# Petition for Writ of Certiorari — Industrial National Bank of Rhode Island v. Wingate Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1339%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1970 - **Citation:** 397 U.S. 987 ## Text Gu the Supreme Gourt of the Guited States OcToBER TERM, 1968 No. — Witu1am B. Camp, CoMPTROLLER OF THE CURRENCY, PETITIONER : Vv. THE WINGATE CORPORATION PETITION FOR A WRIT_OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT The Solicitor General, on behalf of William B. Camp, Comptroller of the Currency, petitions for a writ of certiorari to review the decision of the United States Court of Appeals for the First Circuit in this _ ease. OPINIONS BELOW -The opinion of the court of appeals (App. A, pp. 10-21) is not yet reported. The opinion of the district court (App. C, pp. 23-37) is reported at 288 F, Supp. 49. JURISDICTION The judgment of the court of appeals (App. B, p. 22) was entered on March 27, 1969. The juris- 1 References to “App.” are to the appendices to this petition anf p ppe pe ) infra. / (1) 353-029—69——1,, 2 diction of this Court is invoked under 28 U.S.C. 1254(1). | 7 | QUESTION PRESENTED Whether, in applying the principle that standing to complain that a competitor’s activities are pro- hibited exists only if the plaintiff is a member of a class intended to be protected by the. statute al- legedly violated, standing may be rested ‘solely on a subsidiary policy behind a different statute plainly oe to’ the defendsdl competitor. STATUTES INVOLVED The National Bank Act provides i in geben part: 12 U.S.C. 24— _ Upon duly making and filing articles of asso- ciation and an organization certificate a na- tional banking association shall become, as from the date of the execution of its organiza- tion certificate, a body corporate, and as such, and in the name designated in the organization certificate, it shall have power— * * Z % par * Seventh. To exercise by its board of direc- tors or duly authorized officers or agents, sub- ject to law, all such incidental powers as shall be necessary to carry on the business of banming; * * *. Section 4 of the Bank Service Corporation Act of 1962, 12 U.S.C. 1864, provides: No bank service corporation may engage in any activity other than the performance of bank services for banks. 3 STATEMENT The Wingate Corporation, a company offering data processing services, brought this action for declara- tory and injunctive relief against the Industrial Na- tional Bank of Rhode Island. The complaint ‘alleged that the bank’s furnishing of data processing serv- ices, and the ruling of the Comptroller of the Cur-. rency that such activities are permitted as incidental to the banking business,’ were ultra vires under the grant: of incidental powers to national banks in the National Bank Act, 12 U.S.C. 24 Seventh. The Comptroller and the City of Providence (which was about to contract for the bank’s performance of certain data processing serv- ices) intervened as parties defendant. The district court dismissed the action for lack of -of computers. The final provision was an obvious re- _Sponse, See 108 Cong. Rec. 16499, 22031 (1962) ; Hear- ings on Mise. Bank Bills Before the Comm. on Bank- ing & Currency of the United States Senate, 87th Cong., 2d Sess., at 79-80 (1962). - : > OT ee ee ee i EO eh Nag BEE SIG Bldg ey eet ee ne ee and that in no section of said National Bank Act is a national banking association authorized to engage in any other business activities which are not neces- sary to carry on the business of banking, and more specifically, that there is no provision in said Aet authorizing a national banking association to engage in the business of offering and performing data processing services on equipment owned by it for the publie at large. = a Plaintiff further alleges that the ruling’ .by said Comptroller of the Currency authorizing national banking associations to engage in the marketing of data processing services is, therefore, ‘‘in violation of the National Bank Act, beyond . statutory authority, arbitrary, capricious, an abuse of discretion and not in accordance with law”; that the defendant bank is engaged in the business of performing data protess-. ing services for the publie at large not necessary to carry on the business of banking, which said activities are beyond the grant of powers to national banking associations and are unlawful and constitute illegal competition with the plaintiff and other persons sim- ilarly engaged in the business of furnishing data processing services for the public at large; that on October 2, 1967, said defendant bank entered into a contract with said City of