971 Amendments on December 22, 1971. No

comparable provision was retained in the amended

Act.

The Falcons argue that Executive Order 11615 vio-

lated § 202(b) because (1) the Order affected “a par-

ticular industry or segment of the economy” only,

and (2) no prior determination was made by the

President that prices or wages in the affected segment

increased at a rate which was grossly disproportionate

tu the rate at which prices or wages increased in the

economy generally. The parties stipulated that the

following segments of the economy were not subject to

regulation under the Order: (1) raw agricultural

products, (2) exports, (3) interest rates, (4) corpo-

rate stocks and bonds and municipal bonds, and (5)

corporate dividends. On brief, the Faleons assert that

the excluded segments represent business receipts

during 1971 of 555 billion dollars, or approximately

20 per cent of total business receipts in the United

States. The parties have further stipulated that at

the time of the issuance of Executive Order 11615,

the President did not determine that prices and wages

affected by the Order had increased at a grossly dis-

proportionate rate when compared with the economy

generally,

We initially note that of the five listed exempt

categories, only raw agricultural products were ex-

pressly excluded by the Order, Prices of exports and

stocks and ponds were first exempted by GEP Regu-

lation No. 1, pursuant to the agency’s authority under

§4(a) of the Order to grant exemptions. 36 Fed.

Reg. at 16515, Interest rates and corporate dividends

were not subject to the freeze because they were not

“prices, rents, wages, or salaries” within the mean-

ing of the Act and the Order. See OFP Cireular

Nos. 1 and 3, 36 Fed. Reg. 16587 and 17345 (1971);

and see Conf. Rep. No, 91-1386, 91st Cong., 2d Sess.,

p. 7 (1970)."* Since § 202(b) refers only to the rate

at which “prices or wages” have inereased in the econ-

omy generally, the relevance of economic data pertain-

ing to dividends and interest is questionable.

In any event, in light of both the language of

§ 202(b) and the legislative purpose behind its enact-

ment, the Falcons’ contention is without merit. Even

if 80 per cent of the economy may be literally re-

garded as a “segment” of the entire economy, it surely

is nota “particular * * * segment” within the meaning

of § 202(b). It would be anomalous to iequire a tind-

ing that wages and prices comprising 80 per cent of

the economy had increased at a rate “grossly dispre-

portionate” to such increases in the “econcmy gener-

ally.” Finaly, the Report of the Senate Committee

12Interest and dividends subsequently were brought within the

Act's coverage by $§ 202 and 203(a)(2) of the 1971 Amendments.

on Banking, Housing and Urban Affairs relative to

§202(b) confirms that the finding requirement was

directed only at the imposition of controls over rela-

tively small segments of the economy:

“The committee has serious reservations about

applying the price and wage control authority fo

a single industry. An industry subject to price

controls has no control over the price it must pay

for the products of other industries. Likewise,

workers subject to wage controls have no protec-

tion against a continued rise in the cost of living.

* %& &

“As a restriction on using the wage-price con-

trol authority on a single industry, the commiit-

tee approved an amendment requiring a specific

finding by the President. Under the amendment,

the President is prohibited from using the an-

thority in a single industry unless he determines

that wages or prices in that industry have in-

creased at a rate which is grossly disproportion-

ate to the rate for the economy as a whole, after

taking into account any mitigating factors such

as the seasonal nature of employment or the rate

of unemployment or under enployment in the

particular industry.” S. Rep. No. 92-89, 92d

Cong., Ist Sess. 1 U.S. Code Cong. & Adimin.

News 1971, pp. 1048-1049 (emphasis added).

Since § 202(b) does not apply to the controls imsti-

tuted by Executive Order 11615, the President's action

need only fall within the general aathority conferved

by §202(a), supra. Such section clearly authorized

the imposition of controls over something less than

the entire economy.

4, Did Evceative Order 11615 and the regulations

therewnder violate the Administrative Procedure

Act?

The Falcons contend that Executive Order 11615, CLC

Order No. 1, and OEP Regulation No. 1 were issued

Without observance of procedures required by § +4 of

the Administrative Procedure Act (APA), 5 U.S.C.

$553. In pertinent part, 6553 provides as follows:

“(b) General notice of proposed rule making

shall he published in the Federal Register * * * ,

Except when notice or hearing is required by stat-

ute, this subsection does not apply—

(A) to interpretative rules, general state-

ments of policy, or rules of ageney organiza-

tion, procedure, or practice: or

(B) when the ageney for good cause finds

(and incorporates the finding and a brief state-

ment of reasons therefor in the rules issued )

that notice and public procedure thereon are

impracticable, unnecessary, or contrary to the

public interest.

(¢) After notice required by this section, the

agency shall give interested persons an oppor-

tunity to participate in the rule making * * *

(d) The required publication or service of a

substantive rule shall be made not less than 30

days before its effective date, * * * .”

No general notice of proposed rule making preceded

the issuance of any of the orders or regulations here

challenged, Further, neither Executive Order 11615

nor CLC Order No. 1 contained an express finding, ac-

companied by reasons, that “netice and public proce-

dure * * * are impracticable, unnecessary, or contrary

tu the public interest.” OEP Regulation No. 1 did

contain such a finding, but only by virtue of an

amendment to the Regulation dated November 12,

1971, i.c., one day before Phase I] was to expire.

