Brief for the Petitioner — United States v. Moore

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INDEX

Opinions belowr j.-- 2282s fn yn te 1

SNE CAE EEE SOOT OL EAL

Question presented _.-. Peepedg aie tena keeled

Statute involved a Se a es cae

Statement _____..- ESL lee Ee BR AE

Summary of argument ere CSE ene naan Brera eee

Argument: i,

"l. Section 206(b) of the Housing and Rent Act of 1947

empowers the court, on suit by the United States, to

_ award restitution to a tenant of any excessive rentais

charged, regardless of whether a prohibitory injunc-

tion is sought or awarded . 3 8

II. The remedy of restitution is av ailable ‘notwithstand-

* ing the fact that the Dallas.area has been decontrolled 19

ce

Conclusion. . ....~-..-~----.- ~~~. 5 = -- 4 o- ee ---------

CITATIONS

‘CASES:

howtos v. Skaggs, 15) F. od 817 ee iste ol ee

Brooks. v. Woods, No. 9589 (C. ‘A. 2), Oct. 13, 1948 _..__._- 11

Centra! Union Trust Co. v. Garten, 254 U.S. 554 ~ re

Crary v. Porter, 157 F. 2d 410 . ena ol ae ae Cl

Creedon v. Randolph, 165 F. 2d 918 - aie diiaeink yp i ee

- Daly, Matter of, 189 Misc. 680, 74 N. Y. “Supp. nH

Eastern Coal Corp. v. National Labor Relations Board, 176: 7

¥. 2d 131 _._.- aes BEN ee AE aS

Ebeling v. Woods, 175 F. “2a 242 - ; ~

Emery v. United States, No. 12,522 (C. A. 9), Jan. 22, 1951 12

‘ Fleming v. Mohawk Co., 331 U.S. 111 -___-- 20, 22, 23

Fredrick v. United States, 163 F. 2d 536, certiorari denied,

332 U. S. 775 - ane ies, Oe

Great Northern Ry. Co. V: United States, 208 v. s. 452 20, 21

Heinegke v. Parr, 168 F. 2d 194 . SASS SR Moree Wales Ce BE

H . Woodman, 218 U. S. 205 ae ae ee

adkson v. Woods, 182 F. 2d 338 ___-__.-----.-------1,.18, 22

Keele v. Holt, 171 F. 2d 480 -. __- fae nine tiainynaieeni >

_ Keele v. United States, i78 F. 2d 766. hadeasedeeeleee ae

“McComb v. Frank Scerbo & Sons, 177 F. 2d 137 | aS

~McCorah v. Jaeksonville Paper Co., 336 U. S. 187 ia ae

- McGrath v. Manufacturers Trust Co., 338 U.S. 241... .._... 17

Miller v. United States, No. 13,283 (C, A. 5), Jan. 10, 1951 “p

11, 13, 22

National Labor Relations Board v. Atlantic o_o Co.,

179 F.2d 497, pinion amended in other respects, 180 F-.

2d 726, rehearing denied, 182 F. 2d 628 sp ne crntmpemnentaerg 16

«eT

»

ii Index Continued, / °

Page

Nationat Labor Relations Board v. Edward G. Budd Manu-

facturing Co, 169 F.2d 571, certiorari denied, a8 U.S.

908 _ LE ON APRA es OAR IE aN Be Sa By

National Labor Relations Board Vv. Gullett Gin a No.

2 TE Tee... i 11¢

' National Labor Relations Board \ V. National Garment Co.,

166 F. 2d 233, certiorari denied, 334 U.S. 845 ..._.. __ 16, 20

National Labor Relations Board v. Universal Camera Corp., _

179 F. 2d 749, certiorari granted, 339 U. S. 962, No. 40,

RE RNIN ech carted abet tccen atidincas cue lee et (16

Phelps Dodge Corp. \ Vv. National Leler Relations Board,

RU Ms GUN MINS tc ales cg esses adnidassheasiiteon hace ZES Vip EARS SOR

Porter vy. Warner Holdin ig Co., 328 U.S. 385 | ‘a 6,7 , 8-10, 18

Rodgers vy. United States, 158 F. 2d 835 ~ adh Caenastnchdaniatacr.

Silesian-American Corp. v. Clark, 332 U. ‘Ss. 469. aeEY tee,

United States v. Bausch & Lomb Optical Co., 321. U. S. 707 17

United States v. Carter, 171 F. 2d 530 ens

United States v..Cream Products Distributing Co., 156 F.

2d 732 . iss Pstag alate cecincabiblabeaudias bitpleiien aia Sa

United States v v. “Crescent Amusement Coé., 323 U. Ss. 173 a ae

United States v. Hark, 320 U.S. 531, reversing 49 F. Supp.

SIs siesta ses nssabsmsaelcheincasi chan Sacica dias icae piston ete cia ss Kee Se .-21, 23

United States v. McNair, 180 F. 2d 273... tséQyd

United States v. Powers, 307 U.S. 214__.... 8

Utah Junk Co. v. Porter, 328 U.S. 36 _.._.. ion

Virginia Efect Co. v. National Labor Relations Board,

Es UNE MUD cities insti ots vaebearanld, Soon tind decen cic edi, _ 18

Virginian Railway Co. v. System Federation, 300 U. Ss. ‘BIS | ar

Wailing v. XGrady, 146 F. 2d 422 - a tee

Woods v. DaXis, No. 12,626 (C. A. 9), Nov. 8, 1950 \. 2

Woods v. Gocknour, 177-F. 2d 964 _ ha. eee Be 12

Woods MC I eek i ke | ee

Woods 'v. Richman, 174 F. 2d 614 __.. 12°

eae ¥ Weed, Free. ee ooo ...........-.5 1 Na

Woods Vv. Wotfe, 102 F. 236 $16 . |, a

_ Yukus v. United States, 320U.S. 414... 17

» Yokohama Specie Bank, In rg, 188 Misc. 137, 66 N. y. ‘Supp.

