Petitioners Brief — National Railroad Passenger Corporation v. National Assn. of Railroad Passengers
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a)
‘Supreme Court of the United States
Ocroser TERM, 1973
No. 72-1289
NaTIoNAL RatiRoaD PASSENGER CORPORATION, CENTRAL
or Grorata Ramway Company, and SourTHERN
Ramway Company, Petitioners,
v
NatTIoNaL ASSOCIATION OF RAILROAD PASSENGERS,
Respondent.
On Writ of Certiorari to the United States Court of Appeals
for the District of Columbia Circuit
BRIEF FOR PETITIONERS
Wurm O. Brrrman
Curtis E. Von KANN
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
Attorneys for Petitioner National
Railroad Passenger Corporation
CHARLES A. HorskY
Wuu1am D. Iverson
888 16th Street, N.W.
Washington, D.C. 20006
Attorneys for Petitioners Central
of Georgia Railway Company
Of Counsel: and Southern Railway Company
Hoean & Hartson
Covineton & BURLING
Puess or Byron S. Apams Paorriuna, Inc., Waseureron, D. C.
=>,
INDEX
Page
OQunen amp Orrmaon BaerOw ... ww ccc cc ccccccccescees 1
ai iis in ks cde PERU ba bebe Ke NRO SERS 6 1
QUESTION PRESENTED ........... se cece ee ceeeeeneses 2
Sratutory Provision INVOLVED .............-eeee005 2
STATEMENT OF THE CASE ...... 5 ETE A OEE RRS: 3
POREAUEE GO BUUUEERD qo on os oid x cc es vannneenis vas 10
NS RE EA EL EEE ea ee ee eee 12
I. Tue Dectston BELOW MISCONSTRUES THE PLAIN
LANGUAGE AND THE LEGISLATIVE History oF SEC-
cp uesswkcckeseueagan 12
A. The Language of Section 307 Clearly Pre-
cludes Private Parties Other Than Em-
ployees and Their Representatives from
Suing Amtrak or a Railroad for Alleged Vio-
| ee ee ee eee 12
B. The Legislative History of Section 307 Re-
veals Congress’ Intent to Limit the Power
to Enforce the Amtrak Act to the Attorney
OS EAP rr rhe hr ere rr eee 14
Il. Tue Decision BELow Wovutp Serriusty FRvs-
TRATE THE FUNDAMENTAL PURPOSES OF THE AM-
wk vc cca oud ah anne 21
III. Tue Dectson BeLow Misapptiss 28 U.S.C. § 1337
to Tus Case ..... Teese bak ine abek hes 29
ceases i kek bend Once eae bee 37
8 AEE LIE LE OLE PIA OE Ge LNY TEENS MER IOD
TABLE OF AUTHORITIES
Cass: Page
ees v. Richardson, 451 F.2d 1185 (10th Cir.
Ne ag ana euuees eke Co tpe stat atss
Allen v. State Board of Elections, 393 U.S. 544 (1969) . 35
Anderson v. Gladden, 188 F.Supp. 666 (D. Ore.
SR ee Apert eer ae ere eee CE ee 12, 13
Barlow v. Collins, 397 U.S. 159 (1970) ............-- 30
Bell v. Hood, 8327 U.S. 678 (1946) .... 0. cece ceceeees 34
B. F. Goodrich Company v. Northwest Industries, Inc.,
424 F.2d 1349 (3rd Cir. 1970), cert. denied 400
8 ee A ee eee ee CREE CO 35
Blaney v. Florida National Bank, 357 F.2d 27 (5th Cir.
| GO SS eae A oe rere OPE eee eee 35
Botany Worsted Mills v. United States, 278 U.S. 282
Re reer err re PERE OE eee. 12
Bowman v. Department of Agriculture, 363 F.2d 81
OU Cee, SID ions ease ec cc es oy cies ce cess's 18
Calhoun v. Harvey, 379 U.S. 134 (1964) .............. 35
Chicago & North Western Railway Company v. United
Transportation Union, 402 U.S. 570 (1971) ...... 18
City of New York v. National Railroad Passenger Cor-
poration, et al., No. 72 Civ. 1988 (S.D.N.Y.) ...... 26
Ex Parte York County Natural Gas Authority, 238
F.Supp. 964 (W.D.S.C. 1965) .......6....ee0e 12, 13
Fleischmann Distilling Corporation v. Maier Brewing
Company, 906 U.S. 714 (1967) «2.0... cnceweccess 31
Foureo Glass Company v. Transmirra Products Cor-
poration, 363 U.S. 222 (1957) ........ nce secsee: 30
Ginsberg & Sons v. Popkin, 285 U.S. 204 (1932) ...... 30
Griggs v. Duke Power Company, 401 U.S. 424 (1971).. 18
In Re Penn Central Transportation Company, 446 F.2d
1109 (3rd Cir. 1971), cert. denied 405 U.S. 918
ies ee ae ate See eee ere. wane ree 23 \
In Re Penn Central Transportation Company, 457 F.2d
Be Ce RE hs bs ss sence ese 37
J. I. Case Company v. Borak, 377 U.S. 426 (1964) .... 35
Lewis v. Martin, 397 U.S. 552 (1970) ................. 18
MacEvoy Company v. United States, 322 U.S. 102
En ee ee eae hy ae 30
Maiatico v. United States, 302 F.2d 880 (D.C. Cir. 1962) 12
Page
Massachusetts Trustees of Eastern Gas & Fuel Asso-
ciation v. United States, 312 F.2d 214 (1st Cir.
1963), af 2 377 U.S: 235 (1964)... cc cccsscees 13
McDonald v. Board of Election Commissioners, 277
Wms. 16. COA Tis BOD ov ake pc cacd oy vawwscs 12
Montana-Dakota Utilities Company v. Northwestern
Public Service Company, 341 U.S. 246 (1951) ...34, 35
National Automatic Laundry and Cleaning Council v.
Schultz, 443 F.2d 689 (D.C. Cir. 1971) ........... 16
Nouberger v. C.LE., 311 0.8. 83 (1980) .. go ss aus. 13
Noel Estate, Inc. v. Commercial National Bank in
Shreveport, 232 F.2d 483 (5th Cir. 1956) ........ 35
Philadelphia Television Broadcasting Company v.
FOO, 350 84d 262 (D.C; Cir. 1966) ............ 18
Potomac Passengers Association v. Chesapeake & Ohio
Railway Company, et al., opinion sub nom.-Con-
gress of Railway Unions v. Hodgson, 326 F.Supp.
gg Bs Cie. og | Oe eer er ne ey Oe 4
Power Reacter Development Company v. International
Union of Electrical, Radio and Machine Workers,
ee A I PED i as ts i aes 19
Red Lion Broadeasting Company, Ine. ae 395
Eh Oe RD hh is ok cds dacs ihe ee 18
Schilling v. Rogers, 363 U.S. 666 (1960) ............ 31
Schuler, et al. v. National Railroad Passenger Corpora-
tion, Ot OL, No, Taare eek (Pea Rs) vic kciv ves 26
State of New York v. United States, 299 F.Supp. 989
(N.D.N.Y. 1969), aff’d 396 U.S. 281 (207G) i553. 33
Switchmen’s Union of North America v. National Me-
diation Board, 320 U.S. 297 (1943) ............31-33
Trailmobile Company v. Whirls, 331 U.S. 40 (1947) .. 17
United States v. Chicago Title and Trust Company,
243 F.Bapb. 56 UND, Ts Teme) ok vn cig aeceens 12,13
United States v. City of Chicago, 400 U.S. 8 (1970) . 18
Wood v. National Railroad Passenger Corporation,
341 F.Supp. 908 (D. Conn. 1972) .... 0... 06.0. cos 25
STATUTES:
Communications Satellite Act of 1962, Section 403
iM USD Te? ...d. ss 9, 36-37
Interstate Commerce Act,. Section 13a (49 U.S.C. § 13a)
6, 8, 25, 33
EEE Oe
iv
Judicial Code: cage
Se Ee RCRD bn b vic hand es Mast eeedneds 2
eee ae eer errs 3
Be ee ea en ree 3, 11, 29-37
Rail Passenger Service Act of 1970 (45 U.S.C. §501 _
8 en ce eae Or amintn reer rar passim
Section 101 (45 U.S.C. § 501) ................. 7
Besteen 201 (05 UBS. $581) . ows... ccc cce 7, 9,18
Section 202 (45 U.S.C. § 522) ........... 9, 18-20, 32
Section 301 (45 U.S.C. § 541) .. 5... ceca esse 7
Seetion 303 (45 U.8.0. $545) ....... 0.05.5... 32
Section 305 (45 U.S.C. § 545) .......... cc eee 7
Section 306 (45 U.S.C. § 546) ................. 32
Section 307 (45 U.S.C. $547) . 2.0.00. cee passim
Section 308 (45 U.S.C. § 548) ................ 28, 32
Section 401 (45 U.S.C. § 561) .............. 8, 18, 33
Beotion 408 (45 US.C. $568) ........... 00004.
