Motion Amicus Curiae — National Railroad Passenger Corporation v. National Assn. of Railroad Passengers

SOS IAF abe 2 Dn PEN EO BETES, OR EGE FS SEIT A os PS Ree om RGD PMT By

prorion FILED LIBRARY

SEP 4 yo73SUPREME COURT. U. S.

Supreme Court of the Anited States

OCTOBER TERM, 1973

No. 72-1289

NATIONAL RAILROAD PASSENGER CORPORATION,

CENTRAL OF GEORGIA RAILWAY COMPANY,

AND SOUTHERN RAILWAY COMPANY,

Petitioners,

¥.

ee ee

NATIONAL ASSOCIATION OF RAILROAD PASSENGERS,

Respondent. :

On Writ of Certiorari to the United States Court of Appeals f

for the District of Columbia Circuit é

2

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE t

ae | q

BRIEF FOR THE NATIONAL ASSOCIATION OF &

REGULATORY UTILITY COMMISSIONERS AS AMICUS CURIAE

PAUL RODGERS b

General Counsel

SUMNER J. KATZ 3

Assistant General Counsel &

tig ICC Building National Association of i

eas ee Regulatory Utility Commissioners i

(202) 628-7324 A

September 4, 1973 ;

THE CASILLAS PRESS, INC.-1717 K Street, N. W.—Washington, ©. C.—223-1220

fd

a4

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-

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,

NATIONAL ASSOCIATION OF RAILROAD PASSENGERS,

Respondent.

nw

On Writ of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

FOR THE NATIONAL ASSOCIATION OF REGULATORY

UTILITY COMMISSIONERS

_

To: The Supreme Court of the United States

Pursuant to Supreme Court Rule 42(3), the National As-

sociation of Regulatory Utility Commissioners (NARUC) re-

spectfully moves the Court for leave to file the brief, accom-

panying this‘ motion, as amicus curiae in the above-entitled )

cause and shows:

4

Similarly, trains in the basic system which Amtrak pro-

poses to discontinue after July 1, 1973 may not be dis-

continued if “State, regional, or local agencies request con-

tinuation of the service and within ninety days agree to

reimburse the Corporation for a reasonable portion of any

losses ....” 45 US.C., $564(b)(3).

In addition, trains in the basic system [including those

trains added to the original basic system in accordance

with 45 U.S.C., §563(a)], which Amtrak proposes to dis-

continue after July 1, 1973, cannot be discontinued un-

less the procedures of Section 13a of Title 49 are em-

ployed. 45 U.S.C., §564(b)(3). Similar provision is made

for proposed discontinuances by non-contracting railroads

after January 1, 1975. 45 US.C., $564(a). With certain

exceptions not important here, Section 13a provides that

railroads must apply to State Commissions for authority

to effect discontinuances of intrastate trains, and must ap-

ply to the Interstate Commerce Commission for authority

to discontinue interstate trains. In regard to decisions

made by tlhe I.C.C. in Section 13a proceedings, this Court

has upheld the right of aggrieved parties, including State

commissions, to appeal such decisions. City of Chicago v.

United States, 396 U.S. 162 (1969).

>

The NARUC was permitted by this Court to file an

amicus curiae brief in the City of Chicago case, supra.

The question, then, of the extent of access to the courts

by parties aggrieved by violations of the Act by Amtrak or

a railroad is of considerable importance to State regula-

tory commissioners across the country. The judicial land-

mark to be established by the Court in the disposition of

this case will have a direct effect on the ability of State

authorities to .protect local interests in the development

and maintenance of adequate rail passenger service.

a

5

’ .

Wherefore, it is respectfully submitted that this Court

should grant leave for the filing of a brief by the National

Association of Regulatory Utility Commissioners, as amicus

curiae, in this case.

Dated this 4th day of September, 1973.

