# Petition for Writ of Certiorari — Troutman v. Rumsfeld > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1257%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1970 - **Citation:** 397 U.S. 923 ## Text In The oui HN F. DS. Supreme Court of the Gnited States DECEMBER TERM © No. > A . “- RUSSELL TROUTMAN, ET AL, Petitioners, versus ‘ f : SARGENT SHRIVER, Director, Office of Economic Opportunity, and UNITED STATES OF AMERICA, Respondents \ PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT A . ig BSaau \ : O.B. MCEWAN, — P.O. Box 753 Orlando, Florida, 32800 | Counsel of Record for Petitioners ree » BRIAN C. SANDERS P.O. Box 753 Orlando, Florida, 32800 and PHILIP G. NOURSE ‘133-A North 4th Street Ft. Pierce, Florida, 33450 Of counsel for Petitioners e ‘\ Gere « » » TABLE OF CONTENTS Page Citations to Opinions below | 2 Jurisdiction : : 2 Questions Presented for Review 2-3 Statutes and Constitutional 2 Provisions Involved 3-5 Statement of the Case 6=7 Reasons for Granting the Writ 8-23 Appendix A-Opinions of the ; Courts Below 25-42 B-Judgment of Court ‘ Of Appeals . | 43-44 C-Congressional Record - May 24, 1946 45 D-Congressional Record ‘September 29, 1966 47-48 E-Congressional Record October 4, 1967 49-50 , Po ie . rd “~ é d ofS ; } : . ’ . . #4 ” ~ > ’ , ; 2 ’ f ‘ f . / ‘ : . ore” ° ° *e “a . : . ce . ’ » / @ . 6 : a: : » TABLE OF AUTHOBITIES | ba CASES CITED. Pg. Abbott Laboratories v. Gardner, .381 U.S. 136, 87 S. Ct. 1507, 18 L.Ed 2d 681 .13,14 Alabama Power Co. v. Ickes 302 U.S: 464, 58 S.Ct. 306, . | 82 L Ed 374 © ee amerciiees Pe ‘ Association of Data Processing Service Organizations v. Camp 406 F. 24.837: : 12,18 - 261 F. Supp 247 Sea 18 City of Chicago v. Atd¢hison T.&S.F. Rwy, 357 U.S. 84, | 78S. Ct. 1063. ee 8,19,20 Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed, . (2a ser = 3,8,9,21,22,23 Frost v. Corporation Commis- sion of the State of Oklahoma, 278 U.S. 522, . _73 L Ed. 483 Ce: 8,17/19 ‘e \ a s/ iii *. Leedom v. Klyne, 358 U.S. 184, 79 S:Ct. 18Q, 3 .L. Ed. 2d 210° NAACP v. Button, 371 U.S. 415° Saxon Vv. Georgia Asagciation Of Independent Insurance — Agents, 399 F. 24 1010 PS eer ' Tennessee Electric Powér co. Vv. T.V.A., 306 U.S. 118, 59, S..Ct. 366, 83 L.Ed. 543 Whitney National Bank v. Bank ' “of New Orleans, 323 F 2d 290° CONSTITUTIONAL fe i _ CIFATIONS lt woe. Article I, § 1 . Article I, § 9 STATUTES Administrative Procedure Act 5 U.S.C. $702 and 8 706 Economic Opportunity Act, 42 U.S.C.A. 62792 (b) (3) 12,13 8,17,18 5,39 5,22 4,6;13.%5 " 4 . . , . = : . . * e . a o*. . e > P ° See ® o - Lf ° © . . . % * e r. fe - % A 7 ; Z ® * P . 3 - tos & ° 4 . ‘° . . & . . ‘ ‘ * . j *. 4 4 “a ; . cp 7 us ~ . ‘ %. ® . ‘ . r . - a ’ . * é : 7s 4, . id . . P . ° 7 : , - af. ® . bs . - f ° ' ; ” ky . r » * es a nS 7 / s © F ’ . g / ° } j x »ak- i , de Fis * * > ‘»f' ry & ——orn 'e es ? ° ’ . + . . . ee . 3 P s . j . sd . ¢ ee” # ° > % . - ’ : 4 ene ‘ - iv SECONDARY AUTHORITIES Congressional Record, September 29, 1966 pg 23479 . Congressional Record, October *- 4, 1967; $14161™ 7 Pg. 9, 10, Lik ~~ 16 = i @ ‘ e , ‘ * . ‘ - ‘ > . . - . ° F . - . . Noe eo" 9 - . * 2 Ps . - “ - & e . Lava i rd gram under the. Directo r' s control and was funded, or would be funded by. the Director.’ The expenditure of J $30,000,000.00 of tax money from July 1965 to July. 1966 was attacked as an unlawful expenditure of funds. (there being no authorization for the Legal Service viet at that time. ). Four tseat Bar Associations, St’ Lucie. Orange, Osceola, and Seminole, moved to intervene as plaintiffs, “charging: that the Director was operating (St. Lucie) ‘or was promotirig or would operate 0.E.O. ‘Legal Service Programs in their respec- tive counties. 