2d 289 | ane onan 5G ---- = ---------------------- 18

STATUTES:

Adt of June 23, 1950, Pub. Law 574, 81st Cone. 2d Sé&s. 20

Communications Act, 47 U. S. C. 206 ~ 16

Emergency Price. Control Act of 1942, as amended _ (56

Stat, 23; 58 Stat. 632; 59 Stat. 306: 60 Stat. 664: 50US

App 901, et ‘seq.): -

Section l(b) _. a ee So

RMN I ae ee ee 8, 11

; Index Continued . hii

oe

Page

Fair Labor Standards Act, 52 Stat. 1060, 29 U. S. C. 201-219 16

General Saving Clause (1 U. S.C. Sec. 109, 61 Stat. 635)

7,20

Housing and Rent Act of 1947, as amended (61 Stat. 193;

62 Stat. 93; 63 Stat. 18; 50 U.S.C. _ Supp. III, 1891,

- et seq.): ;

Section 204(f) —~.-.-- A ne 7,19

Section 204(f) (4), as added by the Act ot “June 23,

“1950, P. L. 574, 8Ist.Cong., 2d sess. _.............._ 19

“Section 204 (j) —------ CSE Fee eae T EE EOE! wiciaiaiae 4, 22, 23

Section 205 _.._.___- TA SSAUE RRS, FR A re OSS Od 3:

Section 206(a) ~~. .._-- PAGE MERGERS 2

Section 206(b) _..___. Bee ee ee oe

Interstate Commerce Act, 49 U. ‘Ss. c. 9 PETE ate aS

National Labor Relations Act, 61 Stat. 147, 29 U.S.C.

(Supp. III) 160(c): “i :

Ly | TRE rc ans as OR? Sy SE

National Labor Relations Act amendments, 63 Stat. 919,

29 VU. S. C., Gupp. Ill, 217 .._...--- at , 16

Packers and Stockyards Act, 7 U. S. C. 209. canes cag aa

Second War Powers Act, as amended, 56 U. s. od App.

(Supp. Ill) 683, Gec. 3(a) (6) 2... kd

Shipping Act, 46 U. S.C. 821 _... __- el ae

Trading with the Enemy Act, 40 Stat. 425, 50 U. SC App.,

Sec. 17 - Ss dialled Sagas 17

' “ Veterans’ Emergency “Housing Act. of 1946, 60 row 211,

Se®@ 7, 50 U.S.C. App. 1827 _ --_. seccecal ee

‘Walsh-Healy Act, 49 Stat. 2037, 41 U. S. Cc 36, Sec. 2 ae

Water Carriers Act, 49 U.S. C., Supp. I, 908 ..... «16

_ MISCELLANEOUS: *

ee 94 Cong. ek 11

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

4331, 12 F. R. 1861, 14 F. R.1571 _ =p ad ae Sel SAMI 3

14 F. R. 3494 © eM Ana Ear dee 4, 23

~, Restatement of Restitution, Introductory Note, pp. 4-10,

" Sees. 4.and 5, pp. 17-23 - Iie SEU We

Sen. Rep. 896, 80th Cong., 2d ‘Sess. a nr ar 11

‘@

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i, “ae 7 2

“5

Vv

Site sep Gout the Winited Hates

Oc TOBER TerM, 1950

No. 344

Unirep States or America, Petitioner

v.

Warren V, Moore AND Mrs, Warren V. Moore

as

On Writ of Certiorari to the United States Court of Appeals _

‘for the Fifth Circuit

re as

| BRIEF FOR THE PETITIONER

.

OPINIONS BELOW

The oral opinion of the District Court (R. 11)

is not reported. The opinion of the Court of Ap- —

peals (R. 14) is reported at 182 F. 2d 332.

JURISDICTION

The judgment-of the court below was entered on °

- May 17, 1950 (R. 18). Petitions for rehearing

were denied on July 17, 1950 (R. 30). The peti-

tion for certior ari was filed am October 5, 1950 and

9

—

granted sp ALE ge 27, 1990 CR, 30). The jur- -

isdiction of this Court is iv voked under 28 ULS.CLA.

254(1).

QUESTION PRESENTED

Whether the judicial authority cotitained | in See-

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

as amended, to issue an: ‘*‘order enforcing eompli-

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

sued thereunder, em\pwers a court to. order a

landiard to make restitution of overceiling rentals

£ . j . - ” . .

received by him ina defense-rental area-which was

~ decontroiled after the occurrence of the violations

but prior to the filing of the suit against the land-.

lgrd PRL |

sj ) . STATUTE INVOLVED

Sections 206(a) and. (b) Gf the Housing and

pe ont Act of 1947 as amended (61 Stat. 193: 62. Stat.

93; 65 Stat. 18; 50 U.S.C. App. (Supp. LLL) 1891

—_—

°

et seq.) read as follows:

Sec. 206(a) It shall be unlawful for any

person to demand, accept, or receive any tent

for the use or oeenpancy of any controlled

housing accommodations in excess of the maxi-

mum rent prescribed under section 204, or

other wise to 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, so-

licit, attempt, or agree to do any of the fore-

going.

ee 2 5 “3

(b) Whenever in the judgment: ot the

Housing Expediter any person has engayed

or ‘is about to engage in any acts or praec-

tices which constitute or will constitute a vio-

lation of any provision of this Act, or any reg-

ulation.or order issued thereunder, the Uuitede -

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 order enforcing compli-

‘ance with such provision, and upon a showing

that suchperson has engaged or is about to en-

gage in any such acts or practices a permanent

or temporary injunction, restraining order, or

other order shall be granted. without bond. :

: STATEMENT

Respondents, Warren V. Moore and Mrs. War-

ren V. Moore are landlords of housing accommoda-

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

and May 31, 1949, they demanded and received

“rents in excess of those. permitted by the applicable

maximum rent regulation’ issued under the Hous-

ing and Rent Act of 1947, as amended (hereinafter

referred to as “the Act’). Respondents -having

refused to comply with the Act and regulation, pe-

titioner bronght this action against them piirsuant

to Sections 205 and 206(a) and (b) of the Act for

‘Controlled Housing Rent Regulatios, as amended, i2

PLR. 4331; 13 FR. 1861; 14 FR. 1571.