PAUL RODGERS

General Counsel

SUMNER J. KATZ

Assistant General Counsel

National Association of

Regulatory Utility Commissioners

1102 ICC Building

Post Office Box 684

Washington, D.C. 20044

(202) 628-7324

Supreme Court of the Anited 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 THE NATIONAL ASSOCIATION OF REGULATORY

UTILITY COMMISSIONERS AS AMICUS CURIAE

PAUL RODGERS

General Counsel

SUMNER J. KATZ

1102 ICC Building Assistant General Counsel

Post Office Box 684 National Association of

Washington, D.C. 20044 Regulatory Utility Co

(202) 628-7324

September 4, 1973 ~

|

(i)

INDEX

Coe a kk we Se eee 1

QUESTIONS PRESENTED ............, 2

SUAeuee Wee wk a ss eh 2

THE INTEREST OF THE NARUC AS

GR Ge ee CE

STATEMENT OF THE CASE kets eo SS 4

ARGUMENT .

I. Analysis of the Language and Legislative

History of Section 307 Does Not Lead

To A Conclusion That Congress Clearly

Intended To Bar Suits Against Amtrak

and the Railroads, For Violations of the

Act, By Parties Other Than Employees,

Their Representatives, Or The Attomey

MM te a

Il. Allowing Parties Other Than The Attomey

General, In Non-Labor Cases, To Contest

Violations Of The Act, Will Assure Com-

pliance With, And Not Frustrate, The

repemn CF TG AM. 2 5 sk a

III. Section 307 Does Not Deprive The District

Courts of Jurisdiction Over Suits Brought

By Parties Other Than The ee General

In Non-Labor Cases. . . : ee ee

APO es a ee 25

oH)

TABLE OF AUTHORITIES

Page

Judicial Decisions:

Abbott Laboratories v. Gardner,

ee ee eee a a Se os ts SE

Allen v. State Board of Elections,

Dee tee eee Cee sc rk RZ ES ON. EBS

American Federation of Government Employees

v. Paine,

ree eee Gs Re nk ees

Baltimore & Ohio R. Co. v. United States,

ee en Oe a ae aR

Barlow v. Collins,

er ee ee a ER a er

City of Chicago v- United States,

Be Gee ee Ce a a te a RS

Curran v. Laird,

ee oe eee es ee ce SO eB

Environmental Defense Fund, Inc. v. Hardin,

ome U2 1005 GO ee Se ew) IS

Hardin v. Kentucky Utilities Co.,

ee ee a we ce a ec es

J. I. Case Co. v. Borak,

Bee eee ee ee ck lk ee ee

National Automatic Laundry & Cleaning

Council v. Shultz,

ae we ee es es er a i ee eS

National Motor Freight Traffic Association

v. United States,

vee ee ees kes 8 a se ae OR

(iii)

New Jersey v. New York, S. & WR. Co.,

372 US. 1 (1963) . a

_ Norwalk Core v. Norwalk Redevelopment —

395 F.2d 920 (2d Cir. 1968) . . . . ;

Office of Communication of the United Church

of Christ v. FCC,

359 F.2d 994 (D.C. Cir. 1966)

Scenic Hudson Preservation Conf. v. FPC,

354 F.2d 608 (2d Cir. 1965), cert. denied,

Consolidated Edison Co. ov New York, Inc.

v. Scenic Hudson Preservation Conference,

384 U.S. 941 (1966) .

Switchmen’s Union of North America y.

National Mediation Board,

320 U.S. 297 (1943) .

United Federation of Postal Clerks y. Watson,

409 F.2d 426, cert. denied sub nom.

Blount v. United Federation of Postal

Clerks, 396 U.S. 902 (1969)

Wood v. National Railroad Passenger Corporation,

341 F.Supp. 908 (D. Conn. 1972)

Statutes:

Fair Housing Act, 42 US.C., $3611(g), 3613

Interstate Ce mmerce Act, Section 13a,

49 USMSl3a. © 2. 2 2 |. 4.9, 10, 16, 17, 20, 21

Judicial Code, 28 U.S.C., §1337

‘Rail Passenger Service Act of 1970,

45 US.C., §501 er seq.

Section 201, 45 U.S.C., §521

12, 22

13, 15

15

(iv)

Section 202, 45 U.S.C., §522

Section 303, 45 U.S.C., §543

Section 306, 45 U‘S.C., §546

Section 307, 45 US.C., §547 .