Section 403 (45 U.S.C. § 563) .............. 8, 18, 26
Section 404 (45 U.S.C. § 564) ............... 3, 8, 25
mection GOs (465 UC. § OUR) occ ences cncccess 1
ection 70: (65 UB.O. § G02) os. ... ccna 18
Mecteon Boe (45 U.S.C: GGGR) soi is cece scenes 3
Section 805 (45 U.S.C. § 644) ............0.... 32
Section 806 (45 U.S.C. § 645) ................ 18, 21
Railway Labor Act (45 U.S.C. § 151 et seq.) ......... 18, 31
Securities Exchange Act of 1934 (15 U.S.C. §77b et
OE oink ck i os BK dk ad i 4s i se 35
Voting Rights Act of 1965 (42 U.S.C. § 1973, et seqg.).. 35
MISCELLANEOUS:
Congressional Record Vol. 108 (1962) ........:...... 36
Hearings before the Subcommittee on Department of
Transportation and Related Agencies of the House
Committee on Appropriations, 93rd. Cong., 1st
ig Be: ee es ee ee 23
House Report No. 91-1580, 91st Cong., 2nd Sess. (1970)
5-8, 21
Senate Report No. 91-765, 91st Cong., 2nd Sess. (1970)
5, 6, 34
Supplemental Hearings on H.R. 17849 and S.3706 be-
fore the Subcommittee on Transportation and
Aeronautics of the House Committee on Interstate
and Foreign Commerce, 91st Cong., 2nd Sess.,
a ee EE. er ie eee Ae 14, 15, 29
IN THE
Supreme Court of the Anited States
OctToBER TERM, 1973
No. 72-1289
NATIONAL RAILROAD PASSENGER CORPORATION, CENTRAL
OF GrorGIA RatLwAy CoMPANy, and SouTHERN
Raitway Company, Petitioners,
Vv.
NATIONAL ASSOCIATION OF RAILROAD PASSENGERS,
Respondent.
On Writ of Certiorari to the United States Court of Appeals
for the District of Columbia Circuit
BRIEF FOR PETITIONERS
. ORDER AND OPINION BELOW
The unreported order of the District Court dismiss-
ing the cause appears at page 19 of the Single Appen-
dix (SA). The opinion of the Court of Appeals is
reported at 475 F.2d 325 and appears at SA 20.
j JURISDICTION
and opinion of the Court of Appeals
was rendered on January 5, 1973.1. On February 9,
1973, that court stayed the issuance of its mandate for
?On January 10, 1973, the opinion was amended to correct a
minor error, i.e., a reference at SA 23 to ‘‘Birmingham, Georgia’
was changed to ‘‘ Birmingham, Alabama.”’
et
SGN MONI 20" A AREA RN I ER RE
2
a period of thirty days, and on March 9, 1973 the stay
was extended to March 22, 1973. (SA 57). This
Court’s jurisdiction is invoked under 28 U.S.C.
§ 1254(1).
QUESTION PRESENTED
Can all passengers and other allegedly aggrieved
persons maintain actions in the District Courts to
enjoin supposed violations of the Rail Passenger Serv-
ice Act of 1970 (the ‘Amtrak Act’’), 45 U.S.C. § 501
et seq. (1970), as amended, (Supp. II, 1972), despite
thegprovision in Section 307 of the Act that the Dis-
trict Courts shall have jurisdiction to grant such relief
‘“‘upon petition of the Attorney General of the United
States or, in a case involving a labor agreement, upon
petition of any employee affected thereby, including
duly authorized employee representatives”’?
STATUTORY PROVISION INVOLVED
Section 307 of the Amtrak Act provides as follows:
Jurisdiction of the District Courts of the United
States to Impose Sanctions.
(a) If the Corporation or any railroad engages
in or adheres to any action, practice, or policy
inconsistent with the policies and purposes of this
chapter, obstructs or interferes with any activi-
ties authorized by this chapter, refuses, fails, or
neglects to discharge its duties and responsibilities
under this.chapter, or threatens any such viola-
tion, obstruction, interference, refusal, failure, or
neglect, the district court of the United States for
any district in which the Corporation or .other
person resides or may be found shall have juris-
diction, except as otherwise prohibited by law,
upon petition of the Attorney General of the
United States or, in a case involving a labor agree-
ment, upon petition of any employee affected
3
thereby, including duly authorized employee rep-
resentatives, to grant such equitable relief as may
be necessary or appropriate to prevent or termi-
nate any violation} conduct, or threat.
(b) Nothing contained in this section shall be con-
strued as relieving any person of any punishment,
liability, or sanction which may be imposed other-
wise than under this chapter. [45 U.S.C. § 547].
STATEMENT OF THE CASE
a: PROCEEDINGS BELOW.
This is an action to enjoin the discontinuance of
certain trains previously operated by the Central of
Georgia Railway Company. Central discontinued the
trains under authority of the Amtrak Act after enter-
ing into a contract with the National Railroad Pas-
senger Corporation (Amtrak) for assumption by
Amtrak of Central’s intercity rail passenger service
responsibilities.? Respondent National Association of
Railroad Passengers (NARP) alleges that this con-
tract does not comply with the terms and purposes
of the Amtrak Act. (Complaint, SA 8, 9). The suit was
said to be brought ‘‘pursuant to 28 U.S.C. § 1331,
1337, and 45 U.S.C. 501 et seq., and particularly sec-
tions 564(a) and 642 of Title 45.’’ (SA 9).
On May 5, 1971, the United States District Court
for the District of Columbia dismissed the complaint
on the ground, inter alia, ‘‘that the plaintiff does not
[have] standing to maintain this action under Section
307 of the Rail Passenger [Service] Act of 1970.”
(SA 19). On January 5, 1973, the Court of Appeals
? The principal provisions of the Act governing discontinuances
are described at pages 7-8, infra.
reece nema
4
reversed and remanded the case to the District Court
for an adjudication on the merits. The court con-
cluded that standing to sue Amtrak and the defendant
railroads should be determined by the same three-part
test that governs standing to seek judicial review of
governmental administrative actions and that the first
two elements of this test—(1) whether NARP has al-
leged that it suffered injury in fact and (2) whether
it is arguably within the zone of interests to be pro-
tected by the legislation—are satisfied in the present
case. (SA 25-27).
As to the third element of the test, the Court of Ap-
peals could see no convincing evidence that Congress
intended to preclude the maintenance of lawsuits by all.
aggrieved parties. Although petitioners argued that
the language, legislative history, and purposes of the
-Act clearly manifested a legislative intent to allow
only the Attorney General to bring enforcement actions
in eases not involving labor agreements, the court did
not believe that this evidence was sufficient to over-
come ‘‘the strong presumption in favor of judicial
review’? which the court considered applicable.
(SA 28).
Finally, after completing the ‘‘standing’’ analysis
described above, the court held that NARP’s right to
sue could also be sustained if the case were analyzed in
terms of jurisdiction or the existence of a private cause
of action.’ (SA 43-46).
In the same opinion the Court of Appeals reversed the judg-
ment of the District Court in Potomac Passengers Association v.
Chesapeake & Ohio Railway Co., et al., opinion sub nom. Congress
of Railway Unions vy. Hodgson, 326 F. Supp. 68 (D.D.C. 1971),
consolidated with this case on appeal. The court held that Section
307 was not involved in that case since the suit, properly con-
5
BACKGROUND OF THE AMTRAK Act.
In 1969 and 1970 both houses of Congress held hear-
ings which indicated that the nation was faced ‘with
the immediate threat of the complete curtailment of
rail passenger service.’’* In 1929 there were approxi-
mately 20,000 passenger trains in operation in the
United States; in 1969 there were 450. Ever since 1930,
except for the World War II period when gasoline
rationing forced many travelers off the highways,
operation of passenger trains has been generally un-
profitable.*
After World War II, resumption of automobile
production, expansion of highway facilities, and the
tremendous growth of air travel, all generously aided
by federal financial assistance, took increasing numbers
of passengers from the railroads. (S. Rep. 91-765,
p. 2). By the mid 1950’s the staggering losses from
passenger operations were no longer sufficiently ab-
sorbed by freight business to make continued passenger
service economically viable, and the railroads turned
with increasing frequency to state regulatory commis-
sions for authority to discontinue little-used passenger
trains. There, according to the Senate Report,
They met with considerable resistance; trains
which clearly ‘served no useful purpose were either
ceived, was not one for violation of the Amtrak Act but rather
an action for a declaratory judgment that certain trains were
*‘commuter’’ rather than ‘‘intercity’’ and that their discontinuance
_ was therefore not governed by the Amtrak Act. The correctness
of that decision is not at issue here.
‘H.R. Rep. No. 91-1580, 91st Cong., 2nd Sess. (hereafter cited
as ‘‘TT.R. Rep. 91-1580"’), p. 2 (1970).
‘8S. Report No.- 91-765, 91st Cong., 2nd Sess. (hereafter cited
as ‘‘S. Rep. 91-765’’), p..2 (1970).
