May 10, 1947
PORTER, PRICE ADMINISTRATOR,
AMERICAN NAT. BANK & TRUST CO. OF CHICAGO.
Before EVANS, SPARKS, and KERNER, Circuit Judges.
In this appeal Philip B. Fleming has moved this court that an order be entered substituting him as Temporary Controls Administrator and as party plaintiff and appellee, in lieu of Paul A. Porter, Administrator, Office of Price Administration, who resigned.
Appellants object to the entry of the order on the grounds (1) that Executive Order 9809, 50 U.S.C.A. Appendix, § 601 note, 11 Fed.Reg. 14281, issued by the President of the United States on December 12, 1946, is void and ineffective, and (2) that Fleming is not Price Administrator, Office of Price Administration, nor successor in office to Porter.
In the case of Fleming v. Mohawk Wrecking & Lumber Co., 67 S. Ct. 1129, the identical objections were raised, but the court overruled the objections and approved the substitution.
Appellants also object to the substitution on the ground that the motion does not meet the requirements of 28 U.S.C.A. § 780, which provides that where, during the pendency of an action brought by an officer of the United States and relating to the present or future discharge of his official duties, such officer resigns, it shall be competent for the court wherein the action is pending, to permit the cause to be continued and maintained by the successor in office of such officer, if within six months after his separation from the office it be satisfactorily shown to the court that there is a substantial need for so continuing and maintaining the cause and obtaining an adjudication of the questions involved.
The action in our case was brought in connection with an investigation to assist the Price Administrator, Office of Price Administration, in the administration and enforcement of the Emergency Price Control Act of 1942 as amended, 50 U.S.C.A. Appendix, § 901 et seq. Porter resigned on December 12, 1946, and on the same day Fleming was appointed Temporary Controls Administrator, Office of Temporary Controls, by the President. On January 31, 1947, within six months after Porter resigned, Fleming moved that he be substituted in this cause as appellee, and in his motion asserted that "There is substantial need for continuing and maintaining this action."
Appellants make the point that before this court may permit the substitution, Fleming must state facts showing substantial need for continuing the cause.
The Emergency Price Control Act was amended in 1946 to provide for its termination not later than June 30, 1947, saving, however, rights and liabilities incurred prior to the termination date. The Executive Order consolidated the Office of Price Administration and three other agencies into the Office of Temporary Controls, and provided a Temporary Controls Administrator, appointed by the President, to head the Office of Temporary Controls, and vested in him, inter alia, the functions of the Price Administrator, including the authority to maintain in his own name civil proceedings relating to matters theretofore under the jurisdiction of the Price Administrator. Since liabilities incurred prior to the lifting of controls are not washed out, Fleming v. Mohawk Wrecking & Lumber Co., supra, and inasmuch as the action relates to the future discharge of Fleming's duties as Temporary Controls Administrator, we think, that in this state of the record, there is need for continuing the action so that the question involved may be determined.
The motion to substitute is granted.
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