Providence for the per- 'The present form of this ruling, set forth in Par. 3500 in Comptroller’s Manual For National Banks (1966 Ed.) is: “3500. Utilization of data processing equipment tncidental to its banking services, a national bank may make available its data processing equipment or perform data processing services on such equipment for other banks and bank customers,” 453-029-694 26 formance of such data processing services then being performed by its employees, and, further, that it is - advised that the defendant bank did commence to perform such services on or about October 1, 1967: and that said activities of the defendant bank in per- | forming and holding itself out as willing to perform data processing services for the City of Providence and the public at large are illegal, not a part of, inci- dental to or necessary to carrying on the business of » banking, and are beyond the powers granted _ to national banks under said: Act; that by performing said illegal data processing services and by holding -tiself out as willing and able to perform such services _ the defendant bank has caused, and unless restrained and enjoined, will cause substantial and irreparable harm to the plaintiff and to other persons engaged in the business of furnishing data processing services to the public at large by depriving them of customers for whom data processing services would be rendered and from whom compensation would be received, and — that it has suffered injury and damage and is con- tinuing to suffer injury and damage by the unlawful authorization of the defendant Comptroller of the Currency and said illegal activities of the defendant bank. In its answer the defendant, Industrial National Bank of Rhode Island, admits that it has in the past and is presently offering incidental to -its banking services to make available, and is performing data processing services for its eustomers and for other banks, but denies that it has offered in the past or presently is offering to perform data processing serv- ices for the public at large, not incidental to its bank- ing services. It. also admits that it has entered into a contract for the performance of certain data proc- bok SSW aS ESD, 27 “ essing services for the City of Providence, one of its customers, and denies that the performance by if of such services for said City of Providence and other bank customers would be illegal or beyond its statu- tory powers. The City of Providence in its answer admits the execution by it of said contract with said Industrial National Bank of Rhode Island for the performance - by it of the data processing services described therein, © and likewise denies that the performance thereof by the latter would be illegal or beyond its statutory powers. . 3 This matter is now before me upon the motion of each of the defendants to dismiss this action upon the grounds that the plaintiff lacks standing to main- tain this action and that this Court lacks jurisdiction over the subject matter thereof. | Plaintiff contends that it has standing to challenge the validity of said ruling by the Comptroller of the Currency under the provisions of Section 10 of the Administrative Procedure Act, 5 U.S.C. § 702, which provides as follows: ‘Rights of Review. A person suffering legal wrong because of agency action, or adversely affected or ag- grieved by agency action within the meaning of a relevant statute is entitled to judicial review thereof.’ In construing a substantially similar provision in the Administrative Procedure Act, prior to its amend- ment in 1966, the Court of Appeals for the District of Columbia Circuit in Pennsylvania Railroad Company v. Dillon, 1964, 335 F. 2d 292, cert. denied sub nom American Hawaiian S.S. Co. v. Dillon, 1964, 379 U.S. 945, held at pages 294, 295: 28 **... « Under this statute appellants have stand- ing to challenge agency action which they allege ' either causes them a ‘legal wrong’ or advexsely affects or aggrieves them ‘within the meaning of any relevant statute’. ***Legal wrong’, as we have only recently noted, is the invasion of a legally protected right. See Gonzalez v. Freeman, supra, 117 U.S. App. D.C. at — n.6, 334 F. 2d at 576 n.6. Thus, in order to make out a claim of ‘legal wrong’ under Administrative Procedure Act § 10(a), ~ appellants must assert some legally protected right to be free of the competition provided by the two vessels whose documentation they are challenging. This court has very recently spoken on this aspect of standing. When ‘Congress has not given them any such standing by express or implied provision of statute ... mere eco- nomic competition made possible by govern- mental action (even if allegedly illegal) does not give standing in the courts to sue to restrain such action. Tennessee Electric Power Co. v. Tennessee~Valley Authority, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1939) ; Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938); Kansas City Power & Light Co. v. McKay, 96 U.S. App. D.C. 273, 225 F. 2d 924, cert. denied, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955).’ Texas State AFL-CIO v. Kennedy, 117 U.S. App. D.C. 343, 345, 330 F. 2d 217, 219 (1964). For purposes of standing in this case, the sufficiency of appellants’ allega- tions of ‘legal wrong’ thus depend upon con- gressional intent to bestow upon them a legal right to protection from such competition. ' “Sumilarly, appellants’*allegations that they are ‘adversely affected or aggrieved . . . within _ the meaning of any relevant statute’ depend for their adequacy as to standing upon the congres- sional purpose underlying the relevant sections 29 of the Merchant Marine Act of 1920, as gmnenGed.....' * To the same effect see: Rural Electrification Ad- ministration y. Northern States Power Company, 1967, 8 Cir., 373 F. 2d 686; Rura lectrification Ad- ministration v, Central Louisiana ‘Electric Company, 1966, 5 Cir., 354 F. 2d 859; Braude v. Wirtz, 1965, 9 . Cir., 350 F. 2d 702; Troutman v. Shriver, 1967, D.C. | Pla., 273 F. Supp. 415. | In the recent case of Hardin v. Kentucky Utilities Co., 1968, 390 U.S. 1, the Supreme Court in passing upon the standing of Kentucky Utilities Company to . Maintain said action, said at page 5: -“Before discussing the merits, we shall briefly consider petitioners’ contention that the Ken- tucky Utilities Company lacks standing to chal- lenge the legality of T'V.A’s activities. We agree with both the courts below that this contention is without merit. This Court has, it is true, repeatedly held that the economi¢ injury which results from lawful competitién cannot, in and of itself, confer standing on the injured busi- ness to question the legality of any aspect of its competitor’s operations..Railroad Co. v. Eller- man, 105 U.S. 166 (1882); Alabama Power Co. v. Ickes, 302 U.S. 464 (1938) ; Tennessee Power Co. v. TVA, 306 U.S. 118 (1939); Perkins v. Lukens Stéel Co., 310 U.S. 113 (1940). But competitive injury provided no basis for stand- ing in the above cases simply because the stat- utory and constitutional requirements that» the plaintiff sought to enforce were in no way con- cerned with protecting against competitive in- jury. In contrast, it has been the rule at least - since the Chicago Junction Case, 264 U.S. 258 (1924), that when the particular statutory pro- vision invoked does reflect a legislative purpose 30 ‘ft to protect a competitive interest, the injured_ - competitor has standing to reqtire compliance with that provision. See Alton R. Co. v. United States, 315 U.S. 15, 19 (1942) ; Chicago v. Atch- ison, T. & S.F. R. Co., 357 U.S. 77, 83 (1958). _ “Petitioners concede, as of course they must, _ that one of the primary purposes of the area ‘limitations in § 15d of the Act was to protect private utilities from TVA competition... . Since respondent is thus in the class which §15d is designed to protect, it has standing under familiar judicial principles to bring this suit, see Stark v. Wickard, 321 U.S. 288, 309 (1944); ef. United States v. L.C.C., 337 U.S. 426, 433-434 (1949), and no explicit statutory provision is necessary to confer standing.”’ In my opinion the cases relied upon by the plain- tiff to support its claim of standing to maintain this action and to entitle it to the relief it seeks herein are clearly distinguishable from the instant case. In National Bank of Detroit v. Wayne Oakland Bank, 1958, 6 Cir., 252 F. 2d 537, the plaintiff state bank was held to have standing to maintain an action - . to enjoin the establishment of a branch bank by the defendant, National Bank of Detroit, on the ground that it wgs—protected against the competition of such a proposed branch bank by the provisions of 12 U.S.C. §36(¢) which incorporated by reference the statute law of the State of Michigan and under the circumstances existing the establishment of the pro- posed branch was prohibited by the statute law of Michigan. In holding that the plaintiff had standing to maintain its suit, the Court of Appeals held at page 544: -*As to the standing of The Wayne Oakland Bank to maintain its suit, it was faced with invasion of property rights and injury from a competition which was prohibited by the fed- eral statutes subjecting national banks to the same rules of law as cover state banks... .” Suburban Trust Company v. National