4 » Sak teats ane injunctive relief was prayed for. | The District Court held that none of | the appellants had standing to maintain . the action, dismissing the Amended a" Complaint with prejudice, and denying : the motions to intervene. The Fifth i ' Circuit affirmed. s, eee ° — “Wye "REASONS FOR GRANTING THE WRIT | ’ Reyarding issue "A" above, the Court is urged to take jurisdiction on the grounds that the interpretation of the ICHORD amendment below is a case of first impression involving a Federal statute. The interpretation placed eres n_by the Fifth Circuit is contrary to. “the intent of Congress, jeopardizes the future of Legal Aid, and the indepen- dence and ethics of the Bar. Regarding issue "B" above, the Court is urged to take jurisdiction on the grounds that the decision \below conflicts with the decision of the District of Columbia Court of Appeals in WHITNEY NATIONAL BANK v. BANK OF NEW ORLEANS, 323 F. 2a 290, and with the decisions of this: Court in CITY OF CHICAGO Ve . ATCHISON T. & S. F. RY, 357 U.S. 84, 78 S. Ct. 1063,2 L. Ed.2d11%, and in FROST ‘v CORPORATION COMMISSION OF THE STATE. OF OKLAHOMA, 278 U.S. 515, 73° L. Ed. 483, 49 S.Ct. 235. Regarding issue "c" the issue is raised as to whether FLAST v COHEN, 392 ‘U.S. 83, 88 S. Ct. 1942, 20 L Ed. 2nd Bn 947, grants a taxpayer standing to con-"*" test unappropriated expenditures under the "specific" limitation of Article I, Section 9 of the United States Constitu- tion. | | Fath ee ; , : A. The ICHORD Amendment. , The issue posed’ is whether Congress intended to vest principal local Bar _ -Associations with a right to know and to be heard prior to ‘the approval or funding of Legal Service Programs, not -~whether the Bars were to have a "veto". The abuses the ICHORD amendment was TE to protect against have seen the-treation of a "veto". It-‘is vested in the hands. of the Governors of the | several states. | e . ? fs - ¥ As first written, the Economic Opportunity Act of 1964 did sot author- ize a Legal Service Program. Nonethe- . IeSs, one was instituted. State-.and Bars objected, this action was ” brought; the act was amended to authorize such a program, and the amend- ment was itself amended from the House rf£loor by\Repregentative Ichord. The debates are reflected in the Congressional Record at pg. 23479, ? chm September 29, 1966. In offering his. amendment Representative Ichord said: i“ ' "Mr. Chairman,.this amendment is prompted by a legal representation program that was approved in the state of Missouri embracing ~.Ed 24 - 947, and the decision of the Fifth Circuit below is in conflict with the decision of this Court in FLAST, supra. 4 -2 3- j This problem (the use of funds appropri- ated for one purpose by administrative officials’ for another purpose) is one of the most. serious in government today. Thus the question of whether PLAST appli- es to this problém by virtue of Article I, Section 9 is of great public moment, as well as ‘a question of first impression under FIAST... °.: | or Respectfully Submitted RUSSELL TROUTMAN 5 Zine, | . the wa 7h, as O. B. MczWAN P.O. Box 753 Orlando, Florida Counsel of Record For: St. Lucie County Bar Assn Orange County Bar Assn Osceola County Bar Assn Russell Troutman Seminole County Bar Assn BRIAN C, SANDERS P.O. Box 753 Orlando, Florida Counsel for Russell Troutman f -Phillip G. Nourse 133=A,N, 4th Street Ft. Pierce, Florida Of Counsel For St. Lucie County Bar Assn a 5 A NSC Tia De ela we spe APPENDIX ‘'A’ OPINION IN THE United States Court of Appeals FOR THE FIFTH CIRCUIT No. 25539 RUSSELL TROUTMAN, ET-AL, _ Appellants, versus SARGENT SHRIVER, Director, Office of Economic Opportunity, and UNITED ' STATES OF AMERICA, . Appellees. Appeals from the United States District Court for the Middle District of Florida (September 30, 1969) Before THORNBERRY and SIMPSON, Circuit Judges, and SUTTLE, District Judge. SIMPSON, Circuit Judge: .The determinative issue in this appeal is whether the appellants, as four county bar associations and a taxpayer-citizen-attorney, have standing to challenge the constitutionality of the Eco- nomic Opportunity Act of 1964,.as amended, 78 Stat. 508, 42 U.S.C.A. §2701 et seq., or alleged acts or omis- -26- TROUTMAN, ET AL v. SHRIVER and U.S.A. sions of the Director of the Office of Economic Oppor-. tunity regarding the establishment of legal aid service programs in their counties pursuant to the Act. Appellant Russell Troutman by an amended com- plaint of January 10, 1967, alleged that Office of Eco- nomic Opportunity Leg&l Services Programs had been instituted in Dade, Volusia and St. Lucie Counties, Florida, and that the Director of the Office of Economic Opportunity had plans for imminent institution of an OEO Legal Services Program in Orange County, Flori- da, where Troutman is a citizen, taxpayer and prac- . + tioing attorney. The complaint ‘further alleged that if an OEO Legal-Services Program were instituted in Orange County, Troutman would be deprived of the privilege and