Brief for Respondent — National Railroad Passenger Corporation v. National Assn. of Railroad Passengers

: Supreme Court, U. §.

t LIBRARY FILED

SUPREME COURT, U. 8S. 7 SEP 4 1973

‘ MISUACLRCDAM, dR. CLERK

: IN THE _

Supreme Court of the United States

October Term, 1973

No. 72—1289

NATIONAL RAILROAD PASSENGER CORPORATION, —_“

CENTRAL OF GEORGIA RAILWAY COMPANY,

AND SOUTHERN RAILWAY COMPANY,

Petitioners,

v.

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 RESPONDENT

GORDON P. MacDOUGALL

705 Ring Building

1200 18th Street, N.W.

Washington, D.C. 20036

Attorney for Respondent,

National Association of

Railroad Passengers

September, 1973

BEACON PRINTING - 293-7160 - Washington, D.C. 20036

Page

OPINIONS BELOW .................. ]

JURISDICTION .................0.0.. 2

QUESTION PRESENTED ............... 2

STATUTEINVOLVED ................ 2

STATEMENT ...................008. 3

Rail Passenger Service Actof 1970 ........ 6

Discontinuances under the Act .......... 9

SUMMARY OF ARGUMENT ............. 12

ARGUMENT .................0..000. 13

Il THE STATUTORY LANGUAGE AND

LEGISLATIVE HISTORY OF SECTION 307

SUPPORT ACTIONS AGAINST AMTRAK

ORARAILROAD ............. 13

A. Statutory Language .......... 13

B. Legislative History ........... 14

1. Role of Executive Branch in Final

re 15

2. Role of Secretary of Transportation

in Administration of the Act ... 16

3. Reportsto Congress ... : ae Mo 18

4. Absence of Exclusionary Terms 18

II. ACCESS TO THE COURTS BY THE PUBLIC

WOULD ASSIST IMPLEMENTATION OF

THEACT .................2. 20

Ill. THE DECISION BELOW HAS A PROPER

JURISDICTIONAL BASIS ......... 24

CONCLUSION ...............0...0.. 28

APPENDIX. ..............00800040. 29

TABLE OF AUTHORITIES

Page

Cases:

Adequacy of Intercity Rail Passenger Service (pending),

Ex Parte No. 277 (Sub-No.1) . 2... ..---.- 17

Allen v. State Board of Elections, 393 U.S. 566 (1969) . 21, 27

Baker, et al.- Compensation for Passenger Service (F.D.

oe ) rr rear 17

Baker v. Pennsylvania, 400 U.S. 875 (1970) and 401

US SORCISTIS gk eee wees 3,8

Calhoun v. Harvey, 379 U.S. 134 (1964) . 2.2... . fh

City of Chicago v. United States, 396 U.S. 162 (1969) —-:19, 21

Commonwealth of Pennsylvania, et al. v. Baker, et al.,

No. 71-2301 (E.D.-Pa.) 2... 2... 2. 2. ee ee 11

Congress of Railway Unions v. Hodgson, 326 F.Supp.

GECIRC. F9T) ce eee Hee ee 4,5,15

Determination of Compensation Under Section 402(a)

of the Rail Passenger Service Act of 1970, F.D. No.

17353 (Sub-No. 1) (Mimeo, June 22,1973 .... 17

Determination of Cost Reimbursement Under Section

405(f) of the Rail Passenger Service Act, as

amended, F.D. No. 27194 (Mimeo, Dec. 18, 1972) 17

Fong Hook Mak v. Immigration & Naturalization Serv.,

435 F.2d 728 (2d Cir. 1970) 2.2... 2. ee 22

Illinois Commerce Commission v. Chicago & E.I.R. Co.,

400 U.S.987(1971) 2... 2... 2 eee ee ee 3

J.1. Case Co. v. Borak, 377 U.S. 426 (1964) 2.2... . 27

Leedom v. Kyne, 358 U.S. 184 (1958) ......... 26

Littell v. Morton, 445 F.2d 1207 (4th Cir. 1971)... 22

Losses Under the Rail Passenger Service Act of 1970,

343 1.C.C. 379 (1972) 2.2. ee ee ee ee 17

National Railroad Passenger Corporation v. Harris, 354

F.Supp. 87 (W.D. Okla. 1972) 2... ..0..2.2.2. 3

National Railroad Passenger Corporation v. Miller, 358

F.Supp. 1321 (D. Kans. 1973) ..........

National Railroad Passenger Corporation

(Amtrak )— Discontinuance of Trains Nos. 30 & 31,

530 & 531-—Between New York, New

York/Washington, D.C., and Kansas City, Missouri

(National Limited), F.D. No. 27436 .......

National Railroad Passenger Corporation

(Amtrak)—Discontinuance of Trains No. 52 & 53

Between Chicago and St. Petersburg/Miami,

Florida (The Floridian), F.D. No. 27437 .....

National Railroad Passenger Corporation

(Amtrak)—Discontinuance of Trains Nos. 98 and

99 Between Newport News and Richmond,

Virginia (The George Washington/James Whitcomb

Riley), F.D. No. 27438 2... .......2...

Penn Central Transportation Co. Discontinuance, 338

1.C.C. 380(1970) .........-.22.2.2.24.

Penn Central Transportation Co.-Status of Passenger

Serv., 338 1.C.C. 621 and 338 LC.C. 690 (1971).

Pennsylvania v. Baker, 405 U.S.918 (1972) ......

People of the State of Illinois v. Chicago.& North

Western Tr. Co. (N.D. IIL-E.D. No. 71 C 1009)

Potomac Passengers Association v. Chesapeake & Ohio

Ry. Co., 475 F.2d 325 (D.C. Cir.) 2... 2...

Powell v. Washington Post Co., 267 F.2d 651 (D.C.

Cir.), cert. den. 360 U.S. 930 (1959) 2... ....

Quincy College & Sem. Corp. v. Burlington Northern,

Inc., 328 F.Supp. 808 (N.D. Ill. 1971), aff'd 405

U.S. 906 (1972) 2 2. 2 ee eee.

Stephan v. United States, 319 U.S. 423 (1943)

Switchmen’s Union v. Board, 320 U.S. 297 (1943) — 13, 25,

United States v. Welden, 377 U.S. 95 (1964) .....

Wood v. National Railroad Passenger Corp., 341 F.Supp.

10,

11

11

908 (D. Conn. 1972) 2... 2.2... . 5, 11, 15, 19, 22

OAT SELES

iv

Page

Statutes:

Communications Satellite Act of 1962, Section 403, 47

6 Edy: arr a er ae ee ae 23, 27

Georgia Code, Section 93-307 ............. 26

Georgia Public Service Commission Railroad Passenger

ke | 26

Interstate Commerce Act, Section 13a, 49 U.S.C. 13a 6,9

. 11,19

Judicial Code:

yi 8. toe yo dh re 2

y BADD ode i Sy Se a 24, 25

Rail Passenger Service Act of 1970:

Section 101,45 U.S. 501 ........... 3, 14, 27

Section 201,45 U.S.C. S2P 2.065 sce us 9

Section 202, 45. U.S.C.522 ......... 9, 18, 19, 26

Section 306, 45 U.S.C. 546 2... .....48.. 26

Section 307, 45 U.S.C. 547 2... ......... passim

Section 308, 45 U.S.C. 548 ............ 18

Section 401,45 U.S.C.561 ............ 9,17

Section 402, 45 U.S.C.562 ............ 17

Section 403, 45 U.S.C. 563. ........... 9,11,19

Section 404, 45 U.S.C. 564 ......... 4,9, 11,

17, 19, 20, 26

Section 405, 45 U.S.C.565 ............ 17

Section 602, 45 U.S.C.602 ............ 17

Section 702, 45 U.S.C.622 ............ 17

Section 801, 45 U.S.C.641 ............ 17

Section 802, 45 U.S.C.642 ............ 4,8

Section 805, 45 U.S.C.645 2... ......... 17

Section 806, 45 U.S.C. 646 ............ 18

§

Legislative:

Hearings on H.R. 709, Review and Refunding of Rail

Passenger Service Act, before U.S. House

Subcommittee on Transportation & Aeronautics,

Committee on Interstate & Foreign Commerce,

or. NO SSSSCISTI) ck ce ec es

Hearings on Administration’s Request for Additional

Funding for Amtrak, U.S. Senate Subcommittee

on Surface Transportation, Committee on

Commerce, Ser. No. 92-29 (1971) 2. 2... 10

Hearings on Second Supplemental Appropriations for

Fiscal Year 1971, U.S. Senate Subcommittee,

Committee on Appropriations (1971) 2. .....

