Before MAJOR, Chief Judge, and LINDLEY and SWAIM, Circuit Judges.
Plaintiff, an Illinois corporation, filed suit on February 11, 1952, for a declaratory judgment seeking a determination that housing accommodations owned by it and alleged by its bill of complaint to be a "hotel" within the meaning of section 202(c)(1)(A) of the Housing and Rent Act of 1947 as amended July 31, 1951, 50 U.S.C.A.Appendix § 1892(c)(1)(A), are not controlled housing accommodations within the meaning of that Act. It named as defendant Norman B. Shogren, "An Executive Officer of the United States," and described him in the complaint as the "chief administrative officer in Chicago, Illinois, chargeable with performing official duties in the name of the President of the United States, pursuant to the statute mentioned * * *."
Defendant, on April 11, 1952, filed motion to dismiss on the following grounds:
"(1) The said Norman B. Shogren is a subordinate official subject to the orders of his superior, Tighe E. Woods, Director of Rent Stabilization, and said Director of Rent Stabilization cannot be sued in this action unless properly made a party to the same;
"(2) That administrative remedies available to the plaintiff have not been exhausted;
"(3) That this action is premature in that plaintiff complains only of a threatened action by the defendant on behalf of his superior;
"(4) That this action should be dismissed because, in legal effect, it is an action against the United States which may not be maintained without its consent; and
"(5) That plaintiff's complaint is a petition for a declaratory judgment which is not applicable to the United States."
An affidavit of Tighe E. Woods, Director of Rent Stabilization, stating that he had administered the powers, functions and duties under the Act since his appointment as such, and that his official residence was in Washington and he was not an inhabitant of Illinois, was filed on April 16, 1952, in support of the motion to dismiss.
On September 9, 1952, the court "Ordered that the defendant's motion to dismiss be and it is hereby sustained without prejudice to the plaintiff as to Cause No. 52-C-459 and that the order herein shall not stand to operate to support a plea of res adjudicata or act as an estoppel therein." The appeal is from this order.
Section 202(c), supra, defines the term "controlled housing accommodations" as "housing accommodations in any defenserental area, except that it does not include -
"(1) (A) those housing accommodations, in any establishment which is commonly known as a hotel in the community in which it is located, which are occupied by persons who are provided customary hotel services such as maid service, furnishing and laundering of linen, telephone and secretarial or desk service, use and upkeep of furniture and fixtures, and bellboy service * * *."
Alleging that certain described real property owned by it contains housing accommodations within an "establishment which is commonly known as a hotel" and occupied by persons who are provided with "customary hotel services" as defined in the Act, and that it has been informed by defendant that the latter "proposes and is about to take official action in the name of the President of the United States * * * and * * * intends to trespass upon the property described * * * and to interfere with the collection of rents," plaintiff asserts its right to a determination that its housing accommodations are not controlled within the purview of the statute. The theory apparently is that plaintiff is exempted from all controls by the express provisions of ...