Since each of the three challenged actions raise

somewhat different problems, we shall treat them

separately.

a. Kwrecutive Order 11615

The first question raised by the Executive Order is

whether the President is an “agency” within the

meaning of the APA. The case for subjecting the

President of the provisions of the APA is a strong

one. Courts have shown some reluctance to decide

the question, however, in view of potential ‘amifications

under the Freedom of Information Act," see Soucic

r, David, D.C. Cir, 448 F.2d 1067, 1073 (1971), and

the judicial review provisions of the APA,” see Seu

8 U.S.C. $551 defines “agency,” for purposes of §§ 551-559,

to mean “each authority of the Government of the United States,

whether or not it is within or subject to review by another agency,

hut does not inelude—(A) the Congress: (B) the courts of the

United States; * * #.” “The President” is not in terms excluded.

ly view of the glaring exclusion of two of the three principal

branches of the Government, an intention not to exempt the Presi-

dent may be readily inferred. Cf. the Federal Register Act, 44

U.S.C. § 1501 ef seq. in which “ageney” is defined by listing in-

ended offices, and where “the President” is ineluded and “the

lowislative or judicial branches of the Government” are excluded.

In Meat Cutters, supra, Judge Leventhal without deciding the

question cited three leading scholars for the proposition that “the

term tageney’ in the APA ineludes the President.” 337 F. Supp.

at 761.

MATIS.C, § 552.

5 USC. $$ TOL-706. As is here relevant, the definition of

“peeney” conteined in § TOL is identical to that in $951,

ate Select Committee on Presidential Campaign Ae-

tivities v. Nicon, D.D.C., 366 F. Supp. 51, 58 (1973).

Upon this certification the Government had not made

known its position with regard to this important

question, We shall therefore assume, argucndo, that

the President is an agency within the meaning of the

APA.

The issue thus becomes whether we must set aside

the Order for failure to conform with the procedural

requirements of 5 U.S.C. 9553. In Meat Culters,

supra, these requirements were recognized but were

deemed to be of little practical consequence in view of

the exception provided by §553(b)(B), supra. 337

I. Supp. at 761. The problem here cannot be so

easily dismissed since the Government has stipulated

that the finding required to invoke the inception was

not made.

At the outset, we are satisfied that there was in

fact “good cause” to find that advance notice of the

freeze was “impracticable, unnecessary, or contrary to

the public interest” within the meaning of §553(h)

(B). This conclusion is based upon facts so obvious

that they may be judicially noticed. Had advance no-

tice issued, it is apparent that there would have ensued

a massive rush to raise prices and conduct “actual

transactions’ —or avoid them—hefore the freeze dead-

line. Each price increase would have generated fur-

ther increases in a growing spiral of inflation. We

note in this connection the remarks of George P.

Schultz. Director of the Offiee of Management and

3udget, made during the course of an August 15, 1971

press conference, immediately prior to the Presi-

dent’s announcement of the freeze:

“* * * Tt is very difficult for the people in

the administration to talk publicly about some-

thing like a wage-price freeze or something of

that kind because inunediately people raise their

prices. In fact, I would say—and 1 don’t have

any really strong evidence to this effect—but I

would say that the very large increase in the in-

dustrial component of the wholesale price index in

July that was reported a week or so ago prob-

ably reflects a reaction to all of the talk, with peo-

ple putting their list prices up. * * * 7°

While the legislative history of the 1970 Act does

not reveal consideration of the problem disctssed

by Director Schultz," it is clear that Congress antici-

pated the need for abrupt action in dealing with in-

flation. The Report of the House Committee on

Banking and Currency repeatedly refers to the Pres-

ident’s power under the Act as “standby authority.”

ILR. Rep. No. 91-1330, 91st Cong., 2d Sess., pp. 9, 11,

29 (1970). It would appear that a major factor in

the decision of Congress to delegate such authority

was its belief that only the Executive could properly

react to day-to-day changes in the economy.’* The

16CCTT Economic Controls ©8367, p. 8406 (1972).

17The House Committee on Banking and Currency subsequently

did acknowledge this reason for secrecy in connection with Phase

|. however. See TLR. Rep. No. 92-714, 92d Cong., Ist Sess., p. 4

(1971).

1*In response to criticism that the freeze should be instituted by

Coneress directly, and not by the President, the Committee Report

sti tes: “EA wage-price freeze] is not a legislative function, both

in terms of appropriate timing in instituting the controls and re-

moving them, since only the Executive can determine the appro-

psychological value of a “dramatic” initiation of con-

trols appears also to have been contemplated. ileal

Cullers, supra, p. 752. And although not phrased in

terms of a finding for purposes of § 553(b)(B), supra,

the preamble to the Order itself refers to another

ground for urgency: “Whereas, the present balance

of payments situation makes it especially urgent to

stabilize prices, rents, wages, and salaries * * *,”

The Falcons argue that because (1) the Government

has stipulated that no finding was made, and (2) no

finding and statement of reasons was incorporated in

the Executive Order, the Order should now be sect aside.

We cannot agree that Congress intended to visit such

consequences upon a technical violation of % 553 (b)

where the reasons for exempting the President’s ac-

tion from the notice requirement are so obvious and

compelling. Cf. Appalachian Power Co. ve Environ-

mental Protection Agouey, + Cir, 447 F.2d 495, 502-505

(1973); sioticiaaen Light Co. v. Luviroumental Pro-

tection Aygeney, 3 Cir, 481 F.2d 1,8 (1973). A fail-

ure to Incorporate in rules a statement of basis and

purpose, in technical violation of §555(¢), has been

held not to void the rules where “[b]Joth the basis and

purpose are obvious from the specific governing legis-

lation and the entire trade was fairly apprised

them by the precedure followed.” /foring Corp. v.

