The complainants are tenants of apartments in an apartment house located at 55 Central Park West, New York City, owned by the 55 Corporation. They seek to set aside orders of the Price Administrator issued under section 6(h) (2) of the Rent Regulation for Housing in the New York City Defense-Rental Area1 which granted to certain purchasers of stock of the 55 Corporation who had acquired with their stock proprietary leases of the apartments in question certificates authorizing them to pursue their legal remedies for the eviction of the tenants. The latter filed a joint protest against the Administrator’s orders which the Administrator dismissed. The tenants thereupon filed the present complaint in this court under Section 204(a) of the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 924(a). The Administrator has moved to dismiss the complaint upon the ground that the complainants are without standing to file'it.
Section 204(a) provides that only a person aggrieved by the denial of his protest may file his complaint under that section. Such a complainant must therefore have had standing to file a protest under Section 203(a), 50 U.S.C.A.Appendix, § 923(a). Under that section, however, only a person “subject to” a provision of a regulation or order may file a protest against it. We are therefore presented with the question whether a tenant of a housing accommodation with respect to which the Administrator has ordered a certificate of eviction to be issued is a person subject to that order within the meaning of Section 203(a).
The Administrator contends that a person is subject to a regulation or order within the meaning of Section 203(a) only if the regulation or orders prohibits or requires action by him. In support of this contention he refers to the legislative history of the Act2 as well as to the decision of this court in Buka Coal v. Brown, Ém.App., 1943, 133 F.2d 949. He also calls attention to the fact that he has so construed this phrase in his procedural regulations from their inception.3
The Administrator’s contention in this respect loses some of its force, however, when it is recalled that on November 2, 1942,4 in revising Procedural Regulation No. 1 he included in Section 1300.24 (which carried forward the provisions of Section 1300.9 of the original regulation) the proviso: “That a producer of an agricultural commodity shall be considered to he subject to a maximum price regulation for the purpose of asserting any right created by section 3(c) of the Emergency Price Control Act of 1942 * * * for *832the benefit of producers of such an agricultural commodity.”
Since such regulations do not prohibit or require action by farmers this proviso clearly extends the concept of the phrase in question beyond that here contended for. Moreover in Illinois Packing Co. v. Snyder, Em.App., 1945, 151 F.2d 337, this court held that a person who contended that he was arbitrarily and capriciously discriminated against in a regulation providing for the payment of subsidies was a person subject to the regulation within the meaning of Section 203(a). We think, therefore, that it cannot be said that the right to file a protest against a regulation ■or order issued under Section 2 of the Emergency Price Control Act must in all cases be restricted to the extent for which the Administrator here contends.
The question then is whether in the case before us, that of tenants of housing accommodations, it is the purpose of the Act to accord the tenants administrative and judicial review of the action of the Administrator in permitting their landlords to undertake eviction proceedings .against them. We think that the answer to this question depends upon whether the orders in controversy deprived the tenants of the opportunity to enjoy a right of possession which was vested in them and which they would have been entitled to enforce ■except for those orders. If the orders ■did deprive them of the opportunity to ■enforce and enjoy such a vested right they were subject to them within the meaning of the Act and, therefore, entitled to protest them. If, on the other hand, the tenants had no such vested right the orders deprived them of nothing, to which they were entitled. Under such circumstances they could hardly be said to be subject to the orders in any real sense and would, therefore, have no ■standing to protest them.
The so-cálled certificates of eviction which the Administrator issued did not themselves authorize'or require the tenants’ eviction. Nor did they operate to deprive •the tenants of any right to possession which they otherwise had under their leases or the laws of New York. The certificates merely removed the ban of Section 6 of the Rent Regulation for Housing against eviction and left the landlords free to employ any remedies which the leases and the local law gave them for the recovery of possession if they could show that they were entitled to it. Consequently the only right which the certificates of eviction could possibly be said to have jeopardized was the right, if any, to possession of their apartments which the Emergency Price Control Act and the Rent Regulation for Housing conferred upon the tenants by virtue of the ban of Section 6 of the Regulation against eviction. Only if the Act and Regulation conferred such a right upon the tenants did they have standing to file their protest and the present complaint.
An examination of the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 901 et seq., however, discloses that it was not one of its purposes to give to tenants any right to remain in possession of the defense-area housing accommodations which they might happen to occupy. When Congress has seen fit to make such a provision for tenants it has used apt language to express its purpose 5 but it did not do so in this case. Its sole purpose here, so far as defense-area housing accommodations are concerned, was to control the amount of rents of such accommodations and to prevent speculative, unwarranted and abnormal increases therein. The only reference in the Act to the possession of housing accommodations is contained in Section 2(d), which,in this respect provides: “(d) Whenever in the judgment of the Administrator such action is necessary or proper in order to effectuate the purposes of this Act, he may, by regulation or order, regulate or prohibit * * * speculative or manipulative practices or renting or leasing practices (including practices relating to recovery of the possession) in connection with any defense-area housing accommodations, which in his judgment are equivalent to or are likely to result in * * * rent increases, * * * inconsistent with the purposes of this Act.”