BAR
eg
+ to be —_ in operation or were allowed
discontinued only after protracted adminis-
trative and judicial proceedings. [S. Rep. 91-765,
p. 2].
In 1958, in an effort to reduce the losses on passenger
train operations, Congress enacted Section 13a of the
Interstate Commerce Act (49 U.S.C. § 13a) authoriz-
ing railroads to petition the Interstate Commerce
Commission for permission to discontinue passenger
trains. While Section 13a temporarily eased the finan-
cial drain on the railroads, the number of passenger
trains continued to decline due, in part, to the inter-
state highwaysprogram (initiated in 1956), the jet air-
craft (1958), the Post Office’s conversion from enroute
sorting of mail in railway cars to stationary sorting at
section centers (1967), and the deterioration of passen-
ger services on some railroads. (S. Rep. 91-765, p. 2).
By 1970 Congress had concluded that rail passenger
service was an essential component of a balanced
national transportation system, particularly in light of
increasing congestion of the highways and airways
and consequent increases in fatalities and pollution.
(H.R. Rep. 91-1580, p. 2; S. Rep. 91-765, pp. 2-3). It —
had also concluded that, while the argument about the
causes of passenger train declines could go on indefi-
nitely,
if it continues it will be an argument only over
the past and the last passenger*train will be in a
museum. Positive action and a completely new
direction is required—and urgently required—
now. [H.R. Rep. 91-1580, p. 3].
*
To save any passenger trains at all, Congress found,
would require a paring of uneconomic routes since ‘‘a
large number of them hold no promise for financial
7
success in the foreseeable future.’’ It would also re-
quire the establishment of a quasi:public National
Railroad Passenger Corporation which could manage
rail passenger operations on a unified, national basis
and take innovative and decisive action to improve
such operations and revitalize rail passenger train serv-
ice throughout the United States. (H.R. Rep. 91-1580,
pp. 1, 3).
STRUCTURE OF THE ACT.
On October 14, 1970, Congress enacted the Rail Pas-
senger Service Act of 1970. The Act authorized crea-
tion (45 U.S.C. § 541) of a National Railroad Passen-
ger Corporation (‘‘Amtrak’’) to provide intercity rail
passenger service between points designated by the
Secretary of Transportation as components of a “‘basic
national system” of intercity rail service. (45 U.S.C.
§§ 501, 521). Though subsidized by the federal treas-
ury and vested with a broad mandate to reorganize
intercity rail service (45 U.S.C. § 545), Amtrak is not
“an agency or establishment of the United States Gov-
ernment.’ Amtrak is to act boldly and decisively, ‘‘em-
ploying innovative operating and marketing concepts
so as to fully develop the potential of modern rail serv-
ice in meeting the Nation's intercity passenger trans-
portation requirements.’’ (45 U.S.C § 541).
Under the Act, Amtrak was authorized to contract
with any railroad, on or before May 1, 1971, and be-
tween March 1, 1973 and January 1, 1975, to relieve
that railroad of its entire responsibility for provision
of intercity rail passenger service. Upon entering into
such a contract, the railroad could discontinue any in-
tercity train simply by filing with the Interstate Com-
merce Commission a thirty-day notice of intent to
a
4
j
’
4
E
Dat ad
1 OTE LEE
8
discontinue. (45 U.S.C. § 561(a)(1).° Railroads
which did not enter such contracts are forbidden to
discontinue any intercity passenger trains before
January 1, 1975, and can do so thereafter only by fol-
lowing the discontinuance procedures in Section 13a
of the Interstate Commerce Act. (45 U.S.C. § 564(a)).
Amtrak was required to provide the service included
within the “basic system’? until July 1, 1973, after
which it could effect discontinuances as provided in
the Act. (45 U.S.C. §564(b)). If ‘‘consistent with
prudent management,’’ Amtrak can also provide inter-
city rail passenger service in excess of the basic sys-
tem. It can, however, discontinue such additional
service at any time, except that any excess service pro-
vided for a eontinuous period of two years becomes
part of the ‘‘basic system.” (45 U.S.C. §§563(a),
564(b) (2)).
In establishing the Amtrak program, Congress rec-
ognized * that (1) a number of uneconomic trains would
have to be eliminated and (2) one of the most difficult
aspects of the program would be deciding which trains
to eliminate. In order to insure that these decisions
were wisely made, Congress prescribed (45 U.S.C.
®* The Central of Georgia trains involved in this litigation were
discontinued under this provision on May 1, 1971. They con-
sisted of two daily trains between Atlanta and Savannah, Georgia
and two trains between Albany, Georgia and Birmingham, Ala-
bama which ran on alternate days. |
™**TA] rational reduction of the present system will be required
to save any passenger service. The remaining service must he
organized into a cohesive system requiring a management which
takes into consideration the needs and abilities of the entire system
which will be a replacement for the diverse managements of the
present unintegrated. and in many instances unwanted (by man-
agement) passenger service.’’ [H.R. Rep. 91-1580, p. 3].
9
§ 521) specific policy factors to be considered in the
designation of the basic system * and further provided
that the basic system would not become final until the
Secretary of Transportation had responded in writing
to all recommendations he received from the Interstate
Commerce Commission, the various State Commissions,
the representatives of the railroads, and railroad labor
organizations concerning the passenger service to be
maintained. (45 U.S.C. § 522).
Finally, to insure that this program would be carried
out in accordance with the terms and purposes of the
Act, Congress provided in Section 307 (45 U.S.C. § 547)
an enforcement procedure largely borrowed from the
Comsat Act.’ Section 307(a), the focus of the present
case, provides that the Attorney General of the United
States and, in cases involving labor agreements,
affected employees and their representatives may peti-
tion the District Courts to enjoin any action by Amtrak
or a railroad which violates the Amtrak Act or threat-
ens to obstruct its purposes. Section 307(b) indicates
*In initially deciding which trains to include in the basic sys-
tem, the Secretary of Transportation utilized an interrelated set
of eight criteria:
(1) The Nation’s total transportation needs.
(2) Demand for the particular service.
(3) Cost of the particular service.
(4) The need for an integrated national rail network.
(5) Population of the points served.
(6) Profitability of the particular service.
(7) Potential for flexible service adjustments by Amtrak.
(8) Capital improvements required by the service.
(See pages 81-82 of Exhibit A to this brief.)
POE FOO OS ae
* ROO we pak: Sep t
®*See Section 403 0% the Communications Satellite Act of 1962
(47 U.S.C. § 743) set out in footnote 39, pp. 36-37, infra.
LEE LOE OL IP OLE TE Se ae
f
10
that the section leaves unaffected any causes of action
which arise other than from a violation of the Act."
SUMMARY OF ARGUMENT
Section 307 of the Amtrak Act provides only for
enforcement suits by the Attorney General in non-labor
eases such as this. By the established construction
principle that specific Congressional expression of one
remedy excludes other remedies not expressed, Section
307 allows such suits only when brought by the Attorney
General, and not by any ‘“‘aggrieved person.’”? The
Court of Appeals rejected this statutory interpretation
despite the legislative history that strongly supports it.
During the hearings on the Amtrak Act, represen-
tatives of organized labor proposed and vigorously ar-
gued for an amendment to Section 307 which would,
inter alia, have authorized suits by any ‘“‘aggrieved
person.’’ The Secretary of Transportation acquiesced
in certain aspects of the suggested amendment (prin-
cipally, making Section 307 applicable to railroads as
well as Amtrak), but opposed the proposal to allow suits
by any ‘‘aggrieved persons.’’ He recommended that
Section 307 permit suits only by the Attorney General
and employees and their authorized representatives.
Congress followed the Secretary’s recommendations
carefully and precisely. It redrafted Section 307 to
incorporate the suggestion in which he anquenecet but
rejected labor’s proposal to allow suits by any ‘‘ag-
grieved person’’ and instead adopted his alternative
formulation.
The decision below is also erroneous because its inter-
pretation of Section 307 would severely hamper
1° Thus, suits for personal injuries allegedly caused by negligent
operation of Amtrak trains are not barred by the Act.
11
Amtrak’s achievement of its Congressional mandate to
create and admiriister a viable national system of rail
passenger service. Private suits by any railroad pas-
senger or other ‘‘aggrieved person”’ could, even if un-
sound on their merits, result in restraining orders or
preliminary injunctions that would force Amtrak to
continue the operation of uneconomic trains. This
would cost Amtrak (and thus the federal treasury) sub-
stantial sums of money and-would seriously disrupt
Amtrak’s closely coordinated plans for operating an
integrated national system of intercity rail service.
The court below erred in relying on a novel theory
that the specific jurisdictional limits imposed by Sec-
tion 307 of the Amtrak Act could be disregarded
because of the general jurisdictional grant of 28 U.S.C.