Section 401, 45 U.S.C., 8561

Section 403, 45 U.S.C., §563

Section 404, 45 US.C., §564

Section 601, 45 U.S.C., 8601

Section 602, 45 U.S.C., 8602

Section 802, 45 U.S.C., 8642

Securities Exchange Act of 1934, 15 U.S.C., §78

Voting Rights Act of 1965, 42 US.C., §1973,

et seq. ee es cae oe ee

Miscellaneous:

louse Report No. 91-1580, 91st Cong.,

2nd Sess. (1970). era aey

port to Congress, The Rail Passenger Service

Act of 1970 (Department of eSeieniase

March, 1973) . ee wig Ae cd

Page

4, 7, 8, 14

‘ai

3, 4, 18

passim

5, 7, 10, 21

. 4, 9, 10, 18, 22

5-7, 15

17

s? mi - EE A ES ES

Le re. eh od. i PO - am, Vere ery PEAT LE A RN Ee a ee

FOE CAEN 8 CAPS SALE SY -

-

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,

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 THE NATIONAL ASSOCIATION OF REGULATORY

UTILITY COMMISSIONERS AS AMICUS CURIAE

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the District of Columbia Circuit. is reported at 475 F.2d

325. The order of the District Court, issued on May 5,

1971, is unreported.

2

QUESTION PRESENTED

Does Section 307 of the Rail Passenger Service Act of

1970 (the “Amtrak Act’’) bar suits by injured and ag-

grieved parties to obtain equitable relief against the Na-

tional Railroad Passenger Corporation and/or the railroads

for violations of the Amtrak Act, other than suits insti-

tuted upon petition of the Attorney General of the United

States or, in a case involving a dispute over a labor agree-

ment, upon petition of an employee or duly authorized

employee representative?

STATUTE INVOLVED

Involved in this case is Section 307 of the Rail Passen- -

ger Service Act of 1970, 84 Sta¥. 1333, the title of which,

as enacted, differs from that presented in petitioners’ brief.

Section 307 of the Amtrak Act provides as follows:

SEC. 307. SANCTIONS.

(a) If the Corporation or any railroad en-

gages in or adheres to any action, practice, or

policy inconsistent with the policies and pur-

poses 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

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

am ve ; _ w es AR RDN GA AERA ET NE Ss ES OR

seeey tat Nam ald A Le paem * : ” a -

~J3

petition of any employee affected thereby, in-

cluding duly authorized employee representa-

tives, 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 construed as relieving any person of any

punishment, liability, or sanction which may

be imposed otherwise than under this Act.

THE INTEREST OF THE NARUC

/AS AMICUS CURIAE

The NARUC is a quasi-governmental nonprofit organiza-

founded in 1889. Within its membership are the govern-

mental bodies of the fifty States and of the District of

Columbia, Puerto Rico and the Virgin Islands engaged in

the regulation of carriers and utilities. The mission of the

NARUC is to improve the quality and effectiveness of pub-

lic regulation in America. More specifically, the NARUC

contains State officials charged with the duty of regulat-

ing rail transportation within their respective States and,

as such, they normally have the obligation to assure the

establishment and maintenance of such rail transportation

and facilities as may be- required by the public conven-

iénce and necessity, and’ the furnishing of service at rates

and charges that are just and reasonable.

‘As indicated on pp. 8-10, infra, the Rail Passenger Ser- — .