Hearings on H.R. 8351, Financial Assistance to Amtrak,

before U.S. House Subcommittee on

Transportation & Aeronautics, Committee on

Interstate & Foreign Commerce, Ser. No. 93-22

(1973) ......2..2.082.2.20202200%

Supplemental Hearings on H.R. 17849 & S. 3706,

Passenger Train Service, before U.S. House

Subcommittee on Transportation & Aeronautics,

Committee on Interstate & Foreign Commerce,

Ser. No.91-62(1970) 2... 2.22.2. 7,14

House Report No. 91-1580, Passenger Train Service,

9st Cong., 2d Sess. (1970) . 2.2.2... 0.0222.

Senate Report No. 91-765, Rail Passenger Service Act of

1970, 91st Cong., 2d Sess. (1970) 2 2 2

House Report No. 92-905, Review & Refunding of Rail

Passenger Service Act, 92nd Cong., 2d Sess. (1972) ..

House Report No. 92-1111, Conference Rept. on H. R.

11417, 92nd Cong., 2d Sess. (1972) 222.20...

Miscellaneous:

108 Cong. Rec. (1962) 2.2... 020 2,

1970 U.S. Code Cong. & Adm, News (1970) . 2.2...

36 Fed. Reg. 5219(1970) 2.2.2...

10

. 18, 26

10, 11

18, 24

, 16, 23

s+4088

IN THE

Supreme Court of the United States

October Term, 1973

No. 72—1289

NATIONAL RAILROAD PASSENGER CORPORATION,

CENTRAL OF GEORGIA RAILWAY COMPANY,

AND SOUTHERN RAILWAY COMPANY,

Petitioners,

v.

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 RESPONDENT

OPINIONS BELOW

The order of the district court is unreported (SA 19). The

opinion of the Court of Appeals (SA 20-54), appears at 475

F.2d 325.

ee

peteeeeeen

JURISDICTION

The judgment of the Court of Appeals (SA 55-56) was

entered on January 5, 1973, as amended January 10, 1973. The

mandate has been stayed by the Court of Appeals (SA 57)

pending disposition of proceedings in this Court. F.R. App. P.

41(b).

Certiorari was granted on May 14, 1973. 411 U.S. 981.

The jurisdiction of this Court is conferred by 28 U.S.C.

1254(1).

QUESTION PRESENTED

Whether injured and aggrieved parties may maintain

actions to enjoin violations of the Amtrak Act, or whether

Section 307 of the Act, 45 U.S.C. 547, bars suits by all parties

other than the Attorney General of the United States, railroad

employees and railroad employee representatives.

STATUTE INVOLVED

The statute involved is Section 307 of Rail Passenger

Service Act of 1970, 84 Stat. 1333. The section is set forth

below. The title, as enacted, is at a variance with that shown in

the United States Code, and in petitioners’ brief.!

SEC. 307. 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

Act, obstructs or interferes with any activities

authorized by this Act, refuses, fails, or neglects to

discharge its duties and responsibilities under this

Act, or threatens any such violation, obstruction,

interference, refusal, failure, or neglect, the district

court of the United States for any district in which

'Pet. Br., pp. 2-3. Cf. 1970 U.S. Code Cong. & Adm. News 1552; 45

U.S.C. 547 (1970 ed.) MA 1 U.S.C. 204(a); United States v. Welden,

377 U.S. 95, 98-99, fn. 4 (1964); Stephan v. United States, 319 U.S. 423,

426 (1943).

cI

the 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 or, in a case involving a

labor agreement, upon petition of any employee

affected thereby, including duly authorized employee

representatives, to grant such equitable relief as may

be necessary or appropriate to prevent or terminate

any violation, conduct, or threat.

(b) 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 Act.

eee te eke, Mee

STATEMENT

This is the first railroad passenger train discontinuance to

be accorded plenary consideration since the October 30, 1970

enactment of Rail Passenger Service Act of 1970 (“‘Act”),? and

the heave train discontinuances which followed on May 1, f

1971. e

The action was brought by National Association of

PUES Ih Col

|

Fe

2P_L. 91-518, 84 Stat. 1327, 45 US.C. S01.

3The constitutionality of the Act in certain respects was sustained in

Quincy College & Sem. Corp. v. Burlington Northern, Inc., 328 F.Supp.

808 (N.D. Ill. 1971), aff'd per curiam 405 U.S. 906 (1972). Certain

transitional matters were dealt with in /ilinois Commerce Commission v.

Chicago & E.I.R. Co., 400 U.S. 987 (1971); Baker v. Pennsylvania, 400

U.S. 875 and 401 U.S. 902 (1971); Pennsylvania v. Baker, 405 U.S. 918

(1972). The matter of liquor sales aboard Amtrak trains is before this

Court in No. 73-128, National Railroad Passenger Corp. v. Miller, reported

below at 358 F.Supp. 1321 (D. Kans. 1973). Cf. National Railroad

Passenger Corporation v. Harris, 354 F Supp. 887 (W.D. Okla. 1972).

CLO LISTING NG a OE GRO ELE MORAN CO IBEIS

|

4

Railroad Passengers,* respondent herein, to enjoin the

discontinuance by Central of Georgia Railway Company of its

‘‘Nancy Hanks” passenger train which operated between

Savannah and Atlanta, Ga., and two other trains which operated

between Albany, Ga. and Birmingham, Ala., on the ground that

the proposed discontinuances on May 1, 1971 would violate

sections 404(a) and 802 of the Act.°

While the action was pending in the district court, another

judge of the same court on April 30, 1971, ruled that only the

Attorney General and railroad labor have standing to sue over

violations of the Act. Congress of Railway Unions v. Hodgson,

4National Association of Railroad Passengers is a national

organization of railroad patrons. No question of its standing to bring the

action from the standpoint of its members being sufficiently adversely

affected or aggrieved was made at any point below. The organization is the

principal spokesman for railroad passengers throughout the nation.

545 USC. $64(a) and 642. The Court of Appeals characterized the

action as follows (SA23): Section 802 provides that ‘tno railroad may

discontinue any intercity rail passenger service whatsoever other than in

accordance with the provisions of this chapter* * *.” Section 404(a) bars a

railroad from discontinuing any of its intercity passenger trains prior to

January 1, 1975, unless that railroad has entered into a contract with

Amtrak pursuant to Section 401(aX{1) of the Act, 45 U.S.C. 561(a)(1).

The latter provision authorizes Amtrak to contract with a railroad “to

relieve the railroad * * * of its entire responsibility for the provision of

intercity rail passenger service”. Although Central has entered into a

contract with appellee Amtrak to relieve Central of its entire responsibility

for intercity rail passenger service, appellant contends that Central and

Amtrak have not complied with Section 401(aX 1) because Central is but a

subsidiary of appellee Southern Railway Company (Southern), which has

not entered into a contract with Amtrak. In appellant’s view, then, the Act

requires that Amtrak either enter into a contract to relieve Souther of its

entire responsibility for intercity rail passenger service or enter into no

contract at all. After oral argument on appellant’s motion for a temporary

restraining order, the District Court dismissed the action on the ground

that appellant did not have standing to maintain this action under Section

307 of the Act.

