Petition for Writ of Certiorari — Arnold Tours, Inc. v. Camp

Supreme Court brief1970

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‘ “ARNOLD TOURS, INC, ET AL,

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"PETITION FOR A WRIT OF outionaRr TO THE

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che. Table of Contents. - ;

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‘ Opinions below }! | ae 3

| SCS 5 Rs no Roe se piers ate

Question presented. aa tire er ne, A cert >

Statute involved - | , 3 :

Statéitient of the iis cme yee Ma 28 ;

Reasons for granting the writ ie Seis: 2 § | .-:

. Conclusion mee oe eae 7 ie :

Appendix Bae’ Si | ‘;* ey OP: 4.7 98° 3

A a I

Appendix ‘‘C’’ Ve Se Lam ee eae ei ee . a -

Appendix “‘D’? Bienen ete etn Sy saat

Appendix “”. | — nn tee BS spe ; 31

_ Appendix “<p ede Pee ee ere.

: re)

- . | Mable of Authorities Cited. =". 0. -- Bs

) : _ Cass, ae |

“Air Redugtion Co. Tae, v. . Hickel, “f a ee aE Eg &

Arnold Tours; ine. v. Camp, , F.2d ° me 6n.~ 8/ . Vd

“Association of -Data Processing Berrie Organiza- . le of

_ tions, Ine. v. Camp, 397 U.S.150 4,5; 6, 7, ‘10. :

Baker, Watts &&Co. * Saxon, 261 F. Supp. 247, aff’d.. es re

sub nom. Port of New York Authority v.. Baker, eee a

. Watts & Co., 392 F. i Pata 1 ee see

Barlow v. Collins, 397U.S.159 - 2,5, 6,7,10%

ui Flast v. Cohen, 392 U.S. a.” ae aN os = -

Natl. Assn. of Securitise Dealers, Ine. v. Sevurities / . ;

& Exchange Cpenatianen, 420 F. 2d 83 -" 6n. i

SET

oN ational Welfare Righis Orgattization v.

it ite | TABLE OF AUTHORITIES CITED °

ee ;

ee pai

- 24° ee ee

exon v. Georgia-Association’ of ‘Independent Tague NG

-ance Agents, 309-F. 2¢ 2d 1910 f/f a 6n.

“i 4 , ‘Srarvres. ae Bare

-” ‘Admitnistrative ele Sole “Act, ST U. 9.0. § 702 * de i

‘ National Bank Act, 12 U.S.C. § 24 (7) eaiens ot eS

Bank‘ Service Corporation Aet of 1962, 12 USL. Fees

. § 1864, Section 4 ga

_ Bank Service - ‘Corporation Act of. 1962, 98 USC. Ss a

§1254(t) bai Ae fae 2

of. Massachusetts BPrera Laws, chapter 167, section 12 On. - a .

Misceniannous.

- Coimpiivoller’ Ss. Mafual for National Banks, Para-*

graph No. 7475, Rule 67 | a .

House of Representatives Wareth No. 91- 387, ek

Holding Companies, page 20 ~ ae

Time Magazine, Business Section, p. 101, November _— =“ es

8,1968 - . tA ae aes On.

Supreme Court of the United States.

| tf Ocrosen Tana, 1969...

ee beeetons ees,

| _., + ARNQLD’ TOURS, INC.,-er an,

goers Mee ‘Petitioners, |

Se * WILLIAM B. CAMP: xr at.,

ay na . Respondents.

PETITION. FOR.A’ WRIT OF CERTIORARI TO. THE

UNITED STATES COURT ( OF APPEALS. FOR THE

ale i ee

“Petitioners pray that a.writ of sortiociit | issue to. review

§ ‘the judgment of the United States Court of Appeals for the ’

é _ First Circuit veshear eval in hens above entitled case on J une’ 1,

1970. : .

An earlier petition for a wit of setbarion: was Sietpinabedl |

| to this Honorable Court and on March, 23, 1970, in’ Case

No.-128, said petition was granted by this Honorable Court —

and the judgment of the United States Court of Appeals

for the First Circuit was vacated (Appendix F). The case

was remanded for further consideration in light of Asso-. ,

ciation of Data Processing Service Organizations, Inc. v.

: ° a 3

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. . e

e F 3

. 2

\ Gane, 397 U. s, 150, ‘eink Barlow Vv. Collins, 397 US. 159,

| Upon: reconsideration, the First Cireuit upheld their earlier

‘} sadgment een A and Be

oe Ke ee Opinions Below.

| The first opinion of the Court’ of’ Agiveals for the First

Cixeuit\} is reprinted in Appendix 1) appended hereto. - ~The

second opinion of the Court of Appeals for the First Cit-°

euit, upon which this’ Petition ig based, is ‘reprinted in Ap-

| pendix E appended hereto. The: opinion ‘of the District *

, Court is reported ‘in 286 F.Supp. 770° (1968) and is re- ,

ia printed i in the reeord herein ONS ‘at R. uid

ste ON che -Surisdiction.. .. p Ie cas

‘The opinion of the Court of Wsipoails was file on June

| 1, 1970, and judgment was entered on June 1, 1970.(Ap- © -

| Sontis: A). The jurisdiction of this Courts in invoked under’ ,

Bc dnd ee tear |

eret

Question Presented. ; |

as Whether the petitioners have lesal standing to abiicags’

: (a) the decision of the Con ptroller of the United States

Currency in allowing natignal. banks to enter the” travel .

: agency, - -businéss; and (b) the actual. entry of the South

*. Shore National Bank “into the travel business.

- cabene to the ‘Appendile to Brief for Plaintiffs x

Appellants, filed in the First a hae Court of Bppese.

» Statute. Involved.

Whe relevant provisions of ‘ale National Bank Act, as Sy

nded (12 U.S.G. See. 24) ) are aor as dit _

to’ this Petition: ;

~ The Comptroller’ $ baling contained in ‘@oinptioiler’s

| Manuaf for N ational Banks, Paragraph No. _— is printed“

. as es apes C, to this Petition.

: Sa Statement of the Case. ey

The potitioners.2 are forty-two independent travel agents

: of Massachusetts engaged in the trayel agency business. -

Many. of the activities and obligations” ‘of the travel agents |

~ are controlléd by conferences of air and steamship carriers. .

which are in certain instances supervised by the Civil -Aero-

~~ -nautics Board and the Federal Maritime — (R. e

*. 2:and Exhibit A).

