Petition for Writ of Certiorari — United States v. Moore

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Page % al

Opinions below... . RP ee mae aS me ta

Jurisdiction ..... be tae en ee met = ae 2

Question presented as iat a SON 2

Statutes involved. aa ; ! Sean RL Ute ee ee eee

Statement Cee Ea enn bak

Reasons {gr granting the w writ ae wai eeeaes 6 ‘

Conclusion Pace Wi meey sss Bu ass ; 11

vs CITATIONS

nome VASeS | A La Sa; ;: ..

Bowles v. Skaggs, 151 F. 24 817,....0.6..0.. 00.002 9

Creedon vy. Randolph, 165 F.2d 918 0 - |. 9

Ebeling v. Woods, 175 F, 2d 242. .; hate 8.

Fleming v. Mohawk Co., 331.U.8.11........00 4... 108

Jackson v. Woods, 182° F. 2d 338 ; are. «ae 9

Porter v. Warner Holding Co., 383 Ur 195 .. 6,7, 8, 9, 11

Woods v. Hills, 334 U.S. 210. | a . ae jh g pea ed

Woods v. Richman, 174 F. 24 614... ; et, y

Woods v. Wayne, 77 F.2d 559... ‘8

Woods v. Wolfe, 182 F. 2d 516... 2. ee, 8

Statutes: | x

Act. of | goune 23, 1950, i Law 574, Slst Congress, 2d ..

Ms tee Nias iar TL aE Pare 2

Emergency Price Control Aet of 1942 as amended, (56 -

Stat. 23; 58 Stat. 632; 59 Stat. 306; 60 Stat. 664; 50 ;

U.S.C. App. 901 et seq.:

Section. 1(b) Sa oO AAW Oe F Py WI oie ek ane aye 9

Section 205 (a) ... ieee umes os stant Wee yuna

ioe 4

Housing and Rent Act of 1947 (61 Stat..193; 62 Stat. a:

93: 63 Stat. 18; 50 U.S.C. App., Supp. TIT, i881let seq.: |,

eet MN 8S, § 50 ek es Vaio ae 10

ES ee ear he eee «WW

Section 204(f) Ser PEPER IE! DIRT» 10

Seetion 204()) ie «Pears a py 5

Section 206{a) . : i gt nels eee gir 2

Seetion 206(b) Aap Poke ee 3, 7,8, 10

Miscellaneous:

Controlled Housing Rent Regulation, as amended, 12 F.R. .

4331, 13 F.R. 1861, 14 FR, 1571, 3494 os 4,5 —

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(1)

Inthe Supreme Court of the Wnited States

OcroBER TERM, 1950

Na, —

Unirep STATES OF AMERICA, PETITIONER

v.

WARREN VY. Moore AND Mrs. WARREN V. Moore

e irecncemiag

PETITION FOR A WRIT OF CERTIORARI TO THE

™ UNITED STATES COURT OF APPEALS FOR 758

FIFTH | CIRCUIT

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The Solicitor Gene ‘al on behalf of the United

States prays that a writ of ce rtiorari issue to re

view the judgement of the United StatesCourt of

Appeals for the Fifth Circuit entered in this case.

OPINIONS BELOW

The opinion of the district court -(R. 17) is not

reported. The opinion of the United States Court

of Appeals for the Fifth Circuit (R. 24) is reported

in 182. F. 2d 332.

(1)

JURISDICTION.

The judgment of the court below was entered on

May 17, 1950 (R. 28). Petitions for rehearing

were denied on July 17, 1950 (R. 40). The jurisdic-

tion of this Court is invoked under 28 U.S.C.

1254(1).

; QUESTION PRESENTED

Whether the judicial authority contained in See-

tion 206(b) of the Housing and Rent Act of 1947,

as amended, to issue an ‘‘order enforcing compli-

‘ance’? with any provision of that Act or order is-

sued thereunder, empowers a court to order a land-

lord to make restitution of overceiling rentals re-

ceived by him in a defense-rental evea which was

Wa decontrolled after the occurrence of the violations

but prior to the filing of the suit against ma tiand ;

lord. ° | = Manne

ee ' ", STATUTES INVOL

The pertinent provisions of the statutes involved

read as follows: - Ne Wy .

The Housing and Rent Act of 1947 as amended |

(61 Stat. 195; 62 Stat. 93; 63 Stat. 18; 50 U.S.C

App. (Supp. ELT) 1891 et seq.:"

Sec. 206(a) It shal! be unlawful for any

person to demand, accept, or receive any rent

for the use or eceupancy of any. controlled

'The Honsing and tent Act of 1947, as amended, was

further amended and was extended to June 30, 1951 by_ the

Act of June 23, 1950.) Pub. Law 474, 8Ist Cong., 2d sess.