326 F.Supp. 68 (D.C. 1971). Five days later the district court in ©

the instant proceeding issued a brief order dismissing the ©

complaint on the ground “that the plaintiff does not (have) ©

standing to maintain this action under section 307 of the Rail ©

Passenger (Service) Act of 1970.” (SA 19).

The Court of Appeals consolidated the instant appeal with }

that taken by one of the parties in Congress of Railway Unions, ©

supra. The Court of Appeals on January 5, 1973 reversed the 4

district courts in both instances.® In a comprehensive 34-page —

opinion, the Court of Appeals unanimously ruled that the fine ©

distinctions among the doctrines of standing, jurisdiction, 3

reviewability, and causes of action often pose thorny problems ©

for the law, but that analysis of all these doctrines lead to the 4

same conclusion—adjudication of the merits. (SA 24).

The decision of the Court of Appeals is consistent with a

that of the U.S. District Court for the District of Connecticut. ©

Wood v. National Railroad Passenger Corp., 341 F.Supp. 908 |

(D. Conn. 1972)

Petitioners, Central of Georgia Railway Company,

Southern Railway Company, and Amtrak, applied for a writ of |

certiorari from this Court. The United States of America filed

an Amicus Curiae brief in support of granting the writ, stating

that the decision of the Court of Appeals is likely to lead to a

6A petition for writ of certiorari was not sought in the companion

case. Potomac Passengers Association v. Chesapeake & Ohio Ry. Co. The

question there involved whether certain train service constituted

“commuter or other short- haul” rather than “intercity rail passenger

service”. A similar question is pending in other courts. In one of these,

People of the State of Illinois v. Chicago & North Westem Tr. Co. (N.D.

Ill.-E.D. No. 71 C 1009), the court has ruled that the resolution of the

“intercity” versus “commuter” question may depend upon standing of the

parties: “... the I.C.C.’s holding regarding this case should be forthcoming

at about the same time that the U.S. Supreme Court will rule in the

Central of Georgia case, supra, whether someone other than the US.

Attorney General can bring a suit pursuant to Section 307 of the Amtrak

Act, 45 U.S.C. 547, an issue also in our case. If indeed the Supreme Court

rules that private parties are barred by Section 307 from bringing suit then

this entire proceeding will be rendered moot.” (Marovitz, J., Memorandum

Opinion, dated July 13, 1973.)

Be

&

:

ee

“SANCTION SOL pan DO Be Pm

6

large number of lawsuits designed to delay or defeat Amtrak’s

curtailment or elimination of scrvice, particularly “in view of

the approaching substantial train discontinuances expected after

July 1, 1973”. (U.S.A. Memo, p. 6).

This Court granted a writ of certiorari on May 14, 1973.

411 U.S. 981.

Rail Passenger Service Act of 1970

Various committees of the U.S. Congress held extensive

hearings during the 1959-70 period concerning railroad

passenger train service. Transportation Act of 1958,’ which

enacted section 13a of the Interstate Commerce Act, 49 U.S.C.

13a, greatly liberalized train discontinuance procedures by

which railroads could terminate passenger service. One result

was considerable dissatisfaction with the rulings of the I.C.C. on

the part of members of the Congress, and a move toward new

legislation.®

772 Stat. 571.

8For example, see: Hearings on S. 1331, Amendments to the

Transportation Act of 1958 (Train Discontinuance), before the U:S.

Senate Surface Transportation Subcommittee (1959); Hearing on S. 1161,

Train Discontinuances, before the U.S. Senate Committee on Commerce,

Ser. 63 (1963); Hearings on S. 325, The Crisis in Passenger Train Service,

before the U.S. Senate Committee on Commerce, Ser. 89-11 (1965);

Hearing on S. Res. 284, Passenger Train Discontinuances, before the US.

Senate Surface Transportation Subcommittee, Ser. 89-76 (1966); Hearings

on H.R. 7004, Passenger Train Abandonment, before the U.S. House

Subcommittee on Transportation and Aeronautics, Ser. 90-4 (1967);

Hearings on S. 1175, Passenger Train Service, before the U.S. Senate

Subcommittee on Surface Transportation, Ser. 90-17 (1967); Hearings on

H.R. 18212, Railroad Passenger Train Service, before the U.S. Senate

Subcommittee on Transportation and Aeronautics, Ser. 90-46 (1968);

Hearing on S. 2711, Passenger Train Discontinuance—30-Day Notice,

before the U.S. House Committee on Interstate and Foreign Commerce,

Ser. 90-23 (1968); Hearings on S. 3861, Study of Essential Railroad

Passenger Service, before the U.S. Senate Subcommittee on Surface

Transportation, Ser. 90-81 (1968); Hearings on S. 674, Passenger Train

Service Legislation, before the U.S. Senate Subcommittee on Surface

Transportation, Ser. 91-37 (1969); Hearings on H.R. 12084, Passenger

Train Service, before the U.S. House Subcommittee on Transportation and

Aeronautics, Ser. 91-31 (1969).

The legislation ultimately adopted originated in 1970 as

the individual views of Senator Prouty, appended to a

committee report of the U.S. Senate Committee on Commerce,

which report had recommended a different bill.? The only

hearings on the specific bill that became law were held briefly

by the U.S. House Subcommittee on Transportation &

Aeronautics of the Committee on Interstate & Foreign

Commerce, on June 2, 3, and 4, 1970.'9

The impetus for legislation quickened from a rapidly ©

deteriorating situation, whereby the I.C.C. was approving ©

numerous train discontinuances. Pending during the summer of

1970 was Penn Central’s proposal to terminate virtually all of

its long-distance east-west passenger train service, extending ©

from St. Louis, Mo. and Chicago, III. on the west, to Boston,

Mass., New York, N.Y. and Washington, D.C. on the east, ©

embracing such intermediate points as Indianapolis, Ind., ©

Cincinnati and Cleveland, Ohio, Detroit, Mich.. Pittsburgh, Pa., ©

and Buffalo, N.Y. The I.C.C. conducted hearings at 35 points :

along Penn Central’s lines. In a lengthy report served September

30, 1970, the agency approved a substantial cut-back in Penn

Central’s service, and indicated that further reductions might be

forthcoming. Penn Central Transportation Co. Discontinuance,

338 I.C.C. 380.

The U.S. House Committee on Interstate & Foreign

Commerce reported H.R. 17849 on October 7, 1970.!! The bill

was rushed through and passed by both the House and Senate

ANE RA REE SG Lp LAT NRT T TE LAT PO OTE

Rept. No. 91-765, 91st Cong., 2d Sess. (1970).

10 Supplemental Hearings on H.R. 17849, Ser. No. 91-62 (1970).

"IH. Rept. No. 91-1580, 91st Cong., 2d Sess. (1970). ;

remem

on October 14, 1970, the final day before adjournment, and

was approved October 30, 1970 by the President. !2

The purpose of H.R. 17849 was stated in the committee

report:

PURPOSE

The basic purpose of this bill is to prevent the

complete abandonment of intercity rail passenger

service and to preserve a minimum of such service

along specific corridors. This is to be accomplished by

creating a National Railroad Passenger Corporation

which would be responsible for providing all intercity

rail passenger service. All railroads would be eligible

to join the corporation, and those which join would

be relieved of further responsibility to provide

passenger service. The corporation would be expected

to revitalize rail passenger service in the expectation

that the rendering of such service along certain

corridors can be made a profitable commercial

undertaking, particularly with new equipment or

advanced vehicles. The overriding purpose of this

legislation is to preserve and promote intercity rail

passenger service and it is neither a duplication of,

nor.a substitute for, any other program (private or

Federal) directed toward the urgently needed

solutions of surface transportation problems.