4

4

‘statutory. damages, injunctive relief; and: for an

order of restitution compelling respondents to re-

_turid to their tenant the excess of rents collected

overthe legal maximum, (R. 1.) Prior,to the. filing -

of the suit. the Housing Expediter, pursuant to

ae tion takeftiy the City of Dallas under Section

4G) C }) of the Act, had terminated federal rent

controls j inthat eity by amending the Rent: Regula-

tion to exclude from its « ‘overage the City of Dallas

(14°F. HR. 2494). sasing their action on the fact

that rental housing i in Dallas, Texis, had been de-

controlled, respondents moved to dismiss the snit

(RF). \ Their motion was de nied by the trial court

. Withont-epinion (R. 6). "The sr Aes thereafter

’

| tried and resulted i ina judgment di irecting r respon-

j

> Section 204 (5) f 3). at the time of the ‘eon of rental

whousine in Dallas, Texas, read as follows:

|

The ‘Housing Ripedicer shall, terminate the ~Provi-

sidns of ‘this title in auy incorperated city, town or vil-

lage upon receipt of a‘ resolution of its atl erning® body

alopted for that purpose in act cordance syith applicable \

deval Jaw’ and based upon a fining? by "Such governing

’ reacted as the result of a publie hearing, held after

ivs’ notice, that there no longer exists su¢h a shortage

+ te housing: aecommodations as to reqt ire rent. con-

trol in such'eity, town or village; Provided, owever, That

_ « Stech- rosolytion is first approved by the Governor of the-

ie State before being’ transmitted to the Hoftsing Expediter :

And provided further, That where thé major portion of

‘a defense-renta!-area has been decontrolled pursuant to

; thixe paragraph (3), the Housing’ Expediter shall decon-

trol ail unittcorporated-doe ‘ality in the remainder of sveh

\" asee e: Stat. 21; 50 U.S.C. App. (Supp. HL)

_ MAGN 7 3 seam eee

\

£

dents to make ‘restitution to the tenant, J. Kt.

Qualls, in the amvunt of #1, 093.48, and bee: atse of

‘some evidence’ * * * of wilfubness” A(R, 12) the-

courte further - directed petitioners to “pa tw the

United States statutory damagestiy. the amount of

$49.00 (R. 6-7); Respondents appealed from this

judgment (R:7).° =") * i a

The Court of Appeals reversed the fodemtebs of

the trial court and remanded the cause with Ajree-

tions ‘to gdisiniss the suit in so far as it ish a

pfohibitory injune Hoy ind ¥estitution of-ev erceil:

ing rentals (R.18)." “The Court of Appeals rested

its decjsion on the theory that restitution of over-

ceiling rentals is merely ancillary or adjunetive to

mnsunetive relief and cannot be ordered 3 in the ab-°-

sence of “power to grant an’ injunction. - Conse-

quently, | it held that since the Housing E <pediter

had been ‘shorn of all power to enforee * *) *

control in the future” in Dallas, Texas, by the ter-

mination of rent control i in that city, the t ‘ial court

was ‘without autherity in this case to gri nt an In-

junction against future violations of the Aet and

hence without Spower to order restitution-of=the

illegal rentals, (R. 14-18). ie

——~+ --—--

\

* The petition for certiorari filed herein is directed sulely

to the ruling of the vourt below on respondent’ s appeal with

SN

respect to the order for restitution. Petitioner filed a cross.

appeal from that part of the trial court's judgment whieh

gave |statutory damages for less than the amount of the estab

lished “overcharges. The ruling-of the court below on the

erossiappegl, Isz F. 2d 336, is not challenged here.

a aT.

nd pees

6 arama

’ SUMMARY OF ARGUMENT

: : i I e ‘

In Porter v. W arner Holding Co., 328 U. S. 395,

this Court construed a statutory provision, almost

-identical with that-under which the present action —

was bfought to authorize an order of restitution

of rental overcliarges t o the injured tenant. It

held that such hn order was proper on either of

two theeries, (1) it micht be ‘‘considered as an

equitable adjunct to an injunction degree”’

399) or (2) it nright be “Considered as an order ap-

(p.

/propriate and necessary to enforee compliance

with the Act’’ (p. 400), By its reference to the

second of these theories, the Gourt plainly intended

to -hold that restitution could be obtained indepen-

dently of whether a prohibitory injunction was

also appropriate. W ith the exception of the deci-

sion below, the Courts of Appeals have uniformly

so construed this Court’s holding.

The court below rested its decision denying resti-

tution on thé ground that at common law restitu-’

tion could not be recovered in‘au? rindependent ac-

tion but was ancillary fo some other proceeding.

Here no cause of action for prohibitory injunction

existed because the area in question had been de-

controlled prior to the iistitutton of the suits Con-

sequently, t y ‘re was, in the court's view, no occa-

sion for the exercise of equity jurisdietion, This

rationale appears inconsistent with the court's own

decisions i other cases and is dubious as a matter

( .

of commyn Jaw. More important, it ignors. the

. faet that ‘Nhe powers invoked were not precisely

the ordinary equity powers, but those established

i he thesAct’’, Créedon v. Randolph, 165 F. 2

918,919 (CLA, 5). In fashioning remedies to effec-\,

tuate a statutory poliey, courts are invested with a

high degree of flexibility to adapt their orders to

particular Situations. Nothing in the’ statutory

poliey suggests any reason why the availability of

the remedy of restitution should be dependent on

whether a prohibitory injunction is appropriate in

the same case. Restitution was held available be- 7%

‘ause ‘the statutory policy of preventing inflation

is plainly advanced if prices or rents which have

* been collected in the past are redue ee to their legal

maximums.’ Porter v. Warner 6

pra,‘at 400. To the effectnation O

it is irrelevant whether. the s&€ ition is-one in

which there is need to enforce future compliance

4. DY a pragiopery injunction.

‘

Nothing in the decontio! of the applicable area

renders - the refi nedy of restitution unavailable to

redress violations of the Act whieh occurred at a

time when that area was subject to control. See-

ting 204(f) - bay Act, and tlie Geneyal | Saving

Clause (tf ULS . Section 109, GL Stat. 633), ex-

pressly preserve, after termination of the statute,

the right to redress past violations. The policy

‘ See oe os 0 |

\

wis

. tN. A ni a = 4 j wae 4 . bee

gq Ce., Su-

io

that purpose,

ra

worded identically with Section 206 (b) of the Pra

?

emboilied in those provisions has been applied to

cases of revocation or ter mination of a regulation.