obligation of providing legal services to those who could not otherwise obtain representation //and that he would be forced to compete with OEO lawyers for a clientele who could afford to obtain rep- resentation by Troutman. The complaint prayed for ‘ declaratory and injunctive relief, asserting the invali- dity and impropriety of the Economic Opportunity Act and the impropriety and lack of authority of the Di- rector’s involvement with the profession of law. The four local bar associations' moved to intervene as plaintiffs in Troutman’s suit, charging that the de- fendants were operating,? promoting or prospectively would operate* OEO Legal Services Programs in their i: ‘%The Orange County Bar, Osceola County Bar Association, Semi- nole County Bar Association, and -St. Lucie County Bar As- sociation. 2St. Lucie Cotnty | 2The other three counties ad Ste Re SE ah stake ee we sx aes ORS ay Ps TROUTMAN, ET AL v. SHRIVER and U.S.A. - respective counties. Generally the movants sought re- lief similar to that demanded by Troutman. A aat The Court below held that none of the appellants had standing to maintain _the ‘action. Without ruling upon the merits or other jurisdictional defenses inter- posed by the defendants, the district judge dismissed Troutman’s amended complaint with prejudice and de- nied the motions to intervene. This appeal ensued. We affirm. mt In order to resolve the question whether appellants have ‘standing fo contest the validity and constitution- : ality is Acf or.the actions of the Director, it must : “be determined whether they are proper persons to re- f quest an adjudication of issues raised by: such action. . “ “The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.” Flast v. Cohen, 1968, 392 U.S. 83, 99, 88 S.Ct. 1942, , 20 L.Ed.2d 947, 961. The status as- serted by the person whose standing is challenged must be examined to ascertain whether there is a logical nexus between the status asserted and the claim sought to be adjudicated. Id. at 102. It is the existence of a logical nexus which ensures that “the party seeking relief has ‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverse- ness which sharpens the ‘presentation of issues upon which the court so largely depends for illumination of difzicult constitutional questions.’” Id. at 99, quoting Rak « v. Carr, 1962, 369 U.S. 186, 204, 82 S.Ct. 691, _.., ? L.Ed.2d 663, 678. ~28= ® TROUTMAN, ET AL v. SHRIVER and U.SA. The first status asserted by the appellants is that of federal taxpayer. “The nexus demanded of federa! taxpayers has two aspects to it. First, the taxpayer must _establish a logical link between that status and the type of legislative enactment attacked. Sec- ondly, the taxpayer must establish a nexus be- tween that status and the precise nature of the constitutional infringement alleged.” Id. at 102. “"I]n Flast ». Cohen, supra, * * * the [Su- preme] Court set out the requirements which * must be met by the taxpayer before he has standing. Essentially they are: tw 1. that he is in fact a taxpayer; 2. that the tax dollars are being expended in the furtherance of specific government business; 3. that there is a substantial expenditure; and 4. that these expenditures exceed the limits imposed. by the establishment clause of the first amendment on the taxing and spend- ing powers in Article I.”. Protestants and Other Americans, etc. v. Watson, D.C. Cir, 1968, 407 F.2d 1264, 1265 (emphasis omitted). It is important for our purposes that in Flast v. Cohen the majority pointed out that the Flast test of taxpayer | ioe TROUTMAN, ET AL v. SHRIVER and USA. standing is consistent with the result of the Court’s pri- or decision in Frothingham v. Mellon, 1963, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078, which ruled that a federal taxpayer is without standing to challenge the constitutionality of a federal statute. See Flast v. Co- | hen, supra at 104-105. The difference between Flast and-Frothingham was that in the former the taxpayer attacked the statute on the ground of its inconsistency with a specific limitation upon the congressional taxing and spending power: the Establishment Clause of the First Amendment, whereas in the latter the taxpayer’s challenge was bottomed upon the general provisions of the Tenth Amendment and the Due Process Clause of the Fifth Amendment. “In