» The’ petitioners brought. this soit individually and also f :

“a as a class on behalf of all other Massachtisetts firms-in the

‘. .travel business &R: SS) ee 73

The respondent William -B. Camp i Ei the Compéielive of

‘the Currency, who is charged by la

and regulatory authority with respect to: national banks.

“the position of this office that a national bank ee not,

have the Tegal right to act as agent... of transportation

companies in the operation of a rarilae travel agency ...°’.:

However, Mr. Camp’s predecessor, Comptroller James J.

i _: Saxon, ‘a former lobbyist and attorney for the ‘national.

‘banks, in 1963 arbitrarily ruled, without notice arid without

with administrative ie

+ ‘Rule 67, issued. by’ the Comptroller in 1949, stated; ie it | e

a hearing, that national banks may enter into, the travel ;

" business on a full-scale’ basis for. profit (R. 14). ‘This de-

. cision represgnted an abrupt change i in policy: on the parts

_of aches. oller. (R. ed

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be 7.

ne ee ee ere ees

. a ‘

ea at . 4.

In November, 1966, respondent South Shore “National .

Bank availed itself of the Comptroller’s ruling and entered °

inte the travel agency business. Said Bank, with approxi-

mately twenty-seven branches, is the first and only bank

in Massachusetts to engage in the travel agency business

(R. 5). It has entered into the travel business on a large-

scale basis and launched a massive advertising pro-

- gram, complete with seven roadway billboards, full-page

newspaper ads and a radio saturation program (R.5 and -

Exhibit B). ‘

‘There are approximatély ninety other national banks in

Massachusetts with approximately res hundred forty-five

branches ‘(R. | Sa

The petitioners contend that the Casiptedlles exceeded

his ‘authority in allowing the national banks to enter into -

_ the travel business and that the South Shore National Bank -

is illegally competing with them for travel customers. The

petitioners have lost substantial business and profits and.

‘stand to lose even greater business and profits in the future

as a result of the South Shore National Bank ’s illegal entrys

‘into the travel, business (R. 3, 5,6, 7, 24, 27).

As a result thereof, on May 8, 1967, the petitioners

brought suit for a declaratory setguent and mandatory -

injunction (R. 2-8).

On July 11, 1968, motions for summary judgment brought

. by the respondents were allowed by the District Court and

a similar motion brought by the petitioners was denied (R.

44, 48-49). The Court held that the petitidners had no

standing to sue.

From such order of the, District Court, the petitioners

appealed to the United States Court of Appeals for the

First Cirenit (R. 49). t court affirmed the judgment of

the District Court in a written opinion (Appendix D herein).

From the Court: of Appeals’ decision, the petitioners

| brought a » petition for a writ of certiorari to this Honorable

/ ‘

eae.

. ¢ ; oe ~@ o) : ” «a?

- Court which was granted, and the judgment of the United

States Court of Appeals for the First Circuit was vacated.

(Appendix F), The case was remanded to the First Cir-

euit Court of Appeals. for further consideration in light

of Association of Data Processing Service Organizations,

Inc.. v. _ Camp, 3g7_U. S. 150, and Barlow v. Collins, 397

‘After " recousideration, the United States Court of Ap-

peals. for the First Circuit reaffirmed its earlier judgment

and, accordingly, upheld the judgtnént of the District —_

in a written opinion (Appendix KE herein).

‘ . ~

- Reasons for Granting the Writ. -

The décision below is in direvt conflict with other federal

- courts on the identical question and is also in direct conflict —

with this Court’s recent decisions, Moreover, the questi@f\ —

involved is important and recurring. —.

1.- The issue.as to whether small, independcht businesses

such as travel agents, ‘insurance-brokers, or the like have

‘ standing to’ challenge the rapidly, spreading invasion by

natienal banks: into non-banking fields of competition con-

tinues to. remain unresolved in various circuits, notwith-

‘standing this Honorable Court’s attempt to clarify the

issue of standing in Associattén of Data Processing Service

‘ Organ@Mhtions, Inc. v, Camp, 397 U.S. 150 (hereinafter re- .

ferred to as ‘‘ Adapsco’?) and Barlow v. Collins, 397 U.S.

159 (hereinafter referred to as<*‘ Barlow’’).

When this Court previously granted certiorari and va-

cated judgment in this case and then remanded it for re-

. consideration, it seemed obvious by this Honorable Court ’s

action and trom this Honorable Court’s language in Adap-

sco and Barlow that the petitionimg- travel agents had

‘‘standing to sue’’ inasmuch as they arguably came within

id 6

the zone of interests gought to be protected by tlie National

_ . Bank Act and the Bank Service Corporation Act. However, /

the Court of Appeals for the First Cireuit refused to change —

‘ its earlier decision and, in effect, dissected the Adapsco.

‘and Barlow decisions to the point where they seemingly

. found an excuse to. reaffirm.their earlier decision. They

-refused-to acknowledge the ‘‘trend .... toward the en-

largement of the class of people who’ may protest adminis-

trative action.’’* And, as a practical matter, the Associa-

tion of Travel Agents is the only likely group which would

challenge ‘this competition, Refusal to allow review here

commits this action wholly to agency discretion.? ©

As a result of this unwillingness to admit error, we still

have the anomalous situation where data processing com-

panies, which are more related to the business of banking,

do havé’standing to, challenge competition presented by the ©

nationdl banks, but travel agent companies, which are to-

tally unrelated to the business of banking, do not have

standing to sue. . Further, the First Ciredit’s opinion is in -

direct conflict with numerous other Federal Court deci-

sions. os |

4 y reer errs of Data Processing Service en v. Camp,.

— 897 U.S. 150, 154° . -

2 Association of Data Processing Service Organizations v. Camp,

_ 897 US. 150, 175, nw (dissgnting and concurring opinion of Bren-

nan, J.).

+8 Compare Savon v. Georgia Auctions of Independent Insur-

ance Agents, 399 F. 24 1010 (Sth Cir. 1968); Baker, Watts & Co.

v. Saron, 261 F. Supp. 247 (D. D.C. 1966), aff’d syb’nom. Port of

New York Authority v. Baker; Watts & Co., 392 F. 2d 497 (D.C.

Cir. 1968); Natl. Assn, of Securities Dealers, Inc. v. Securities &

Exchange Commission, 420 F. 2d 83 (D.C. Cir. 1969); Air Reduc-

tion Co. Inc. v. Hickel, (D.C. Cir. 9/22/69. F. 2d ; Na-

tional Welfare Rights Organization v. Finch, (D.C. Cir. 6/9/70),

FP. vas ; with ada Tours, Tne. ' v. itd (1st Cir. 6/1/70),°

FP, 2d

)

te : 7 .