No reason appears in the statute or its legislative |

“history for a refusal to;apply this policy to viola-

tions oceurring in areas which were subsequently

decontrolled. |

We

ARGUMENT

I. Section 206(b) of the Housing and Rent Act of 1947

empowers the court, on suit by the United States, ‘to

award restitution to a tenant of any excessive rentals

charged, regardless of whether a prokibitory injunction

.is sought or awarded.

Section 206(b,) of the ‘ics and Rent ‘Act of

1947 authorizes the United States to apply to any

court for an injunction or for ‘Can order enforcing

compliance with’? any provision of the Act, or any

regulation or order issued thereunder, and em-

powers the court to igsue an injunction or * ‘other :

order. * In Porter v. Warner Holding Co. 328

US. 395, this Court considered Séction 205(a)

of the Eme ‘rgeney Price Control Act of 1042—a,

provision which, for all purposes here material, was

ent Act.’ In ‘that case the Administrator) had

sought beth an injunction restraining futur Vio-

lations and restitution to thie appropriate tenants

of excessive rents collec ted. This Court held that

an order of restitution was a proper ‘‘other order”’

under,that section **on cither of two theories,”’ (1)

it might -he.‘‘considered as an equitable adjunct to,

0 Sette ce =

9

an injunction decree” (p. 399), or (2) it might be

‘considered as an order appropriate and necessary. |

to enforce compliance with the Act.”’ (p. 400)*

With respect to the second of these theories, the

“Court pointed out that ‘Section 205(a),’ antici-

pates orders [to enforce compliance with the Act],

although it makes no attempt to catalogue the in-

finite forms and variations whieh such orders

might take,”’ and said that “‘the problem of formu-

lating these orders has been left to the judicial

proces of adapting appropriate remedies to apecn |

situations’? (p. 400). It added:

+(e" a framing such remedies under § 205(a),

‘courts must act primarily to effectuate the

policy of the Kmergeney Price Control Act

and to protect the: public interest while giving

— necessary respect to-the private interests in-

_volved. The inherent equitable jurisdiction —

which is thus called into play clearly author-

, tion of excessive charges in order to give effect

ve, “to the policy of Congress. Clark v. Smith, 12

‘4 Pet. 195, 203, And it is not wnreasonable for

a court to conclude that such a restitution or-

der is appropriate and necessary to enforce

complianice with the Act and to giv effect” to

ee oe

41t has also bel liatecls that an order of restitution may

\

izes a court, in its discretion, to decree restitu-

Ss be regarded as a ‘‘mandatory injunction’’ and hence within |

. the statutory authority to issue ihjunctions. Creedon v. Ran-

eae 165 F. 2d 19.19 (C. A. $).

10

its purposes. Future compliance may be more

definitely assured if one is compelled to re-

_ store one’s s illegal gains; aud the statutory pol-

icy of preventing inflation is plainly advanced, |

if priees or rents which have been collected in \_

the past are reduced to their legal miaximums..

Lp. 400 |

‘

Thus, under the Court’s second theory, it is clear

that restitution may be awarded as ‘tapproprifte

and necessary to enforce sompPauee with the Act

and to give effect to its purposes’ ’ regardless. of

whether a prohibitory iijunction is sought or ob-

tained. This Court’s reference tothe second theory

would have been both meaningless-and misleading

if restitution had -been deemed permissible only

when ane illary to the grant of a prohibitory in-

jutiction. In this connection, it is significant that

in Bowles v. Skaggs, 151 F, 2d 81%, which this

Court cited with approval (3 28 TAS, at 492) and

for conflict with which. the petition had heen

_ granted in the Warner Holding Co. ease (328 ES

_ at 397), the Sixth C ircuit had held that veatitution

eo ld be awarded although ‘no prohibitory injune-

tion had been sought, and indeed none.would have

been appropriate since the violation was an iso-

lated act? )

é

: Foe See ; P a ae

> The provisions whieh had heen before this Court in Warner

Holding Co. (decided June 3, 1946) were incorporated with--

,out material change in the 1947 Act and were continued in

4

\ TRS i

Wee

w

t ®

9g

oe

Y

With the-e xception of the present case, the de-

cisions of the various courts of appeals have been

unanimous jn upholding the power to award resti-

tution, under Section 205(a) of the 1942 Act. or

Section 206(b) of the 1947 Act, regardless of

whether a prohibitory injunction was or could be

issued. They have done so in eases in which an

injunction, was inappropriate because there was

no likelihood of future violation, Bowles v. Skaggs,

supra; Creedon vy. Randolph, 165 F, 2d 918 (C.A

5), and in cases in which an injunction could not

issue because the’Act had expired or controls had

heen removed. - Woods v. Wolfe, 182 F. 2d 516

(C.A. 3); Woods v. Waynes 177 F. 2d 559, (C.A.

4); Jackson v. Woods, 182 - 2d 338 (C.A. 5);

Miller vy. United States, No. 13,283 (C.A..5, Janu-

ary 10, 1951); Brooks's. sea Nox 9589 (CLA. 7,

force through the extensive. revision and reexamination of thé

Act made in 1948, 1949 and 1950. indeedin connection. ‘with

the 1948 amendments the availability of the restitution rem-

edy was clearly recognized. The Senate Report (No. 896, 80th

Cong. 2d Sess.) recommends extension of ‘‘the power granted

by existing law to apply for injunctions or compliance. or-

- ders’? (p. 3). And on the Senate floor Senator Cain, ehair-

man of the subeommittee which had had the bill under eon-

- sideration pointed out that ‘‘thé usual ordér received upon a

successful petition for an injunction merely requiréd the land-

lord to vepay to the tenant the overcharge of rent made by.

the latid! rd..° 94 Cong. Ree, 1602. In sueh cireumstances

vatikeltor seatuca this

National’ Labor Relations Board v. Gullett Gin Co., No. 122,

1% 0) Perm. p. Sand eases cited.