Bank of Westfield, 1962, D.C. N.J., 211 F. Supp. 694, is like- wise a branch bank case. The plaintiff was held, to have standing to maintain a suit to enjoin compe- tition by a branch bank of the defendant national banking association under the provisions of 12 U.S.C. § 36(c). Title 12 U.S.C. § 36(c) permits a national banking association, with the approval of the Comp- - troller of the Currency, to establish and operate new branches—‘‘(2) at any point within the State in which said association is situated, if such establishment and operation are at the time authorized to State banks by the statute law of the State in question by lan- guage specifically granting such authority affirma- tively and not merely by implication or recognition, and subject to the restrictions as to location imposed by the law of the State on State banks.” Suburban sought to enjoin the establishment and operation of said branch bank in a location in which state banks by New Jersey law (N.J. S.A. 17:9A-18) were pro- hibited from establishing and maintaining branches. The courts held that plaintiff had standing to sue by virtue of the provisions of 12 U.S.C. § 36(e). Commercial State Bank of Roseville et al. v. Gid- ° ney, 1959, D.C. D.C., 174 F. Supp. 770, aff’d 278 F. 2d 871, is likewise a branch bank case. The plaintiffs, Michigan state banks, sought’ a preliminary injunc- tion to restrain the Comptroller of the Currency from issuing a certificate authorizing a national bank to open a branch office in Michigan. The court found that branch banking (banking operations at other than the principal office) by national banks is regu- L ’ \ 32 \ lated by state law under the provisions of 12 U.S.C. § 36(¢), and’ that the plaintiffs had standing to sue as they-sought to enjoin unlawful competition, i.e., competition prohibited by the statutes of the State of Michigan and enacted for their protection. Similarly, Whitney National Bank v. Bark of New Orleans and Trust Company, 1963, D.C. Cir., 323 F. 2d 290, is a branch bank ease. The Court of _ Appeals held that the plaintiff state bank had stand- ing to sue to enjoin the establishment of a branch bank by Whitney National Bank which was prohib- ited under the provisions of 12 U.S.C. §36(c). > In Webster Groves Trust Company v. Saxon, 1966, 8 Cir., 370 F. 2d 381, also relied upon by the plaintiff, the Court of Appeals held that competing banks as interested parties had standing to object to illegal - competition but concluded that the Competroller of the Currency was under no duty to hold a formal hearing on an application for a charter for a new na- tional bank. Inm.Baker, Watts & Co. v. Saxon, 1966, D.C. D.C., 261 F. Supp. 247, the plaintiffs sought to enjoin the Comptroller, of the Currency from authorizing na- tional banks to underwrite and deal in certian secu- rities. The gravemen of-their complaint was that they would then be subjected to illegal competition to their detriment. In holding that the plaintiffs had standing to maintain said suit, the court held that the Glass- Steagall Act, 12 U.S.C. § 378, prohibited such activi-— ‘ties by national banks. In Georgia Association of Independent Insurance Agents, Inc. v. Saxon, 1966, D.C. Ga., 260 F. Supp. 802, the plaintiffs were independent insurance agents and organizations which represented the collective in- terests of independent insurance agents. They sought oo tf 33 a declaratory judgment and ‘an injunction |against allegedly illegal acts by the defendant Comptroller of _the Currency. In that case the defendant had author- ized national banks in places with a. population which exceeded five thousand inhabitants to act as insurance agents in writing insurance which was incidental to banking transactions, although Section 92 of Title 12 of the United States Code permitted national banks to act as insurance agents in places whose population did not exceed five thousand inhabitants. Plaintiffs alleged that the defendant was without authority to make said -ruling which was in violation of Title 12 “U.S.C. § 92, and that as the result of said ruling, na- tional banks were able to compete illegally with the plaintiffs. In denying the defendant’s motion to dismiss for want of standing, the’ Court held at page 803: “Tn Tennessee Power Company, supra, and - .~ in Alabama. Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300,82 L.Ed. 374 (1937), the plaintiffs. alleged that they. were suffering economic loss’ - from government-created competition. In. both cases the Supreme Court held that such econom- ic loss alone did not confer standing on the aspiring plaintiffs. It is important to note that such competition was authorized by Congress and was based upon statutory grounds. ‘ ‘*In the instant case, the competition com- ° plained of is not explicitly authorized by stat- ute, but rather is impliedly prohibited by the congressional grant of the power to act as in- surance agent in cities of 5,000 or less pop. tion. Title 12 U.S.C.A. § 92. a And, further, the Court at page 804 stated : “Thus, the Court is of the opinion that the defendant’ s attack on the plaintiffs’ standing 1 is ’ See OES POC Pe ee OUP eee Ase) 5) Vile SA lS akan a ee eee 34 _ without merit. Title 12 U.S.C.A. § 92 has the effect of protecting insurance agents from cer- tain competition. Surely, the plaintiffs have the ‘right to their day in court to show that protec- tion afforded them by 12 U.S.C.A. § 92 had ‘been violated.”’ Investment# Company Institute et al. v. Cant, 1967, D.C. D.C., 274 F. Supp. 624, was a suit by an as- sociation “whidh’ represented open-end investment companies, inyestment advisors and principal under- writers, and by some of its members for an injunc- tion to restrain the Comptroller of the Currency from authorizing national banks to collectively invest funds tendered to them as managing agents solely for in- vestment purposes. Plaintiffs alleged that such activi- ties by national banks would constitute illegal eompeti- tion to their detriment.. In holding that the plaintiffs had standing to sue, the Court said at Page 636: wd’ . The statutes under wihe h the regula- tion in issue was promulgated, were enac ted to establish a clear Congressional policy which sought to separate national commercial bank- ing from the securities business. The primary intent of Congress was to segregate these fune- tions and to allow separate entities to engage in these business areas. This clarity of purpose is garnered not only from the Congressional hear- ings reports of the Glass-Steagall Act, but also from he exactitude with whieh Congress has delineated the areas of common interest in ee financial structure. This strong general policy against the invasion of either field of endeavor by either entity is sufficient to postulate an in- terest upon whith standing to challenge the regulation may be premised, ef. American . Trucking Ass’ns, Ine. v. United States, 364-U.S. 1, 80 S. Ct. 1570, 4 L.id. 2d 1527 (1960). “Therefore, by implication, the plaintiffs here have a right to complain of the competition which is being condoned under the Regulation. This competition is illegal in the sense that _ Congress has indicated its policy of separating the two financial institutions and this Regula- tion allows in an indirect manner a joinder of these interests. The plaintiffs were the recip- ients by implication of Congressional protec- tion.”’ In eranting the plaintiffs’ motion for summary judgment on the merits, the‘Court held at Page 648: “In view of the statements and conclusions made above, this court holds that the provisions of Regulation 9 which allow commingling of . managing agency accounts do not comply with the statutory provision of the Glass-Steagall Act are, therefore, illegal. The promulgation of these specific provisions allowing a ‘commin- gling of managing agency accounts is also be- yond the power of the Comptroller under Sec-. tion 92a(a) of Title 12, and it is ordered to be set aside.” In support of its claim that the performance by the defendant bank of data processing services on its equipment for bank customers constitutes illegal com- petition with it and others who are similarly engaged in performing such services for the public at large, the plaintiff relies upon the provisions of 12 U.S.C. § 24 (par. Seventh), the provisions of the; Bank Service Corporations Act, 12 U.S.C. §§ 1861-1865, and the congressional purpose that may be obtained from the legislative histoyy.of that Act. 12 U.S.C. § 24 (par. Seventh) provides that a na- tional bank shall have the powers: : 36 “To exercise by its board‘of directors or duly ” authorized officers or agents, subject to law, all such incidental powers as shall be necessary to car¥y on the business of banking;.. .” Said Bank Service Corporations Act ee izes two or more banks subject to Federal supervision ta in- vest limited funds in a bank service corporation for the purpose of providing bank services only for banks. Said Act defines bank services as: “‘services such as check and deposit sorting and posting, computation and posting of anterest and other credits and charges, preparation and iene of checks, statements, notices, and sim- ilar items of any other clerical, bookkeeping, ac- ‘counting, statistical, or similar athens per- formed for a bank.” In my opinion the