Federal Trade Commission, 2 Cir. 290) F.2d 803, S07

(1961). In both « cases upon which the Paleous prin-

priate time for instituting the controls and removing them

Further: “if the Congress had mandated such action through to

the termination date [of the Aet |, it would well be days or weeks

before sneh eetion would be rescinded by the Congress if necded

#e? OER. Rep. No. 91-1330, supra, p. 11.

cipally rely,’’ the inquiry was quite properly directed

at whether the ageney in fact had good cause to bypass

the notice requirement. We hold that Executive Order

11615 did not violate 64 of the Adiministrative Pro-

cedure Act.

b. CLC Order No. 1

On August 17, 1971, the CLC issued its Order No, 1

under the title, “Delegation of Authority.” 36 Fed.

Reg. 16215. The Order consisted of five brief para-

graphs. The first and second paragraphs delegated the

CLC’s authority under &6 1, 44a), 5 and 7 of Executive

Order 11615 to the Director of the OEP. Paragraph

3 of Order No. 1 directed executive departments and

agencies to assist the Director pursuant to 31 U.S.C.

6691; paragraph 4 required consultation with the

CLC on significant policy decisions: and paragraph

5 permitted the Director to redelegate the authority

thereby conferred.

Section 553(b) (A) excepts, inter alia, “rules of

ageney organization, procedure, or practice” from the

notice requirement of § 553. Nothing contained in

CLC Order No. 1 goes beyond the matters thus ex-

cided. Accordingly, Order No, 1 did not violate the

APA, |

«. OEP Regulation No, 1

The bulk of OEP Regulation No. 1 merely re-

phrases and interprets the Executive Order. Indeed,

section 1 of the Regulation states that the Regulation’s

mT, vacuo, Tne. v. Federal Power Commission, 3 Cir. 412. F.2d

TH 61969): Kelly v. Dept. of Interior, ED. Calif, 359 FL Supp.

1095 (1972).

purpose is to “promulgate initial guidance and pro-

cedures” for implementing the freeze. To the ex-

tent that the Regulation is thus an ‘interpretative

rule,” it falls within the exception to $553 provided

by $553(b)(A). To the extent that it arguably may

prescribe non-exempt rules (none of which would ap-

pear to affect the Falcons in this case), the considera-

tions previously set forth with respect to the Execu-

tive Order apply with equal force to the Regula-

tion. We thus need not decide whether the amend-

ment to the Regulation dated November 12, 1971,

which was nothing more than a pro forma statement

of the obvious, *’ could retroactively cure a_tech-

nical flaw in the rule.

5. Additional constitutional questions:

Does Exceutive Order 11615 as applicd

represent an cx post facto law or bill

of attaindcr, a taking of property with-

out just comnensation, or a denial of due

process of law?

The Falcons finally advance a variety of constitu-

tional arguments relating to the allegedly retroactive

nature of the Executive Order as here applied. Sim-

ilar arguments on previous occasions have heen uni-

formly rejected by our court. See USC, supra, p.

1070; IBEW Local 11 v. Boldt, supra, p. 1395 (just

2"Becunse of the necd for prompt determinations, notice of pro-

posed rule making and public procedure thereon heve been found

to be impracticable and contrary to the public interest.” 36 Fed.

teg. 21761 (1971).

compensation) ; Western States Meat Packers Asso-

ciation, Inc. v. Dunlop, T.E.C.A., 482 F.2d 1401,

1403-1404 (1973) (just compensation) ; see also, Meat

get supra, pp. 763-764 (due process); Taylor

. Brown, Emer, Ct. App., 137 F.2d 654, 659-660,

a denied, 320 U.S. 787 (1943) (er post facto, just

compensation ).

The Faleons argue from the assumption that their

rights in the season ticket sale proceeds were **vested”

and “unqualified” as of August 15, 1971. Such as-

sumption is faulty Inasmuch as the Falcons concede,

elsewhere in their brief, that if the games had not

heen performed they would have been liable for the

purchase price. See, ¢g., De La Ysla ve Public

Theatres Corp., 26 P.2d 818 (Utah 1933). The anu-

thorities cited by the Falcons do not so ane indi-

cate that a ticket is not a contract, as hold that the

seller’s duty and the remedies for breach thereof are

limited. A ticket does not create an irrevocable right

of entry, Marrone v. Washington Jockey Club, 227

U.S. 633 (1913), nor does it warrant against per-

sonal injuries, Jordan v. Concho Theatres, Tne., 160

S.W.2d 275 (Tex. Civ. App. 1941). We are cited to

no case, however, which indicates that the Falcons

could refuse to perform the scheduled games with

impunity on the ground that their prior rights were

**unqualified.””?

“1Contrast Louisville Joint Stock Land Bank v. Radford, 295

TS, 555 (1935). holding that a statute which deprived mortgagecs

of substantial existing rights in specifie mortgaged property vio-

lated the Fifth Amendment.

It is well settled that Congress may interfere with

private contractual obligations where such interfer-

ence is a necessary incident of otherwise valid legis-

lation. Norman v. Baltimore d&: Ohio R. Co., 294 U.S.

240, 307-311 (1935); Louisville & Nashville R. Co. v.

Mottley, 219 U.S. 467, 480-483 (1911); USC, supra,

p- 1070. That one of the contracting parties may have

completely performed his obligations does not remove

this ‘‘congenital infirmity” (Norman, supra, p. 308)

which is a part of every contract subject to Congres-

sional power. Louisville d&: Nashville R. Co. v. Mottley,

supra.