essence, Mrs. Frothing- ham was attempting to assert the States’ interest in their legislative prerogatives and not a federal tax- payeér’s interest in being free of taxing and spending in contravention of specific constitutional limitations imposed upon Congress’ taxing and spending power.” Flast'v. Cohen, supra at 105. ‘ The appellants have not coupled their attack, as tax- payers, upon the Economic Opportunity Act with any. specific limitation upon Congress’ taxing and spending power and thus have failed to “establish a nexus be- tween that status and the precise nature of the con- stitutional infringement alleged.” Id. at 102.: Therefore they were without standing to challenge the Act. Froth- ingham v. Mellon, supra.*. | 4We have not overlooked our decision in Saxon, Comptroller of the Currency, etc. v. Georgia Assn. of Independent Insurance A-. gents, Inc. et’ al., 5 Cir. 1968, 399 F.2d 1010. Since that case involved the Comptroller’s approval by regulation of competi- id A ES BS Be = 30 TROUTMAN, ET AL v. SHRIVER and U.S.A. . The appellants’ further claims of standing as citizens and attorneys must also fail. Exactly as with the status of taxpayer qua taxpayer, these claims of status have not been coupled with any assertion of direct injury in violation of specific constitutional limitations. “It is an established. principle that to entitle a private individual to invoke the judicial power to determine , the validity of executive or legislative action he must | show.that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that: he has merely a general interest common to all members of the public.” Ex parte Levitt, 1937, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493. (citations omitted). Seé also Dade-Commonwealth Title Ins. Ca. v. North Dade Bar Ass’n, Fla. 1963, 153 So.2d 723, 726-27. | Neither do appellants have standing to challenge the Act or the actions of the Director because of their . position as competitors, because they do not have the type of interest required to confer standing to challenge the Act in the status of competitors. 2, In Florida, attorneys enjoy no protections from com- . petition by those qualified to engage in legal services. - tion made expressly unlawful by statute, it is inapposite. As we held there, the insurance agents ,had a “statutory aid to standing’’. op. cit. at 1018, in addition to their legal right to protect themselves from unlawful competition. There was thus presented in that case a dispute in the necessary concrete ad- versary context. Flast, supra. See the further explication in Judge Thornberry’s specially concurring opinion in Saxon, Op. cit. at 1019-1021. “~ _— 2G aii x aR es CREO PATEL ee oe TROUTMAN, ET AL v. SHRIVER and U.S.A. ’ Restricting the practice of law to those who have been examined and found qualified “is not done to aid or protect the members of the legal profession either in . creating or maintaining a monopoly or closed shop. It 4s done to protect the public from being ‘advised and represented in legal matters by unqualified persons . . & State ex rel. The Florida Bar v. Sperry, Fla. 1962, 140 So.2d 587, 595, rev'd on other grounds, 1963, 373 U.S. 379, 83 S.Ct. 1322 10 L.Ed.2d 428. ‘The decisions of the courts appear to be uniform in denying standing to competitors who otherwise pos- sess no legal right to be free from competition. See Tennessee Power Co. v. T.V.A., 306 U.S. 118, 137, 59 S.Ct. 423, ___., 83 L.Ed. 543, 549. (1939)? Rural Electri- fication Admin. v. Central La. Elec. Co., 5 Cir. 1966, 354 F.2d 859, cert. denied 358 U.S: 815,. 87 S.Ct. 34, 17 L.Ed2da 54 (1966). These appellants lack such a legal. right and hence lack. standing. The recent 8th Circuit case of Association of Data Processing Service Organizations, Inc. v. Camp, 8 Cir. 1969, 406 F.2d 837, cert. granted 395 U.S. 976, _—- S.Ct. ___, 23 L.Ed.2d 764 (June 23, 1969), sets forth a clear summation of the holdings of prior cases as to the legal interest required for standing to sue as a competi- tor: “In summary, a plaintiff may challenge al- leged illegal competition when as complainant it pursues (1) a legal interest by reason of pub- lic charter or contract, Frost v. Corporation Comm’n, supra, (2) a legal interest by reason -32=-. \ TROUTMAN, ET AL v. SHRIVER and U.S.A. of statutory protection, Baker, Watts & Co. v. Saxon, supra, or (3) a ‘public interest’ in which Congress has recognized the need for review of administrative action and plaintiff is signifi- cantly involv to have standing to represent. — the public, FCC vSanders Bros. Radio Sta- tion, supra. From this ysis, it seems clear that an allegation of ‘illegal c mpetition’ is not the balancing determinant of a_ plaintiff’s standing. The primary search must rest on. whether the plaintiff's status is one which en- joys a private interest entitled to protection or is one which the law recognizes to be of such legal significance to allow a party to act as a public ‘representative for a public interest.” ~ Appellants earnestly argue that the Act itself con- fers standing upon them by virtue of the “Ichord A- mendment”, section 222(a) (3) of the Act, 42°U.S.C.A. 2809 (a) (3).5 It is urged that, while the amendment does not expressly confer standing upon attorneys or bar associations as “aggrieved persons”, see, e.g., Scripps-Howard Radio, Inc. v. F.C.C., 1942, 316 US. 4, 62 S.Ct. 875, 86. L.Ed. 1229; F.C.C.-v. Sanders Bros. SThe Ichord Amendment reads as follows: shes “The Director shall make arrangements under which the State bar association and the principal local bar associations in the community to be served by any proposed project authorized: by ébls paragraph shall be consulted and afforded an adequate opportunity to sub- = / mit, to the Director, comments and recommendations ~ on the proposed project before such project is approved or funded, and to submit, to the Director, comments and recommendations on the operations of such project, if approved and funded.” 42 U.S.C.A. §2809(a) (3). UA 7 f / 2 leiden 33~=. TROUTMAN, ET AL v. SHRIVER and USA. __ Radio Station, 1940, 309 U.S. 470, 60 S.Ct. 693, 84...Ed. 869; it created a right of local bar associations to be consulted prior to approval or funding of legal” sertices ae programs and by implication confers standing to con- test the Director’s actions. We disagree.® : The Ichord Amendment as originally passed in 1966 provided that the Director was to consult with the local bar associations, ‘but it was made clear at the time by the sponsor of the amendment that it was not in- tended to give the local bar associations any form of veto over proposed programs but rather was for the purfose of giving them an opportunity to present suggestions and recommendations as to the proposed programis. See 112 Cong. Rec. 24437 (Sept. 29, 1966).7_ / oe a by : The provision as originally enacted was amended in 1967/0 provide the State bar associations an opportuni- - ty to. make comments and recommendations regarding proposed: projects, but the amendment was explained as being for the purpose of providing more helpful assistance to the Director due to ‘the broader base and typically better staff assistance .which State bar SAppellants contend that the amendment was violated as to Orange Lucie Counties. The pleadings assert that there was an __—*"0.E.O. Legal Service chartered “and about to start operations in Orange County, while in St. Lucie County the O.E.O. Legal ~ Services Program was already in operation. The O.E.O. then promoting programs in Osceola and Seminole, the oth two counties whose associations sought leave to intervene. 7Mr. Ichord: “. ... this does not give the loca] bar associations a veto over the proposed programs but merely gives the various bar associations the opportunity to present suggestions and recom- mendations thereon.” 112 Cong. Rec. 24437 (Sept. 29, 1966). \. ~34- TROUTMAN, ET AL v. SHRIVER and U.S.A. associations can“provide. See 113 Cong. Rec. No. 14, | S13856 (Sept. 28, 1967).® We are unpersuaded that the Ichord Amendment con- . fers standing upon appellants because we perceive no legislative purpose in that amendment to protect a ~ competitive interest of appellants. There are times when competitors are given standing by Congress to challenge competition which allegedly is in violation ' of a'statute where the statute itself is said to be enacted ~ for the express protection of the class:of competitor complaining. In order to fall within this: classification, however, the particular statutory provision invoked must reflect a legislative purpose to protect a compe- titive interest, Hardin v. Kentueky-Util. Co., 380 US. 1, 5-6, 88 S.Ct. 651, ___, 19 L.Ed.2d 787, 792 (1968). But where, as here, the