The very “eompounded confusion’? witli: Mr. Justice

‘ Brennan and Mr. J ustice White foresaw in their concurring

aiid dissenting opinions in Adapsco and Barlow has quickly

become a reality by reason of the First Cireuit’ 8 decision i in

dhis case. : hes

"all Bi age :

2.¢ The First Circuit clearly committed an error in the

instant case in interpreting this Court’s decisions in Adap- —

sco and Barlow. The First Circuit found that injury was

alleged in fact and that reviewability of the agency de-

_ cision was available (Appendix KE, p. 32, n. 1). However,

they stated that the travel agents have not produced a

‘‘seintilla of evidence tending to show that Congress was

specifically concerned with the competitive interests of

travel agencies; nor have they shown ‘enough evidence of

. concern for general business competitors to create a ‘zone’

within which _- are bac cased included’? (Appendix -E,

p. 33).

It seems. siecle inconstatent that the First Circuit

d find ‘ reviewability,”’ which means that. travel agents

are within that class of ‘aggrieved’ persons who, under

Section 702 are entitled to judicial review of ‘agency ac-

tion,’ ’’ and yet still find that they are not arguably within

a protected zone of interest.

The First Cirtuit’s reasoning still tends to go to the

merits and is directly contrary to this Honorable Court’ s

language in Adapsco when it said:

‘*We do think, however,, that § 4 arguably Scion A

competitor within the zone ‘of interests protected by

it. [P. 156.) ‘

‘‘We find no evidence that Congress in‘either the

Bank Service Corporation Act or the National Bank

Act sought to preclude judicial review of administra-

tive rulings "7 the Comptroller a as to the legitimate.

u. °

| 8

scope of mctivities available to national hanks under

those statutes. ‘Both Acts are clearly ‘relevant’ stat-

#,utes within the meaning of § 702." The*Acts do not |

in terms protect a specified group. But their general ‘

policy is apparent; and those whose interests are di- .

rectly affected by a broad or narrow interpretation of

the Act are easily identifiable. -It is clear that peti- -

tioners, as competitors of national banks which are

engaging in data processing services, are within: that

class of ‘aggrieved’. persons-who, under § 702;-are en-

titled to- judicial review of ‘agency’ action.’

‘‘Whether anything in the Bank Service Corporation

Act or the National Bank Act gies petitioriers a ‘legal

interest’ that protects them against violations of those.

Acts, and whether the actions of respondents did in

fact violite either of those Acts, are quesfions which

go to the merits and remain to be decided below,’’ (Pp.

Aste.)

a It i is clear r that ies secre Sevala ‘ele are + dines.

— affected by a broad or narrow interpretation of the Act,

and it’ appears that this Court ruled that both the National

Bank Act and the ‘Bank Service Corporation Act have ap-

parént general policies which might not ‘‘in terms protect

a specified group,’’ but are at least arguably designed in

“general to protect certain groups. The general policies at-

tributed to the Acts by the Supreme Court should neces- .

sarily constitute the ‘seintilla of evidence’ fr which the

First Circuit is looking.

In’ addition, | Section 4 of the Bank Kervice Corporation

Act forbids bank service corporations from engaging ‘‘i

any activity other than. the performance of bank services

for banks’’* (emphasis supplied) which, in terms, explicitly

‘ Bank Service Corporation Act of 1962, 12 U.S.C.’ § 1864.

. ‘forbids them from entering the travel bosiness, and thus

there is ceriainly arguable proof that Congress intended to

. protect net only data processing companies but all other

non-banking companies frem competition. This explicit

prohibition should at least arguably bring the travel agents

within the zone of interests sought to be a by the

Acts.

"It is also interesting to note that in 1967 the Massachu- ©

. Setts Legislature enacted a law ee banks om op-

erating a travel agency.® a :

3. The. implications of the issue on which the First Cir-

euit and other federal jurisdictions have diverged are im-

portant. fai |

With the recent phenomenon of one-bank holding eom-

panies and with the growing invasion of conglomerate in-

dustries, it is‘apparent that illegal competition by national

‘banks should be stopped. The Chairman of the Federal —

Reserve Board, William McChesney Martin, said.in oppo-

sition to the Comptroller that the entry by the banks into’

unrelated business ‘‘... . can affect the whole capitalistic

system in the United States. The line between banking and

commerce should not be erased.’’® The travel agents at-_

tempted to prevent the line from being erased but have

been denied even‘ the opportunity to raise the issue. This

‘ recent trend byrmational banks to invade ‘business areas _

totally unrelated to’ the business of banking poses an im-

portant question of federal law, namely, what are the limits

of power that Congress has given national banks,

5 Massachusetts General’ Laws, ‘chapter 167, section 12, which

states in pertinent part: “No bank shall engage in the business

of operating a travel agengy.’’ (As added by St. 1967, ¢. 220.)

®* Time Magazine, Business Section, p. 101, November 8, 1968.

J » . \

To affirm the First Circuit’s decision would be to sane

the national banks to compete illegally in any businesses

' they wanted to where there were no express laws protecting

the damaged businesses. for example, national banks.could

go into the night club, Jaundry, liquor or construction busi-

ness, &¢., without fear of reprisal. National banks. have.

already entered into humerous non-banking fields.” é

To allow the First Circuit’s decisfén to stand would be

to emasculate the general intent of the Adaps¢o and Barlow

“decisions and would allow national banks to run roughshod .

over small independent businesses so long as there was

legislative silence with reference to the particular business

in question, In getting bogged down in the refinements of

the standing issue, the court has allowed itself to get ‘fur-

ther and further away: from the. realifies of this age. and ~

_ opens itself to persuasive attack by those who: say that.the

law has no relevance and that the little man is prevented

* by the government, from getting. his ay ‘i in court.

7 See House of Representatives Report, No. 91-387, Bank Hold.

: ing Companies, page 20, which states:

. “Some of the activities carried on by these 82 waabenk sub-

‘sidiaries including insurance agencies; real estate investment

companies ; life and health insurance companies; radio and

television broadcasting; ‘experimental and demonstration ©

farms ; management consultants and research; underwriting: _

of casualty i insurance; ranghing ; department store operations;

travel agencies; ie eee, furniture manufaé-

- turer; restaurant operator; textile manufacturer; manufac-

aarer of heating equipment; lawn mower manufacturer ; shoe

manufacturer ; installers of communication equipment; pizza

parlor leasing; stock ‘savings and loan association owner;

building contractor; steel erection and sales; courier opera-

tor; finance company operator ; heavy equipinent leasing firm ;

cold storage ‘warehouse; mortgage finance and servicing ; office

and home construction firm; cable television company; in-

véstment management company ; and manufacturer of tran-

sistors and integrated circuits.’’