12The Penn Central discontinuances were temporarily stayed by a

three-judge district court in early October, 1970, and the action thereafter

dismissed as moot after the President signed the legislation on October 30,

1970, for the new Act had an effect on pending proceedings in courts. 45

U.S.C. 642. See: Baker v. Pennsylvania, 400 U.S. 875 and 401 U.S. 902.

9

Rail Passenger Service Act of 1970 placed an immediate)

moratorium on all train discontinuances until May 1, 1971 at

the earliest. The Act authorized creation of a National Railroad

Passenger Corporation (Amtrak), to provide intercity rail

passenger service. On or before May 1, 1971, and between

March 1, 1973 and January 1, 1975, Amtrak is authorized to

tender a contract to a railroad to relieve the latter of its entire

responsibility for the provision of intercity rail passenger

service. Railroads contracting with Amtrak were authorized to

discontinue all of their intercity rail passenger service on May |,

1971, subject to giving the public 30 days’ notice.!3 Railroads

electing not to contract with Amtrak may not discontinue any

intercity service until January 1, 1975, and may do s0

thereafter under the provisions of section 13a of the Interstate

Commerce Act.!4

The Act provides that Amtrak until July 1, 1973 must

provide a minimum level of service, prescribed within 90 days —

of enactment by the U.S. Secretary of Transportation, and

known as the “basic system’’.!5 However, Amtrak is authorized ©

to provide service in excess of that prescribed for the basic ©

system on its own initiative. Any such additional service :

provided for a continuous period of two years shall be

designated part of the basic system.!6 i

Discontinuances under the Act

TALL OV OIC mY

The U.S. Secretary of Transportation on January 28, —

1971, issued his final report designating the basic system, which :

specified those points between which intercity passenger trains E

shall be operated. 45 U.S.C. 521, 522. The Secretary specified f

21 city-pairs. The level of service is to be at least one daily train ‘

j

r

,

1345 U.S.C. 561.

1445 U.S.C. 564.

1545 U.S.C. 521, 522, 564(b)( 1).

1645 U.S.C. 563(a).

10

in each direction—a total of 42 trains—unless patronage and

other factors indicate that daily frequency is not warranted.'7

_ Amtrak was incorporated on March 30, 1971.!8 Most

railroads opted to contract with Amtrak, and they posted

notices proposing to discontinue some 527 intercity trains

effective May 1, 1971.'9 This large number of trains came as a

surprise to many, as it was generally understood that there were

far fewer intercity trains in existence. Amtrak’s Chairman,

David W. Kendall, testified before the U.S. Senate

Subcommittee of the Committee on Appropriations on April 6,

1971, that there were 360 intercity trains operated in 1970.2°

Secretary of Transportation John A. Volpe testified before the

U.S. House Committee on Interstate & Foreign Commerce on

April a 1971, that there were 366 trains in operation in

1970.

Various actions were instituted, predicated upon

allegations that the railroads had included numerous

“commuter” trains in their “intercity” discontinuance notices

to become effective May 1, 1971.2?

| '7The full text of the report is reproduced in Hearings on H.R. 709,

_ Review and Refunding of Rail Passenger Service Act, before U.S. House

Subcommittee on Transportation & Aeronautics, Ser. No. 92-53, at pp.

149-244 (1971).

18The articles of incorporation and by-laws as of May 4, 1971, are

reproduced in Hearings on Administration's Request for Additional

Funding for Amtrak, U.S. Senate Subcommittee on Surface

Transportation, Ser. No. 92-29, at pp. 377-423 (1971). Penn Central owns

approximately 5S percent of Amtrak’s common stock. Id. at pp. 588-90.

19 ibid. at p. 549.

20Hearings on Second Supplemental Appropriations for Fiscal Y ear

1971, US. Senate Subcommittee of the Committee on Appropriations, °

203 (1971).

21 Footnote 17, supra, at p. 145.

22Some of these are set forth in the opinion below. (SA 54, fn. 27).

Upon reference from a district court, the 1.C.C. found that 44 passenger

trains and 7 buses, contained in Penn Central’s May 1, 1971 notice, did

not constitute “intercity rail passenger service”. Penn Central Transp. Co.-

Status of Passenger Serv., 338 1.C.C. 621 and 338 1.C.C. 690 (1971). The

U.S. Attorney General is resisting the implementation of this decision on

Amtrak commenced operations on May 1, 1971 with 184

trains, considerably in excess of the 42 trains prescribed for the

- basic system.?3 These additional trains could be discontinued at

any time by Amtrak, and some, in fact, were discontinued.24

45 U.S.C. 564(b)(2). However, those additional trains which —

have been contin y operated for a two year period become

part of the basic em pursuant to the Act, 45 U.S.C. 563(a),

and a basic system train cannot be discontinued by Amtrak —

prior to July 1, 1973. Any discontinuance by Amtrak of basic —

system service must be according to the procedures of section

13a of the Interstate Commerce Act. 45 U.S.C.,564(b).

Amtrak on July 2, 1973 filed section 13a(1) notices with —

the Interstate Commerce Commission, proposing to discontinue |

its important Chicago-Florida, New York-Kansas City, and —

Richmond-Newport News trains. The LC.C. instituted an

investigation into the proposed train discontinuances, and has |

ordered continued operation pending hearing and decision in its _

investigations.25 Amtrak, on August 31, 1973, withdrew the

notices for its New York-Kansas City and Chicago- Florida

trains.

The initial three years since enactment of Rail Passenger |

Service Act of 1970 thus far have witnessed an overall decline in

the ground of standing. No. 71-2301 (E.D. Pa.), Commonwealth of |

Pennsylvania, et al. v. Baker, et al. ,

23 Hearings on Second Supplemental Appropriations for Fiscal Year

1971, US. Senate Subcommittee of the Committee on Appropriations, —

168-69 (1971). |

24The situation in Wood v. National Railroad Passenger Corp., 341 |

F.Supp. 908 (D. Conn. 1972), is one such example. |

2SFinance Docket «No. 27436, National Railroad Passenger

Corporation (Amtrak )—Discontinuance of Trains Nos. 30 & 31, 530 &

531—Between New York, New York/ Washington, D.C., and Kansas City,

Missouri (National Limited); Finance Docket No. 27437, National

Railroad Passenger Corporation (Amtrak )— Discontinuance of Trains Nos.

52 & 53 Between Chicago and St. Petersburg/Miami, Florida (The

Floridian); and Finance Docket No. 27438, National Railroad Passenger

Corporation (Amtrak )— Discontinuance of Train Nos. 98 and 99 Between

Newport News and Richmond, Virginia, (The George Washington/ James

Whitcomb Riley). The first two orders were entered July 20, 1973, and

the third order was entered August 9, 1973.

0) it

12

the amount of train service available to the public.

SUMMARY OF ARGUMENT

The Court of Appeals sustained the right of respondent

Passenger association to sue to prevent the discontinuance of

particular train service alleged to be in violation of Rail

Passenger Service Act of 1970. We rely upon the exhaustive

opinion of the Court of Appeals, without again tracking all of

the reasons set forth in its brilliant 34-page opinion as to why

standing to sue should be accorded. This answering brief is

primarily devoted to new contentions advanced by Amtrak and

the railroads in this Court.

Rail Passenger Service Act of 1970 was rushed through the

U.S. Congress in the final days before adjournment-— passing

both chambers on the final day—in the face of threatened

massive passenger train discontinuances by the nation’s largest

railroad which had been approved by the I.C.C. and which were

likely to be implementéd immediately.