plaintiff has failed to establish that the provisions of paragraph Seventh of 12 U.S.C. § 24, which appeared in identical form in the National ‘Bank Act of 1864, reflect a congressional purpose to protect the plaintiff from the competition which it seeks to enjoin in this action.” Similarly, I find that there has been no showing by the plaintiff that said Bank Service Corporations Act reflects a congresional purpose to protect the plaintiff and others engaged in performing data proc- essing services for phe public from the competition arising from the’ performance by national banks on their equipment of data processing services for other banks and their bank customers as a part of the busi- ° ness of banking and incidental thereto. Since said Act _is by its express terms limited to Bank Service Cor- porations and their activities, it cannot be properly construced to apply to the activities of national banks generally. Finding, as I a that neither sinchegripi Seventh of 12 U.S.C, § 24 nor said Bank Service Corporations — Act reflects a legislative purpose to protect the plain- tiff against the competition of which it’ complains,, it.-.. follows that the plaintiff Jacks-standing to maintain this action and this Court lacks jurisdiction over the _ subject matter thereof. * \ The defendants’ motions to dismiss are granted. Chief J udge. . es * pe x: Pec meg SRT TET Ree, SMITE eh a 5 hai hh Race iS “Petitioners concede, as of course they must, that one of the primary purposes of the area limitations in §15d of the Act was to protect private utilities from TVA competition.” Hardin v. Kentucky Util. Co., 390 U.S. at 5-6., . do' not share. confidence in the alternative holding in Sge6n v. Georgia Ass'n of Ind. Ins. Agents, Inc., 399 F. 2d 1010 (5 Cir. 1968), that outside the “statutory aid to standing” plain- tiffs had “a legal right to protect themselves from unlawful com- petition.” Id. at 1018. The emphasis that plaintiff’s standing arises out of the allegation of “unlawful competition” as con- ° trasted to “lawful competitiofi” seemingly relates standing to the merits of the claim to be adjudicated rather than the status of a party to complain. For a similar critique, see JudgeThorn- berry’s concurring opinion 399 F. 2d at 1020 n. 3. Ae TB tase: ed pad 47 defendant, although alleged to be illegal is neverthe- less considered “lawful’’ with respect to the plaintiff because of the total uisence of legal interest found in _ plaintiff’s status.” 1t'This is explained by Mr. Justice Matthews in Railroad Co. v. Llierman, 105 U.S. at 173-174: ‘ “The sole remaining question then, is, whether Ellerman, as assignee of the city, has any legal interest which entitled him to enjoin the company from using its wharf as a public wharf be- yond the limits of such use, as defined by that construction of the joint resolution. If he has such interest, it can only consist in preventing competition with himself as a wharfinger, which such more.extensive use of the railroad property would create. And if the right to assert it exists, it must rest, not upon the claim that the premises are thus used for purposes to which they might not be lawfully devoted if owned and used by a natural person, but on the allegation merely that such usé is beyond the corporate powers of the company. But if the com- petition in itself, however, injurious, is not a wrong of which he could complain against a natural person, being the riparian proprietor, how does it become so merely. because the author of it is a corporation acting ultra wires? The damage is at- tributable to the competition, and to that alone. But the com- petition is not illegal. It is not unlawful for any one to compete with the company, although the latter may not be authorized to engage in the same business. Zhe legal interest which quali- fies a complainant other than the State itself to sue in such a case is a pecuniary interest in preventing the defendant from doing an act where the injury alleged flows from its quality and character as a breach of some legal or equitable duty. A stockholder of the company has such an interest in restraining it within the limits of the enterprise for which it was formed, because that is to enforce his contract of membership. The State has a legal interest in preventing the usurpation and perversion of its franchises, because it is a trustee of its powers for uses strictly public. In these questions the appellee has no interest, and he cannot raise them in order, under that cover, to create and protect a monopoly which the law does not give him. The only injury of which he can be heard in a judicial. ; 4 eee Sita . 