“curt ’s decision is to be presumed. rs

o

\

es

wy,

order of ORES. eee Oc taleen 13, 1948, not

ph sa Ebeling v. Woods, 175 B. 2a 24% ice A.

; Woods vy, Richman, 174 F. 2d 614 (O.A, ‘Q);

% "ods, v. Govknour, 177 F. 2d 964 (CLA, 9);

Emery v. United States, No. 12,522 (C.A. 9), Jan-

uary 22, 1951; see also Woods y. Davis, No. 12,626

(C.A. 9; November 28, 1950). ¥

The decision below appears at least to question,

12

‘if not to repudiate, all of. these decisions. The

court seems to have rested its-holding that restitu-_

tion is unavailable on the premise that restitution

is not ‘fin and of itself a cause of action, of which

equity has jurisdiction,’’ but merely “a type of

relief afforded as an incident to suits at law as

vell as in equity.”’ ‘In 6ther words, restitution is

ancillary, auxiliary, i incidental, or adjunctive to

a cause of action of which equity has jurisdiction”?

(R. 15). From this premise the court concluded

that since there was no longer ‘a right to an in--

Junction to prevent violations and enforce control.

in an area that’ had lawfully been decontrolled,”’

“there remained no proceeding of which equity

would have e_ jurisdiction to which re “itution could

be adjunetive.”’ (R. 17)

The court’s reasoning in the cdse below would

appear to be inconsistent with its own prior, Con-

® Similarly, restitution gad been gr fed under the identi-.

vally worded provision o section 7 of the ‘Veterans’ Emer-

~~ genuey Housing Act of 1946, 60 Stat. 211,50 U. 8. ©. App.

1827, after that Act had expired, E.g., United States vy.

Carter, 171 F.2d 530 (C. A..5): Keele v. United States, 178

F. 2d 766 (@. A.5). ° /

“

As:

temporaneous and subsequent decisigns. Thus, in

_Creedon Vv. Randol pit, supra, decided bates the. de,

ciston below, the court pointed outAhat the Admin-

istrator ‘did not ask for a probibitory injunctiori

against future violations, and, probably would-n0t

have gotten it if he had’? (p: 919). For that rea-|

son, the District Court had denied restitution’ on.

the ground that “here no equitable relief is sought '

*** There is therefore no legal basiv for this.

court to exercise the traditional equity powers and

in so doing order restitution.’ The Court of Ap-:

peals, reversing the lawer court’s decision, pointed

out that “the powers invoked were not precisely

the ordinary equity powers, but those established

by Section 205(a) of the Act,”’ and that aecord-

ingly, restitution could be alpwed as appropriate

to enforce compliance. (Ibid.) In Jackson vy.

WwW o0ds, supra, decided on the- same day as-the de-

cision below, and Miller ‘vy. © nited States, supra,

decided subsequently, the court similarly allowed

restitution where, although a prohibitory injune-

tion was origin: ily sought, none could have been

granted because the area had been decontr led

by the time of entry of judgment. — ie

er ee

7 W ith reference to the assertion of inconsistency in its de-

cisions.the court said in Miller vy. United States,

By the argument ;of the parties in this Court, two

cases heretofore decided by this Court upon the power to

_‘lirect restitution of rental overe harges are brought 40 the

fore front as controlling. There is no dispute that the de-

cision in Juckson v. Woods, 182 F? 2d 328, deals with the

ewe

In addition to this apparent inconsistenev with

vther decisions of the same court, the court’s

.

tionale is dubious even as an a ine of common |

. precise factuak situation here involved. Bowever, the

appellants confide ntly rely wpon the decision of this Cour?

in Moore vy. United States, 182 ¥. 2d 332. Both of these

Opinions were published on May 17, 14: o0, and bothYwere

determined by the’ same division of this Court. Consid-

eration of these two cases shbws that the only factual

difference in them is that the complaint in the Jackson

case was filed, as was the one in the present case, prior to

the termination of rental control, whereas the ¢omplaint

in the Moore case was filed after rent control had termi-

nated. The Government contends that any event, be-

cause of identity of the factual situation, thevtackson case

is controlling and that the trial court properly relied

upon its authority, but nevertheless contends that -the

Moore decision is not sound and should be reconsidered.

The appellants by Yheir reliance upon the Mogre case,

and thus that the Jackson ease should uot-be controlling,

in effect. agree with the Government's contention that the

time of the institution of the suit is not legally determina-

tive of the power of the Court to direct restitution. Upon

the argument of this case it was made to appear that the

Supreme Court -had theretofore eranted a writ of. cer-

tierari to bring the Moore decision before itfor review.

In these cireumstances, and sinee the present case falls

squarely ‘within the decision*in the Jackson case, supra,

we will not ‘attempt. to reconsider the decision in the

- Moore case. There is no necessity to do so at this time.

We accede neither to the request of the Government. to

« — reconsider the Meore ease, or of the appeifants to’ apply

its principles in the present case. We here apply to the

identical situation the ruling announced jn the Jackson

casessxpra. It follows therefrom’ that we affirm the judg-

mont of the trial court ordering restitution to be made,

“even though ente red after the termination of rgnt con-

-trol. . J

15

law, ‘in which an independent action for restitu-

tionary relief was hy no means unknown." More

important, however, it ignores the faet.that in

fashioning remedies to effectuate a statutory

policy, the courts are not limited by the ancient

_ and largely outmoded distinctions between law and

equity. Thé jurisdiction of the court rests ev the

statutory provision empowering the United States

to bring a proceeding to enforce compliance w ith /

the Act, and the authority ef the court: to awa ,

restitution rests also on the statutor “grat of

authority to enter such “other order” ag it deems

appropriate. «See Creedon vy. Randolph; supra.

This, whenever the remedy of restitution is ap-.