Section 307 of the Act says that the Attorney General,

employees and labor representatives, may sue Amtrak or any

railroad to enjoin actual or threatened violation of the “policies

and purposes” of the Act, but section 307 does not say that

only these parties may bring suit to enjoin a violation of the

specific provisions of the statute.

1. The statutory language was not an attempt to bar other

parties from access to the courts, but merely to authorize the

Attorney General to enforce certain rights which otherwise

might be private rights. With respect to railway labor, Congress

may have intended special standing since railway labor was not

in the primary class to be protected by the Act.

2. The legislative history sustains the right of review.

Contrary to the constrained interpretation of the role and

function of the U.S. Secretary of Transportation in drafting the

legislation, advanced by petitioners, the House subcommittee

did not pattern section 307 upon the exact recommendations of

that official. When Congress wished to bar access to the courts,

as in section 202 of the Act, it did so explicitly.

13

3. Allowing aggrieved persons access to the courts would

assist in carrying out the will of Congress. Congress has

specifically legislated that train discontinuances are to be

subject to customary discontinuance procedures, which

procedures include access to the courts, so that standing to sue

for unlawful discontinuances would effectuate the legislative

design. The Attorney General has not instigated or participated

in any actions other than in defense of Amtrak and the

railroads. Standing for passenger associations is necessary if the

purposes of Congress are to be achieved.

4. Contentions that the federal judiciary lacks jurisdiction

are without merit. This case is clearly distinguishable from

Switchmen’s Union v. Board, 320 U.S. 297. A cause of action

arises from a violation of the provisions of the Act which may

be instituted by the persons intended to be protected by the

Act.

ARGUMENT

I THE STATUTORY LANGUAGE AND

LEGISLATIVE HISTORY OF SECTION 307 ©

SUPPORT ACTIONS AGAINST AMTRAK OR A

RAILROAD.

Rail Passenger Service Act of 1970 Wis rushed through the

Congress to meet an emergency situation. There is a

presumption that Congress did not desire to extinguish

conventional judicial review in such circumstances. (SA 28).

A. Statutory Language. The statutory language of section

307 does not mean that persons other than the U.S. Attorney

General are precluded from instituting an action for a violation

of the Act in non-labor situations, contrary to petitioners’

contentions. (Pet. Br., pp. 12-14) The opinion of the Court of

Appeals more than adequately deals with this argument, which

argument is based upon an erroneous application of the

expressio unius est exclusio alterius maxim. (SA 28-34),

14

The provision for standing for the Attorney General does

not bar other parties from access to the courts, but merely

authorizes the Attorney General to institute suits. This is

understandable because Amtrak is a quasi-public corporation

heavily funded by the public treasury. The authority of the

Attorney General extends to injunctions against actual or

threatened violation of the “purposes and policies” of the Act,

which is far beyond an ordinary private suit, and far beyond

what otherwise might be private rights, thus suggesting that

section 307 provides for suits by the Attorney General in

addition to the ordinary private action contemplated by

aggrieved persons.

The inclusion of employees or labor organizations in

section 307 is likewise understandable, since the Congressional

findings and declaration of purpose relate to the “traveler in

America” without mention of labor or labor-management

relations, 45 U.S.C. 501, so that Congress could have intended

that labor might need special protection. Clearly, it cannot be

inferred from the statutory language that Congress intended to

bar other persons from instituting suit.

B. Legislative History. The legislative history of the Act

does not support petitioners’ argument that the House

committee’s unexplained refusal to adopt an amendment

proposed in Subcommittee by railway labor—while at the same

time making full provision for railway labor?®—means that

Congress intended to exclude other parties from the courts. As

noted by the Court of Appeals, analysis of the matter does not

begin from a neutral posture, but from a presumption in favor

of access to the courts. (SA 28). Section 307 does not say that

only the Attorney General may institute an action in a

26 Railway labor offered an amendment to section 307 in the House

subcommittee so as to include sanctions against “any railroad” as well as

against Amtrak, and to allow suits “by any person adversely affected or

aggrieved thereby, including the representatives of the employees or any

railroad or of the corporation.” As reported from the House committee,

and enacted, section 307 mentions suits against “any railroad” and suits

by “any employee affected thereby, including duly authorized employee

representatives.” See: Supp. Hearings on H.R. 17849, at pp. 122, 141-42.

,se

15

non-labor situation, a point of importance in the two reported

district court opinions on the issue. Cf. Wood y. National

Railroad Passenger Corp., 341 F.Supp. 908, 911 (D. Conn.

1972); Congress of Railway Unions v. Hodgson, 326 F.Supp.

68, 78 (D.C. 1971).

As with its treatment of the statutory language, we believe

the opinion of the Court of Appeals is quite adequate on this

score also. (SA 34-39).

Now, for the first time, Amtrak and the railroads advance

the contention that an intention by Congress to exclude private

parties from the courts may be inferred by “acceptance of an

Executive Branch recommendation’? made by “the

administrative officer charged with administration of the Act”,

in this case the U.S. Secretary of Transportation, John A.

Volpe. (Pet. Br., pp. 16, 18).

1. Role of Executive Branch in Final Bill. Amtrak and

the railroads assert that the House committee redraft of section

307 and the bill as finally enacted are in “exact conformity”

with Secretary Volpe’s recommendations: that Congress

carefully adopted . . . the suggested amendment which

Secretary Volpe “endorsed”, rejected the specific portion he

“opposed” . . . and instead ‘tadopted” his ‘alternative

formulation” and his “counterproposal”. (Pet. Br.. pp. 15-19)

Amtrak and the railroads are mistaken regarding Secretary

Volpe’s role in the legislative drafting. The record does not

show that any specific language was forwarded by Secretary

Volpe; nor does the record indicate that his supplemental views

were requested. Rather, on June 18, 1970. the Secretary sent a

letter to the Subcommittee with his comments on various

amendments proposed by National Association of Regulatory

Utility Commissioners, Association of American Railroads, and

railway labor. These comments embraced ten sections of the

Act. Amtrak and the railroads reproduce the first paragraph of

Secretary Volpe’s comments on labor’s proposed amendment to

16

section 307 (Pet. Br., p. 15), but have not reproduced the very

next paragraph, which reads:?7

With respect to inclusion of all railroads within the

reach of the section, it should be noted that existing

statutes apply to them. To an extent the Corporation

is exempt from such statutes or statutory

requirements. Consequently, I am not sure that it

would be necessary to make sanctions applicable to

any railroad. This is particularly so here where such

sanctions expressly reach “any action, practice, or

policy”. The Corporation has a quasi-public character

in many respects and the scope of the sanctions with

respect to it is appropriate. There is no comparable

situation, however, with respect to railroads

generally.

It is abundantly clear from the above that the House

committee redraft was nowhere in “exact conformity” with

Secretary Volpe’s recommendations, as the House committee

and Congress included the provision for “all railroads” in

section 307.28 Congress did not adopt the amendment which

he “‘endorsed” and reject the portion he “opposed”, or adopt

his “alternative formulation”, etc. Nowhere are we able to find

that Secretary Volpe changed his mind with respect to inclusion

of “all railroads” in section 307. Amtrak and the railroads have

simply misapprehended the legislative facts as we understand

those facts.

2. Role of Secretary of Transportation in

Administration of the Act. In addition to a misapprehension as

to the relationship between Congress and the Secretary of

Transportation with regard to legislative drafting, Amtrak and

the railroads also err in placing the Secretary of Transportation

as “the administrative officer statutorily charged with

administration of the act.” (Pet. Br., p. 18) The principal

27Supp. Hearings on H.R. 17849, at p. 85.