3 ¢

housing ace ‘ommodations i in excess of the maxi-

mum revit prescribed under section 204, or

otherwisejto'do or omit to do any act, in viola- ©

tion of this Act, or of any regulation or order

or ‘requirement under this Act, or.to offer,

solicit, attempt, or agree te do any of the fore-

Agoing. ,

—

Src. 206(b) Whenever in the/ judgment of

the Housing Expediter any person has en-

gaged or is about to engage in any acts or prac-

tices which constitute or will constitute a viola-

tion of any provision of this Act, or any regu-

lation or order issued thereunder, the United

States may make application to any Federal,

State, or Territorial court of -competent jur-

isdiction for an order enjoining such acts or

practices, or for an ofder enforcing compliance

with such provision, and upon a showing that

such person has ergaged or is about to engage

in any suth acts or practices a per manent or

* temporary injunction, restraining order, or

other yrder shall be granted without bond.

| .

The Emergency Price Control Act of 1942, as

amended (56 Stat. 23; 58 Stat, 632; 59 Stat, 306:

GO Stat. 664; 50 U.S. C. App. 901 ef seq.

Sree. 205. (a) Whenever in the judgment of

the Administrator any- person has engaged or

is about to engage in any acts or practices

which constitute or will constitute a violation

of any provision of section 4 of this Act, he

may make application ‘tothe appropriate court

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for an order enjoining such aets or practices,

or for aorder enforeing compliance with such

provision, ‘and upon a showing by the Admin-

istrator that such pergen has engaved or is

about to engage in a uch acts or practices

a permanent or te ‘ary injunction, re-

strainnig order, or otlheérder shall be granted

Without bond. é

“

$- STATEMENT

Respondents Tarren v. Moore — Mrs.

ren V. Moore are landlords of housing accommioda-

tions in Dallas, Texas. Between October 1, 1947, =:

and May 31, 1949, they denianded and received

rents in excess of those permitted by the applica le

maximum oni regulation * issued under the Hous-

ing and Rent Act of 1947, as amended (hereinafter

sometimes referred to as “the Act’), Respondents.

having refused to comply with the Act and regula-

tion, petitioner Brought this action against them

pursuant to Seetions 205 and 206(a) and (b) of the

Act for statutory damages, injunctive relief, and

for an order of restitution compelling resphndetits.

to refund to their tenant the excess of rents col-

lected over the legal maximum (RS), Prior to the

filing of the suit, the Housing Expediter, pursuant

to action taken by the City of Dallas under Section

cme a aK ; ;

“Controlled Housing Rent Regulation, as amended, 12 F. R.

4331; 13k R. 1861; 14 F. R. 1571.

)

204(j) (3) of the ‘Act,’ had.terminated federal rent

controls in that city. 14 FR. 3494... Basing their

action on the fact that rental housing in Dallas:

Texas, had been decontrolled, respondents amoved

to. dismiss the suit (R. 24).° Their motion was

denied by the trial court without opinion (R. 2+).

The suit was thereafter tried and resulted in a

judgment directing respondents to make restitu-

tion to the tenant, J. R. Qualls, in the amount of

#1.093.48, and because of ‘‘some evidence * * *

of wilfulness’’ the court'directed petitioners to pay

to the United States statutory damages. in the

amount -of $50.00 .(R. 18-19). Respondents

appealed from this judgment * (h.. 11).

——

3 Section 204 (j) (3) at the time of the decontrol of rental

housing in Dallas, Texas, read as follows:

The Housing Expeciter shall terminate the provisions

of this title in? day incorporated eity, town or village pon

receipt of a resolution of its governing body adopted for

that purpose in secordance with applicable local law and

based upon a finding by such governing body reached as

the result of a publie hearing held after HO days’ notice,

that there no langer exists such a-shortage im rental

housing. atcommodations as to require rent) control in

such city, tows or village; Provided, however, That: such

resolution is first approved by the Governor of the State

before being -transmitted to the Housing Expediter: And

provided further, That where the major portion of a de-

fense-rental area has been decontroiled pursugnt to thes

paragraph (3), the Housing -Expediter shall decontrol any

unincorporated log: va! in the rem@under of such ares,

[69 stat. 21; 50 U, . App. (Supp. TED) 189403) 134]

' The petition for certiorari i filed herein is directo’ golely te

the ruling of the cou¥t’ below on respondent's appeal with

respect to the order for festitution, Petitioner filed “a eross-

appeal from that part of the trial court's pudgment, which ggve

statutory damages for less than the amount of the establigted

overcharges. The ruling of the court below on the eros

appeal, 182 PF. 2d 330, is not challenged here.