48 In summary, a plaintiff may challenge alleged illegal competition when as complainant it pursuds (1) a legal interest by reason of public charter or contract, Frost v. Corporation Comm'h, supra, (2) a legal interest by reason 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 significantly involved to have standing to represent the public, FCC v. Sanders Bros. Radios Station, supra. From this analysis, it seems cleat that an-alie- gation of ‘“‘illegal competition” is not the balancing Ly determinant of a plaintiff’s standing. The primary search must rest on whether the plaintiff’s status is one which enjoys a private interest entitled to protec- tion 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 inter est. _ In the instant case the facts clearly plac plaintiffs outside those cases which recognize standing: ‘Plain- tiffs) are competing in a non-regulatory field of free. competition. They possess no private legal interest nor do they plead any legal harm which is recognized _at law. Their status is not one which places them within a class designedly protected by statute.” In tribunal to complain is the invasion of some legal or equitable right. If he asserts ‘that the competition: of the railroad com- pany: damages him, the auswer is, that it does not abridge or impair any such right. If he alleges that the railroad company is acting beyond the warrant of the law, the answer is, that a violation of its charter does not of itself injuriously affect any of his rights. The company is not shown to owe him any sd which it has not performed.” (Emphasis ours.) __ 12The Banking Act has never been construed to give a private litigant standing to complain concerning wlira vires \e 49 nc x direct accord see Wingate Corp.,v. Industrial Nat’l Bank, 288 F.Supp. 49 (D.R.I. 1968); Arnold Tours, Inc. v. Camp, 286 F.Supp. 770 (D: Mass. 1968). Plaintiffs’ argument iS in essence an equitable plea, that in effect they- have a personal stake to pursue, even though fot a legal one, but nevertheless \ one which makes them logical parties to protect the pub- Se interest from illegal actions of government agencies. ee The problem with their plea is many-fold. Congress | has not seen fit within the National Banking Act to . recognize ‘any ‘‘aggrieyed person”’’ to assert the pub- lic’s rights. Congress has not expressed a public con- cern for protection as found in FCC v. Sanders Bros, ' Radio Station, 309 U.S. 470 (1940), and its progeni-- tors.eWithoyt a legal interest or the status of a recog- nized ‘‘aggrieved”’ party, the complaint resolves itself into“an attempt merely to shéw “‘a common concern for obedience to law.” E. Singer & Sons v. Union Pac. R.R., 311 U.S. 295, 304 (1940). As pronounced in Singer, outside statutory consent, the general or common interest ean find protection only in the stand- ing granted to public authorities. Unless a relevant statute provides for a ‘‘party in interest’’ to seek judicial review or unless a complainant possesses a> recognized legal interest, he lacks standing to’ be-a acts of national’ banks relating to executed contracts. See Wa- tional Bank v. Matthews, 98 U.S. 621 (1878). Although dis- tinctive policy arguments exist for this rule, nevertheless there exists no legislative history nor do plaintiffs offer any serious contention that the National Bank Act was intended to give these private litigants standing to litigate alleged ultra vires activities of national -banks. The reliance on the Bank Holding Company Act of 1966 and the Bank Service Corporation Act is misplaced. Neither act is applicable here. van G | 50 “private attorney general’? to represent the public interest. See Kansas City Power & Light Co. V. McKay, 225 F. 2d 924 (D.C. Cir. 1955); Braude v. Wirtz, 350 F. 2d 702, 707, 708 (9 Cir. 1965)."° Mr. Justice Frankfurter best describes judicial ob- ligation to avoid review when legal standing is not otherwise involved: : “The jurisdiction of the federal courts can be invoked only under circumstances which to the expert feel of lawyers constitute a ‘case or con- troversy.’ The scope and consequences of the re- view with which the judiciary is entrusted over - executive and legislative action require us to observe these bounds fastidiously.”’ Joint Anti- Fascist Refugee Committee v. McGrath, 341 U.S. 123, 150 (1951) (concurring opinion). J udgmevt affirmed. ’ : See also our prior discussions concerning the applicability of the Administrative Procedure Act in Rural Elec. Admin. vy. Northern States Power Co., 373 F. 2d at 692 n. 9. — “" OS GOVERVeraT PRINT. Ws OFFICE, 1969 + pf 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1339%3A3. Public record. Not legal advice.