purpose of the statutory pro- vision is simply to benefit the public at large by easing the task of administration of the statute, 'no right, nor legal standing, is — Appellants reliance upon Abbott Laboratories v. Gardner, call 387 US. i. 87 S.Ct:» 1507, 18 L.Ed.2d eSenator Cooper explained the 1967 amendment which he introdue- ed, as follows: : “The present language of the bill provides that in as- rf sisting in the provision of legal services to the poor, the director shall make arrangements with the princi- pal bar associations in the area. My amendment pro- vides that, in addition, they shal seek the advice and ' compnents of the State bar association. I believe that * State bar associations are more broadly based, and they -- usually have a staff which is better able to provide helpful assistance.: 113 Cong. Rec. #154, 513856 Sept. _ 28, 1967). Poe me eee a se "TROUTMAN, ET AL v. SHRIVER ‘ond USA: , 681; is soliaiaona. Abbott involved an.essentially regu- latory stdtute requiring the petitioners, to make ‘signif- icant changes. in their. everyday business practices, id. at 154, including the possible destruction of existing property rights, id. at_152, or possible criminal sanc- tions for noncompliance, id. at 154. Thus the Govern-. ment there acted not as a Gompetitor. ‘but asa regulator interfering with legally recognized, rights. Where legal- ‘ly recognized rights such as the use or enjoyment of property are sought to be protected: by’ ‘imposition of a consultation requirement as a ‘condition precedent _ to agency action, the indi iduals affected by ' agency noncompliance with the.condi , or organizations rep- resenting their-interests, may have standing to contest ._ the action by virtue-of the conditjon. See Citizens “Ass” Te, v, Simonson, D.C, Cir. 1968, 403° F.2d :175.- Appellants, however, have demonstrated no legal rights sought ~ . to be protected by Congress, there /ordinarily being 5 no right to be free from competition and ‘the statute . having been passed. for the benefit of the public at large. AF FIRMED. Adm. Office, U.S. Courts—Scofields’ Quality Printers, Inc. N. O., La. aioe = IN THE UNITEO STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION RUSSELL TROUTMAN Plaintiff, iy 66-188 ORL-CIV SARGENT SHRIVER, Difector, | Office of Economic Opportunity ‘and UNITED STATES OF AMERICA — Defendants. ORDER OF DISMISSAL The first question to be decided by this Court is whether plaintiff has any standing to maintain this action. Also, whether the proposed intervenors have any standing to intervene as parties plaintiff. The defendants by their mot\ion to dismiss the amended complaint say) this Court is without Jurisdiction over the subject ratter of this action To because plaintiff tacks standing to sue. In Tennessee Elec. Power Co. ve TVA, 306 U.S. 118 (1937), 15 power companies sued to enjoin operation of the TVA, asserting unconstitutfonality. The Court held the plaintiffs to be without standing to raise the constitutional " {ggues, because “the damage consequent on competition otherwise lawful, is in such circumstances damnum absque injuria ~ and‘will not. support @ cause of action or right to sue", Id. at 140. See Perkins v. Lukens Stee! Co., 310 U.S. 113 (1940). Accordingly, we do not here reach the constitutional questions presented by the plaintiff and proposed intervenors, including the question of delegation of legislative niet s. 3 In a recent deciston the Second Circuit held that the owners of a New l at Vork hotel lacked standing to sue ~38e: ‘federal and foca!l agencies and officials to enjoin operation of an urban redevel- opment program which included a transi- ent hotel. Berry v. Housing & Home : Finance Agency 340 F.2d 939(2nd Cir. 1965) "Economic loss stemming from in- creased competition, even though made possible by federal aid, is damnum _absque injuria™. The Court. went on to state thats: "If local officials do not comply. . the housing agence ben vindicate the public Interest by withholding federal tunie but private hotel prams are given no remedy. The public good ..... could well be frus- trated by the delay and expense of litigation ff allowed on the suit of évery person objecting to pos- sible co-petition." Id. at 329. In Kansas City Power & Light Co. v. Mckay, 225 F.2d 924 (D.C. Cir.), cert. a 3Q— ‘dented, 350 U.S. 884 (1955), utility