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The esurt of appeals reversed the perma of .

the ial court to tlie extent that it directed respond-

ents to make restitution 6f° overcharges,. and re-,

mnanded the cause with directions. to dismiss. the:

.suit in so far as it sought a prohibitory’ injunetion,

and restitution of overe eling rentiils, and fora ,

new trial for any overcharges, together with ak

have accrued Within one year

of the complaint (R. 28).

damages aS mig

from the date.of tl\e filiy

The court. of appeals rested-its decision on the

theory ‘that ‘¥estitution of overceiling rentals is --

merely ancillary or adjunctive to injunctive-r relief .

and cannot be ordered in thie~absence of power to

‘grant an injunction. Consequently, it held that

sive the Housing Expediter had béen ‘shorn of all

power to enforce * * * control-in the-future”’ in

Dallas, Texas, by the termination of fent contro]

‘In that.city’the trial court was Avithouf authority:

in this case to grant an injunction against future

violations of the Act, and “hence: without power te,

order restitution of the Megal rentals (CR. 27).

Lae REASONS FOR GRANTING THE writ

i: The holding of the court below fhat an order.

compelling a landlord to make restitution, of over-

ceiling rents received by him is. solely. an adjunet to

an injunctive dec ree prohibiting. future violations:

of the. Housing: and. Rent Act, is in conflict with

the reasoning of this Court.in Porter v. Warner

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Holding Co., 328 U.S. 395. In the Warner case.

this Court had under consideration Section 205 ( a)

ofthe Emergency Price Control Act of 1942, supra,

PP. 3-4, the language of which was substantially the

same as that contained in Section mete) of ‘the

Housing and Rent Act of 1927, sepra, p. 3 , This

Court there held that-an order issued under Section

205(a) of the Price Control Act for the recovery

of illegal rénts might be’ considered as a proper

‘‘other order”’ under, that section ‘‘on either of two.

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theories,”’ (1) it might be ‘‘considered as ar equit-

(2) it might be‘ ‘considered as an order vi Al Sow

and hecessary to enforce compliance with the Act’

{p. 400}. Thus, under the second of these’ theories.

a restitution order can issue regardless of whether

a prohibitery injunction can be issued in the par-

ticular case. This Court’s reference to the éecond

theory would have been meaningless if restitution <

had been deeme@ permissible only when ane ‘illa ry

to injunctive relief. + wo, é

able adjunct to an injunction decree” ( p. 399), or’

‘In the W arner case this Cott pointed out the

effect of a restitution order, as follows: (p. 400):

And it is not. unreasonable for a. court to con-

clude that stich a restitution ordersis ¢ appropi>

-ate and necessary to enforce compliance with

the Act ‘and -to give effect to its’ purposes. ..-

Future compliance. may be more de finitely as-

sured if one is compelled to restore one’s illegal

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gains; and the statutory policy of preventing

inflation is. plainly advanced if prices oF rents

Which have been collected in the past are re-

duced to their legal. maximums,

In enacting the Housing and Rent Act of 1947,

Congress used substantially the same language in

Section 206(D) thereof, supira, p. 3, as it had-used

in Section 205(a) of the Price Control Act, supra,

pp. 3-4. In the circumstances, Section 206(b) of the

Rent Act should receive the same construction as

that placed by this Court on Section 205(a) of the

Price Cont rol Act. |

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. 2. The decision of the: court eee is in conflict -

with the decisions of four other courts of appeal

construing Section 205(a) of the Emergency Price

Control Act of 1942 in light of this-Court’s holding

in the Warner ease. Ebeling v. Woods, 175 F, 2d

242 (C. A. 8) °: Woods v. Wolfe, 122 -F. 2d 516

((, Az)" Woods vy. Wayne, 177 FB. 2a 559 (C0. A

*“The opinion in Porter v. Warner Holding Ph 328 US.

395, 399-403, 66-8, Ct. 1086, 1089-1091, 96.1. Ed. 1332, how-

ever, Is explicit, we think, that an equitahle sl for restitu-

tlon ef overcharges may be made under the Prive Controt Act,

either as an adjunct to a prohibitory injunction or in depend-

ently and without regard to whether such an injunction is

being sought or has been denied.” "(Ebeling v. Woods, 175 F.-

” 242, 244.)