Were ee ora to enforce compliance, the statute eon-

fers jur isdiction | to award it.*

° §SE.r., ac tion at law on the common counts to recover money

paid under mistake or duress, action at law for replevin, ae-

‘tion at equity to impress money or -property with a construe-_

tive trust. See generally-Restatement of Rest tugs on, Intro-

ductory Note, pp, 4-10; Sections 4 and 9, pp. 17-23.

* For other examples cf statutory rethedies j in the nature of

restitution, see:

(1) Actions under Seetion singed of the Second War

‘Powers Act, as amended, 56 Stat. 177, 50 U.S.C. App. 633.

That section’s grant of jurisdiction tog all civil actions under

this subsection (a) to enforce any liability or duty created by,

or to enjoin any violation of, this subsection . . .’’ has been

eid to authorize an independent suit by a pure hina for res-

/ titntion of overpayments in violation of a priorities regula-

tion, Teinecke vy. gts 168 FB. 2d 194 (CA. 6); Keele v. Holt,

17 1 2d 486 (CLA, .

2) Ordérs ander ee 1O(e) of the N National Labor Re-

i

“lations: Act, 61 Stat. 147, 29 U.S.C, (Supp. 111) 160(e), ‘AL. |

ve ~~ /

. 16

While this Court, in Warner Holding Co., em-

phasized that the courts had available to them the

, ’ . ° ‘%

full arsenal of remedies which had been ¢reated by

gourts of equity, nothing in its: decision suggests

oa ae

wefan ry

“Yhough the Act authorizes the B oard to direct * ‘reinstatement ,

f empqoy ees with or without back pay,’’ back pay has been

iwardedl in situations in which siasliteaneil is either Ympos-

2 le a inappropriate, e.g., Vatignal Labor Relations Board

Ptririent Co., 166 F. 2d 233 (CLA. 8), certiorari

‘ sare 434 U.S. 845; National Labor: Relations Board vy. At-

fantic Towing Co., 179 F. 2d 497 (CLA, 5), opinion amended

in ether respects, 1S FF. 2d 726, rehearing denied, 182 F. 2d-

625. Rejnstatemeit and back pay have also been awarded to

tcacke rgony Pogumed to be no longer treated as employees under

“the: Netiisee National Labor Relations Board v. Edward G.

Rudd Why. Co., 169 F, 2d 571, 575 (CA. 6), certiorari denied,

335 U.S. 908 ; Eastern Coal Corp. v. National Labor Relations

Board, 176 F. 2a 131, 136-137 (¢ A. 4); National Labor Re- <-

lations Board vy. Universal Camere Corp.. 179-F. 2d 749 (CLA.

2), certiorari granted, 339 U S, 962, No. 40, 1950 Term.

Similarly the Board, under its general power to enter or-

ders which ‘‘will effectuate the policies of the Act,’ has or-

dered reimbursement of checked-off dues. In‘ sustaining such

an order, this Court emphasized that it is ‘‘wrong to fetter

the Board's diseretion by compelling it to Observe conven-

‘tional common law or chancery principles in fashioning such

an order.’ Virginia Electric Co. v. National Labor Relations

Board, 319 U.S. 433, 543.

(3) Actions under Seétien 2.of the Walsh-Healy Act, 49

Stat. 2037, 41 U.S.C. 36, to require payment, into a fund avail-

able for employees, of the amount of — deductions, re-

hates, refunds, or undespayment: of wages.’ :

(4) Actions under the Fair Labor Standards Act, in which

authority to award restitution has been implied from the

grant of jurisdiction te enjoin violations. E.g., Walling~

O'Grady, VA6B PB. 2d 422 -(C.A. 2); MeComb v. Frank Scerbo

& Sons, V7 BF. 2d 1387 (CLA. 2); ef. MeComb v: Jacksonville

Paper Co, 336 US. 187, 193: But -” the 1949 amendments,

' oe

17

vhat the statutory jurisdiction’ to enter orders ap-

(propriate to enforce compliance with the Act is

dimited to cases which would, apart from ‘statute,

have been within the jurisdiction of a court of

equity.” This Court has often emphasized the

flexibility with which a district court, in the effee-

tuation @f 2 statutory policy, should adapt its

remedy to the needs of the situation before it. E.g..:

United Statés ¥v Bausch & Lomb Opticat Co., 321

U.S. 707, 726; United States v. Crescent Amuse-

ment C'o., 323 U.S. 173, 189; ef., Phelps Dodge

Corp. Vv. National Labor Relations Board, 313 U.S.

177, 194. And in other situations courts have not

hesitated, in. the’ implementation of statutory

rights, to entertain proceedings for which there

“was no diréct non-statutory precedent.”

63 Stat. 919, 29 U.S.C. (Supp. IIL) 217, withdrawing juris-_

‘diction to issue such restitution orders.

(5) Actions for reparations under the Interstate Commicree—.

Act, 49 U.S.C. 9; the Communications Act, 47 U.S.C. 206,

209, 407; the Packers and Stockyards Act, 7 U.S.C. 209; the

Shipping Act, 46 U.S.C. 821, 829, and the Water Carriers

Act, 49 U.S.C. (Supp. FEY 9087 7 :

-—+** Compare: ‘Courts of equity may, and frequetitly do, go

much farther both to give and withhold relief in fur*herance

of the public interest than they are accustomed to go when

only private interests are involved.’’ Yakus v. United States,

821 U.S. 414, 441, queting Virginian Railway Co. v. System

Federation; 300 U.S, 515, 552. )

See, for example, proceedings under Section 17 of the

Trading with the Enemy Act, 40 Stat. 425, 50 US.C. App. 17

(vonferring Jurisdiction om the courts°to make Such orders

and decrees ‘tas may be necessary and proper * * * to enforce

>

18° sel

We ean perceive no reason for holding that the

availability of the'remedy of restitution should, as

a matter of statutory. policy, depend on whether

injunctive relief is appropriaté in the same ease.