As for the er post facto clause, the Order cannot

be said to punish the Falcons for prior conduct within

the meaning of such cases as Fletcher v. Peck, 10

U.S. (6 Cranch) 87 (1809), and Cummings v. Mis-

souri, 71 U.S. (4 Wall.) 277 (1867). See also, Calder

v. Bull, 3 U.S. (3 Dall.) 386, 390-391 (1798). Neither

is the Order a bill of attainder, see United States

v. Brown, 381 U.S. 437, 447 (1965). It is true that

§ 204 of the 1970 Act prescribes fines for willful vio-

lations. However, the Government has sought only an

injunction and restitution under § 205, for which

there is no requirement of willfulness, and none of

the letters or telegrams referred to in the Falcons’

complaint threaten criminal action or accuse the Fal-

cons of willful wrongdoing. In Manning v. University

of Notre Dame Du Lac, T.E.CLA, 484 F.2d 501, 503-

HOF (1973), on nearly identical facts, we indicated

that the violation likely was not willful within the

meaning of §208(a) of the amended Act (the sue-

cessor to § 204). In any event, any fine which might

be imposed would be based upon willful conduct

which occurred after the effective date of the Order.

No. 5-6 arises out of plaintiff Burt DeRieux’s pur-

chase of four Atlanta Falcons season tickets in June

1971. On August 27, 1971, DeRieux by letter de-

manded the return of $1.50 per ticket per game; the

demand was rejected by the Falcons on September

2. Thereafter, on September 10, DeRieux filed the

present class action on behalf of all Falcons season

ticket holders. DeRieux’s action preceded by seven-

teen days the Government’s suit for injunction and

restitution (No. 5-8).**

Both the original and first amended complaints al-

leged that the action arose under the Economic Sta-

bilization Act of 1970, and invoked federal jurisdic-

tion under 28 U.S.C. 61331.2% The complaints recog-

nized, however, that the plaintiff sought relief “not

provided for in the Economie Stabilization Act, Ex-

ceutive Order 11615, or in any other administrative

forum, and which only this Court can grant.” By

amendment to the complaint, filed July 25, 1973, De-

22))eRieux alleges that the Government instituted its enforee-

nicht action only as a result of his persistent protests, which in-

cluded the August 27 letter to the Falcons, a complaint with the

Internal Revenue Service dated September 9 and, shortly there-

after, the present lawsuit.

22Apparently recognizing the jurisdictional problem posed by

‘Snuder v. Marris, 394 U.S. 332 (1969), and Zahn v. International

Paper Co. AVA US. 291 (1973), DeRienx now additionally elaims

thot jurisdiction is conferred by 28 U.S.C. § 1337, under which

there is no requirement of a $10,000 minimum amount in contro-

versy.

Rieux alleged for the first time that his claim was

based upon § 210 of the amended Act.?!

The amendment further alleged that the Falcons

“have and continue to willfully refuse to refund the

amount due * * * despite the decision of the Tem-

porary Emergency Court of Appeals in [USC].”

Finally, the amendment sought treble damages in the

amount of $1,140,000.00, attorneys fees and costs pur-

suant to § 210(b) of the amended Act.

The principal question now presented is whether

either the 1970 Act or §210 of the amended Act

2#$ 210. Suits for damages or other relief

(a) Any person suffering legal wrong because of any act or

practice arising out of this title, or any order or regulation issued

pursuant thereto, may bring an action in a district court of the

United States, without regard to the amount in controversy, for

appropriate relief, including an action for a declaratory judgment,

writ of injunction (subject to the limitations in section 211 _

and or damages.

(b) In any action brought under subsection (a) against any

person renting property or selling goods or services who is found

to have overcharged the plaintiff, the court may, in its discretion,

award the plaintiff reasonable attorney's fees and costs, plus which-

ever of the following sums is greater:

(1) an amount not more than three times the amount of the

overcharge upon which the action is based, or

(2) not less than $100 or more than $1,000; except that in

any case where the defendant establishes that the overcharge

was not intentional and resulted from a bona fide error not-

withstanding the maintenance of procedures reasonably

adapted to the avoidance of such error the liability of the

defendant shell be limited to the amount of the overcharge:

Provided, That where the overcharge is not willful within the

meaning of section 208(a) of this title, no action for an over-

charge may be brought by or on behalf of any person unless

such person has first presented to the seller or renter a bona

fide claim for refund of the overcharge and has not received

repayment of such overcharge within ninety days from the

date of the presentation of such elaim.

fe) For the purposes of this section, the term ‘overcharge’

means the gmount by which the consideration for the rental of

property or the sale of goods or services exceeds the applicable

eciling under regulations or orders issued under this title.”

create a private right of action for Phase I violations

which occurred prior to December 22, 1971, the date

on which § 210 was enacted.

In terms, the 1970 Act, in § 205, provided only

for injunctive relief in actions brought by an agency

of the United States:

‘Whenever it appears to any agency of the

United States, authorized by the President to

exercise the authority contained in this section

* * * that any person has engaged, is engaged,

or is about to engage in any acts or practices

constituting a violation of any regulation or order

under this title, it may in its discretion bring an

action * * * to enjoin such acts or practices, and

upon a proper showing a permanent or temporary

injunction or restraining order shall be granted

without bond. Upon application of the agency,

any such court may also issue mandatory mjune-

tions commanding any person to comply with any

regulation or order under this title.”

Section 7(b) of the Executive Order conferred upon

the CLC the authority ‘*in its discretion” to request

the Department of Justice to bring actions for in-

junctions under § 205,

Faced with the absence of any express authority

for a private right of action under the 1970 Act,

DeRieux argues that such a right may be implied

from the purposes and policies of the Act. See Allen

v. State Board of Elections, 393 U.S. 544 (1969);

J. 1. Case Co. v. Borak, 377 USS. 426 (1964). More

specifically, the argument is that ‘the class's claim

is within the scope of the very rights which the

statute and the Executive Order were attempting to

protect.” The purpose of the Act, DeRieux argues,

was ‘‘to protect consumers from an inerease in

prices.”