“Congress made available to the Expediter iiieciank See-

‘tion 2051a) an armory.of the weapons of equity. One of these

weapons is the injunctive precess; another is restitution,

Neither one is dependent upon the ether. Both may be

availed of, or one or the other successfully employed.” (Woods .

m olf. 182 F. 2d hea “aiceatsi )

‘ 9 F

4); Woods v. Richman, 174 F. 24 614 (C. A./9),7

The decision of-the court be ow is likewise i con:

flict with its own prior decision in Creedon y. Ran-

dol ph, 165 F, 24 918.". Each of the cases hol

authority of this C ourt’s decision in the/ Warner

‘ase, that an order of restitution is auth rized un-

der Section 205(a) ofthe Emergeney

trol Act of 1942 without regard td w hether a pro-

hibitory injunction, is sought or denied. See:

Boutles v. Skaggs, 151 F. 2d 817 (C.A. 6), which

reached the same conclusion prior to the Warner

decision, And in all of these eages, except the

Skaggs and Randolph cases, supra, restitution was

awarded after the Emergency Price Control Act

of 1942 had terminated so that injunctive relief |

was no longer possible.

Authority to enforce rights and |Hiabilities after

the termination of the Price Control Act was vested

in the courts by. the saving provision in Neetion

1(b) of that Act (50 UL S.C. App. 9010b)). See

ess

. “The remedy afforded by § 2050+ bs i melelition te others

set up in the Act; and an order of restitution paw be eranter

with or without a prohibiting imjumetiom” (Moods © Breck.

man, 174 F. 2d G14, 616)

*See also Jackson v. Woods, } P Di Ba cewieleeld be the

; court below on the same day it dated the ease of har. wherein

restnution was granted be the trae! eomrt “sed weleld on

appeal. The housing aecommerlation iat the Jeet eon ease

were likewise situated in Dallas, Teswe. poet ae were the

accommodations in the instant ease The eoomphenet m= the

Jackson case was filed on February 1. 1068 prior te th

time deconthol took effeet in Dallas, whieh was on June 23

1949. In the\ease at-bar, the complaint was filed on June 29,

1949, a few daXs after the decontrol had gone inte effeet.

,on the

*rice Con-

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Fleming v. Mohawk Co., 331 U.S. 111, 119; W ‘oods

v. Hills, 384 U.S, 210. A similar saving provision

is contained in Section 204(f) of the Housing and-

Rent Act of 1947 (50 U.S. C. App. (Supp. IIT)

1894 (f)) ), Which maintains in full force ¢ and “fect

afteratermination of the Ac ‘t, all‘of its } provisions

and all orders issued thereunder for the purpose of

sustaining suits with respect to rights and liabili-

ties accruing prior to the termination. This provi- |

= is plainly broad enough to cover’ liabilities

“which arose prioe-to decontro]l even where suit is

ak teen until after the decontrol takes place.

. The deciSion of of the, court below, unless re- |

sede will govern the outcome of a large number

of restitution cases, now pending iff district courts

within the Fifth Circuit, brought pursuant.to See-

tion 206(b) of the Housing and Rent Act in con-

nection with y iolations which occurred in ar eas that

are now decontrotled. i urthermore action to ace

-complish the decontrol of rental housing. accommo-

-_ dations has been taken or is being ¢ ontemplated hy

imany cities of consequence. In addition, numerous

other areas have been decontrolled by yirtue of the

| authority contained in Section 204(¢) and (b) of

‘the Act (50 U.S.C. App. (Supp. TIL) 1894 (e) and

(e)): Presumably the ruling of the court below

would control in the Fifth Circuit regardless of the

-manner in which the decontrol of a defense-rental

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area has been brought about.” In the cireum-

stances, there. is an urgent publie need to have the

decision of the court below brought into harmony

with the holding of this Court in the Warner case,

eand to have resolved: the conflict betweer that de-

cision and the decisions of the other four courts

of appeal cited above.

, - CONCLUSION '

,

For the reasons stated, the petition for certiorati

~ should be granted, - Es iey

*-Respectfully submitted,

Se Puinire B. Periwan,

| eee _ Selisitor General.

Ep Dupree, Caren uae atk

General Counsel, — ie

Office of the Housin g Ex diter.

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Oct TOBER, 1950. Nohdigr as Oe sr Pears

nO re ee

*Decontrol actions for the natien effextive te and including

September 8, 1950, undertaken bythe various: methods pro-

vided by the Act are set forth below:

only

2

Cumulative

April 1, 1949, to. Estimated 1940

September 8, 1950. Actions Units’ = Population -

Expediter Initiative 554 1,351,901 15,822,865

Local Option’ 330 1,317,746. 6.650411

Local Option (C ounty) 1 - 3,188 + 47.565

State, Option 10 3,489,358 19.876.818 -

Board Recommendation 6 84,419 © 559,842

Total ce 901 6,246,622 42,957, 501

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* U § GOVERNMLNT PRINTING OFFICE. +980 907673 ¢.28S