Restitution at the suit of the United States is

available in. addition to a suit for damages by.

the injured party because ‘the Administrator acts

in the public interest—the purchaser in his own,

... There are undoubtedly many instances where

the relationship of buyer and seller is such that

the buyer is deterred from vindie ‘ating his own and

therefore also the publie right.””’ Bowtes vy. Skaggs,

supra, at 821, Indeed, this is particularly so in

areas where the continuing landlord-tenant rela-

tionship is no longer subject to the Act’s controls,

Nor is restitution concerned solely, as the court

below thonght, with insuring future compliance,

While this Court in the Warner Holding Co. ease

indicated that that was one respect ir. which a resti-

3 : 2 Se eee

—

Tie provisions of this Aet’’). Among the types of proceedings

entertained under that section are actions to require the sum-

mary transfer to the Alien Property Custodian of specific

property, ew., Central Union Trust Co. ¢. Garvan, 254 U.S.

oF, or of the amount of a debt, e.g, McGrath v. Manufae-

turers Trust Co., 338 U.S. 241, or to require summary issuance

to him of new certificates of stock, ef. Silesian-American

Corp. v. Clark, 332 U.S. 469, subject to later. plenary adjudi-

cation of his rights in another proceeding. Similarly, state

probate and other courts which would otherwise’ have plenary

jurisdic Hor n over property, have, on demand by the Custodian,

ordered. it sum. arily turned over to him. Matter of Daly,

Isy Mise. 680, 74 N.Y. Supp. 2d 711: In ye Yokohama Specie

Bank, 188 Mise. 137, 66 NLY, Supp. 2d 289.

__ eee

<* "e

tution order would give effect to the, Act’s pur-

poses, it also.pointed out that ‘the statatory polie v

of. preventing inflation is plainly atlvanced if

prices or rents which have been cafe: ‘ted in the

past are reduced to their legal maximums” (328

U.S., at 400). To the effectuation of that purpose,

it is irrelevant whether the situation is one in

which there is a need to enforce future compliance,

It is sufficient that there have been overcharges

in the past which may, by.an order of restitution,

be “‘reduced to their legal maximums.”’

II. The remedy of restitution is available notwithstand-

ing the fact that the Dallas area has been decontrolled.

As we have seen, restitution is an independent

statutory remedy which is available regardless of

whether other remedies, such asa prohibitory in-

junction, are requested or appropriate. Conse-

quently, nothing in the fact that the Dallas, Texas.

area hus been decontrolled renders that. re medy

inapplicable to redress violations of the Act whieh

occurred at a time when the area was subject to

control. This result is \made clear by the saving

provision of. Seéetion 204(f) of the Act (50 U.S.C.

App., Supp. IIT, 1894(f)), which provides that

_after termination of the Aet, all of its provisions,

and all regulations and ‘Orders issued thereunder,

are maintained in full foree and ‘effect “for the

purpose’ of sustaining any proper suit or action

with respect to any right or liabilitv ineurred

\

'

i oth

s 90

prior ty the termination date.’ Like the similar

provision of Sectign 1(b) of the Emergency Price

Control Act of 1942, this provision is clearly appli-

cable *‘whether or not suit is started prior to the

termination date of the Act.”” Flemi ng V. Mohawk

Co., 331 US. 111, 119; see also, Woods vy. Hills,

334 U.S. 210. The same result is achieved by the

General Saving @lause, 1 U.S.C. $109, 61 Stat.

635,"° which is incorporated into every subsequent

Statute unless denied application by the terms or

clear, implication of that statute. Great Northern

Ry Co. v. United States, 208 U.S. 452. 465; Hertz.

Vv. Woodman, 218 U.S. 205, 217; National Labor

- Relations Board vy. National Garment Co., 166 F.

12 Seetion 204(f) was amended by the Act of June 23, 1950,

P. L. 574, 81st Cong., 2d sess., in minor respects. anekreman- —

bered-as Section 204(f) (4),¥llith now provides as follows:

(4) Notwithstanding any provision of paragraph (1)

or (3) of this subsection, the provisions of this title and

regulations, orders, and requirements thereunder shall be

treated as still r&maining in force for the purpose of

sustaining any propér suit or action with respect to any

right or liability incurred prior to the termination date

specified in such paragraph. hes

Paragraphs (1) anil (3) of subsection (f) provide,’ respec-

tively, that the Pe is of the Act shall cease to be in effect

at the close of Dee

material), or upon/the date of a presidential proclamation or

concurrent resolutipn of both houses of Congress, By the Act

of June 23, 1950, Publie Law 574, SIst Cong., 2d Sess., the Act

was extended to June 30, 1951.

$109. The repeal ghayy statute shall not have the effect

to release or extinguish at penalty, forfeiture, or liability in-

curred under sueh staytite, unless the repealing Act shall so

expressly provide, and such statute shall be treated as still

ber 31, 1950 (with exceptions not here -

~

21

2d 233, 237 (C.A. 8)y certiorari denied, 334 U.S.

845; United States v. ¢ ‘arters 171 F.2d 580, 532

(C.A.5); United States v. M cNair, 180 F, 2d 273, .

274 (C.A. 9)" gi 2 12

These provisions reflect a deliberate legislative

. rejection of the common law presumption that re-

? peal of a statute is intended as a legis | :tive-paydon

for past actions (see T/nited States v. Hark, 49 IF.

Supp. 95, 97 (D. Mass.), reversed, 320 U.S. 531),

The poliey: which they embody applies equally to

cases of revocation or termination of a regulation.

United States v, Hark, 320 WS. 531; Utah Junk

Co. ¥. Porter, 328 US., 34," N 0 reason appears in

the statute or its legislative history for a refusal to

* apply this poliéy to violations occurring in areas .

which were subsequently decontrolled. ‘Indeed,

sinee the statute and its underlying, policy remain

remaining jn force for the purpose of sustaining any proper

action or prosecution for the enforcement of such penalty, for-

feiture, or liability. The expiration of a temporary statute

shall not*have the effect to release. or-extinguish any penalty,

forfeiture, or liability ineurred under such statute, unless the

‘temporary statute shall so expressly provide, and such statute

shall be treated as still remaining in force for the purpose of

sustaining any proper action or prosecution for the enforce-

ent of such penalty, forfeiture, or liability. ”’

This is so notwithstanding the inclusion in the statute of

a specific saving clause. Great Northern Ry. Co. v. United

States, supra. | 2 By)

See also, United States v. Cream Products Distributing

Co..156 F, 24 732 (€.A. 7); Fredrick Vf United States, 163 F..