§ 1337 regarding controversies arising under statutes
regulating interstate commerce. But that theory over-
looks the established principle that specific statutory
provisions must, when applicable, take precedence over
more general provisions ir@the same or a different stat-
ute. Furthermore, even if Section 1337 could confer
jurisdiction on the District Court in a suit such as this,
that general jurisdictional statute merely allows adjudi-
cation of a cause of action arising under some other
statute regulating commerce, and does not itself give .
rise to a cause of action. The Amtrak Act creates nid
private cause of action under which persons other than
the Attorney General may bring suit to enjoin its
alleged violation. Since the Attorney General and
other legislative and executive institutions responsible
for monitoring Amtrak’s activities are quite capable
of insuring Amtrak’s full compliance with the Act,
there is no reason in this ease to create a private cause
of action by implication.
12
ARGUMENT
I. THE DECISION BELOW MISCONSTRUES THE PLAIN
LANGUAGE AND THE LEGISLATIVE HISTORY OF
SECTION 307.
A. The Language of Section 307 Clearly Precludes Private
Parties Other Than Employees and Their Representatives
from Suing Amtrak or a Railroad for Alleged Violations of
the Act.
Section 307 of the Amtrak Act identifies only the
Attorney General as a proper party to sue for en-
forcement of the Act in non-labor eases." It is a well-
established principle of statutory construction that,
where Congress has expressly specified one party or
remedy, courts will not expand the coverage of the
statute to include other parties or remedies. As See-
tion 307 specifically authorizes suit by the Attorney
General, this principle indieates that he is the only
proper plaintiff in enforcement actions not involving
labor agreements.
Courts have traditionally relied on. this principle as
an aid to statutory eonstruction, particularly when—
as is the case here—it is supported by legislative his-
tory revealing a clear intent to exclude other parties
or meanings. See, e.g., Botany Worsted Mills v.
United States, 278 U.S. 282, 289 (1929); Maiatico v.
United States, 302 F. 2d 880, 886 (D.C. Cir. 1962) ;
United States v. Chicago Title and Trust Co., 242 F.
Supp. 56, 65 (N.D. Ill. 1965); Ex Parte York County
Natural Gas Authority, 238 F. Supp. 964, 979 (W.D.
S.C. 1965); Anderson v. Gladden, 188 F. Supp. 666,
679 (D. Ore. 1960). As noted in McDonald vy. Board of
Election Commissioners, 277 F. Supp. 14, 17 (N.D. Ill.
1967, it is ‘‘a rule of statutory construction that
where a statute enumerates persons affected, it must
11 The full text of Section 307 is set out at pages 2-3, supra.
pm eaecn es
13
be construed as excluding from its effect all those not
expressly mentioned.’’”
The court below rejected this analysis on the ground
that ‘‘whatever superficial appeal the maxim may
have, .. . it is only an aid to statutory construction,
not a rigid rule of law.’’ (SA 29). The court was cer-
tainly correct that the erpressio principle should not
be applied blindly, but neither logic nor the authori-
ties cited by the court suggest that the principle should
be rejected for no reason at all. Those authorities
point out only that the doctrine ‘‘can never override
clear and contrary evidence of Congressional intent.”’
Neuberger v. C.I.R., 311 U.S. 83, 88 (1940). As stated
by the Court of Appeals for the First Circuit in Mas-
sachusetts Trustees of Eastern Gas & Fuel Assoc. v.
United States, 312 F. 2d 214, 220 (1st Cir. 1963), aff’d
377 U.S. 235 (1964), ‘whether the specification of one
matter means the exclusion of another is a matter of
legislative intent for which one must look to the statute
as a whole.”’
More generally, as a matter of sound statutory in-
terpretation, there must be some recognized guide-
lines for construction so that courts, legislators, and
affected citizens can agree on how legislative enact-
ments will be applied in particular cases. Petitioners
do not argue that the erpressio principle is an abso-
lute and irrebutable rule which answers all questions
about the reach of statutory provisions. But the prin-
ciple has considerable force because of its intrinsic
logic and frequent past applications and should not be
12 Courts sometimes make shorthand reference to this principle
through the maxim exrpressio unius est exclusio alterius. See
United States v. Chicago Title and Trust Co., Ex Parte York Coun-
ty Natural Gas Authority, and Anderson vy. Gladden, supra.
aa t a
DON ee TA tae
MSPS ONO 9
14
disregarded unless independent sources within the
legislative history demonstrate that Congress did not
in fact intend to exclude other parties or remedies
than those specified. In the present case, the legisla-
tive history, far from suggesting that the principle is’
inapplicable, strongly supports the inference that
Congress did intend to exclude other parties from ini-
tiating enforcement actions.
B. The Legislative History of Section 307 Reveals Congress’
Intent To Limit the Power To Enforce the Amtrak Act
to the Attorney General.
In the context of this case, the significant fact in
the legislative history is that Congress considered but
rejected a proposed amendment to Section 307 that
would have authorized any aggrieved person to sue to
enjoin violations of the Act.
The original draft of the bill, considered by the
House Interstate and Foreign Commerce Committee
in June 1970, provided that the District Courts
would have jurisdiction to entertain suits against
Amtrak (but not individual railroads) ‘‘upon petition
of the Attorney General of the United States or, in a
ease involving a labor agreement, upon petition of any’
individual affected thereby .. .”. At the hearings \
spokesmen for organized labor urged that the bill be |
amended to allow actions against railroads as well as
Amtrak and to permit suits by ‘‘any person adversely
affected or aggrieved thereby, including the represen-
13 Supplemental Hearings on H.R. 17849 and 8.3706 before the
Subcommittee on Transportation and Aeronautics of the House
Committee on Interstate and Foreign Commerce, 91st Cong., 2d
Sess., Serial 91-62 (1970) (hereinafter cited as ‘‘Supp. Hear-
ings’’) p. 43.
Po =— ee faa
15
tatives of the employees of any railroad or of the Cor-
poration.’’ One labor witness explained that,
[t]he . . . amendment we propose would modify
the language of Section 307(a) ... so as to pro-
vide that any aggrieved party, including employee
representatives, could institute legal proceedings
for violations of the law....
As the bill now reads, only the Attorney General,
except in cases involving a labor agreement, could
bring actions. [Supp. Hearings p. 134, emphasis
added].
Secretary of Transportation Volpe was asked by the
Committee to comment on these proposed changes. In
response he furnished the Committee with a letter in
which he stated that he did not object to that portion
of the proposed amendment which would allow suits
against railroads as well as Amtrak. On the other
hand, concerning the proposal to amend the bill to
permit suits by any ‘‘aggrieved person,”’ he stated:
Sanctions are normally imposed by the Govern-
ment. Consequently, I would be opposed to per-
mitting “‘any person”’ to seek enforcement of sec-
tion 307. I would have no objection, however, if
the section were revised to permit employee rep-
resentatives, as well as employees affected, to seek
equitable relief. [Supp. Hearings p. 85, emphasis
added. ]
The Committee redraft of Section 307 and the bill as
finally enacted are in exact conformity with Secretary
Volpe’s recommendations. Railroads were added to
its reach, but labor’s other proposal, which would have
4 See also Supp. Hearings at pp. 119, 122, 141.
i
:
t
16
permitted suit by any aggrieved party, was completely
rejected and Secretary Volpe’s language adopted in-
stead. |
The case is thus similar to National Automatic
Laundry and Cleaning Council v. Schultz, 443 F.2d 689
(D.C. Cir. 1971) in which the court likewise found
clear indication of legislative purpose in Congress’
rejection of amendments designed to limit the reach
of a broad remedial provision.” That the rationale
for rejecting the amendment in the National Auto-
matic Laundry case was articulated by a Congressman
and im this case’ was articulated by the cabinet officer
principally responsible for overseeing the subject pro-
gram is irrelevant. The intent of Congress can prop-
erly be divined from its acceptance of an Executive
branch recommendation as well'as from statements
made during floor debate. Indeed, the intention of the
Congress is even more evident here than in National
Automate Laundry. Here Congress did not simply
ignore or reject labor’s proposal but instead carefully
adopted that portion of the suggested amendment which
Secretary Volpe endorsed, rejected the specific portion
he opposed, namely, the suggestion that any “aggrieved
person”? should be able to bring suit, and instead
adopted his alternative formulation permitting suit by
the Attorney General, employees and their representa-
tives. :
The court below acknowledged the existence of this
legislative history but discounte | its significance. Cit-
15‘ In the matter before us there is not merely silence, proposals
languishing without any Congressional action, but positive action
by Congress rejecting the limiting amendments.’’ [443 F.2d
at 706 }. :
17
-
ing Trailmobile Co. v. Whirls, 331 U.S. 40 (1947), the
court stated that: it was unwise to-rely on statutory
changes made in Congressiohal committees without ex-
planation. In the Trailmobile case, however, the legis-
lative history was entirely inconclusive; there were no
comments from any source whatever concerning the
issue involved. In this case there was an abundance
of comment. Two prominent labor spokesmen vigor-
ously requested a specific change in statutory language.