28 at one point Amtrak and the railroads say that Secretary Volpe

“stated that he did not object to that portion of the proposed amendment

which would allow suits against railroads as well as Amtrak” (Pet. Br., p.

15), whereas elsewhere it is said that the Secretary “acquiesced” in certain

aspects of labor’s proposed amendment. (Pet. Br., p. 10) We believe both

characterizations miss the mark.

17

function of the Secretary of Transportation was completed

before Amtrak was even incorporated. That function was to

prescribe the basic system’ of miriimum intercity rail passenger

service which Amtrak must operate for the minimum period of

26 months between May 1, 1971 and July 1, 1973.

The Secretary of Transportation is not in complete charge

of administration for the Act, but shares such responsibility

with the Interstate Commerce Commission. For example, the

I.C.C. decides disputes between Amtrak and railroads regarding

the initial payments for the privilege of terminating all

passenger service, 45 U.S.C. 561(a)(3):29 contracts between

Amtrak and railroads regarding service for Amtrak, 45 U.S.C.

562;3° discontinuance notices, 45 USC. 561(ay(1);3!

discontinuance of trains in the basic system by Amtrak or

discontinuance of trains by non-contracting railroads, 45 U.S.C.

564;3? disputes between Amtrak and the railroads concerning

reimbursement for employee pass privileges, 45 U.S.C.

565(f);33 and adequacy of service, 45 U.S.C. 64134 In

addition, the I.C.C. has primary jurisdiction to determine

whether a given train provides “intercity rail passenger

service.”35 Of course, certain functions of the Act are entrusted

to the Secretary of Labor, 45 U.S.C. 565: the Secretary of the

Treasury, 45 U.S.C. 602, 622: and the Comptroller General, 45

U.S.C. 645.

291 osses Under the Rail Passenger Service Act of 1970, 343 1.C.C.

379 (1972).

30F D. No. 27353, Baker, ct al.-Compensation for Passenger Service

and F.D. No. 27353 (Sub-No. 1), Determination of Compensation Under

Section 402(a) of the Rail Passenger Service Act of 1970. (Mimeo, June

22, 1973).

3136 Fed. Reg. 5219, 5220 (March 18, 1971); 49 C.F.R. 1122.9.

32 Footnote 25, supra.

33F.D. No. 27194, Determination of Cost Reimbursement Under

Section 405(f) of the Rail Passenger Service Act, as Amended (Mimeo,

Dec. 18, 1972).

34Ex Parte No. 277 (Sub-No. 1), Adequacy of Intercity Rail

Passenger Service (pending).

35 number of these cases are set forth in the opinion below. (SA

54, fn. 27).

OR ee ie ee

3. Reports to Congress. Amtrak and the railroads

attach as Exhibit A to their brief, the March 15, 1973 report by

the U.S. Secretary of Transportation to the U.S. Congress.?®

This report was mandated by a 1972 amendment to the Rail

Passenger Service Act of 1970, and is a one-time report.>7 In

the normal administration of the Act, the Secretary of

Transportation and the Interstate Commerce Commission

submit simultaneous reports (or, in their discretion, a joint

report) on March 15 of each year.3® The I.C.C. issued a report

under the earlier version of section 308(b) of the Act,?? which

was far more comprehensive than the report of the Secretary of

Transportation.*®

4. Absence of Exclusionary Terms. Clearly, the

unexplained failure of a Congressional committee to adopt a

proposed amendment is not dispositive. When Congress wanted

to exclude judicial review in Rail Passenger Service Act of 1970,

it expressly said so, as in Section 202 of the Act, where it

precluded judicial review of the basic system prescribed by the

U.S. Secretary of Transportation. 45 U.S.C. 522.4!

36This report is reproduced in Hearings on H.R. 8351, Financial

Assistance to Amtrak, before U.S. House Subcommittee on Transportation

and Aeronautics, Ser. No. 93-22, at pp. 71-181 (1973).

3745 US.C. 646. Section 12 of P.L. 92-316. See: H. Rept. No.

92-905 and H. Rept. No. 92-1111 (1972). 86 Stat. 227.

3845 U.S.C. 548(c). P.L. 92-316 amended the earlier obligation for

the submission of reports biennially on October 30. 86 Stat. 227.

39The L.C.C.’s report is reproduced in hearings on Administration's

Request for Additional Funding for Amtrak, U.S. Senate Subcommittee

on Surface Transportation, Ser. No. 92-29, at pp. 533-805.

4014. pp. 806-850.

41The basic system as designated by the Secretary shall become

effective for the purposes of this Act upon the date that the final report of

the Secretary is submitted to Congress and shall not be reviewable in any

court.”

19

Amtrak and the railroads suggest that, Congress having

withdrawn the prescription of the basic system from judicial

review, it would be anomalous for Congress to provide the

public with the “equally effective” method of enjoining train

discontinuances by allowing suits to enjoin discontinuances.

(Pet. Br., p. 20)

The comparison is invalid. The discontinuance by Amtrak

of “basic system” trains after July 1, 1973,4? is expressly made

subject to the procedures of section 13a of the Interstate

Commerce Act. 45 U.S.C. 564(b)(3). This court has upheld the

right of the public to obtain judicial review of section 13a(1)

investigations which permit train discontinuances. City of

Chicago v. United States, 396 U.S. 162 (1969). Even the U.S.

Secretary of Transportation, in his March 15, 1973 report, has

recognized that the present law authorizes suits to enjoin the

discontinuance of “basic system” trains. See: Exhibit A to

Petitioners’ Brief, at pp. 104-105 and 107-108.

Thus, great significance should be accorded the express

exclusion of judicial review in section 202, in contrast with the

absence of exclusionary language in section 307. Cf. Wood vy.

National Railroad Passenger Corp., supra, 341 F.Supp. at 911.

42«Basic system” service presently includes far more than the initial

42 trains prescribed by the Secretary of Transportation on January 28,

1971, because additional intercity rail passenger service, voluntarily

operated by Amtrak for a continuous period of two years, becomes part of

the basic system by virtue of Section 403(a) of the Act. 45 U.S.C. $63(a).

_ 20

Il. ACCESS TO THE COURTS BY THE PUBLIC

WOULD ASSIST IMPLEMENTATION OF THE

ACT.

The purposes of the Act would be enhanced if the public is

permitted access to the courts to enjoin violations of the Act, as

it would make more certain that there will be compliance with

the Act. Amtrak and the railroads have nothing to fear if they

act lawfully. Yet they urge that the decision of the Court of

Appeals would “seriously frustrate” ,the fundamental purposes

of the Amtrak act (Pet. Br., p. 21).

The thrust of the argument made by Amtrak and the

railroads primarily concerns the prospective discontinuance by

Amtrak, after July 1, 1973, of certain long-distance trains.43

They argue that injunctive relief—even a single preliminary

injunction—could disrupt Amtrak’s operations (Pet. Br., pp.

21-29). The short answer is that Congress intended to allow

review of train discontinuances, including access to the courts,

and this is acknowledged by the U.S. Secretary of

Transportation in his March 15, 1973 report, where he proposes

certain amendatory legislation. 4 Any question of injunctive

relief, pendente lite, is a matter for the courts. Amtrak would

have every opportunity to present its case in opposition to the

issuance of any injunction.

Amtrak recently posted discontinuance notices for three

important long-distance trains. These discontinuances were

suspended by the Interstate Commerce Commission.**

Although two of the notices were withdrawn, they can be

renewed at a later date. Petitioners appear horrified at the

43The United States, in its Memorandum as Amicus Curiae,

supporting the request that certiorari be granted, expressed concern for

the same prospective train discontinuances after July 1, 1973. (U.S.A.

Memo, p. 6).

44Exhibit A to Petitioners’ Brief at pp. 104-105 and 107-108.

