(dissenting).
The majority opinion is in direct conflict with the well settled principle which this court affirmed in the case of Helco Products Co. v. McNutt,1 as follows:
“The Supreme Court has said the pronouncements, policies, and programs of a government administrative agency do not give rise to a justiciable controversy, save as they have fruition in action of a definite and concrete character, constituting an actual or threatened interference with the rights of persons complaining. To permit suits for declaratory judgments upon mere informal, advisory, administrative opinions might well discourage the practice of giving such opinions, with a net loss of far greater proportions to the average citizen than any possible gain which could accrue.”
It appears from the complaint and exhibits attached that the Chief Counsel of the Price Adjustment Board of the Maritime Commission has informed appellant that certain of its contracts are subject to the Renegotiation Act.2 Appellant is in disagreement with the Chief Counsel. It has declined to discuss the matter with the Board or to give it any information. Instead it brings this action asking the court below to review the opinion of the Chief Counsel of the Board.
The judgment of the court below dismissing the complaint is clearly correct. There is no case or controversy before the court.3 No administrative agency has made a decision of any kind which can be reviewed. The Price Adjustment Board before whom the appellant has been requested to appear has taken no action and made no recommendation.4 But even if the Board had acted its decision would be only advisory. The Act authorizes the Chairman to delegate his authority by regulation.5 But he has done so only to a limited extent. He has given the Price Adjustment Board the authority only to make a preliminary determination of the proper contract price. No action to enforce that decision may be. taken unless the Chairman by his order follows the recommendation of the Board.6
No right of appellant is prejudiced by the dismissal of this premature complaint. If the Chairman of the Commission unlawfully determines to withhold any sums due-to appellant, appellant has its remedy by-a suit on the contract. If the Chairman of the Commission decides to sue appellant for excess profits appellant may defend oit the ground that the Chairman acted beyond his statutory authority. If the Chairman decides to compel appellant to furnish information on these contracts he must use a subpoena which can only be enforced by *300court proceedings in which appellant may make this same defense.7
Appellant’s claim that it may be subject to criminal prosecution is equally insubstantial. A criminal prosecution requires first a formal order issued by the Chairman, second a wilful failure to comply with it.8 No such order has been issued or threatened. Even if such order had been issued a court of equity would not interfere. Failure to obey the order based on a reasonable belief it was unlawful would not subject appellant to penalty for wilful disobedience.9
The effect of the majority’s decision will be fo permit any party who is asked to renegotiate a contract to bring an immediate suit in court by alleging that his particular contract is not subject to the Act. On the filing of such a bill the renegotiation conferences must stop while the District Court makes an initial determination of the jurisdiction of the administrative agency.10 It is naive to think that this device will not be used for purposes of delay.
Nothing in the Act or in the principles of orderly administrative procedure justifies intermeddling by this court in the complex business of renegotiation in absence of an order affecting appellant’s rights.
1943, 78 U.S.App.D.C. 71, 73, 74, 137 F.2d 681, 683, 149 A.L.R. 345. See also Miles Laboratories v. Federal Trade Comm., 1944, 78 U.S.App.D.C. 326, 140 F.2d 683; Nat’l. War Labor Board v. Montgomery Ward & Co., 1944, 79 U.S. App.D.C. 200, 144 F.2d 528; certiorari denied 65 S.Ct. 134.
In this letter the Chief Counsel stated : “Pursuant to this direction, the Commission negotiated with the vessel owners. The vessels were made available, a charter party was signed with the British Ministry of War Transport for technical reasons but the Commission agreed to pay the vessel owner the agreed compensation for the use of the vessel. This arrangement was evidenced by correspondence between the Commission and the vessel owner. There appears to have been mutuality of understanding among all the parties interested, legality of consideration and definiteness as to terms, time of performance and acceptance. Payment was made in due course as agreed and this payment constitutes a part of the cost of the war to the people of the United States.” [Emphasis supplied.]
Myers v. Bethlehem Shipbuilding Corporation, 1938, 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638. This court stated in Doehler Metal Furn. Co. v. Warren, 1942, 76 U.S.App.D.C. 60, 62, 129 F.2d 43, 45: “The declaratory judgment Act, however, does not increase the jurisdiction of the federal courts, in the sense that, if a court has not had power over certain subject matter or over certain persons, the declaratory judgment Statute does not give it.”
The official notice of the Board concerning an initial conference contains the following:
“You are at liberty at the initial conference to submit reasons why you cannot furnish the information within the requested period, as well as to state reasons why you are not subject to renegotiation." [Emphasis supplied.]
Renegotiation Act of 1942, 56 Stat. 982, § 403 (f).
Administrative Order No. 64.
Cf. Elliott v. American Mfg. Co., 5 Cir., 1943, 138 F.2d 678, 679.
The only request for information comes from the Price Adjustment Board. The Act requires as a basis for criminal prosecution an order from the Secretary of the Department involved which in this case means the Chairman of the Maritime Commission. See Sections 403 (e) and 403 (a) (2), supra note 5.
California v. Latimer, 1938, 305 U.S. 255, 260, 261, 59 S.Ct. 166, 83 L.Ed. 159.
Compare the language in Great Lakes D. & D. Co. v. Huffman, 1943, 319 U.S. 293, 299, 63 S.Ct. 1070, 1073, 87 L.Ed. 1407:
“It is true that the Act of Congress speaks only of suits ‘to enjoin, suspend, or restrain the assessment, levy, or collection of any tax’ imposed by state law, and that the declaratory judgment procedure may be, and in this case was, used only to procure a determination of the rights of the parties, without an injunction or other coercive relief. It is also true that that procedure may in every practical sense operate to suspend collection of the state taxes until the litigation is ended.”