@-ta2- sg al Fc TL MR At i ORR

= oe

The petitioners Were, who are being economically injured

and who have a concrete interest indhis matter, are ina.

position where an agency rather than,a court has the power |

to intérprei a statutory term with finality—Judicial review

of final agency action is being cut off even though, as the

First Circvit admitted, reviewability is not a problem and —

there is ‘1fo evidence of a congressional intent to*prohibit <: "

_judicial review. Te

Conclusion. |

“ Mr. J aatics 5 Donuiae ‘said in shunt v. ‘Cohen, 392 US.

— 83,. tet: ~ ‘

: ‘The judiciary is an infispensable part of the opera-

tion of our federal system. With the growing com-

plexities of government it is often the one and only :

place where’ effective relief can be obtained..

[Wjhere wrongs to individuals aré done . . . it is .

dication for courts to close their doors.’’ Oa os S

It is respectfully requested, for the reasons above stated,

that, this petition for writ of certiorari-be granted so that

this particular abdication, which has: serious national rami-. Xe

fications, may be corrected.

Respectfully submitted,

TIMOTHY J.: MURPHY,

RICHARD W. MURPHY.

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“‘Unrre Srares Coins, OF Avonice :

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ea Arnotp Tours, Inc., ET AL, - eee {

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pe PLAINTIFFS, APPELLANTS, ‘_

Waitam-B-Camr-2t an, ———__ :

“ DEFENDANTS, APPELLEES.’

" Jupomenr. oe ¢ < /

ee JUNE 1, 1970.

"This cause came on to be heard on appeal from the United

aia from the Supeeiive Court of the e Unies States, and.

wasargued by counsel. ey poke By

Upon consideration wherepl, it is new pon pt -

judged and decreed as follows: The order of the District

Court dismissing the complaint for lack of standing is af- _

firmed. = et SO ea By |

By the Court:

]s/. Dana H. Gatiue

. Clerk.

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; ae INVOLVED. - ; /j

Title 12, United Stats Code, § 24, paragraph Seventh, in

pata part, states: :/

€SUp duly making and filing articles of associatfon

and anorganization certificate a natiéna] bankthg asso-

ciation shall become, as from the date of the éxecution ©

of its organization certificate, a body corporate, and‘as

‘such, and-in the name designated in in the organization

certificate, it shall have a :

‘Seventh. To exercise by its board of direétors-or

. duly authorized officers or agents, subject to law, all

such incidental powers as shall be necessary to carry, .

on the' business, of hankifig; by discounting and nego- —

tiating promissory notes, drafts, bills of exchange; and —

other evidences of debt; by receiving deposits; by buy-

Pe eh ing and selling exchange, coin and bullion; by loaning.

mes money on persona sPeurity ; and ‘by obtaining, issuing

- and circulating: notes: ONENS, to the provisions’ of *

eee ‘this sce orci a

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. ,

| . | . | 17 . ‘ ,:

| . | Appenatx a ; an

_ComPrroiier’s Manuva ror Nationa, Banks

No. 7475. National banks acting as travel agents

Incident to those ggwers vested in them under 12 U.S.C. 2

24, national banks may provide travel services for thieir cus-

tomers and receive compensation therefor. Such services

‘may include the sale of trip insurance and the rental of au-

tomobiles as agent for a local rental service. In connection

therewith, national banks may advertise, develop, and ex- °

tend such travel services for the purpose of attracting cus- ‘@)

tomers to the bank. — v4 .

‘

Appendix “D.”.

‘@

Unrrep States Coprt or ApPeats

. For THE First Circuit

—"*

' Fs ‘

No. 7192. ;

_ Arwotp Tours, Ixc., ef AL.,

PLAINTIFFS, APPELLANTS,

v. :

Wiu1am B. Camp er au, .

DEFENDANTS, APPELLEES.

APPEAL FROM THE UNITED STATES DISTRICT COURT |

FOR THE DISTRICT OF MASSACHUSETTS

—_—-

No. 7186. — a ¢

Tue Wixcate Corporation,

* PLAINTIFF, APPELLANT,

SMS Ss .

LypwstriaL Nationat Bawk 27 AL.,

DEFENDANTS, APPELLEES.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

” 20

‘Before Avpnicu, Chief. Judge,”

- Woopsury,* Senidr Circuit Judge, and

Corrix, Circutt Judge.

No. 7192.

Richard J. Murphy, with whom Timothy J. Murphy was on

brief, for appellants.

Alan 8. Rosenthal, Attorney, Department of Justice ce, with ora

Edwin L. Weisl, Jr., Assistawt-Attorney General, Paul F. Mark-

ham, United States ‘Attorney, and Leonard Schaitman, Attorney, .

Department of ‘Justice, were on brief, for William B. Camp,

Comptroller of the Currency, appellee. .

Elliott V. Grabill; with whom -Arthur H. Bloomberg and Gra-

bill, -Ley & Butterworth were on brief, for South Shore National

Bank, appellee.

No. 7186.

Ed ward J /Regan, ‘with whom Eustace T. Plaikas andl Graham,

Reid g & Stapleton were on brief, for appellant. _

Matthew W. Goring, with whom Edward M. Watson, Robert W.

Meserve, John B. Newhall, Gordon L. Doérfer, Hinckley, Allen, .

' Salisbury & Parsons and Nutter, McClennen &: Fish were on

brief, for Industrial National-Bank of Rhode Island, appellee.

Alan 8. Rosenthal, Attorney, Department of Justice, with whom

Edwin L. Weisl, Jr., Assistant Attorney General, Edward P. Gal--

logly, United States Attorney, and Stephen R. Felson, Attorney,

Department of Justice, were on brief, for William B. Camp, Comp- ~

troller of the Currency, appellee.

Robert J. McOsker, City Solicitor, and Vincent J. Piccirilli,

Assistant City Solicitor, on brief for City of Providence, appellee.

Matthew Hale on brief, for The. American Bankers Association,

amicus curiae. yf

March 27, 1969. .

Aupricu, Chief Judge. These are two actions by parties

engaged in certain husiness pursuits to restrain competi-.

tion from national banks which, supported by rulings of the

Comptroller of the Currency, have entered their fields.