Section 404 of the Act, 45 U.S.C. 564, provides that trains in the basic

system may be discontinued after July 1, 1973, under the procedures of

section 13a of the Interstate Commerce Act. The “basic system” presently

includes most of Amtrak’s intercity service.

45 Footnote 25, supra.

21

Possibility the discontinuance of the New York-Kansas City

train may encounter stiff opposition from the public.4® To

preclude effective judicial review of the Commission’s ultimate

decisions in these cases—as petitioners would desire—would run

directly counter to City of Chicago v. United States, 396 U.S.

162 (1969), and would require additional legislation. There is

no showing that Congress intended to take away the right of the

public to contest train discontinuances by enactment of Rail

Passenger Service Act of 1970.

Amtrak and the railroads also point to three cases

involving the discontinuance of trains by Amtrak which were

not part of the basic system. (Pet. Br., pp. 25-26). We consider

these to be de minimis and, in any event, Amtrak has nothing to

fear if it acts within the law.

The United States points to a fourth action, where the

Commonwealth of Pennsylvania and State of New Jersey seek

to enforce the I.C.C.’s determination that some 44 trains and 7

buses do not provide “intercity rail Passenger service”, as

claimed by Penn Central and Amtrak.47 The Department of

Justice opposes these States on the ground that they lack

standing under section 307 of the Act.

We note that the Attorney General has never_instigated or

Participated in litigation other than in defense of Amtrak and

the railroads. This was observed by the court below (SA 42):

“Indeed, appellees in this case have been unable

to refer us to a single instance in which the Attorney

General has either instigated or participated in

litigation under the Amtrak Act, except for a few

cases brought by other parties in which he intervened

solely to support the defense that parties other than

labor and the Attorney General did not have standing

to sue. Cf Allen v. State Board of Elections, supra,

393 U.S. at 566 n. 22. To rely on the Attorney

46The New York-Kansas City train mentioned by petitioners (Pet.

Br., pp. 24-26) was before the 1.C.C. in F.D. No. 27436. See footnote 25,

supra. Amtrak withdrew its notice on August 31, 1973.

47U S.A. Memo, p. 6. See: Penn Central Transp. Co.-Status of :

Passenger Serv., 338 1.C.C. 621 and 338 I.C.C. 690.

22

General as the sole source of litigation under the Act,

as he would be in cases where labor’s interests were

not adversely affected, is thus to rest enforcement of

the entire regulatory scheme on the Attorney

General’s virtually unreviewable distinction between a

mere ‘technical’ violation and one that seriously

interferes with the legislative purpose.” (Footnote

omitted)

The U.S. Attorney General cannot be relied upon to be the

exclusive person (in non-labor cases) with standing to sue.

Respondent, National Association of Railroad Passengers, has

been unable to interest the Attorney General to institute suit in

the instant or in any other violation of the Act. The court

observed in Wood vy. National Railroad Passenger Corp., 341

F.Supp. 908, 912 (D. Conn. 1972), that the refusal of the

Attorney General to act is reviewable only under a very limited

standard:

“It should also be noted that if the Attorney

General refuses to act, his discretion, if reviewable at

all, would be reviewable only under a very limited

standard. Cf. Littell v. Morton, 445 F.2d 1207, 1211

(4th Cir. 1971); Fook Hong Mak vy. Immigration &

Naturalization Serv., 435 F.2d 728 (2d Cir. 1970).

The practical effect of his refusal would be to cloak

Amtrak and the railroads with governmental

immunity. I am reluctant to think Congress intended

such a result. Nor is there any indication that the

purpose of Congress was to protect the courts against

the possibility that they would become

over-burdened with increased litigation.”

We are unaware of any “Amtrak Section” within the

Department of Justice, as claimed by Amtrak and the railroads,

to monitor the Amtrak program. (Pet. Br., pp. 28, 29, fn. 31,

35). We know of only one attorney who handles Amtrak

matters, and this appears as part of his larger duties concerning

the Penn Central reorganization and other railroad

reorganizations in the Northeast.*®

48The Dept. of Justice did not appear below. Rather, it sent a letter

to Amtrak’s counsel authorizing him to bring the Department’s position to

the attention of the court. (Pet. for Cert., App. E).

23

There is serious doubt whether section 307 authorizes the

U.S. Attorney General to sue for a technical violation of the

Act.49 The Court of Appeals observed that the Attorney

General has advised that he has no power under the Act “*to sue

for a construction of the Act or to enjoin a purely technical

violation.” (SA 42).

The Attorney General’s letter is an Appendix hereto.

Amtrak and the railroads elsewhere point to the similarity

between section 307(a) and section 403(a) of the

Communications Satellite Act of 1962, 47 U.S.C. 743(a). (Pet.

Br., pp. 36-37). But the phrase, “or if the corporation or any

other person shall violate any provision of this Act,” was

deleted when the Amtrak section was enacted 5°

Amtrak suggests that appeals to Congress can be a

substitute for court review of train discontinuances. (Pet. Br., p.

28). If this were true, there would be no need for a judicial

system in the United States.5!

We would be remiss if we did not express strong

disagreement with some of the seemingly favorable comments

which Amtrak extracts about itself from the March 15, 1973

report by the U.S. Department of Transportation to the

Congress, concerning Rail Passenger Service Act of 1970, and

which Amtrak attaches as an exhibit to its brief here. (Pet. Br.,

pp. 21-23, fn. 20-22: p. 24, fn. 24). In actual fact, the

Department recommends a 14 percent slash in Amtrak’s train

miles to be operated during the coming fiscal year, which would

result in a projected 3 percent decline in passenger miles. This

recommendation for further train discontinuances is made in

the face of an 11 percent increase in passenger miles

experienced in the period May-November 1972, over the

*9See Opinion below. (SA 42).

59The compiler for the U.S. Code has entitled section 403(a),

“Sanctions-Petition of the Attorney General for Equitable Relief; venue.”

51 Amtrak has taken the testimony of respondents’ President (now

chairman) out of context. (Pet. Br., p. 28, fn. 30). Mr. Haswell’s remarks

were directed to whether some other federal agency should have control

over Amtrak’s quality of service, and had no relation whatsoever to

Section 307. Supp. Hearings on H.R. 17849, at pp. 177-78 (1970).

LYLE ONE IANYS PROIEER PPLE LLL EISELE ELLIE EE TE

24

comparable period in 1971.5?

Respondent, National Association of Railroad Passengers,

has presented its own detailed statement to the Congress. It

does not see enactment of Rail Passenger Service Act of 1970,

and the creation of Amtrak, as intended to be a method for the

orderly liquidation of all rail passenger service in the Nation

outside the Northeast corridor. Respondent will not burden this

court by making the text of its 74-page statement as to the

status of passenger service, presented June 12, 1973 in hearings

before a U.S. House Subcommittee, as an Exhibit to its brief.5?

The decision below will enhance, rather than frustrate, the

Congressional purposes of the Act. Judicial review of action

taken by Amtrak or the railroads will act as a check upon the

decisions of these corporations.

lll. THE DECISION BELOW HAS A PROPER

JURISDICTIONAL BASIS.