vice Act of 1970 considerably affected the traditional regu-

latory responsibilities of State authorities over rail. pas-

senger service. Certain provisions of the Act reduced the

role of State authorities in regulating such service within

their respective jurisdictions. See, e.g., Sections 306(c) and

404(a) of the Act, 45.U.S.C., 88546(c) and 564(a). |

LN eta Pee RR Re RE

a ee ee eine

tier

Pe ne ee Pee Ne eee gin, PTT CN ee iy ee a”, nt ee en ee

4

Other provisions of the Act explicitly recognized the im-

portance of continuing a strong role for State authorities

in the regulation and development of rail passenger service

in this country. See, e.g, Section 202, 45 U.S.C., §522,

concerning the designation of the basic system; Section

306(b), 45 U.S.C., §546(b), concerning the continuing ap-

plicability of State safety laws and regulations; Sections

403(b) and 404(b)\(3), 45 U.S.C., 88563(b) and 564(b),

concerning the options made available to State authorities

to ensure the continuance of those trains which Amtrak

--sposes to discontinue; and the provisions [45 U.S.C..,

$§546(c), 564(a), 564(b)(3)] making discontinuances, once

the basic system had been designated and established, sub-

ject, with minor maqdifications, to the more normal proce-

dures of Section 13a of the Interstate Commerce Act.

Accordingly, the decision by the Court of the issues in

this case will be of paramount regulatory importance and

will have a substantial effect on the ability of State agen-

cies to protect the public interest in the availability of in-

tercity rail passenger service. Therefore, the members of

the NARUC, as government regulators, are vitally con-

cerned with these issues and the precedents which will be

established by their resolution.

STATEMENT OF THE CASE

This is an action instituted by the National Association

of Railroad Passengers (NARP) to enjoin the discontinuance

of trains by the Central of Georgia Railway Company. The

trains involved include the “Nancy Hawks” passenger train

operated between Savannah and A:lanta, Georgia, and two

trains operated between Albany, C-eorgia and Birmingham,

Alabama. The National Associatio 1 of Railroad Passengers,

Ss

respondents herein, charged that the Proposed discontinu-

ances violated Sections 404(a) and 802 of the Amtrak Act,

45 U.S.C. $564(a) and 642, in that the discontinuances

were not being implemented: pursuant to a contract en-

tered into between Southern Railway Company (South-

em) and Amtrak in accordance with Section 401(aX1) of

the Act, 45 U.S.C., §561(a)(1), but rather pursuant to a

contract between Amtrak and a subsidiary of Southern,

the Central of Georgia Railway Company (Central).

The District Court below never reached the merits of

the case, having dismissed the action on the ground that

_the NARP had no standing to maintain the action under

Section 307 of the Act. On appeal, the United States

Court of Appeals for the District of Columbia reversed

and remanded the District Court's decision.

Rail Passenger Service Act of 1970

s

The Rail Passenger Service Act of 1970 was enacted

amidst extensive concern across the country that rail pas-

senger service was rapidly becoming a “thing of the past.”

Why such a development was occurring ‘was subject of

extensive debate af that time. In its Report accom-

panying H.R. 17849, the bill eventually enacted into the

Rail Passenger Service Act of 1970, the Committee on In-

terstate and Foreign Commerce stated:

Again it is emphasized that there are

many reasons for the downward trend in Ppas-

Senger train usage. The railroads have been

accused of downgrading service in a deliber-

ate attempt to Support elimination of passen-

ger trains, the costs to the railroads have

6

increased sharply. Our highly improved high-

way and air transportation services have made

deep inroads into the rail passenger traffic.

H.R. Rep. No. 91-1580, 9ist Cong., 2nd Sess.,

p. 3 (1970).

Concemed, among other things, by the pollution caused

by other modes of transportation,! Congress emphasized

that the purpose of the bill was to save and promote

rail passenger service, and also emphasized that State and

local authorities would play a major role in such an ef-

fort:

That is the intent of this bill. It envisions

a completely new effort to save and promote

rail passenger service. The corporation, de-

scribed in detail elsewhere in this report, will

undertake the responsibility for providing the

rail passenger service of the future, and it will

be ree to go beyond the original basic sys-

tem, particularly where State, regional, or lo-

cal authorities are willing to provide financial

assistance for any deficits incurred for service

which they desire. Acting over a unified sys-

tem the corporation should expect and achieve

immediate improvements in such areas as tick-

eting and reservations. New equipment can

be purchased, roadbeds improved, terminals

modernized, and upgrading in the quality of

service can be achieved. (See Secretary

a

| “To solve the problems arising from the side effects of our

several modes, such as pollution and congestion, we must preserve

and improve the neglected and older form of railroad service.”