Plaintiffs seek, basically, to attack these rulings. In both

* Sitting by designation.

-21

cases the district courts held that they were without stand-

ing to do so, and dismissed the complaints on motions of the

Bn enw

oo aed Pa 7

defendants. Plaintiffs ict

ao om”

THE TRAVEL AGENCY BUSINESS

We consider first the action brought by Arnold sian,

Inc. and some forty other independent travel agencies in .

uated as well as themselves, against the Comptroller and

the South Shore National Bank. The bank, in reliance upon

a ruling by defendant Comptroller's predecessor, is en-.

gaging not merely in the financial aspects of travel, but

“‘full’’ travel service, or a complete travel agency busi-

ness. To quote from what j is said to be the bank’s own an-

nouncement, its employees are prepared to arrange for bi-

cycles in Bermuda, villas on the Riviera, and houseboats

in Kashmir. The Comptroller argues at length that this i is

traditional and legitimate bank activity. We do not, how-

‘ever, consider this matter except to say that plaintiffs pre-

sent enough of an issue so that the question of standing

, Massachusetts, allegedly on behalf of others similarly sit- _

is properly before us. We alsd note that no question of re- —

viewabiljty of the Comptroller’s rulings has been raised.

See generally, Saferstein, Nonreviewability: A Functional.

Analysis of “Committed to Agency Discretion,” 82 Harv. -

L. Rev. 367, 383 & n. 60 (1968). Our sole question is thé cor- '

rectness of defendants’ contention, which we will para-..

1**97475. National banks acting as travel agents.

_ Incident to those powers vested in them “under 12 U.S.C. 24,

_’ national banks may provide travel services for their customers and

receive compensation therefor. Such services may include the

‘sale of trip insurance and the rental of automobiles as agent for

a loeal rental service. In connection, therewith, national banks . |

purpose of ee customers to the bank. See J 7376. ed

‘may advertise, develop, and. extend such travel services for the ;

phrase, as saying .that what the bank chooses to do-is, ,

both literally ahd figuratively, none of plaintiffs’ business.

_ It has long been settled ‘that an ordinary competitor has

no standing to complain of a party’s lack of legal authority

‘to engage in his business, in a suit against the competi-’

tor; the government, or both. . Railroad Co: v. Ellerman,

1881, 105 U.S. 166; Alabama Power Co. v. Tehtéy 1938, 302

U.S. 464; Tennessee Power Co. v. TV A, 1989, 306 U.S. 118.

Despite numerous exceptions, this principle has: withstood

erosion not only because of the traditional rationale be- ;

hind standing doctrines generally, see Flast v. Cohen, 1968,

392 U.S. 83, 91-101, but because of the policy encouraging .

free and open competition—a policy that-favors competi-

tion in the market place, not in the courts. The excep-

tions, where standing is recognized, are as well estab- |

lished as the principle itself. The first is for complaints of

‘‘illegal’’ competition, by which is usually meant competi-

tion that is unlawful as to plaintiff apart from considera-

“tions of corporate power or authority. See Alabama Power

Co. v. Ickes, supra at 479; Central Louisiana Elec. Co. v.

REA, W.D.La., 1964, 236 F.Supp. 271, 277, rev’d, 5 Cir.,

. 854 F. 2d 859, cert. denied 385 U.S. 815; ‘but cf. Kansas City

Power & Light Co. v. McKay, D.C.Cir., 1955, 225 F.2d 924,

cert. denied 350 U.S. 884. Plaintiffs he not suggest that

the Comptroller has sanctioned, or that the bank has under-

taken, any unfair, ‘conspiratorial, or criminal methods of |

competition, or that there has been any violation of the anti-

trust laws. The second exception is where it’ is claimed

‘ that some ‘‘legal right’’. has been injured, by which is

meant, in its nonconclusory sense, that plaintiff has an

independent property right, or a right to be free from the

particular kind of competition he is challenging. Such a

right is attached to or arises out of an exclusive ‘fran-

chise, on the one hand, or a restricted license or the like,

on the other. Frost v: . Corporation Commission, 1929, 278

2 OM le BEBO

U.S..515; cf. Whitney National Bank v. Bank af New Or-

leans, D.C.Cir., 1963, 323 F.2d 290, 299-300, rev’d on other

grounds, 379 U.S. 411. Plaintiffs fit in no such category. _

The final general exception is. where the, plaintiff can

show the existence of a ‘‘statutory aid to standing”? for a

class of persons’ which includes himself. This statutory

aid may take the form of a ‘‘judicial review’’ provision of

p ;

the particular administrator in question for ‘‘parties ag-

grieved,’’ ‘‘adversely affected, ”? Or the like.” In such a ¢ase,

‘FCC vy. Sanders Bros. Radio Station, 1940, 309 U.S. 470,

would presumably provide standing for legitimate competi-

tors.. See generally, Jaffe, Judicial Control of Adminis-

tratwe _ Actions, 513-31. There is, however, no such

provision as to the Comptroller of thé Currency.

An alternative statutory aid may be found if there

is’ an indication of Congressional intent, \ explicit or im-

plicit, in the relevant substantive acts to i protec-

_ tion to the competitive interests of a, class of businesses -

which includés the plaintiff. Thus in Hardin v. Kentucky °

Utilities Co., 1968, 390,U.S. 1, the Supreme Court found

- that a competing private utility~company had standing

to challenge the expansion of TVA into new areas in al-.

leged violation of the area limitations of section 15d(a) of

the Tennessee Valley. Authority Act, 16 U.S.C. § 831n-4

(a). The Court said, ‘‘[O]ne of the primary purposes of

. the area limitations in §, 15d of the Act was to protect

private utilities from TVA competition.... Since re-

‘spondent is thus in the class which § 15d is designed to pro-. |

tect, it has standing’. . . .”? 390 U.S. at 6-7.

The only possible statatory aid to the standing of travel

' agents in national banking legislation exists in 12 U.S:C.