The Secretary of Transportation urged that this broad
proposal be rejected and suggested an alternative
formulation which was subsequently adopted. In view
of this clear legislative history, it hardly requires a
‘strained process'of deduction,’ as the court below
viewed the matter (SA 36), to realize that Congress °
consciously and carefully chose not to permit all
allegedly aggrieved parties to maintain suits for sup-
posed violations of the Amtrak Act.
By suggesting that only reported debates or formal
statements by members of Congress are useful indicia
of intent, the court below has taken too narrow a view
of the legislative process. This approach ignores the
fact that Congressional committees bear the principal
burden of formulating precise legislative language,
and it is their actions and decisions which most aceu-
rately evidence the nuances of statutory meaning.
y
r.
In drafting Section 307, the House Committee’ on \
Interstate and. Foreign Commerce heard comment on
and then rejected labor’s proposal to allow any injured
party to sue and adopted a counterproposal by the \
Secretary of Transportation. While individual opin-
ions of private witnesses at committee hearings may
sometimes be of doubtful value in determining legisla-
18
tive intent,’* courts have traditionally deferred to the
opinion of the administrative officer statutorily
charged with administration of the act. See, e.g., Red
Tion Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 381
(1969) ; Griggs v. Duke Power Co., 401 U.S. 424, 433-34
(1971) ; United States v. City of Chicago, 400 U.S. 8,
10 (1970) ; Lewis v. Martin, 397 U.S. 552, 559 (1970) ;
Bowman v. Department of Agriculture, 363 F.2d-81
(5th Cir. 1966) ; Philadelphia Television Broadcasting
Co. v. FCC, 359, F.2d 282 (D.C. Cir. 1966). Some
federal courts have recently viewed this deference as
mandatory in the absence of clear, compelling language
to the contrary. ‘‘The Secretary’s interpretation .. .
if reasonable, must be given effect.’’ Alexander v.
Richardson, 451 F.2d 1185, 1187 (10th Cir. 1971). The
Secretary of Transportation has substantial responsi-
bility for establishing the Amtrak program and super-
vising its operation,” and certainly his opinion (that
the language he proposed for Section 307 would give
the Attorney General exclusive enforcement power in
non-labor cases) is entitled to great weight.
Furthermore, the Attorney General has taken the
position that ‘‘in non-labor agreement cases, Section
307 of the Act ... reserves to the Attorney General the
exclusive right to sue Amtrak or any railroad for
16 But see, Chicago & Northwestern Railway Company v. United
Transportation Union, 402 U.S. 570 (1971). in which this Court, in
construing the Railway Labor Act, attributed great weight to the
statements of spokesmen of railroad management and labor made
in hearings before the House Committee on Interstate and Foreign
Commerce.
17 See, for example, 45 U.S.C. §§ 521, 522, 548, 563, 602, 621,
and 645.
19
actual or threatened violation of the policies and pro-
visions of the Act.’’** This interpretation was re-
cently reaffirmed in the Memorandum for the United
States filed by the Solicitor General in support of the
petition for a writ of certiorari in this case. As this
Court has noted, courts should respect the construe-
tion of an administrative statute given ‘‘by the men
charged with the responsibility of setting its machin-
ery in motion, of making the parts work efficiently and
smoothly while they are yet untried and new.’”’ Power
Reactor Development Co. v. International Union of
Electrical, Radio and Machine Warkers, 367 U.S. 396,
408 (1961).
The court below also sought to demonstrate Con-
gress’ intent to allow private enforcement of the Act
by showing that it specifically denied judicial review
in other sections of the Act. (SA 38). Section 202 of
the Act (45 U.S.C. § 522) states that the Secretary’s
designation of which railroad lines shall constitute the
basic system ‘‘shall not be reviewable in any court.’’
The Court of Appeals argued that Congress therefore
knew how to draft decisively when it wished to limit
judicial review and would have put the word ‘“‘only”’
before the phrase ‘‘upon petition of the Attorney
General ... .”’ had it wished to preclude suits by anyone
else.
There is no logical or practical inconsistency be-
tween Section 202 and petitiovers’ construction of See-
tion 307. Section 202 involves a Government official’s
18 See letter of Acting Assistant Attorney General E. Grey Lewis,
dated September 6, 1972, set out as Appendix E to the certiorari
petition (p. 42a).
20
exercise of administrative authority of the sort nor-
mally reviewable by courts. Section 307, on the other
hand, involves suits against private railroad companies
and Amtrak, which is explicitly not an agency of the
Federal government. Having withdrawn the designa-
tion of the basic system from judicial review in Section
202, it would certainly have been anomalous for Con-
gress to provide disappointed train passengers in Sec-
tion 307 with an equally effective method of fighting
_the elimination of their lines, namely, institution of
expensive and: protracted actions to enjoin the discon-
tinuances.
The analysis of the legislative history by the court
below alsp rests on the assumption that Section 307 is
‘‘redundant’’ (SA 31) and that Congress ‘‘might well
have believed, notwithstanding the remarks of railway
labor representatives, that Section 307 as originally
drafted did not bar suits by all injured and aggrieved
parties.”” (SA 36). While these and other explana-
tions are, of course, ‘‘conceivable’’ (to use the court’s
language, SA 36), they do not appear likely.
As distinguished from such speculations, the Sec-
retary of Transportation, the Attorney General, and
the Solicitor General have all advanced the more logi-
cal: explanation that Section 307 simply means what
it says, namely, that to invoke the jurisdiction of the
District Courts, suits to restrain violation of the
Amtrak Act must be brought by affected employees,
their representatives, or the Attorney General. Peti-
tioners submit that the legislative history of the Sec-
tion, its plain language, and the purposes of the Act
all confirm this construction. |
21 : ~
II. THE DECISION BELOW WOULD SERIOUSLY FRUS-
TRATE THE FUNDAMENTAL PURPOSES OF THE AM-
TRAK ACT.
Not only does the decision by the Court of Appeals
misconstrue the language and the legislative history
of Section 307. In addition, that court’s interpreta-
tion of Section 307 would severely hamper the achieve-
ment of the statute’s purpose. Indeed, a decision by
this Court affirming the holding below that any
railroad passenger, passenger association, or other
aggrieved person may sue Amtrak or a railroad for
any supposed violation of this comprehensive legisla-
tion could so hobble this program for saving the
nation’s rail passenger service as to effectively prevent
He fulfillment of that important legislative goal.
The House Report which accompanied the bill that
became the Amtrak Act stated that “the overriding
purpose of this legislation is to preserve and: promote
intercity rail passenger service ...’’ (H.R. Rep. 91-
1580, p. 2). Accomplishment of this goal, Congress
concluded, would require a national management cor-
poration which could weld the passenger operations of
numerous railroad companies into a single, cohesive
system and could act decisively and innovatively to
make that system a viable transportation mode as
quickly as possible.” Amtrak has already made
significant progress toward achieving that goal,” but
18 See pages 5-7, supra.
*° The Amtrak Act, as amended, 45 U.S.C. § 645, (Supp. IT 1972),
required the Secretary of Transportation to transmit to Congress
by March 15, 1973, a coniprehensive report on the effectiveness of
the Act and the Corporation in promoting intercity rail passenger
service. That report is filed as Exhibit A to this brief and con-
cludes that, during its first 22 months of operation, ‘‘Amtrak has
a
1
Cl
22
- the program is still in a formative period, and there is
a great deal yet to do." During the months and years
ahead, Amtrak will need to take countless actions to
improve and streamline the national railroad pas-
senger system it was created to nianage. Of necessity,
many of these actions will affect very large numbers
of passengers and other persons.
Under the decision below, each of the several mil-
lion passengers who ride Amtrak trains is a potential |
plaintiff in a suit t6é enjoin some Amtrak action he does y
taken important steps to improve intercity rail passenger service.’””
(Ex. A, p. 4). Several indicators of such progress are cited :
‘‘Ridership in the period May-November 1972 was 11% he
higher than in the corresponding period of 1971.
The net cash loss from operations in FY 1972 was $152.7
million; the FY 1973 loss is estimated at $124.9 million. Un-
der the route and service levels recommended in this report it
is estimated to decline further to $95.6 million in FY 1974.
_ Revenue increased from $150.5 million in FY 1972 to an
estimated $179.4 million in FY 1973.
Amtrak acquired its own fleet of 1550 passenger cars and
420 locomotives. A major refurbishment program is under-
way.
New turbine powered trains have been either purchased or
ordered from U.S., Canadian, and French manufacturers.
Amtrak simplified tickets, timetables and fares; a new
computerized reservation system is being implemented.
On-train services have improved measurably ; train directors .
are being placed on most trains to supervise services.’’ (Ex.
A, p. 4).