The question of implied private rights of action

was most recently the subject of Supreme Court re-

view in National Railroad Passenger Corp, v. Na-

tional Association of Railroad Passengers, ....... U.S.

seis (No. 72-1289, Jan. 9, 1974). There, the Court un-

dertook to construe §307(a) of the “Amtrak Act,”

45 U.S.C. §547(a). Section 307(a) authorized en-

forcement actions by the Attorney General and, in

cases involving a labor agreement, by affected em-

ployees or their representatives. After examining

legislative history and the policies of the Act, the

Court concluded that § 307(a) provided the exclusive

remedies for violations and that no additional private

right of action could properly be inferred.

In some respects, the problem in Railroad Passen-

gers was different than that posed by § 205 of the

Economic Stabilization Act. Since the Amtrak Act

| expressly authorized some private actions- (by em-

ployees under a labor agreement), the maxim expres-

sio unius est erclusio altcrius applied with particular

force to other private actions not so authorized. In

addition, in drafting the final Amtrak bill Congress

had considered and rejected a proposzi to permit

suits by any ‘“‘aggrieved person.” Our review of the

legislative history of the Economic Stabilization Act

of 1970 has failed to reveal any specifie considera-

tion of proposals to create or limit private rights of

action.”°

We are not left totally without guidance, however.

In interpreting the 1970 Act, the provisions of prior

economic controls legislation are significant. Meat

Cutters, supra, p. 748. Both the Emergency Price

Control Act of 1942 and the Defense Production Act

of 1950 provided for private damage actions in ad-

dition to Government suits for injunctions and fines.

56 Stat. 23, 34; 64 Stat. 798, 811. The similarity in

language between § 205 and the injunction provisions

of the two earlier statutes indicates that § 205 was

derived from those provisions; this is confirmed by

the legislative history.* From this background of

prior law, Congress surely was aware of the possi-

bility of private enforcement, and its failure to ex-

pressly provide for private actions in the 1970 Act

can only be regarded as intentional.

Further, an examination of the purpose of the

1970 Act supports the conclusion that the remedies

contained in § 205 were intended to he exclusive, Con-

eress aaticipated that the President would implement

the Act by imposing a short term freeze of only two

or three months’ duration. H.R. Rep. No. 91-1530,

25°The adequaey of the Act’s enforeement provisions were chal-

lonved, however, both in hearings and on the floor of the House.

seo Hearines on TLR. 17880 before the House Committee on Bank-

ing and Curreney, 91st Cong., 2d Sess., pp. 83-84: 116 Cong. Ree.

#237 (1970) (remarks of Representative Anderson).

26R-marks of Representative Reuss, Hearings on TLR. 17880,

supra n. 25, pp. 5-6 (1970): “The langnage of title IL is derived

from the battle-tested language of the Emergency Price Control

Act of 1942.”

supra, p. 9. The purpose of the anticipated freeze was

to break the nation’s ‘inflationary psychology” and

to provide a breathing period during which longer

term controls could be formulated. See Meat Cultcrs,

supra, pp. 747-748, 751-752; Hearings on II.R. 17880,

supra n, 25, pp. 6, 11-12. It is entirely reasonable

that Congress would choose not to confer individual

rights of action with respect to controls of such short

duration and uncertain consequence.

The difference between the Economie Stabilization

Act of 1970 and statutes under which an implied

private right of action has been recognized is appar-

ent. Unlike the Voting Rights Act of 1965,7" the

Securities Exchange Act of 1934,° or the Federal

Safety Appliance Acts’ the Economic Stabilization

Act was not designed to protect or confer ‘private

rights” within the usual meaning of that phrase. In-

deed, as the present case well illustrates, the effect of

the Act and Order in many instances was destrue-

tive of private contract rights. Rather, the Act pre-

scribed emergency medicine to remedy an afiliction af-

fecting the entire national economy. Individuals were

ultimately sought to be benefitted, but as a conse-

quence of overall economic stabilization. There was

no intention to benefit a specific class. Cf. Daly v. Co-

lumbia Broadcasting System, Tne. 7 Cir. 309 F.2d

83 (1962). Even when Congress amended the Act to

provide for individual actions, in § 210, its principal

27Sce Wen ev. Slate Board of Elictions, 393 U.S. 544 (1969).

28876 J. 70. Case Co. v. Boral:, 377 U.S, 426 (1964).

See Teras & Pacific Ry. Co. v. Rigsby, 241 US. 33 (1916).

concern was deterrence and effective enforcement,

and not the vindication of individual ‘“‘rights” as

such. See H.R. Rep. No. 92-714, 92d Cong., Ist Sess.,

pp. 8, 28 (1971). We conclude that a private right of

action cannot be inferred from the 1970 Act.*°

DeRieux next argues that even if no implied right

of action was created by the 1970 Act, the December

22, 1971 amendments to the Act supplied the previ-

ously missing remedy. The question is whether § 210

of the amended Act, supra n. 24, may be read to

have retrospective effect.

If §210 were solely concerned with perfecting

a remedy for previous violations of the law, it might

well permit the construction here urged. See Bradley

v. Richmond School Board, ......... eae (No. 72-1322,

May 15, 1974); Koger v. Ball, 4 {| nee |

(No. 73-2332, May 10, 1974). But the 197] Amend-

ments did more than merely make recovery more

convenient or more certain. Section 210(b) provides

for the awarding of a sum equal to the greater of

(1) three times the amount of the overcharge, or

(2) not less than $100 nor more than $1,000. Thus,

the damages available under § 210(b) are punitive in

nature and substantially larger than those previously

recoverable in Government actions for restitution.

The amendment to the complaint here invokes these

20 Accord, ICA Southeast, Inc. v. Optimum Systems, Ine., E.D.

ta. CCH Economie Controls §9999A(1), p. 9991 (1971). Cf.