2d 536, 543 (C.A. 9), certiorari denied, 332 U.S. 775; Crary

v. Porter, 157 F. 2d 410 (CLA: 8); Radgers v. United States.

158 F. 2d 835 (C.A. 6), .

—

*;*

—.

e> am

j a

nd

22.

os n general effect, notwithstanding decontrol in par-

ticular areas, it would seem to follow, a fortiori,

that viclations occurring in such areas prior to

decontrol should continue to be remedied. |

As this Court indicated in a criminal case, the

policy underlying such saving-clauses-is that if pe Egret

past violations are left unpunished, the Act

‘‘would lose, as a practical matter, some of its

sanctions. . Violations could oceur with impunity

“months before its expiry, for in practice there fre-

quently is an unavoidably substantial lag between

Violations and prosecution.’ (United States. v.

Powers, 307 U.S. 214, 217.) These principles

‘apply equally to the civil remedies contemplated

by the Act. To deny the availability of those

remedies in areas which were decontrolled after

the violation oceurred would discriminate in favor

of those landlords who succeeded, for a time, in

keeping their violations undetected, and would, to

the extent that the excessive rentals are not re-

starved to the ténant, promote rather than prevent

* inflation during the period of control.

Respondents contend that the saving clause is

inapplicable here because the provision of Section

204()(3) that “the Housing Expediter shall ter-

minate the provisions of this title,’’ pursuant to

. Which deecontrol was here made- necessarily termi-

'*Compare Fleming v. Mohawk Co., supra, ‘at 119:

‘*Though most of the controls have been lifted, the Act is still

in effect. Liabilities incurred prior to the lifting of con-

trols are not thereby washed out.’’

23

nated the savings clause itself, The argument was

not ‘accepted by the court below for, in this’ very

action, it awarded statutory damages (R. 17-18).

ee: In aniy event, the argument is without merit. .The—

yr ___—-Housing texpediter, in terminating controls in a |

L _ city pursuant to action taken for the purpose by

ea ‘a local governing body, does riot repeal the

statute.” Only Congress.may repeal an Act. The

Expediter’s action is, in both form and effect, an

me

amendment of his regulation so as to delete the

name of the city from the schedule of cities covered

hy the regulation (14 F, R. 3494). It is thus pre-

cisely comparable to the amendment or revocation |

of a regulation involved in such cases as [ "nited

States v. Hark, supra. Moreover, the argument ig-

“The Fifth Cirenit would also apply the saving clause to

permit restitution actions in decontrolled areas where the suit

was brought prior to the decontrol. See Jackson v. Woods,

and Miller v. United States, both cited supra, p. 13. Any

distinction between cases in which the suit was brought prior

to and subsequent to the decontrol is ‘clearly contrary to this _ .

Court's statement in Fleming v. Mohawk Co., supra, that the

Saving clause appfies ‘‘whether or not suit is Started prior to

the termination date of the Act’’ (331 U.S. at 119).

'® Respondents suggest that the phrase ‘‘ Housing Expe-

‘diter shall terminate’’ in Segtion 204 (3) (3) ‘is significantly

different for present purposes from the provisions of Section

~204(9) (1) and-(2). which, in the ease of decontrol of entire

States, merely call upon the Expediter to make an announce.

ment of the decision. of the state. This suggestion is without

merit in either logic or legislative history, The difference in

language would appear ta be attributable to a desire that, in

the case of decontrol of municipalities, the Expediter should

exercise a more affirmative authority than ia the case of de- _

contrél of states, . |

'24 -

“ores the effect of the General Saving Clause,

which would remain applicable here regardless of

any termination of the provisions of this Act. (See

-p. 20, supra.) - | |

; CONCLUSION ~~

To allow the decision below to stand would

thwart effective ‘compliance with the Act and-im-

bede. the statutory policy of preventing inflation.

It would constitute’ an invitation to landlords

whose violation was innocent to defer voluntary

compliance when overcharges are brought to their

attention, in the hope that the areas in which their

property is situated will be decontrolled_ before

action is instituted by the Expediter for restitu-

tion. It would likewise reward wilful violators and.

place a premium upon their astuteness in conceal-

ing violation until. decontro] has -taken place.”

'® Decontrol actions for the nation effective to and including

September 8, 1950, undertaken by the various methods pro-

vided by the Act are set forth below : ,

Cumulative : ) wien

April 1, 1949, to Estimated 1940;

- September 8, 1950 Aetions Units Population

Expediter Initiative 54 1,351,901 15,822,865

Loeal Cption — \ 330 , 1,317,746 6,650,411

Loca! Option (County). °° 4 3,188 > — 47,565

State Option = \ 103,489,368 —- 19,876,818

Board Reeommendatipn 6 84,419 _ 559,842

Total ML 6,246,622 -42495;7,501

Presumably the ruling of the court below would govern in

the Fifth Circuit regardless of the manner in whigh"the de-

control of a defense-rental area has been brought about.

25

Clearly, compliance is not achiev ed if the Violator

is permitted to reap the benetits of his wrong-

| doing, whether it be in controlled or decontrolled

areas. Neither the words of the Act, precedent,

nor sound reason support the conclusion. reached.

by the court below. Accordingly, the judgment

below should be versed with instructions to rein-

state the judgment of the District Court awarding

‘restitution of rental overcharges,

Respectfully submitted,

Puuur B. Peruaay,

Solicitor General,

JaMeEs L, Monrnisson,

Special Assistant to

: | ‘The Attorney General.

Ep Durreg;

General Counsel, °

Leon J. Liev, =. °

Assistant Generai Counsel,

| NATHAN SIRGEL,

Fraxcts X. Riney, , |

Special Litigation Attorneys, [

: Office of the ‘Housing Expediter.

Februaky 195]. :

ERNMENT PRINTING OFFICE 1951—827846/P.0. yh