Amtrak and the railroads assert that the general

jurisdictional provisions of Section 1337 of Title 28, U.S. Code,

is superseded by the so-called specific provisions of section

52 Hearings on H.R. 8351, footnote 36, supra, at 86, 169. (Pet. Br.,

Ex. A, pp. 12, 98)

S3The text is reproduced in full in Hearings on H.R. 8351, footnote

36, supra, at 230-304. Respondent's position is that Amtrak has not come

to grips with fundamental problems—most of its services are deficient in

quality and excessive in operating costs. Hearings on H.R. 8351, supra at

249. Amtrak's routes and services do not serve many large and important

communities. Its Chicago-Los Angeles trains bypass the populous cities of

southern Arizona, which are also important centers for winter vacationers,

and its Chicago-San Francisco trains bypass the spectacularly scenic

Colorado Rockies west of Denver. Id. at 249-50. Amtrak's on-time

performance is mediocre and is worsening. The Chicago-New Orleans trains

have averaged between 2 and 4 hours late, and those between Chicago and

Carbondale, an hour late. Id. at 252-53. Some of the problem is with

Amtrak's top management and directors, id. at 255-66, and a great deal of

the difficulty is owing to non-cooperation by the railroads with whom ~

__ Amtrak must contract for services, Id. at 264-76.

25

307(a) of Rail Passenger Service Act of 1970. (Pet. Br., pp.

29-30). The case citations are wholly inapplicable. They relate

to situations where the specific provision pertained to all

potential parties, or where the statutes are part of the same

enactment.5* In any event, the “specific” mention of

jurisdiction for certain parties in section 307(a) cannot be

meant, ipso facto, to exclude other parties who would qualify |

to invoke jurisdiction under section 28 U.S.C. 1337. As shown |

in connection with the language and history surrounding the |

specific mention of the Attorney General in section 307(a) of

the Act,55 there is no demonstrated intention by Congress to

exclude the invocation of federal jurisdiction by other persons.

Likewise, section 307(a) does not employ the term “exclusive”,

Calhoun v. Harvey, 379 U.S. \134, 137-41 (1964),5® nor does

the statute specify that ‘the “Secretary of Labor shall bring all _

actions.” Powell v. Washington Post Co., 267 F.2d 651 (D.C.

Cir.), cert. den. 360 U.S. 930 (1959),57

This court made it clear in Switchmen’s Union v. Board,

320 U.S. 297 (1943), that “special circumstances” must be

present to defeat the general grant of jurisdiction. 320 U.S. at

300. Amtrak and the railroads argue that special “machinery”

exists to settle disputes between competing interests. (Pet. Br..

pp. 31-33). However, there is no-such machinery for settling

disputes between Amtrak and the public or, for that matter, for

determining disputes between Central of Georgia. Railway

Company and railroad patrons over the discontinuance of the

“Nancy Hanks”, operating entirely within the State of Georgia.

Of course, prior to enactment of Rail Passenger Service Act of

1970, the entire history of railroad discontinuances shows that

administrative and judicial remedies were available to railroad

S4isAa 43-47). Amtrak and the railroads assert that the Court of

Appeals has constructed a novel theory which was never briefed below.

(Pet. Br., pp, 29-30) In our view the entire section 1337 matter was

thoroughly briefed below. .

5S Supra, at pp. 13-15.

5629 US.C. 482, 483.

5729 U.S.C. 211(a).

tI! Te

26

passengers. (SA 45, 48-49).58 We fail to discern any clear

command of the statute that these procedures were to be

terminated. Indeed, most train discontinuances today are

expressly made subject to the procedures existing under section

13a of the Interstate Commerce Act, 45 U.S.C. 564(b)(3), and

this contemplates ultimate judicial review. |

Moreover, Amtrak and the railroads are mistaken as to the

extent of the “machinery”. For example, the Secretary of

Transportation is not required to solicit and consider the views

of “interested persons” in prescribing the basic system, but only

the views of the Interstate Commerce Commission, State

commissions, railroads, and railway labor organizations, 45

UsS.C. 52259 Amtrak is exempt from all I.C.C. regulations

with respect to rates, fares, charges, routes and service, and is

not subject to any State or other law pertaining to the

transportation of passengers as it relates to rates, routes or

service, 45 U.S.C. 546(a\(c); and it is unclear whether the

Attorney General is empowered to seek to enjoin a specific

violation of the Act, in contrast with a violation of the policies

and purposes of the Act, 45 U.S.C. 547.

The “machinery” of Rail Passenger Service Act of 1970 is

obviously inadequate to substitute for access to the courts. The

court in Switchmen’s Union stated that if the absence of

jurisdiction of the federal courts meant a sacrifice or

obliteration of a right which Congress had created, the inference

would be strong that Congress intended the general jurisdiction

statutory provisions to be applicable. 320 U.S. at 300. See also:

Leedom vy. Kyne, 358 U.S. 184, 190 (1958). We would add that

the machinery is hardly neutral with respect to the Attorney

General for, as Amtrak and the railroads recognize (Pet. Br., p.

35), the Attorney General operates in conjunction with the

58 apart from Rail Passenger Service Act of 1970, discontinuance of

the “Nancy Hanks” would be barred by section 93-307 of the Georgia

Code, and Railroad Passenger Rule No. 18 of the Georgia Public Service

Commission, without prior approval by the State agency.

59See: Hearing on Administration's Request for Additional Funding

for Amtrak, before U.S. Senate Subcommittee on Surface Transportation,

Committee on Commerce, Ser. No. 92-29, at pp. 255-267 (1971).

27

Department of Transportation in reviewing complaints about

alleged violations of the Act. The Department is not, of course,

a regulatory agency, as it functions in a promotional role with

regard to Amtrak.

The second part of the jurisdictional argument advanced

by Amtrak and the railroads is that the Act does not create a

“private cause of action”. (Pet. Br., pp. 34-36). The word

“private” begs the question because admittedly a cause of

action arises with respect to the policies and purposes of the

Act on petition of the Attorney General or railway labor.

Rail Passenger Service Act of 1970 confers duties upon

railroads and upon Amtrak. In particular, unless a railroad

contracts with Amtrak, it may not discontinue its intercity rail

passenger service. A legal duty is created and imposed upon

non-contracting railroads in favor of passengers utilizing trains.

The statute clearly aims to protect the railroad passenger, as

indicated in the declaration of purpose, for example. 45 U.S.C.

501. Such a cause of action arises from a breach of the

railroad’s duty to the traveling public, and may be enforced by

the class of the public intended to be protected. /. 1 Case Co. y.

Borak, 377 U.S. 426 (1964); Allen v. State Board of Elections,

393 U.S. 544 (1969),

Petitioners next refer to the legislative history behind the

sanctions section of Communications Satellite Act of 1962,

which is termed “virtually identical” with section 307(a) of the

Amtrak Act. See: 47 U.S.C. 743(a). However, there is no

Congressional intent to bar suits against Comsat. The remarks of

Senator Humphrey and Deputy Attorney General Katzenbach

were directed to those who Opposed creating any

Communications Satellite Corporation, rather than to. the

question of standing to sue. See: 108 Cong. Rec. 14902 and

16697. Moreover, section 403(a) of the Comsat Act is not

“virtually identical” with section 307(a) of the Amtrak Act. for

the phrase, “ or if the corporation or any other person shall

violate any provision of this chapter” was not carried forward

into the Amtrak statute. Finally, it is observed that there

appears to have been no reported cases under section 403(a) of

the Comsat statute.

rte

AIA AIO AM TEES, th a

Bt SOLS fe ARE

LP PO LEP GEM BOI en at

28

Respondent must emphatically disagree with the final

contention of Amtrak and the railroads that the record provides

no basis for asserting that the Attorney General cannot or will

not take appropriate action to terminate actual or threatened

violations of the Amtrak Act. First, the Attorney General has

on occasion asserted an absence of power “to sue for a

construction of the Act or to enjoin a purely technical

violation”. Second, we know of no instance in which the

Attorney General has participated in litigation other than to

assert that the plaintiffs bringing the action lacked standing.

(SA 42).

CONCLUSION

For the foregoing reasons, and those given by the court

below, the judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,

GORDON P. MacDOUGALL

705 Ring Building

1200 18th Street, N.W.

Washington, D.C. 20036

Attorney for Respondent,

National Association of

Railroad Passengers

September, 1973