Heavy Contractors Association, Inc. v. Ope rating Engineers Local

271. D. Neb., 328 F. Supp. 897 (1971): and see Acorn Tron &

Supply Co. v. Bethlchom Steel Co., FD. Pa., 96 F. Supp. 481

(1951).

-¥ oo —_

very provisions in seeking treble damages in excess

of $1,100,000.

For this reason, we believe that 6210 represents

an exception to the general rule regarding retrospee-

tive application in pending eases of changes in the

law, That rule, as recently articulated by the Su-

preme Court in Bradley v. Richmond School Board,

supra, is that “even where the intervening law does

not explicitly recite that it is to be applied to pend-

ing cases, it is to be given recognition and effect.”

Slip op. at 17-18. The Bradlcy Court was neverthe-

less careful to state that courts need not always ap-

ply intervening law in the absence of clear legisla-

tive direction to the contrary. Rather, exceptions

should be drawn where application of the intervening

statute would result in manifest injustice. The Court

further indicated that the question of retrospective

application was to be determined in each ease by

analysis of **(a) the nature and identity of the par-

ties, (b) the nature of their riehts, and (¢) the na-

ture of the impact of the change in Jaw upon those

rights.” Id. at 20.

Here, the decisive factor is the impact of 6210

upon the Faleons’ rights. Unlike the Bradley situa-

tion, where the intervening statute merely provided

for an award of attorneys fees to which plaintiffs

arguably already were entitled, the application of

§ 210 would impose “an additional [and] unforesee-

able obligation” in the form of potential treble dam-

ages. Id. at 24. Even though such an award is dis-

eretionary with the district court, its prospect alone

might have caused the Falcons to order their conduct

differently so as to avoid the risk. Id. at 23. In light

ef the new obligation imposed, § 210 should not be

construed to act retrospectively.”

This conclusion is fortified by the deterrent purpose

of § 210, above referred to. Only future conduct can

he deterred. Further, where Congress desired that

the 1971 Amendments apply to pending cases (or,

by analogy, to previous violations), it did not lack

for words to make such purpose clear, Compare

§ 210(a), supra n. 24, with §211(a) and (h).* We do

not read Bradley to hold that evidence of legislative

intent short of express statutory language is irrele-

vant to the retroactivity question, and we believe

these factors are significant.

DeRieux finally argues that § 210 applies prospec-

tively to the Falcons’ continuing refusal to refund

the overcharges. Such contention was squarely re-

jected in Manning v. University of Notre Dame Du

Lac, supra, where we held that the ‘‘overcharge”

occurred, at the latest, at the time the foothall games

0 Accord, Piaskoski v. Associated Hospital Service, lac., V0.

Wis.. 347 F. Supp. 470 (1972). See also, United Statis v. St.

Regis Paper Co. SD. N.Y. 106 F. Supp. 286, 291 (1952)

(amended regulation under Defense Production Act).

az 211, Judicial review

(2) The district courts of the United States shall have exclusive

ovieinal jurisdiction of cases or controversies arising under this

tile. or under regulations or orders issued thereunder * * *.

* = *

(h) The provisions of this section apply to any actions or suits

pending in any court, Federal or State, on the date of enactment

of this section in which no final order or judgment has been ren-

deved. Any affeeted party seeking relief shall be required to fol-

low the procedures of this title.”

were played. The argument that the “legal wrong”

language of §210(a) provides a separate basis for

relief was also there rejected. 484 F.2d at 504.

It is true that Manning applied the provisions of

§ 210 in a class action based upon a Phase | violation.

Manning did not recognize or treat the threshold

retroactivity issue, however, and is therefore in no

way contrary to our disposition of this case. See

Webster v. Fall, 266 U.S. 507, 511 (1925).

DISPOSLTION

Pursuant to the authority granted by §211(¢) and

(h) of the Economie Stabilization Act of 1970, as

amended, this court how makes the following dispo-

sition of these consolidated cases:

The complaint in No. 5-6 fails to state a claim upon

which relief may be granted. Accordingly, No. 5-6 is

remanded to the district court with directions to dis-

miss the complaint.

In No. 5-7, defendants are entitled to judgment as

a matter of law. No, 5-7 is therefore remanded to the

district court with directions to enter judgment in

accordance with this opinion in favor of defendants.

In No. 5-8, the United States is entitled to judg-

ment as a matter of law. Accordingly, No. 5-8 is re-

manded to the district court with directions to enter

judgment in accordance with this opinion in favor of

plaintiff. The district court is further directed to de-

termine and carry out such remedies as it may deem

appropriate, including the amount and manner in

which restitution should be made. See University of

Southern California v. Cost of Living Council, supra,

472 F.2d at 1070; Murphy v. O’Brien, supra, 485 F.2d

at 676, compare Manning v. | ‘niversity of Notre

Dame Du Lac, supra.

Remanded with directions.

Appendix D

ADMINISTRATIVE PROCEDURE ACT, TITLE 5, U.S.C.

PROCEDURE

591 Definitions.—For the purpose of this subchap-

ter [88 551-559 of this title |—

(1) “agency” means each authority of the Gov-

ernment of the United States, whether or not it is

within or subject to review by another agency, but

does not include—

(A) the Congress;

(B) the courts of the United States;

sions of the United States;

(D) the government of the District of Colum-

bia;

or except as to the requirements of section 552 of

this title—

(E) agencies composed of representatives of the

parties or of representatives of organizations of the

parties to the disputes determined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in

time of war or in occupied territory; or

(H) functions conferred by sections 1738, 1739,

1743, and 1744 of title 12; chapter 2 of title 41; or

sections 1622, 1884, 1891-1902, and former section

1641(b)(2), of title 50, appendix [see 22 662456(a),

2457];

49 |

j i ~

(2) “person” includes an individual, partnership,

corporation, association, or public er private organi-

zation other than an agency ;