H.R. Rep. No. 91-1580, supra, p. 2.

7

Volpe’s testimony, Hearings supra, page 69).

H.R. Rep. No. 91-1580, supra, p. 3. (Un-

derscore supplied).

To the Congress, it appeared that curtailment of all rail

passenger service was imminent. As the Committee on In-

terstate and Foreign Commerce stated:

This nation is faced with the immediate

threat of complete curtailment of rail passen-

ger service. H.R. Rep. No. 91-1580, supra,

ae

During the summer of 1970, for example, such fears

were buttressed by the proceeding before the Interstate

Commerce Commission, in which the proposal by Penn

Central to discontinue a large portion of its passenger

train service was under investigation. The proposal was

substantially approved in Penn Central Transportation

Co. Discontinuance, 338 1.C.C. 380.

Congress faced the immediate threat by ordering a mora-

torium on all train discontinuances until at least May 1,

1971. Within thirty days after the passage of the Act

(October 30, 1970), the Secretary of Transportation was

required to prepare a preliminary report and recommenda-

tions for a basic system of intercity rail passenger serv-

ice, and to submit such report to the Interstate Com-

merce Commission and Congress. Section 201, 45 U.SC.,

$521. The I.C.C., State Commissions, and labor represen-

tatives were given only thirty days to review and com-

ment upon the preliminary report, and the Secretary was

required to submit a final report to Congress within ninety

days of the passage of the Act. Section 202, 45 U.S.C.,

8522. If Amtrak entered into a contract, pursuant to Sec-

tion 401 of the Act, 45 U.S.C., 8561, with a railroad to

Se

8

relieve it of responsibility for service prescribed for the

basic system, Amtrak was forbidden to. discontinue such

service until at least July 1, 1973. Section 404(b), 45

U.S.C., 8564(b). Railroads not entering into contracts

with Amtrak to relieve them of responsibility for passen-

ger service were forbidden to discontinue any service un-

til at least January 1, 1975. 45 U.S.C., 8564(a).

Furthermore, and very importantly in this case, Con-

gress specifically provided that “The basic system as des-

ignated by the Secretary . . . shall not be reviewable in

any Court.” Section 202, 45 U.S.C., 8522.

In the manner described above, Congress prevented the

imminent from occurring, i.e., “complete curtailment of

rail passenger service” across the country. The preserva-

tion of a basic system was assured for nearly three years

— October 30, 1970 to July 1, 1973; and the compo-

nents of the basic system, as designated by the Secretary,

were not to be contested in any court.

After assuring the maintenance of a basic system until

at least July 1, 1973, Congress then made it abundantly

clear that State and local authorities, among others, were

to play a major role in the future development of the na-

tion’s rail passenger service. Amtrak, for example, was

prohibited from discontinuing any trains in the basic sys-

tem after July 1, 1973, whenever State, regional, or local

agencies, after receiving notice of the proposed discontinu-

ance, “request continuation of the service and within ninety

days agreed to reimburse the Corporation for a reasonable

portion of any losses associated with the continuation

of service beyond the notice period.” Section 404(b)(3),

45 US.C., §564(b)(3).?

2 Section 404(b)(3) reads:

“Discontinuance of Service . . .

(continued)

9

Similarly, concerning rail service in addition to that pre-

scribed for the basic system, Amtrak is required to provide

such service upon the request of, and appropriate reimburse-

ment of a portion of the losses by State, regional, or local

agencies. Section 403(b), 45 U.S.C., §563(b).> By a 1972

amendment to Section 403(a) [45 U.S.C., 8563(a)] of the

Act, the Corporation was directed to “. . . cooperate with

State, regional, and local agencies to encourage the use of

trains [ outside of the basic system] and [to] make reasonable

2 (continued)

(3) If at any time after July 1, 1973, the Corporation

determines that any train or trains in the basic system in

whole or in part are not required by public convenience and

necessity, or will impair the ability of the Corporation to

adequately provide other services, such train or trains may

be discontinued under the procedures of section 13a of Title

49: Provided, however, That at least thirty days prior to any

change or discontinuance, in whole or in part, of any service

under this subsection, the Corporation shall mail to the Gov-

ernor of each State in which the train in question is operated,

and post in every station, depot, or other facility served thereby

notice of the proposed change or discontinuance. The Corpo-

ration may not change or discontinue this service if prior to

the end of the thirty-day notice period, State, regional, or

local agencies request continuation of the service and within

ninety days agree to reimburse the Corporation for a reason-

able portion of any losses associated with the continuation of

a

service beyond the notice period.”

| 3 Section 403(b) reads:

“New Service . . .