21‘«Programs actively underway provide for improving equip-
ment, reservations, schedules, fare structure, food service, and
other passenger comforts. Administrative changes necessary to the
efficient and economic operation of the corporation are also under-
way, and include improved data collection on revenue, expenses and
ridership, improved cost control, auditing of contracts with par-
ticipating carriers and assuming direct control over functions solely
related to intercity passenger service.’’ (Ex. A, p. 3).
ee ee Se ge
7} #
93 .
not like.” Virtually everything Amtrak does could
be made the basis of an injunctive action by an
‘““aggrieved’’ passenger—the discontinuance of a par-
ticular train, a revision in schedules and timetables.
changes in on-board services (as, for example, substi-
tuting snack bar service in place of a dining car, or
reclining parlor chairs in place of a sleeping car),
revamping of ticketing and reservation procedures, a
redesignation of intermediate stops along a particular
route, and so on.
Furthermore, the decision below is not limited to
railroad passengers, but expressly encompasses all
allegedly injured and aggrieved parties. (SA 43).
Thus, Amtrak actions in purchasing new rolling stock,
refurbishing present equipment, upgrading roadbed,
changing mail and baggage car arrangements, and
many other matters could easily become the subject of
injunctive actions brought by affected parties other
than passengers.*
igo
*2In.1972 Amtrak trains carried approximately 16,600,000 pas-
sengers, about 96° of the nation’s total number of intercity rail
passengers for that year. Sce Hearings before the Subcommittee
on Department of Transportation and Related Agencies of the
House Committee on Appropriations, 93rd. Cong., 1st Sess., (1973)
Part 2—p. 1054,
*3 Compare District Judge John P. Fullam’s observation, quo-
ted in In re Penn Central Transportation Co., 446 F.2d 1109, 1113
(3rd Cir. 1971), cert. denied 405 U.S. Ga8 (1972) ;
‘‘It is a matter of common knowledge that very many interested
persons and governmental entities and agencies question the
adequacy of intercity rail passenger service proposed to be
supplied by Railpax [Amtrak]. It is not inconceivable that,
if they were free to do so, large numbers of such persons,
entities and groups might seek to litigate particular issues in
a wide variety of forums.’’
SER ATA TE IE REN TTR,
Sra) 7
Oe oO
24
The effect of this kind of litigation on the ability of
Amtrak to carry out its Congressional mandate can
best be appreciated by focusing on a single example.
In its Repsrt to Congress of March 15, 1973, the De-
partment of Transportation set forth a detailed analy-
sis of Amtrak’s present route structure. The report
pointed out that the establishment of an optimum
national route system was a dynamic process and would
require continued re-examination and adjustment.
(Ex. A, p. 79). On the basis of the same eight
criteria initially used to designate the basie system,
the report concluded that most of Amtrak’s routes
should be left intact but that certain modifications
were in order because of the excessive deficits experi-
enced on those lines. Thus, the Department recom-
mended that Amtrak discontinue the Chicago-Florida
train (deficit for fiscal year 1972—$5.1 million), the
New York-Kansas City train ($5 million deficit), and
the Washington, D.C.—Parkersburg, West Virgina
train ($700,000 deficit) and that service be reduced and
rearranged on the Chiecago-Houston run ($4.5 million
deficit) and Chicago-Newport News train ($4.4 million
deficit). (See Ex. A, pp. 80-98) .**
If, pursuant to these recommendations, Amtrak
seeks to discontinue the New York-Kansas City train
in order to achieve a viable national system, many
passengers who ride that train may feel themselves
‘‘aggrieved.”’? If any one of these passengers files a
24 These recommendations closely coincided with those made by
Amtrak and its consultant McKinsey & Company. (Ex. A, p. 6).
In each case, where the Department of Transportation recommended
discontinuance of a particular service, ‘‘well-developed alternatives
[ie., other transportation modes] are available.’” (Ex. A, p. 83).
-
PRO RI taken © eee eorerman eee
25
complaint * advancing even a superficially plausible
theory under which such a discontinuance would vio-
late the Amtrak Act, a District Judge unfamiliar with
the intricacies of the statute may feel that prelimin-
ary injunctive relief is necessary to preserve the
status quo until the merits of the matter can be fully
briefed and adjudicated.“ After a decision on the
merits in the District Court, there is the possibility of
further substantial delay if an injunction or restrain-
ing order is obtained while the case is on appeal. Even
if Amtrak ultimately wins such a suit, the continued
operation of the uneconomic train during the litigation
would cost Amtrak (and thus the federal treasury)
thousands or even millions of dollars.
Moreover, since the New York-Kansas City train
passes through nine states, a number of injunctive
actions could easily be filed in several different Dis-
*° Under the Act as presently drafted, 45 U.S.C. § 564(b) (3), dis-
continuances of basic system trains, such as New York-Kansas City,
are subject to the provisions of Section 13a of the Interstate Com-
merce Act. Because of the extensive monitoring of Amtrak by the
Executive Branch and Congress, the Department of Transporta-
tion has urged Congress to exempt Amtrak from such ICC juris-
diction to avoid the possibility that Amtrak could be required ‘to
perform an uneconomic service, through an extended period of
litigation, at substantial cost to the general taxpayer.” (Ex. A,
p. 108). Unless they have been operated for two continuous years,
experimentalggrains not required by the designated basie system,
like the Washington, D.C.-Parkersburg train, can be discontinued
by Amtrak at any time without ICC approval. 45 U.S.C. § 564(b)
(2).
*6Such a temporary restraining order was granted, then ex-
tended, by Chief Judge Blumenfeld in Wood v. National Railroad
Passenger Corporation, 341 F.Supp. 908 (D. Conn. 1972), but
later dissolved when Amtrak prevailed on the merits.
26
trict Courts,” possibly located in different Circuits.
If only one of these suits resulted in a preliminary in-
junction, the planned train discontinuance could be
delayed until the conflicting decisions of the various
District Courts were resolved by a Court of Appeals
or, perhaps ultimately by this Court.
It was exactly these considerations which the Solici-
tor General cited in urging this Court to grant
certiorari in the present case: |
Amtrak deficits resulting from operation of un-
economic and unneeded trains must be minimized
if Amtrak’s limited resources are to be put to the
best: possible use in the permanent improvement
of the rail passenger system. The court of
appeals’ decision, however, is likely to frustrate
that purpose.
The decision is likely to lead to a large number
of lawsuits, filed by states, localities, or private
persons or associations, designed to delay or de-
feat Amtrak’s curtailment or elimination of un-
economic or unneeded service. This is particu-
larly likely when the only alternatives are loss.of
service or subsidies from local budgets for the
service (45 U.S.C. 563(b)). Moreover, it is prob-
able that stays of the discontinuance of service
will be issued in many of those cases, thereby re-
quiring Amtrak to continue the service for the
duration of the litigation. The likely result of
27 When Amtrak made certain changes in its ‘‘Empire Service’’
between New York City and Buffalo, including the discontinuance
of certain trains between New York City and Albany, two separate
suits were brought to enjoin those changes—one by the Commis-
sioner of Transportation of the State of New York in the United
States District Court for the Northern District of New York, an-
other by the City of New York in the United States District Court
for the Southern District of New York. See Schuler et al v. Na-
tional Railroad Passenger Corporation et al., No. 72-CV-211 (N.D.
N.Y.) and City of New York v. National Railroad Passenger Cor-
poration, et al., No. 72 Civ. 1988 (S.D.N.Y.).
27.
«
permitting such suits to be maintained, therefore,
is a further drain on Amtrak’s limited resources
and their diversion into activities that are incon-
sistent with and unnecessary to the Congressional
plan to improve and rehabilitate intercity rail
passenger service. (Memorandum for the United
States, pp. 4-5).
The burden imposed upon Amtrak by even a single
preliminary injunction would not be limited merely to
the direct costs of the continued operation of the par-
ticular train involved. Substantial amounts of rolling
stock scheduled for use in other locations would be tied
up. Planned schedule changes in the operation of
other trains might well be made impossible because of
problems with connections, personnel transfers, lay-
overs, and so forth. In short, because the viability of
the overall passenger system depends on the efficient
coordination of many different services, one major
injunctive action could disrupt Amtrak’s operations as
severely as a multitude of lawsuits.
The inability of individual passengers to bring pri-
vate lawsuits would not, of course, leave these passen-
gers remedy-less or grant Amtrak freedom to disre-
gard the policies and provisions of its governing Act.
Running a national system of railroad passenger trains
is hardly an inconspicuous business, and everything
Amtrak does is closely watched and monitored by a
variety of interested governmental agencies which
can certainly be counted upon to act on their own
initiative, as well as in response to significant com-
plaints, to insure that Amtrak obeys the letter and
spirit of the law. Under the Act, the Secretary of
Transportation, the Interstate Commerce’¥ Commis-
sion, and the Corporation itself are required to submit
to the President and the Congress extensive annual re-
SIERO TARR RTE
aR Cal cae
28
ports on the state of the program, and Amtrak is also
required to submit detailed mouthly reports on its
operations. (45 U.S.C. § 548). Several Congressional
committees are keenly interested in Amtrak and have
held hearings to oversee its progress.* And the At-
torney General has established an Amtrak section
within the Department of Justice to insure that the
program is being carried out in conformity with the
terms and purposes of the Act.”