It will thus be seen that the power to regulate practices relating to recovery of the possession of defense-area housing accommodations is given to the Administrator only incident to his power to prevent *833improper rent increases and evasive practices likely to result in such increases. Only to this necessary extent is the vested right of a landlord to recover possession of his property to be restrained by the Administrator under the Act. The language of Section 6 of the Rent Regulation for Housing which bans the removal of tenants except under certain circumstances and provides for the issuance of certificates of eviction must be read in this light. If construed as extending to cases which do not involve the possibility of practices likely to result in rent increases i't would lose its statutory support. Compare Taylor v. Bowles, Em.App., 1944, 145 F.2d 833.
It will, of course, be coiiceded that most tenants of defense-area housing accommodations do in fact enjoy a substantial measure of protection against eviction as a result of the Regulation’s prohibition against eviction except under circumstances found by the Administrator not to be susceptible to manipulation tending to evade rent ceilings. But neither the Act nor the Rent Regulation for Housing gives to any tenant any vested or enforceable right of possession as against his landlord which he would not otherwise have under his lease or the local law. This becomes clear when it is considered that the ban against eviction imposed by Section 6 of the Rent Regulation finds its only justification and support in the possibility that the landlords to which it applies may otherwise use eviction proceedings in order to compel the payment of increased rents. It is not imposed and under the Act it may not be imposed because of any necessities of the tenant or his inability to secure other housing accommodations.
It follows that when the Administrator has determined, as he did here, that eviction will not be inconsistent with the purpose of the Act to prevent rent increases, no rights of the tenants have been affected so as to give them standing to protest. This is true even though, as here, the Administrator invited statements from the tenants in response to the landlord’s petitions and permitted them to participate in the oral hearing of these petitions. This was doubtless wise administrative procedure which enabled the Administrator to become fully informed with respect to all the facts which might have any bearing upon the questions raised by the petitions but it did not, as the complainants urge, make the tenants parties to the proceedings. It will be seen that this must be so when it is remembered that no showing which any one of the tenants might have made with respect to his own situation and necessities could have had the slightest bearing upon the Administrator’s determination of the question raised by the landlords’ petitions. That question at bottom was simply whether the landlords had shown that their proposed eviction proceedings were of a character which did not involve the possibility of increasing rents in derogation of the war effort. The tenants’ interest with respect to this question was no different in character from the interest of the public generally.
What has been said disposes of the complainants’ contention that the failure to accord them administrative and judicial review of the Administrator’s action violates the due process clause of the Fifth Amendment. For the issuance by the Administrator of his so-called eviction certificates did not deprive the complainants of any vested right under their leases or the local law to the possession of the defense-area housing accommodations which they occupy. Since, as we have seen, neither the Emergency Price Control Act nor the Rent Regulation for Housing gives them such a right, the Administrator’s action cannot be said to have constituted a deprivation of their property with respect to which due process of law was required. The mere fact that they may be prevented from enj oying an incidental and fortuitous benefit under the Act does not have that effect. Compare Pennie v. Reis, 1899, 132 U.S. 464 10 S.Ct. 149, 33 L.Ed. 426; Violet Trapping Co. v. Grace, 1936, 297 U.S. 119, 56 S.Ct. 386, 80 L.Ed. 518; Ingraham v. Hanson, 1936, 297 U.S. 378, 56 S.Ct. 511, 80 L.Ed. 728; Wright v. Central Ky. Gas Co., 1936, 297 U.S. 537, 56 S.Ct. 578, 80 L.Ed. 850: Dodge v. Board of Education, 1937, 302 U.S. 74, 58 S.Ct. 98, 82 L.Ed. 57.
A judgment will be entered dismissing the complaint.
8 F.R. 18914.
Sen.Rep.No.931, 77th Cong., 2d Sess. (1942), p. 22: “Section 203(a) is designed to provide the advantages of a hearing, in a manner consistent with the need for expeditious determinations, to ail persons who are required to obey the provisions of regulations or orders under section 2.”
Section 1300.9 of Procedural Regulation No. 1 issued February 12, 1942 (7 F.R. 971) : “A person is, for the purpose of this Regulation, (§§ 1800.1 to 1300.56, inch) subject to a provision of a maximum price regulation only if such provision prohibits or requires action by him.”
Section 1300.215 of Revised Procedural Regulation No. 3 issued January 12, 1943 (8 F.R. 526) : “A landlord is, for the purposes of this regulation, subject to a provision of a maximum rent regulation or of an order, only if such provision prohibits or requires action by him.”
Revised Procedural Regulation No. 1. Section 1300.24, 7 F.R. 8901.
District of Columbia Bents Act of October 22, 1919, c. 80, § 109, 41 Stat. 298, 801, construed in Block v. Hirsh, 1921, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865, 16 A.L.R. 165; Soldiers & Sailors Civil Relief Act of 1940, § 300, 54 Stat. 1178, 11811, 50 U.S.C.A.Appendix, § 530.