(3) *tparty” includes a persol or agency named

or admitted as a party, or properly seeking and en-

titled as of right to be admitted as a party, in an

agency proceeding, and a person or agency admitted

by an agency as a party for limited purposes;

(4) ‘‘rule” means the whole or a part of an agency

statement of general or particular applicability and

future effect designed to implement, interpret, or pre-

seribe law or policy or describing the organization,

procedure, or practice requirements of an agency and

includes the approval or prescription for the future

of rates, wages, corporate or financial structures or

reorganizations thereof, prices, facilities, appliances,

<erviees or allowances therefor or of valuations, costs,

or accounting, or practices bearing on any of the

foregoing:

(5) “rule making” means ageney process for for-

mulating, amending, or repealing a rule;

(6) “order” means the whole or a part of a final

disposition, whether affirmative, negative, injunctive,

or declaratory in form, of an agency in a matter

other than rule making but including licensing;

(7) “adjudication” means agency process for the

formulation of an order:

(8) “license” includes the whole or a part of an

ageney permit, certificate, approval, registration,

charter, membership, statutory exemption or other

form of permission ;

(9) “licensing” includes agency process respect-

ing the grant, renewal, denial, revocation, suspension,

annulment, withdrawal, limitation, amendment, modi-

fication, or conditioning of a license;

(10) ‘‘sanction” includes the whole or a part of

an ageney—

(A) prohibition, requirement, limitation, or other

condition affecting the freedom of a person;

(B) withholding of relief;

(D) destruction, taking, seizure, or withholding

of property;

(E) assessment of damages, reimbursement, resti-

tution, compensation, costs, charges, or fees;

(F) requirement, revocation, or suspension of a

license; or

(G) taking other compulsory or restrictive action ;

(11) “relief” includes the whole or a part of an

agency—

(A) grant of money, assistance, license, authority,

exemption, exception, privilege or remedy ;

(B) recognition of a claim, right, immunity, priv-

ilege, exemption, or exception; or

petition of, and beneficial to, a person;

(12) “ageney proceeding” means an agency

process as defined by paragraphs (5), (7), and (9)

of this section; and .

(13) ‘‘agency action” includes the whole or a part

of an agency rule, order, license, sanction, relief,

or the equivalent or denial thereof, or failure to act.

(Sept. 6, 1966, P. L. 89-554, § 1, 50 Stat. 381.)

553. Rule making—(a) This section applies, ac-

cording to the provisions thereof, except to the extent

that there is involved—

(1) a military or foreign affairs function of the

United States; or

(2) a matter relating to agency management or

personnel or to public property, loans, grants, bene-

fits, or contracts.

(b) General notice of proposed rule making shall

be published in the Federal Register, unless persons

subject thereto are named and either personally

served or otherwise have actual notice thereof in

accordance with law. The notice shall include—

(1) a statement of the time, place, and nature of

public rule making proceedings ;

(2) reference to the legal authority under which

the rule is proposed; and

(3) cither the terms or substance of the proposed

rule or a description of the subjects and issues in-

volved.

Except when notice or hearing is required by statute,

this subsection does not apply—

(A) to interpretative rules, general statements of

policy, or rules of agency organization, procedure,

or practice; or

(B) when the agency for good cause finds (and

incorporates the finding and a brief statement of rea-

sons therefor in the rules issued) that notice and pub-

lic procedure thereon are impracticable, unnecessary,

or contrary to the public interest.

agency Shall give interested persons an opportunity

to participate in the rule making through submis-

sion of written data, views, or arguments with or

without opportunity for oral presentation. After con-

sideration of the relevant matter presented, the agency

shall incorporate in the rules adopted a concise gen-

eral statement of their basis and purpose, When rules

are required by statute to be made on the record

after opportunity for an agency hearing, sections 556

and 557 of this title apply instead of this subsection.

(d) The required publication or service of a sub-

stantive rule shall be made not less than 30 days

before its effective date, exeept—

(1) a substantive rule which grants or recognizes

an exemption or relieves a restriction;

(2) interpretative rules and statements of policy;

(3) as otherwise provided by the agency for good

cause found and published with the rule.

(e) Fach agency shall give an interested person

the right to petition for the issuance, amendment, or

repeal of a rule, (Sept. 6, 1966, P. L. 89-554, $1, 80

Stat. 333.)

706. Scope of review.—Vo the extent necessary to

decision and when presented, the reviewing court shall

decide all relevant questions of law, interpret con-

stitutional and statutory provisions, and determine

the meaning or applicability of the terms of an

agency action, The reviewing court shall—

(1) compel agency action unlawfully withheld or

unreasonably delayed; and

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law;

(B) contrary to constitutional right, power, priv-

ilege, or immunity;

or limitations, or short of statutory right;

(D) without observance of procedure required

by law;

(E) unsupported hy substantial evidence in a case

subject to sections 556 and 557 of this title or other-

wise reviewed on the record of an agency hearing

provided by statute; or

(F) unwarranted by the facts to the extent that

the facts are subject to trial de novo by the review-

ing court.

In makine the foregoing determinations, the court

shall review thee whole record or those parts of it

cited by a party, and due account shall he taken of

the rule of prejudicial error. (Sept. 6, 1966, P.1.. 89-

554, 41, 80 Stat. 393.)