compantes attacked the validity of cer- tain federally supported power programs. The Court, was asked to hold that petit- joners were within Section 10 of the Administrative procedure Act which gives a “right of reviéw to any person suffer- ing legal wrong « « e OF adversely affected or aggrieved within the meaning of any statute". The Court stated that. Section JO was no more than declaratory of existing law and held that the utility compantes had not suffered a legal injury under present law and thus had no standing to sue. Accord, United Milk Producers v. Benson, 225 Fe2d 527 © (D.C. Cir. 1955) (Milk producers have no standing to complain of a price order enabling their competitors to undercut | them). Pittsburgh Hotels Ass'n v. Urban Redevelopment Authority, 202 F. -40- 3 © Supp. ABG6 (W.D.Pa. 1962). See also Jaffe Admin{strative Law 528 (1965). In Rural Electrification Admin. Ve Central rouleiana Elec, Co.-, a F. ed - 859 (1966), the Court sald “Under Section 10(a) of the Admini-. strative Procedure Act, 5 U.S.C. Ae $1009, it seems to be settled ina case of this kind that if Congress has failed to give an appellant standing io eae by express or im- “pited provistone of gtatute ‘. os mere econoric competition made possible by governmental action / (even if allegedly ittegal) does not give standing to sue to rést- rain such action. Pennsylvania Railroad Company ve Dilton, 1964, 118.UsSe App. 0-C.. 257, /335 Fad 292, citing Tennessee Electric Power Compary v. Tennessee Valley Authority, 206 U.S. 118, 59/8. Cte ore a, 366, 83 L. Ed. 543 (1939)3 Alabama Power Company v. Ickes, 302 U.S. 464, 58 9. Ct. 300, S2°L. Ed. 374 (1938); Kansas City Power and Light Company ve McKay, 96 U.S. App D. C. 273, 225 F. 2d 924, cert. denied, 350 U.S. 884, 76 8. Ct. 137, 100 L. Ed. 780 (1955)3 and Texas State AFL-CIO v. Kennedy, 117 U.S. App. D.C. 343, 330 F. 2d 217 (1964)". Under the Economic Opportunity Act of 1964, .there ig no provision allow- ing for a right of review for any party aggrieved and thus under the decision in Kansas City Power & Liqht Co. ve McKay, supra, and Rural Electrifice ation Admin. ve Central Louisiana Elec. Co., Supra, no such right arises under the Administrative Procedure Acte/ Thus, an individual’ legal practitioner in the State of Florida does ‘not have standing to maintain this action and “ ert ee ‘the proposed intervenors do not have standing to intervene as parties plaint- iff either because of the potential l.. adverse competition of the Office of | Economic Opportunity legal program be because of ‘status as a citizen or tax-|° payee It {s, therefore, upon conalderat{on, | 8 axes) ORDERED’ 1. Defendants motion to dismiss the amended Gomplaint ‘is granted and this suit ie dismisseac, with prejudice, at the cost of the plaintiff. | . | 2. The several motions to. intervene as parties plaintiff are dented. DONE AND ORDERED at Jackgonvijle, Florida, this 6th day of September, 1967. s/Charies R. Scott Judge \ -a3= APPENDIX B a ‘United States Court of Appeals FOR THE FIFTH cincurr October Tern, 1967, No. 25539 D. C.:Docket No. Civ 66-188-0rl, |. 4RUSSELL TROUTMAN, ET AL, - | ; wy Appellants, | \ versus | | | SARGENT SHRIVER, Director, Office | _ @f Economic Opportunity, and UNITED STATES OF AMERICA, Appellees. Appeals from the United States District Court for the Middle District of Florida Betdre THORNBERRY and SIMPSON, Circuit Judges, and SUTTLE, District Judge. JUDGMENT This cause came on to be heard on the transcript of the record from the United States District Court for the Middle District of Florida, and was argued by counsel; on a | z 4 st wikia . ON CONSIDERATION WHEREOF, It is now here ordered and adjudged by this Court that the judgment of the said Nistrict Court in this cause be, and the same is. hereby, affirmed. it is further ordered that appellants pay to appellees, the costs on appeal to be taxed by the Clerk of this Court. September 30, 1969 Issued as Mandate: Oct. 22, 1969 -45- 3 APPENDIX C - Congressional Record, House, May 24, 1946, pg 5654 (Report of Mr. Walter, Author of the bill which became the the Administrative Procedure Act): "Right of Review, Section 10(a) The first subsection of section 10 provides , that any person suffering legal wrong because of any agency ‘action, or adverse- ly affected within the meaning of any statute, is entitled to judicial