PRRs (eS et
If Amtrak attempts some major program which is
inconsistent with achievement of the desired legislative
goal, one can be sure that interest groups like the Na-
tional Association of Railroad Passengers will prompt-
ly bring the matter to Congress’ attention.” And if
such groups should believe that a specific action by
Amtrak violates the Act, they may present that con-
28 Since enactment of the Amtrak Act, the Senate Commerce
Committee and the House Interstate and Foreign Commerce Com-
mittee have each held two sets of hearings (in the spring of 1972
and the spring of 1973) to review Amtrak’s progress under the
Act. Amtrak has also been subject to annual appropriation hear-
ings in both the Senate and the House.
29 Supplemental Memorandum of National Railroad Passenger
Corporation filed in the Court of Appeals September 22, 1972
(hereafter ‘‘Supp. Memo.’’) p. 5.
30 Anthony Haswell, President of respondent National Associa-
tion of Railroad Passengers, has frequently testified before the
Ilouse Interstate and Foreign Committee and other Congressional
Committees. (SA 16). In the hearings leading to passage of tle
Amtrak Act, he testified that,
““T feel that it would be unnecessary and inconsistent to,
in effect, put a lotof teeth into the hands of some other Fed-
eral agency to make sure that the Corporation is ordered to
do the very thing that it is being brought into existence to
do. This Corporation will not have its attention diverted by
having to run freight trains or looking around for juicy in-
vestments in real estate, or whatever. Its purpose for being
£
=
aa
29
tention to the Attorney General and request that he
seek an injunction.** The Attorney General is well
suited to act as an overall ‘‘watchdog”’ of the Amtrak
program and to decide what lawsuits should be brought
and what relief sought in order to insure compliance
with the essential provisions of the legislative charter.
If, however, all actions taken or proposed by Amtrak
may be enjoined, even temporarily, at the behest of
any ‘‘aggrieved’’ passenger or other private party, it
will truly be impossible for Amtrak to carry out the
complicated and closely coordinated planning or the
innovative and responsive action on which the achieve-
ment of its Congressional mandate is premised.
Ill. THE DECISION BELOW MISAPPLIES 28 U.S.C. §1337
TO THIS CASE. ,
In the final portion of its opinion, the Court of |
Appeals finds support for its decision in a novel
theory which was never briefed or mentioned by the
parties below. Under this theory (SA 43), Section
307 of the Amtrak Act gives the Attorney General the
right to seek injunctions for violations of the Act and
for any action, practice or policy which, though not a
is to run passenger trains. Therefore, I am not concerned
about the absence of strong controls*or, directives and so forth
either in the statute itself, enforceable by the courts, or in
the hands of some other agency. I am certain, if, after the
first year, we are not getting the results that we want along
these lines, the Congress will take a very thorough look. The
statute requires that reports must be given every year to the
Congress. So, I am willing to set this thing up with positive
incentive and encouragement and let it go at least for a while.’’
(Supp. Hearings, p. 178, emphasis added.
31 Indeed, respondent’s present complaint was studied by the
Amtrak section at the Department of Justice which concluded,
after consultation with the Department of Transportation, that
the Amtrak-Central of Georgia contract does not violate the Act.
(Supp. Memo. p. 5).
4
OS “ey SE aoe te te 2 ROPERS 2gar Roe a ie CCN PN RR Me SNE ES SS EN
30
direct violation, is nonetheless inconsistent with the
purposes of the Act, while Section 1337 of Title 28,
United States Code gives all aggrieved persons the
right to sue Amtrak and the railroads for actual vio-
lations of the Act. (SA 31).
This analysis, which would make a nullity of Sec-
tion 307, ignores the well-established principle of stat-
utory construction that ‘‘specific terms prevail over
the general in the same or another statute which might
otherwise be controlling.” Fourco Glass Co. v. Trans-
mirra Prods. Corp., 353 U.S. 222, 228-29 (1957) ; see
also MacEvoy Co. v. United States, 322 U.S. 102, 107
(1944) ; Ginsberg & Sons v. Popkin, 2895 U.S. 204, 208
(1932). The specific language of Section 307 is ex-
pressly jurisdictional—‘‘the district court . . . shall
have jurisdiction . . . upon petition of the Attorney
General’’—and even fixes the venue for actions seeking
to restrain violations of the Act, ie., “the district in
which the Corporation or other person resides or may
be found.”’ Such a specific jurisdictional grant in a
particular ‘Congressional enactment must supersede
the general jurisdictional grant of 28 U.S.C. § 1337.
If this were not so, it would be meaningless for Con-
gress to insert specific jurisdictional provisions in any
4 of the vast number of statutes it has enacted under the
ecommerce clause since any allegedly aggrieved party
could ignore such specific jurisdictional limits—of
which there are many—by invoking the general juris-
diction of the District Court under Section 1337.
CoP Bit i NADL ARE BEGETS COE
But this is not the law. For example, in the recent
ease of Barlow v. Collins, 397 U.S. 159, 167 (1970),
|
3298 U.S.C. § 1337 provides that ‘‘the district courts shall have
| original jurisdiction of any civil action or proceeding arising un-
der any Act of Congress regulating commerce or protecting trade
and commerce against restraints and monopolies.’’
=
—— Beet PAS:
S me Pn Bek
So ae eS es J . ‘> reel
31
relied upon in the decision below (SA 24-25), this
Court cited Switchmen’s Union of North America v.
National Mediation Board, 320 U.S. 297 (1943) for
the proposition that ‘‘a clear command of the statute
will preclude [judicial] review, and such a command
may be inferred from its purpose.’’ Switchmen’s held
that the ‘‘broad grant of general jurisdiction”’ con-
tained in the predecessor to 28 U.S.C. § 1337 could not
be invoked ‘‘in the face of the special circumstances”
present in that case, namely, Congress’ obvious efforts
to protect the National Mediation Board’s handling of
the “‘explosive’’ problem of collective bargaining unit
certification and the ‘‘highly selective manner in which
Congress has provided for judicial review’? under
the Railway Labor Act. (320 U.S. at 300, 303, 305).
The Court’s opinion declares:
Congress for reasons of its own decided upon the
method for the protection of the ‘‘right’’ which it
created. It selected the precise machinery and
fashioned the tool which it deemed suited to that
end. Whether the imposition of judicial review
on top of the Mediation Board’s administrative
determination would strengthen that protection is
a considerable question. All constitutional ques-
tions aside, it is for Congress to determine how the
rights which it creates shall be enforced‘... In such
a case the specification of one remedy normally
excludes another. [320 U.S. at 301].
83 See also Fleischmann Distilling Corp. vy. Maier Brewing Co.,
386 U.S. 714 at 720 (1967) : ‘Where a cause of action has been ere-
ated by a statute which expressly provides the remedies for vindi-
cation of the cause, other remedies should not readily be implied.’’
Cf. Schilling v. Rogers, 363 U.S. 666 at 674 (1960) : ‘“The point is
that in this Act Congress was advertent to the role of courts and an
absence in any specific area of any kind of provision for judicial
participation strongly indicates a legislative purpose that there be
no such participation.’’
ae eee
~ 32
The Court of Appeals seeks to distinguish the
_ Switchmen’s case on the ground that there a ‘‘neutral
administrative body’’—the Mediation Board—was re-
solving disputes between competing interests. (SA
44). But the Court in Switchmen’s talked in
terms of Congressionally fashioned ‘‘machinery”’
and ‘‘tools,’’ not the existence of a particular admin-*
istrative body. It is not only courts and boards which
ean provide protection to affected individuals. As
noted above, in framing thé¥Amtrak Act Congress
established several specific procedures and provisions
to insure that the subject program would be carried
out in the best interests of the traveling public:
—The Secretary of Transportation was required to
solicit and consider the views of interested per-
sons, before finalizing his proposal for the ‘*hasie
system.” (45 U.S.C. § 522).
—The majority of Amtrak’s Board of Directors is
appointed by the, President of the United States.
(45 U.S.C. § 543).
__Amtrak is made subject to many, but not all, pro-
visions of the Interstate Commerce Act. (49
U.S.C. § 546). *
—Amtrak, the Secretary of Transportation, and the
Interstate Commerce Commission are all required
to submit to the President and the Congress
annual reports on progress made under the
Amtrak program and recommendations for the
future, and Amtrak is required to submit to the
Congress and release to the public detailed month-
ly reports on its operations. (45 U.S.C. § 548).
Accounts of the Corporation are to be audited
annually by independent certified public account-
ants and, if appropriate, the Comptroller General.
(45 U.S.C. § 644).
errr creel
2
33
—The Attorney General is empowered to seek in-
junctions for any actual or threatened violation of
the Act. (45 U.S.C. § 547).