Appendix E

THE PRESIDENT

EXECUTIVE ORDER 11615

Providing for Stabilization of Prices, Rents,

Wages, and Salaries

WILEREAS, in order to stabilize the economy, re-

duce inflation, and minimize unemployment, it is nee-

essary to stabilize prices, rents, wages, and salaries;

and

WHEREAS, the present balance of payments situ-

ation makes it especially urgent to stabilize prices,

rents, wages, and salaries in order to improve our

competitive position in world trade and to protect the

purchasing powcy of the dollar:

NOW, THEREFORE, by virtue of the authority

vested in me by the Constitution and statutes of the

United States, including the Economie Stabilization

Act of 1970 (?. L, 91-379, 84 Stat. 799), as amended,

it is hereby ordered as follows:

Secrion 1. (a) Prices, rents, wages, and salaries

shall be stabilized for a period of 90 days from the

date hereef at levels not greater than the highest of

those pertaining to a substantial volume of actual

transactions by each individual, business, firm or

other entity of any kind during the 30-day period

ending August 14, 1971, for like or similar commod-

ities or services, If no transactions occurred in that

period, the ceiling will be the highest price, rent,

salary or wage in the nearest preceding 30-day pe-

riod in which transactions did occur. No person shall

i |

charge, assess, or receive, directly or indirectly in

any transaction prices or rents in any form higher

than those permitted hereunder, and ne persen shall,

directly or indirectly, pay or agree to pay in any

transaction wages or salaries in any form, or to Use

any means to obtain payment of wages and salaries

in any form, higher than those permitted hereunder,

whether by retroactive increase or otherwise.

(b) Each person engaged in the business of selling

or providing commodities or services shall maintain

available for public inspection a record of the high-

est prices or rents charged for such or similar com-

modities or services during the 30-day period ending

August 14, 1971.

(c¢) The provisions of section 1 and 2 hereof shall

not apply to the prices charged for raw agricultural

products.

Section 2. (a) There is hereby established the

Cost of Living Council which shall act as an ageney

of the United States and which is hereinafter re-

ferred to as the Council,

(b) The Council shall he composed of the follow-

ing members: The Seerctary of the Treasury, the

Secretary of Agriculture, the Secretary of Commerce,

the Secretary of Labor, the Director of the Office of

Management and Budget, the Chairman of the Coun-

cil of EKeonomie Advisers, the Director of the Office

of Emergency Preparedness, and the Special Assist-

ant to the President for Consumer Affairs, The Sec-

retary of the Treasury shall serve a= Chairman of

the Council and the Chairman of the Council of Eeo-

nomie Advisers shall serve as Vice Chairman. The

Chairman of the Board of Governors of the Federal

Reserve System shall serve as adviser to the Council.

Council a Special Assistant to the President shall

serve as Executive Director of the Council, and the

Executive Director is authorized to appoint such per-

sonnel as may be necessary to assist the Council in

the performance of its functions.

SecTION 3. (a) Except as otherwise provided

herein, there are hereby delegated to the Council all

of the powers conferred on the President by the

Economie Stabilization Act of 1970.

(b) The Council shall develop and recommended

to the President additional policies, mechanisms, and

procedures to maintain economic growth without in-

flationary increases in prices, rents, wages, and sala-

ries after the expiration of the 90-day period speci-

fied in Section 1 of this Order.

of agriculture, industry, labor and the publie con-

cerning the development of policies, mechanisms and

procedures to maintain economie growth without in-

flationary increases in prices, rents, wages, and

salaries.

(d) Inall of its actions the Council will be guided

by the need to maintain consistency of price and

wage policies with fiscal, monetary, international and

other economic policies of the United States.

(e) The Council shall inform the public, agricul-

ture, industry, and labor concerning the need for

controlling inflation and shall encourage and promote

voluntary action to that end.

Section 4. (a) The Council, in carrying out the

provisions of this Order, may (1) prescribe definitions

for any terms used herein, (ii) make exceptions or

grant exemptions, (iii) issue regulations and orders,

and (iv) take such other actions as it determines to

be necessary and appropriate to carry out the pur-

poses of this Order. aa

(b) The Covneil may redelegate to any agency,

instrumentality or official of the United States any

authority under this Order, and may, in administer-

ing this Order, utilize the services of any other agen-

cies, Federal or State, as May be available and ap-

propriate.

(ce) On requeest of the Chairman of the Council,

each Executive department or ageney is authorized

and directed, consistent with law, to furnish the Coun-

cil with available information which the Council may

require in the performance of its functions.

(d) All Executive departments and agencies shal!

furnish such necessary assistance as may be authorized

by section 214 of the Act of May 3, 1945 (59 Stat. 134;

31 U.S.C. 691).

Section 5. The Council may require the main-

tenance of appropriate records or other evidence

which are necessary in carrying out the provisions

of this Order, and may require any persen to main-

tain and produce for examination such records or

other evidence, in such form as it shall require,

concerning prices, rents, wages, and salaries and all

related matters, The Council may make such exemp-

tions from any requirement otherwise imposed as

are consistent with the purposes of this Order, Any

type of record or evidence required under regulations

issued under this Order shall be retained for such

period as the Council may prescribe.

Section 6. The expenses of the Council shall be

paid from such funds of the Treasury Department

as may be available therefor.

Section 7.(a) Whoever willfully violates this

Order or any order or regulation issued under au-

thority of this Order shall be fined not more than

$5,000 for each violation.

(b) The Council shall in its discretion request the

Department of Justice to bring actions for injune-

tions authorized under Section 205 of the Eeonomic

Stabilization Act of 1970 whenever it appears to the

Council that any person has engaged, is eneaged, or

is about to engage in any acts or practices constituting

a violation of any regulation or order issued pur-

suant to this Order.

Tue Wuirte Hovsr,

August 15, 1971.

/s/ Ricuarp Nixon

[FR Doe.71-12119 Filed 8-16-71 12:25pm ]

Nore: For the text of the President’s radio and _ television

address in connection with B.O. 11615, above, see Weckly Comp. of

Pres. Does., Vol. 7, No. 34, issue of Aug. 23, 1971.

ea OF ON em a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.