(b) Any State, regional, or local agency may request of

the Corporation rail passenger service beyond that included

within the basic system. The Corporation shall institute such

service if the State, regional, or local agency agrees to reim-

burse the Corporation for a reasonable portion of any losses

associated with such services.

a ee

10

efforts to assure high quality of customer services.” See Sec-

tion 6, Public Law 92-316, 86 Stat. 229.

Disagreements between Amtrak and State and local au-—

thorities as to the extent of reimbursement to be paid by

those authorities for the continuance of trains in or be-

yond the basic system are to be referred to. the Secretary

of Transportation for decision. 45 U.S.C., 88563(c), 564

(b)(4).

In addition, proposed discontinuances by Amtrak of

trains in the basic system after July 1, 1973, were ex-

plicitly made subject to the procedures of section 13a of

the Interstate Commerce Act (49 U.S.C., 813a). as were

any proposed discontinuances, after January 1, 1975, by

railroads which had not entered into contracts with Am-

trak pursuant to 45 U.S.C., 8561(a)(1). See Sections 404

(a) and 404(b)(2) of the Act, 45 U.S.C., 8564(a), 564

(b)(2).

ARGUMENT

ANALYSIS OF THE LANGUAGE AND LEGISLATIVE

HISTORY OF SECTION 307 DOES NOT LEAD TO A

CONCLUSION THAT CONGRESS CLEARLY INTENDED

TO BAR SUITS AGAINST AMTRAK AND THE RAIL-

ROADS, FOR VIOLATIONS OF THE ACT, BY PARTIES

OTHER THAN EMPLOYEES, THEIR REPRESENTA-

TIVES, OR THE ATTORNEY GENERAL.

The Court below, in a thorough and exhaustive analysis

of the language and legislative history of Section 307, re-

jected petitioners’ contentions that Section 307 clearly

bars all suits for violations of the Amtrak Act, other than

: 11

those instituted by the Attornéy General or, in labor agree-

ment controversies, by an employee or an employee repre-

sentative. (SA‘* 28-39).

Although the enabling act creating Amtrak declared that

the Corporation is not an “agency or establishment of the

United States government,” (45 U.S.C., 8541), there is lit-

tle doubt about the extensive public interest in the oper-

ations of the Corporation and the “quasi-public” nature

of its organization. It is essential, then, that Amtrak be

held strictly accountable for its activities not only before

Congress, but also before the courts by parties aggrieved

by its actions, unless Congress has clearly mandated to the

contrary.

'

Since a basic question involved in this case is the inter- )

relationship of the intent of Congress with the ordinary

right of access to the courts by parties aggrieved by ac-

tions taken by agencies created by Congress, this Court’s

statement, in Barlow v. Collins, 397 U.S. 159, 166-167,

25 L. Ed. 2d 192, 199-200, 90 S. Ct. 832 (1970), con-

cerning the right to judicial review of actions taken by a

governmental agency, is particularly appropriate:

In Abbott Laboratories v. Gardner, 387 U.S.

136, 140, 18 L. Ed. 2d 681, 686, 87 S. Ct.

1507, we held that “judicial review of a final

agency action by an aggrieved person will not

be cut off unless there is persuasive reason

to believe that such was the purpose of Con-

gress.” A clear command of the statute will

4 “SA” refers to Single Appendix to petitioners’ brief.

For example, the Corporation continues to be financed by the

US. Treasury and by means of Government guarantees on corporate

obligations. See 45 U.S.C., §8601-2. 45 U.S.C., §543(a) provides for

the Presidential appointment of a majority of the Board of Directors.