§ 24(7). This section states that national bawks may. “‘exer-

cise . . . all such incidental’ powers as shall be necessary

to carry on the business of banking,’’ and then lists nu-

merous powers explicitly granted. It has long been settled

. - . ¥ #. _.

ek eed Lat a 2.

eR be DR et

ed ea eraivesiv:

: ees aaa

in suits over private contracts that the sania of

such powers is‘an- effective and strong. prohibition of* all

activities not enumerated and -not incidental to banking. °

See First National Bank v. National Exchange Bank, 1875,

92 U.S. 122, 128; National Bank v. Matthews, 1878, 98 U.S.

- 621, 625; Logan County National Bank, v. Townsend, 1891,

139 U.S: 67, 73. But ever assuming that national atin

-are: prohibited by section 24(7) from .entering into the ©

business‘ of procuring: travel arrangements, this is not

sufficient to provide a statutory aid te standing. The pro- |

— hibition must be demonstrably intended. to protect the

competitive interests of other members’ of the prohibited

; business. See the concurring opinion of Judge Thornberry -

in Saxon v. Georgia Ass’n. of Independent Ins. Agents,

1968, 5 Cir., 399 F.2d 1010, 1019; Association of Data Proc-

essing Serv. Organizations v. Camp, D.Minn., 1968, 279

F. Supp. 675, aff’d, 8 Cir. 2/6/69, F. 2d . We,

too, (see 8th Cir. opinion in Camp, n.10), cannot accept

the simplistic suggestion by the majority i in Georgia Ass’n,

399 F.2d at 1016, that as soon as it appears that the,

competitive activities were pase carried out the

plaintiffs have standing. :

The -plaintiffs have not’ pointed to, nor: have we in our

research discovered, any evidence that Congress in. de-

limiting the scope of banking activity in the ultra vires sée-

~ tion, quoted supra, was concerned, im 1863 and 1864 when |

the national banks, were formed,? with competitors in the

"businesses impliedly prohibited, much less. in any. particu-

larity with travel agents (if they then existed). Rather,

‘the limitations were for the purpose of insuring the sta-

' bility, liquidi ty, and safety of the banks. SeeNational Bank

vw Matthews, supra at 626; Davis, Banking Regulation To-

2 National Bank Act of 1863, ch. 58, 12 Stat. 065, National

Bank act of ei ch. "106, 13 Stat. ae

‘ 5 NG

| | | F | 2 | : ) i f fi

eae ee

"day: A Hanke’ s View, 31 Law & baits: Problenis 639

(1966). See-also Million, The Debate of the National Bank

Act of 1863, 2 J. of Pol. Beon. 252 (1894). No doubt Con-

aren has continuously, from 1864 to the present, been

very eareful’’ (see infra) in restricting the activities of

banks; and. no doubt Congress has been, as we shall. see

in the second portion of this opinion, specifically concerned 7

with-eertain potential competitors of the banks. ‘But as

Sy Senator Praxmire pointed out while offering an‘ amend-

ment to banking legislation? specifically designed to pro-

tect particular competitors, the thrust of the close regula-

tion of banks is for purposes of stability: ‘‘We are very /

careful in the regulations*of banks. .This has principally |

been done to assure the solvency of the banks by limit-

ing the’ activities. of banks .to-safe. and relatively liquid: |

i ‘investments.’? 108. Cong. Rec. 22031 (1962). (Segalso S.Rep. |

: e 0. 2105, 87th Cong.,.2d Sess. (1962) (Supplemental views -

“of Senators Proxniire, Douglas, and Neuberger) in 2 U. S. ‘

‘Code Cong. & Admin. News, 1962, at. 3887. While at some

point. Congressional concern with a sufficient quantity of

specific competitors of banks might indicate a Congres-

sional intent-that section 24(7) should now be read as a.

measure not only to protect investors but also. to protect

all potential members of prohibited activities, such a. point

has not been reached.. More proof of Congressional solici-

“tude is required before this court or any court should |

convert an economic struggle into a legal one.

The plaintiffs have suggested, however, that the gen-

eral rule denying competitors. standing is no longer valid,

or has undergone substantial change. First, they argue

that section 10(a)- of the Administrative ‘Procedure Act,

5 US.C.°§ 702 provides standing for any persons claim-

28 This legislation a ‘form -the basis of our holding i in the second

; half of this opinion.-

cae

ing to be “adversely affected in fact.”’ This eciibenttint :

-seems derived from the interpretation of. section 10(a) — 5

urged by Professor Davis in his Adifinistrative Law Trea-_

tise, § 22.02, and presumably adopted in. American Presi-

dent Lines v. FMB, D.D.C.,- 1953, 112 F.Supp. 346.4 We, °

“however, choose to side: with Professor Jaffe’ and the

“inajority of the courts® in holding that the passage of the

APA was not intended to alter to such a drastic extent

-. previous law on the question of standing. Moreover, we

shoyjd add that we have serious reservations whether a

test of ‘‘adversely affected in fact’’ would provide a simpler

means of deciding the issue of standing. We do not pause

for such’ analysis in the present case, but if, as has been

_ suggested, simplicity and ease of determination is a reason

for preferring the new interpretation, we do not find it.” |

The plaintiffs alternatively urge that Flast v. Cohen, -

supra, indicates a major shift in the judicial} attitude to-

ward the general doctrine of standing; and that while it

is not directly in point, this decision indicates that the -

relevant test for determining standing in this situation’

is whether the parties are sufficiently adverse to. bring into

i focus the issues raised. See also the coneurrence of Judge

4 See also Baker, Watts & Co. yz Saton, D:D.C., 1966, 261 F;

ape aay.

. 5 Jaffe, J udicial Control of ‘Administrative Action 528-30. Wee |

also, Note, Competitors’ Standing To Challenge Administrative

Action Under the APA, 104 U.Pa.L.Rev. 843. (1956). |

6 See Sazon v. “Georgia Ass'n. of Independent Ins. Agents, supra,

_ at 1019 n.1; REA v, Northern States Power Co., 8 Cir., 1967,

. 873 F. 2-686, 692-93 & nn. 9-10, cert. denied 387 US. 945; Kansas - .

‘City Power & Tight Co. v. McKay, supra.

- Indeed, one of the bases for the rule against competitors’ suits

might well be the difficulty of determining whether mere increased

competition,is an injury in fact, particularly where~a new and

largely undeveloped market is involved. Cf. World Airways, Ine.

~~ :

/ este: Wrannders F206 ec ORIN Rh AER GEL en Sil ONIN ON BBN

' °

ee in ‘Sacton v. Georgia Ass’n of Independent Ins.

Agents, supra. Our’ first nt inten plaintiffs’ contention

is that Flast. v, Cohen was nat intended to have any major —

res shaping effect outside the area\of standing determina-

tions: under Article IfI f6r taxpayer suits challenging the

. constitutionality of .a:federal taxing and spending statute.

