# Petition for Writ of Certiorari — Arnold Tours, Inc. v. Camp > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1470%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1970 - **Citation:** 400 U.S. 45 ## Text : Sits +3 i | ‘SUPREME cof rs ge * >. rig a | Supreine Court of the United States, : o Oeste = Ta | igre | - 602 . ‘ “ARNOLD TOURS, INC, ET AL, Bun gassed v. waa B. CAMP BE Aly ; Foes 2 waacsasics "PETITION FOR A WRIT OF outionaRr TO THE re UNITED STATES COURT OF APPEALS FOR THE BAO ASS FIRST Gute se 3 we it Pics oi, : | zs Ricnarp W. Murray, % One State Street, 9 ctl ee Bontety Massachusetts 02109. apucren @ Uaebes"> Sim, wna, Law eaiaaan, Bonne seen im : ° ; : 3 ; Didg : , ° , 43 Le ’ , R Sr SESE nRE RE EERRS REE * a — - A . ‘ ” >. . 2 . ha . e é ‘es ‘ s A * \ : S ‘ . Hh - “ : ik Ls . a ce Laine e ns . > ¢ J a ary ‘ te , a : ‘ t & ee . s . . e ‘ ‘ ¥ * t > . ” . c ; ‘ a es - Oy - ‘ ye via : ts ® * d . ° . . - Al ° . .* * : e a. . : ¢ . > S N . : * *} x : * ; NSS . é ¥? ce . “at A 4 € aa & : ; paw 5 Ney % tee Oe : ‘ > t rs SN oat pe 3 ae che. Table of Contents. - ; Fe ye te ye : . jo ‘ Opinions below }! | ae 3 | SCS 5 Rs no Roe se piers ate Question presented. aa tire er ne, A cert > 2 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 “ \ . A . . - sy * _* . - "O's ‘ ‘ wr _ © . “4 : ‘ * ° cs : - - J + Sone i : > : - at : . ° . ¥ em : , a F . ¥ « wf i ° . . . ‘3 . *, . pa | . ¢ . -P . rs *, * — 0 — ° =“ ; ee . Bee ms ° . ‘ ‘ . e ‘ ‘ ae ’ _ ‘ ee | j ’ . ; ; *» e f . . / : . . o ~ - ; ve? ’ - * " te ! ¥4 7 ‘ . , ° A . P 4 ; ’ . - . 10% i 7s . -- . 4 ‘ ’ oJ . . ' . Co Be or . . e . . . > ' ash oe . . ‘ bd . . ‘ ’ . 7 . m ah . . . . . ge “2 sige. . : : 4 4 . . 7 . ie) ; : ; Se: 4; . . . . . = . ; Appendix er a “ - ff» 7 aa = h | ; 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 . ° * * * . & G ’ . . , * | . | . | 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 . ‘ 19 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 ad 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 J ‘may advertise, develop, and. extend such travel services for the ; 6 22 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 4. p 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 \ os | | | 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.- We . \ . cae 4 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. v. Northeast Airlines, Inc., 1 Cir,, 1966, 358 F. 24691. © | ~~ : j / 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- s | 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 © brief, for appellants. 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 ° i 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 Court vacated our decision in Arnold Tours, and returned © 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 : October Term, 1969 © Arnotp Tours, Inc. eT AL v. CAMP ETAL ©. ~~; 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 The petition for a writ of certiorari is granted and the © 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1470%3A1. Public record. Not legal advice.