¢ “

SE ee ee eee ame EN aaa eae NTN ere RN ee an RNC mE eT ete Sse IO Seen

preclude review; and such a command of the

statute may be inferred from its purpose.

Switchmen’s Union v. National Mediation

Board, 320 U.S. 297, 88 L. Ed. 61, 64 S. Ct.

95. It is, however, “only upon a showing of

‘clear and convincing evidence’ of a contrary

legislative intent” that the courts should re-

strict access to judicial review. Abbott Lab-

atories v. Gardner, supra, at 141, 18 L. Ed.

2d at 687. The right of judicial review is or-

dinarily inferred where congressional intent to

protect the interests of the class of which the

plaintiff is a member can be found; in such

cases, unless members of the protected class

may have judicial review of statutory objec-

tives might not be realized. See the Chicago

Junction CdSe, 264 U.S. 258, 68 L. Ed. 667,

44 S. Ct. 317; Hardin v. Kentucky Utilities,

supra.

The relatively recent assault by the courts on the

“standing” obstacle to obtaining judicial review by ag-

grieved individuals has also extended to the standing of

organizations, such as the respondents in this case, to vin-

dicate the rights of its members in judicial proceedings.®

6 In granting standing to an association in National Automatic

Laundry and Cleaning Council v. Shultz, 443 F.2d 689 (D.C. Cir.

1971), the court stated at 693, 694:

. . . [The] revision of judicial thinking on the stand-

ing question has been accompanied by an adjunct line

of cases that show a wide disposition to allow associ-

ations to appear as representatives of their members

and to grant them standing to seek to vindicate the

(continued)

13

In this case, it is obvious that ‘clear and convincing evi-

dence” of Congressional intent to limit severely judicial re-

view of Amtrak’s actions simply does not exist.

The language of Section 307’ does not specifically ex-

clude all parties aggrieved by action of Amtrak or a rail-

road from bringing suit. It does not, for example, include

the word “only” when referring to petitions by the Attor-

ney General and employees. See Wood v. National Rail-

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

1972).

6 (continued)

interests of those members. See, e.g., National Motor

Freight Traffic Ass'n v. United States, 372 US. 246,

83 S. Ct. 688, 9 L. Ed. 2d 709 (1963); Environmental

Defense Fund, Inc. v. Hardin, 138 US. App. D.C. 391, 3

428 F.2d 1093 (1970); Lodge 1858, American Federa- :

tion of Government Employees vy. Paine, 141 U.S. App. :

D.C. 152, 436 F.2d 882 (April 21, 1970); Curran y,

Laird, 136 US. App. D.C. 280, 420 F.2d 122 (1969)

(en banc); United Federation of Postal Clerks v. Wat-

son, 133 U.S. App. D.C. 176, 409 F.2d 462, cert. de-

nied, Blount v. United Federation of Postal Clerks, 396

US. 902 S. Ct. 212, 24 L. Ed. 2d 178 (1969); Office

of Communication of the United Church of Christ v.

FCC, 123 US. App. D.C. 328, 359 F.2d 994 (1966);

Norwalk CORE v. Norwalk Redevelopment Agency, 395

F.2d 920 (2d Cir. 1968); Scenic Hudson Preservation

Conf. v. FPC, 354 F.2d 608 (2d Cir. 1965), cert. de-

nied, Consolidated Edison Co. of New York, Inc. vy.

Scenic Hudson Preservation-Conference, 384 US. 941,

86 S. Ct. 1462, 16 L. Ed. 2d 540 (1966).

Phat co ew oS BES

Ck Ey EEA EE RG PLES TH OTe

BPE RPA TUE

7 Section 307 is set out on pp. 2-3, supra.

14

Another provision of the Act shows that Congress knew

how to make itself abundantly clear when it wanted to

limit judicial review. Section 202, 45 U.S.C., 8522, pro-

vides that the original designation of the basic system by

the Secretary of Transportation “shall not be reviewable

in any court.”

Petitioners argue that the intent of Congress to limit

judicial review is clear because “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.” (Pet. Br., p. 14). The Court below thor-

oughly analyzed this contention and rejected it.