Such an approach to jstanding as ‘sed “in. F'last—one_

focusing solely upon, an assessment. of the degree of ad-

versity and clarity of/the particular case—if applied to

questions of administrative law standing would disturb

* the entire judicial rdlationship to the administrative as °

presently. understood by Congregé. Congress now knows

_ that if it wishes a*particular less of plaintiffs to have, or *

not. to have, standing to ‘review of agency rulings,

it may make, or not make, the types of legislative provi-

+ sions discussed earlier in this opinion, and that is an end

to the matter.

their view of:

“stances pleaded. "When the conflict is one of constitutional

‘dimensions, such an approach may be necessary. In barely.

administrati e matters we think otherwise.

-Qur seco answer is that even if we were to assume

that Flast

‘do not read that case’to require all administrative stand-

__ ‘ing determinations to be made solely: upon an assessment

competition. - . J

, . . ‘ . ke Pail

’ > . ° Pr ae

27 ; a pa % :

nder plaintiffs’ proffered approach, the:

courts ‘would -haye the last word on standing, based. upon.

e justiciability of the particular. cireum-

Cohen was intended to affect other areas, we

gree of adversity and clarity. Rather, Flast was |

ent of the concerns fer ‘siverdiy and pop dare 7

the limited role of the pualetary.‘b in —, legitiatints his

_ =

. . 28

¢ EES,

In sum, we find no acceptable basis for Handing for the

travel agents. ‘

DATA PROCESSING ” P

| Turning to the second action involving the | ptrol

hone plaintiff, Wingate Corporation, which performs ¢

tain data processing services for hire, brings suit to enjoin ‘

' the defendant, Industrial National Bank of Rhode Island .

from performing data processing services for the City

of Providence,as safctioned by a general tuling of the °

Compfraljer. While Wingate, like Arnold, complains thaf

the bank/is violating section 24(7) of 12 U:8.C- by provid-

ifig such services th bank customers, its claim to stand- .

ing is aided by the presence of specific Congressional legis-

lation dealing with banks and-computer servicing. In’

j 1962 Congress, after some debate, enacted the Bank Serv-

‘ iee Corporation. Act, 76 Stat. 1132, which allowed small ~~

banks. to combine to form a separate corporation which

“eould own data processing equipment. The primary pur-

posé“of this legislation was to allow small banks to com-

pete more effectively with the larger banks, which had.

sufficient gapital and business to buy their own electric .

; data processing ipment, However, in order to prevent

such corporations g used as a subterfuge for entering -

into ‘the nonbanking business of data processing, and to

protect the interests of certified, public accounting firms,

Congress provided in'section 4 of that Act, 12 U.S.C. 4

1864, ‘‘No bank service corporation’ may engage in any

activity other than the performance of bank services for

banks.”’ The legislatiye/bistory, is clear. The prohibition~

originated in arf amendment pro the National

Society of Public Accountants, w objected to the origi-

nal version of the bill that would have aval bank service

corporations to solicit outside business fo some extent. The

Accountants feared injury -to their growing business of -

bookkeeping with the aid of computers. The final. pro-

vision was an obvious response. See-108 Cong. Ree. 16499,

22031 (1962); “Hearings on Misc. Bank Bills Before the

Gotm! on Baking & Currency the United States Senate,

Sith’ Cong., 2d Sess., at 79-80 (1962).

' We conelude that the present plaintiff. is- Within the

| tlass of persons intended to be protected by section. 4 of .

the 1962 legislation, and the only question is whether

standing exists te complain not of competition from bank |

service corporations, but from national banks directly.

We conclude in the affirmative. When Congress so ex-

plicitly provides pre ‘ection for a particular business against

competition from a regulated ,hational entity—even

- though indirectly by regulating a subsidiary—standing

exists at least to entertain’ complaints by that business

concerning its competitive relationship to the national

entity. Settion 4 had a broader purpose than regulating

only the service corporations. It was also.a response to

‘the fears, expressed by a few senators, that without such

-a prohibition, the bill would. have enabled ‘‘banks to en-

gage in a nonbanking activity,” S.Rep. No. 2105, supra’

(Supplemental views of Senators Proxmire, Douglas, and

Neuberger), and thus constitufe ‘‘a serious exception, to

the ted publie policy which strictly limits banks to

banking.’’ (Supplemental views of Senators Muskie and

Clark). We think Congress has provided the sufficient

statutory aid to standing even though the competition

may not be the precise kind Congress legislated against.*

Indeed, there is ‘a plausible argument that the Bank

Service Corporation Act, read in conjunction with 12 U.S.C’

j 24(7), does in fact impliedly prohibit national banks

rom directly entering into the data processing service

* But cf. Association of Data Processing Serv. Organizations v.

Camp, 8 Cir., 1969, F. 2d , 0,12, which stated that thé re-_

' lianee of similar plaintiffs upon the Act for standing was ‘‘ mis-

plaved.’”’ ‘8

vo oS as al

business. If the section four prohibition could be avoided

by a small national bank, member of a group owning a_

service corporation,. soliciting its own. data processing _

customers to be serviced by the subsidiary via the bank,

the prohibition would be largely illusory. And if a small

bank could not directly solicit such customers, it would fol-.

low that the large banks, owning their, own equipment, -

could not, or the’ equalizing effect of the Bank Service

' Corporation Act would be lost. To be considered in op- .

‘ position to’such an argument is the Comptroller’s ruling

_ interpreting the section,® and the phenomenon of the one-

bank holding company, that is not covered: by the Bank -

_ Holding Company Act of 1956, 12 U.S.C. §§ 1841-49, which

requires only multi-bank holding companies to divest them-

selves of all nonbanking interests. We-leave the resolution

of this conflict to future determination. For the purposes

of the issue of standing, we need decide only that the pas-

‘sage of the Bank Service Corporation Act arguably pro-

hibits direct entry by national banks into the data process-

ing service business. ‘

In case No. 7192 the judgmeni of the District Court is

affirmed.

' In Case No. 7186 the judgment of the Dist-ict Court is

vacated and the case remanded for further proceedings not

inconsistent herewith.

® Saree Ruling §7399 provides in part that:

; . such corporations may only perform bank services for

bate Bank’ services, however, as defined in the Act, would

inelude any service which a bank would ordinarily’ perform

. + for a customer. Accordingly, if a bank ‘undertakes to handle

the payroll accounts or the accounts receivable of a customer,

_ bank service corporation may perform for the bank the ser-

vice necessary to enable the bank to fulfill its undertaking.” ~

Appendix “E.”

_ Usrrep States Court or Appeats

‘ For tue Finst-Cievir

% . os

No. 7192. | :

Arnoip Tours, Ixc., eT AL.,

PLAINTIFFS, APPELLANTS,

Vs .

