Bowles, Price Administrator, etc. v. Marcel J. Darche doing business as Paris Abattoir, Civil Action File No. 7071 (a suit to enjoin price violations charged against the defendant), found as a fact that said defendant, for the months of August and September 1945, paid in excess of the maximum permissible cost, less allowable transportation, for cattle slaughtered by the defendant during those accounting periods, and concluded that defendant thereby engaged in acts and practices constituting a violation of Office of Price Administration Meat Price Regulation 574. That injunction suit was dismissed for lack of prosecution under General Rule 11 of this Court, on May 19, 1947. The expiration, on June 30, 1947, of the Price Control Act as extended by the Price Control Extension Act, rendered no longer necessary or appropriate the injunctive relief which the Price Administrator had secured by the order of January 30, 1946.
Defendant does not deny that he received the order of October 3, 1947. He admits that he received the notice of claim of March 7, 1946, therein referred to. At the time of his receipt of each of these notices there was available to him due process of law by way of protest to the Administrator and right to be heard before the Emergency Court of Appeals, subject to review of its decision by the Supreme Court of the United States. After the Government had given the defendant these notices invalidating defendant's subsidy claims, the next move required under the statutory scheme was that of the defendant. He did not make that move and gives no reason why he failed to avail himself of the remedy afforded within the time prescribed. Instead, he suffered the statutory forum, which rendered available to him due process for the determination of the violations charged by the Administrator, to expire.
This Court, sitting as a three judge court in accordance with 28 U.S.C. § 380a,
recognized its lack of jurisdiction to restrain enforcement of the Emergency Price Control Act of 1942 since § 204(d) of the Act, 50 U.S.C.A.Appendix, § 924(d), provided that jurisdiction over such matters would lie exclusively in the Emergency Court of Appeals, Lockerty v. Phillips, D.C.N.J.1943, 49 F.Supp. 513. In his opinion for the Supreme Court affirming the dismissal of the complaint in the Lockerty case, 319 U.S. 182 at page 186, 63 S. Ct. 1019, at page 1022, 87 L. Ed. 1339, Chief Justice Stone employed the following language which is adaptably descriptive of defendant's position in the case at bar:
'Although by following the procedure prescribed by these provisions of the Act ( §§ 203 and 204) appellants could have raised and obtained review of the questions presented by their bill of complaint, they did not protest the price regulation which they challenge and they took no proceedings for review of it by the Emergency Court. Appellants are thus seeking the aid of the district court to restrain the enforcement of an administrative order without pursuing the administrative remedy provided by the statute (cf. Illinois Commerce Commission v. Thomson, 318 U.S. 675 (686), 63 S. Ct. 834, 839, 87 L. Ed. (1075) * * *), and without recourse to the judicial review by the Emergency Court of Appeals and by this Court which the statute affords.'
The letter to defendant of October 9, 1947 was an order under section 2(e) of the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 902(e). Riverview Packing Co. v. Reconstruction Finance Corp., 3 Cir., 1953, 207 F.2d 361. That order was reviewable only by the Emergency Court of Appeals, after protest, as provided by Section 204 of the Act, 50 U.S.C.A.Appendix § 924. United States v. Bass, 8 Cir., 1954, 215 F.2d 9, 14.
The absence of jurisdiction in this Court which existed at the time due to the availability of remedy by way of protest to the Administrator and action in the Emergency Court of Appeals has not been affected by the termination of the availability of those remedies. Since, therefore, the indebtedness set forth in the letter order of October 9, 1947 was not contested by the defendant by means then available, defendant has suffered a default in the Government's then appropriate proceeding for the establishment of its liquidated claim for restitution.
This action is not barred either by laches or by any statute of limitations. United States v. Borin, 5 Cir., 1954, 209 F.2d 145, certiorari denied 348 U.S. 821, 75 S. Ct. 33, 99 L. Ed. 647.
I find, therefore, that there is no genuine issue as to any material fact here and that plaintiff is entitled to judgment as a matter of law for the amount, with interest, claimed in the complaint. Wilson & Co. v. Reconstruction Finance Corp., Em.App.1952, 194 F.2d 1016; H.P. P. Coffee Co. v. Reconstruction Finance Corp., Em.App.1954, 215 F.2d 818, 824. An order may be presented in accordance with the views herein expressed.