Surely here, as in Switchmen’s, it is clear that Con-
gress has selected the machinery which it deems suited
to protection of persons affected by the Amtrak pro-
gram. To hold, in the face of these specifie safe-
guards, that any aggrieved person may also sue
Amtrak under the general jurisdictional grant of 28
U.S.C. § 1337 is to disregard entirely Congress’ efforts
to protect Amtrak from unnecessary and potentially
disruptive litigation. As the Court noted in Switch-
men’s,
Where Congress took such great pains to protect
the Mediation Board in its handling of an ex-
plosive problem, we cannot help believe that if
Congress had desired to implicate the federal
judiciary and to place on the federal courts the
burden of having the final say on any aspect of
the problem, it would have made its desire plain.
[320 U.S. at 303.] *
%* The court below also noted that Switchmen’s grew out of a
field long relegated to conciliation and mediation, while ratlroad
discontinuances have historically been subject to administrative and
judicial review. (SA 44-45) But the Amtrak Act expressly
embodies a radical departure from past practice—under 45
U.S.C. §561(a), any railroad participating in the Amtrak
program need only file a thirty-day notice to discontinue an inter-
city train, the old hearing and review procedure of Section 13a
of the Interstate Commerce Act having been there dispensed with.
In light of this sharp break with the past, it hardly seems likely
that Congress would attempt to sneak in through the back door
of Section 1337 an even broader right of judicial recourse than
had previously existed when federal courts could only review ICC
decisions in discontinuance cases on a ‘‘substantial evidence’’ basis.
State of New York vy. United States, 299 F.Supp. 989, 994 (N_D.
N.Y. 1969, Waterman J.), aff’d 396 U.S. 281 (1970).
LM PMOL I BS
34
Furthermore, even assuming that Section 1337 were
to give the District Court jurisdiction to entertain the
present suit, which we deny, the question would re-
main whether a passenger association has any enforce-
able cause of action on which to sue. As this Court
stated in Montana-Dakota Utilities Co. v. Northwestern
Public Servite Co., 341 U.S. 246, 249 (1951), ‘the
Judicial Code, in vesting jurisdiction in the District
Courts, does not create causes of action, but only con-
fers jurisdiction to adjudicate those arising from other
sourees....’’ Cf. Bell v. Hood, 327 U.S. 678 (1946).
Section 1337 of the Judicial Code vests jurisdiction
in the District Courts only for suits ‘‘arising under any
Act of Congress regulating commerce.” Thus, we are
necessarily remanded to the Amtrak Act to see if that
Act gives rise to any such private cause of action as
the National Association of Railroad Passengers here
asserts. Clearly there is no section of the Act which
does so. Although Congress was aware of the kind of
complaints passengers could be expected to have in
regard to Amtrak operations,” it did not set forth in
the Act any private right of action for raiJroad pass--
engers in particular or ‘aggrieved parties”? in general.
Congress did, however, confer limited rights of action
on two specific groups—employees and their repre-
sentatives in eases involving labor agreements (45
U.S.C. § 547) and railroads seeking to recover com-
pensation for the provision of facilities or services
(45 U.S.C. § 562). It also vested the Attorney General
with the general power to enforce the terms and pur-
poses of the Act.
33 See, for example, S. Rep. 91-765, p. 4.
35
The conelusion of the court below that private suits
are necessary to insure realization of the goals of the
Amtrak Act rests on the unsupported premise that the
Attorney General cannot or will not act aggressively
and effectively to enforce the provisions of the Act.
This premise is wholly unwarranted.** As noted above,
the Attorney General has established an Amtrak sec-
tion within the Department of Justice. In conjunction
with the Department of Transportation, that section
has reviewed various complaints about alleged viola-
tions of the Act, including those of the respondent. The
Attorney General’s ability to exercise his informed dis-
cretion in deciding which situations warrant judicial
intervention is, as Secretary Volpe suggested to Con-
°® Cases such as J. I. Case Co. v. Borak, 377 US. 426 (1964), and
Allen v. State Board of Elections, 393 U.S. 544 (1969), cited by the
Court of Appeals for implying such a private right of action here
are inapposite. Unlike the Securities Exchange Act of 1934 or the
Voting Rights Act of 1965, the Amtrak Act does not seek to estab-
lish enforceable individual rights in a broad class of persons but at-
tempts to save a threatened national resource for use by the public
in general. Unlike the statutes in Borak and Allen, the Amtrak
Act is not ambiguous; it clearly defines who may bring enforcement
actions— the Attorney General. And the scope of possible viola-
tions is well within the Attorney General’s enforcement power—
while there may annually be hundreds or thousands of Security
Act violations or voting frauds throughout the country, possible
violations of the Amtrak statute are not so numerous as to suggest
that the Attorney General cannot monitor the way Amtrak is con-
ducting its business and bring suits therefor if necessary. In such
circumstances, no private right of action should be implied. Cal-
houn v. Harvey, 379 U.S. 184 (1964) ; Montana-Dakota Utilities
Co. v. Northwest Public Service Co.. 341 U.S. 246 (1951): B.F.
Goodrich Co. v. Northwestern Industries, I ne., 424 F.2d 1349 (3rd
Cir, 1970), cert. denied, 400 U.S. 829: Blaney v. Florida National
Bank, 357 F.2d 27 (5th Cir. 1966) ; Noel Estate, Inc. v. Commercial
National Bank in Shreveport, 232 F.2d 483 (5th Cir. 1956).
36
gress," one excellent reason for limiting the power to
bring suit to the Attorney General.
In enacting the sanction section of the Communica-
tions Satellite Act of 1962 (47 U.S.C. § 743), on which
Section 307 of the Amtrak Act is closely patterned,
Congress was confronted with exactly the same argu-
ment—that the Attorney General would not adequately
police the actions of the proposed Comsat corporation.
Senator Hubert Humphrey and Attorney General
Robert Kennedy both responded that legislation of this
kind must be enacted on the assumption that the
Attorney General will take appropriate action to safe-
guard the public interest," and Congress enacted the
section ® in language virtually identical to that of
Section 307.
87 See p. 15, supra.
38 108 Cong. Ree. p. 16697, August 16, 1962.
39 47 U.S.C. § 743 provides as follows:
(a) Petition of Attorney General for equitable relief; venue.
If the corporation created pursuant to this chapter shall engage
in or adhere to any action, practices, or policies inconsistent with
the policy and purposes declared in section 701 of this title, or if
the corporation or any other person shall violate any provision of
this chapter, or shall obstruct or interfere with any activities au-
thorized by this chapter, or shall refuse, fajl, or neglect to dis-
charge his duties and responsibilities under fits chapter, or shall
threaten any such violation, obstruction, interference, refusal, fail-
ure, or neglect, the district court of the United States for any
district in which such corporation or other person resides or may
be found shall have jurisdiction, except as otherwise prohibited
by law, upon petition of the Attorney General of the United States,
to grant such equitable relief as may be necessary or appropriate to
prevent or terminate such conduct or threat.
\
' 37
Certainly the present record provides no basis for.
asserting that the Attorney General cannot or will not
take appropriate action to terminate actual or threat-
ened violations of the Amtrak Act. There is thus no
justification for concluding that private parties must
be able to sue under 28 U.S.C. § 1337 in order to insure
compliance with the terms and purposes of the Act.
CONCLUSION
The Amtrak Act was designed by Congress to deal
with an emergency situation in the nation’s railroad
passenger service. As noted by the Court of Appeals
for the Third Circuit,
It has become painfully apparent that the condi-
tion of the nation’s railroads is eroding daily.
Services are being cut back, existing services are
deteriorating, and the availability of working cap-
ital has become critically limited. Reacting to
an ever worsening rail passenger crisis, Congress
enacted the Rail Passenger Service Act of 1970,
supra .... The legislative history of the Act
and the findings therein make clear that Congress
regarded as imperative the timely im plementation
of the Act. In Re Penn Central Transportation
Co., 457 F.2d 381, 386 (3rd Cir. 1972), emphasis
added.
(b) Punishment, liability or sanction under other provisions.
Nothing contained in this section shall be construed as relieving
any person of any punishment, liability, or sanction which may
be imposed otherwise than under this chapter.
(ce) Duty of compliance with provisions of chapter and rules and
regulations.
It shall be the duty of the corporation and all communications
common carriers to comply, insofar as applicable, with all provi-
sions of this chapter and all rules and regulations promulgated
thereunder.
RD ER PIES BABS BE FE EE Ee SE PR I ON Ie an ee
38
The decision below holding that all aggrieved per-
sons may sue Amtrak or any railroad in the District
Courts to enjoin supposed violations of the Act mis-
construes the language of the Act and its legislative
history and threatens to severely frustrate Amtrak’s
efforts to achieve the important purpose for which
it was created. For these reasons, petitioners respect-
fully submit that the decision below should be re-
versed.
Respectfully submitted,
Wru1AM O. BITTMAN
Curtis E. Von KANN
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
Attorneys for Petitioner National
Railroad Passenger Corporation
CHARLES A. HorsKY
Wiuu1aM D. Iverson
888 16th Street, N.W.
Washington, D.C. 20006
Attorneys for Petitioners Central
of Georgia Railway Company
and Southern Railway Company
Of Counsel:
Hocan & HARTSON
CovINGTON & BURLING
ey aD a
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