Witxias B. Camp, ComPrROLLER

OF THE CURRENCY, ET AL.,

DEFEYDANTS, APPELLEES. — -. fe i

APPEAL FROM THE UNITED STATES DISTRICT COURT

. FOR THE DISTRICT OF MASSACHUSETTS -

_ON REMAND*FROM THE SUPREME COURT.

Before Avpricu, Chief Judge,

McEntez and Corrin, Circuit Judges.

Richard W. Murphy, with whom Timothy J. Murphy was on

Alan 8. Rosenthal, Attorney, Department of Justice, with whom

William D. Ruckelshaus, Assistart Attorney General, and Herbert

F. Travers, Jr., United States Attotney, were on brief, for William

B. Camp, Comptroller of the Currency, appellee.

Elliott V. Grabill, with whom Arthur H. Bloomberg, and Gra-

ons & Ley were on brief, for South Shore National —_ ———

June 1,.1970. ;

Auonicu, Chtef Judge. In Arnold Tours, Inc. v. Camp,

1 Cir., 1969, 408 F.2d 1147, in a joint opinion covering two

actions against the Comptroller of the Currency and two

national banks, this court, departing from another cireuit

320

that considered cases such as Tennessee Electric Power Co.

‘vy. TVA, 1939, 306 U.S. 118, determinative of the question,

held that in one of these actions (Wingate), the plaintiff

had standing to sue. Thereafter, in Association of Data ~

Processing Servicé Organizations; Inc, v. Camp, 1970, 397

US. 150, hereinafter Data Processing, the Supreme Court,

approving the Wingate result, but voicing less than total

approval of our reasoning, reversed the other decision.

It denied certiorari in ours. 3/23/70, US. ‘

In our othér case (Arnold Tours) decided. by, that same |

opinion, we held that the plaintiffs lacked standing. The

the case for our further consideration in the light of its

decision in Data Processing, 3/23/ 70, US. . Follow-

_ing further-briefs and oral argument we now respond.

- Although the Court’s opinion-in Data Processing ran to

- several pages, part of it was devoted to disposing of the

. defendants’ contention that Congress had provided dgainst

judicial review, a matter not here invelved.! We believe

» ‘the Court’s entire pronouncement on the issue of es

is contained in’the fcliowing.. _

‘The ‘legal interest’ test goes to ‘the merits. The.

question of standing is different. It concerns, apart

from the ‘case’ or ‘controversy’ test, the question

whether the interest sought to be protected by. the

complainant is arguably within the zone of interests

, to be protected or regulated by the statute or consti-

tutional guarantee in \ canna ° - 397 U. S. at 153

With respect to certain language in the Wingate portion ;

our opinion, the Court said,

1In their brief ‘plaintiffs either misunderstand this fact, or at-

tempt to apply the Court’s language addressed to the issue of re-

viewability to the issue of stariding, to which it is Riot applicable.

We have never questioned reviewability.

eo ° We ie not ‘put the issue in ‘tie words, for they

implicate the merits. We do think, however, that § 4[*]

arguably brings a competitor within the zone of in-

terests protected by it.’’ 397 U.S. at-156

Plaintiffs assert that the Court’s standard is different

from the one we previously applied. This may be so in °

some slight degree. At one.point we used the word ‘‘demon-

strably’’ rather than “arguably. 3 Elsewhere we’said that

unless section 4 ‘‘arguably prohibits direct entry by national

banks into the data processing service business,’’ plaintiff

could have no standihg. By this we meant that unless it

could be argued that banks themselves fall within the

penumbra of the statute directed against bank service

corporations, the statute afforded plaintiff no shelter. 'Per-

haps the ‘‘arguably’’ in this passage is more directed to

the merits than the ‘‘arguably’’ in the Court’s ‘‘zone of

interest’? formula. The question is academic so far. as

Arnold Tours is concerned. Under any standard, plaintiffs

have no standing. They have produced no scintilla of

evidence tending to show that Congress was specifically __

‘concerned with the competitive interests of travel agencies ;

nor have they shown énough evidence of concern for general

business competitors to create a ‘‘zone” within which they

are arguably included.

Plaintiffs contend that if section 4 of the Bank Service

Corporation Act gives data processing companies standing

it must do so for them as well, because it forbids bank serv-

-* Section 4 of theeBank Service Corporation Act of 1962, 76

Stat. 1132, 12 U.S.C. § 1864, which provides: ‘‘No bank service

corporation may engage in Any activity othér than the performance

of bank services for banks.”’

*“*The prohibition must be demonstrably intended to protest the

competitiye interests of other members of he prohibited business. oe

08 F. 2d at 1150.

ee ee

ice corporations from engaging in ‘Cany”’ activity beyond :

rendering services for banks. ‘This is a misconception. The

decision in Data Processing was not based on the wording

of the’statute, but on a showing that Congress, in connection

with authorizing entities to engage in data processing for

banks, had protection of data processing competitors specifi-

cally in mind. Plaintiffs havé demonstrated nothing else.*

Clearly the Court did not feel that the mere fact that they |

were in competition with the defendant bank gave them

standing. Had it intended so substantial a change in the

_law it would not only have written a quite different opinion

in Data Processtmg; it would have reversed us out of hand.

The order of the District Court dismissing the it aaaaa

‘for lack of standing is —

P ‘ - + - ; ss

*In our previous opinion we observed that plaintiffs might es-

tabliga, standing if they could-evidence ‘‘more proof of Congres-

sional Solicitude.’’ Their only response has been to show that Con-

grew#has presently before it legislation aimed at preventing na- ,

tional banks from rendering travel services. We do not see how

. the fact that Congress is considering the question is of assistance

' to plaintiffs. -As a practical matter it might suggest an additional

reason for our ruling against the plaintiffs. Then, if we have mis-

understood the intent of Congress; it may correct us.

oe ake 6 ees re ah

i? oe

Appendix ef

‘ ; ara

Supreme Covrr.or THE Unrrep States

ON PETITION FOR WRIT OF CERTIORARI TO THE en

“ UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT .«

No. 128. . December March 23, 1970

Per Curiam. Sp eis re gap tot ie SPAN oe

judgment of the United States Court of Appeals for the

First Circuit is vacated. The case is remanded to that’

court for further consideration in light of Association of

Data Processing Service Organizations, Inc. vy. Camp, 397

U.S, 150, and Barlow v. Collins, 397 U. 8. 159.- 3

dt.

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