review. ~ LEGAL WRONG MEANS ACTION OR IN-ACTION - IN VIOLATION OF THE LAW OR THE FACTS. THE CATEGORIES OF QUESTIONS OF LEGAL WRONG ARE SET FORTH AS SUBSECTION (e) OF SECTION 10." (Emphasis supplied) | On page 5654, Congressional. Record, ‘Section 10(e) appears thus: "s....They (the courts) must hold. unlawful any action, findings, or conclusions which they ee be, first arbitrary or in abuse of - discretion; second, contrary to any 3 provision of the Constitution; third>, in violation of statutes or statutory — rights.....fourth without observance of procedure required by law." = L c 7 N — acidic nines oneness rks ttessaeayeaensanheeatpeayensanaienens> steaks enviar racy ei . 6 ‘ . . ° . ' : ‘ © ‘ . « i : ° - . Ld . ’ 2 © ‘ . . o t . 4 Ps . . . “ j ‘ . 6 . wt ' . ‘ 4 . bs - ead “ >. ° ° ; = ane ° ; i . bad . . ° , . <> F F * ’ a 4 . ; . 6 - . J e « 7 : “ . . * .* . ‘ . : : ° ' 9 ‘ 2 ° s e ~ . * * ,) = . te . . * . - - - . ‘ ; * «4 . e bed r, - . r 4 2 . , ‘ x = oe - . . ra 5 ‘ ; : ° - : $ ‘*o }., P ‘ ay ‘ c - < hon F : . . oy i . e . ’ ry * ’ he . & + . ‘ ad og ‘ ’ be ‘3 « ‘ . 2 5 ’ * X t - a a AU e . Ae} . - 8 . © * . bs ? ‘ * . * ‘ . ba A ee ‘ . a e e atte. APPENDIX D Congressional Record, House, September 29, 1966, pg 23479: Amendment offered by Mr. Ichord: On page 16, line ll, "before the period, in- ‘sert the following: “Provided that all proposals for programs of legal advice and legal representation shall not less than 60 days prior to their approval, or in the case of existing programs, prior to any additional funding under the title, be submitted by the applicant to the bar associations in the areas intend- ed to be served by the programs for such associations's review, comments, ‘and _ recommendations." c Report, 2298 (committee of conference) ; Congressional Record, Oct 17, 1966, pg 26058 reported the conforming oe The ICHORD amendment, as so reported, read: "..cccee provided that the Director SHALL establish. procedures to ASSURE that, the principal local bar associations in the area to be served by any peeionat program of legal advice and representation are afforded an”. ‘ ee r< —e: “= ee _ : r wa a ON IR ROE PONG AEST SNR DER ODE i iB: e ' ° ~.< s S - « ~48- adequate opportunity to review the the proposed program and to submit comments and recommendations thereon before such program is approved or funded." “sons unable to afford it. in order to money when the party is represented by another agency or program which is iol Gan ° ae APPENDIX &~ October 4, 1967, Congressional Record, Senate, $1416l = Feonomid Opportunity Amendments of SOOT cc iia oe seeeeeeeMY. MURPHY. ‘I yield myself another 3 minutes. ‘I cannot for l’minute believe that this was the original intent of the legal service Program. I cannot. believe that affording legal advice....to per- ; ) promote justice should include the right to bring suit against a Federal, State or local’‘agency supported by taxpayers’ financed by the same funds. | cs ag Although I will hot dwell on this subject, I cannot believe that in either case the welfare recipient or the farm= workers went to the CRLA for assistance. It is far more likely that the CRIA drummed up clients to come and do battle. This is thé problem of Mr. Shriver and Mr. Earl Johnson, the Director of the legal services program, to determine ¢ whether the attorneys employed by this | ERT AIEEE IME SF LIME BGP IE BTN AR OSE A NES Nts m -50— program are working and conducting them- selves in a proper manner. ecee ThE program was designed to aid the poor in achieving the legal rights and privileges which the rich can afford. It was designed to make them equal to the average citizen in the courts of our Nation. And Ij cannot believe that the average citi en goes to court with a test case which is of a spurious nature. The disadvantaged should be helped, but we must. remember the burden which is. being placed on the taxpayer in provid- "ing benefits under this.program. There are too many cases for legal service attorneys to handle without involving themselves in thes€é test cases." Mr. Murphy's amendment was lost by a ‘Narrow margin in 1967. But these debates are useful background for the 1969 _ amendment, which was of a more extreme nature, and which was not lost. \ ° --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1257%3A1. Public record. Not legal advice.