In the instant case we are unable to draw

inferences from the legislative history with

any confidence. The proposed amendment was

never debated or criticized by members of Con-

gress so that failure to adopt the amendment

might reasonably be construed to be congres-

sional rejection of that which the amendment

provided for. Compare National Automatic —

Laundry & Cleaning Council v. Shultz, 143 US.

App. D.C. 274, 291, 443 F.2d 689, 706 (1971).

The Committee might well have believed, not-

withstanding the remarks of railway labor repre-

sentatives, that Section.307 as originally drafted

did not bar suits by all injured and aggrieved

parties. Indeed, the only mention of the scope

of Section 307 during debate on the floor of

Congress suggests that Congress interpreted the

section to permit such suits. (SA 36).

In its section-by-section analysis of the provisions of the

Act, the Committee on Interstate and Foreign Commerce

1S

did not discuss Section.307 in terms of limiting judicial

review, but rather in terms of “authorizing” access.to the

courts that might otherwise have been questionable:

4

Section 307 authorizes the Attorney Gen-

eral of the United States to sue the corpora-

tion or any railroad to prevent acts of omis-

‘sion Or commission in Violation of this legis-

lation. In the case of labor agreements, indi-

vidual employees or duly authorized employee

representatives may sue for equitable relief.

H.R. Rep. No. 91-1580, supra, p. 9,

As the court in Wood y. National Rail Passenger Corp.,

supra, at 911-912, noted:

The express authority of the Attorney Gen-

eral to petition for equitable relief against the

corporation or any railroad may have been

deemed necessary to resolve doubts that the

United States had a sufficient “interest” un-

der 28 U.S.C. 8517 to allow him to bring

Suit to correct conduct of these private busi-

nesses, where non-criminal sanctions are in-

volved.

This is not the first time that Congress has

recognized that the Attorney General should

be given a substantial-role in obtaining sanc-

tions to obtain enforcement of responsibilities

imposed on. persons who Carry out government-

assisted projects. See, e.g, 42 U.S.C. 836] 1(g),

3613.

It is clear, then, that there is no “clear and convincing

evidence” of a Congressional intent to restrict, severely,

ERE RELATION ei. REO BESS PALI I

16

judicial review of actions taken by Amtrak or a railroad

allegedly pursuant to mandates contained in the Amtrak

Act by barring parties aggrieved by such actions from ini-

tiating suits.

ALLOWING PARTIES OTHER THAN THE ATTORNEY

GENERAL, IN NON-LABOR CASES, TO CONTEST VIO-

LATIONS OF THE ACT WILL ASSURE COMPLIANCE

WITH, AND NOT FRUSTRATE, THE PURPOSES OF

THE ACT. —

Petitioners contend that the decision below would’ seri-

ously frustrate the purposes of the Amtrak Act, using as

a major hypothetical example the alleged ills that would

flow if any “aggrieved” passenger were allowed to contest

a proposed discontinuance of an Amtrak train. (Pet. Br.,

pp. 24-27).

As indicated above, discontinuances are governed by Sec-

tion 404 of the Act, 45 U.S.C., 8564. That section pro-

vides, among other things, that proposed discontinuances

by Amtrak after July 1, 1973 of trains in the basic sys-

tem can take effect only after the procedures of Section

13a of Title 49 are followed. 45 U.S.C., 8564(b)(3). In

addition, railroads which have not contracted with Amtrak

are prohibited from discontinuing intercity passenger train

service until January 1, 1975, after which date train serv-

ice operated by such railroads may be discontinued, again

pursuant to the provisions of Section 13a of Title 49.

Section 13a of Title 49 (49 U.S.C., §13a) contains a

rather elaborate set of procedures that Amtrak and the

railroads must follow prior to discontinuing any train oper-

ation, including the possibility of an investigation by the

©

*

1.C.C8 To discontinue intrastate trains. Amtrak must

seek permission from the appropriate state authority. 49°

U.S.C., Section. 13a(2). The results of an investigation by

the I.C.C. has been held by this Court to be appealable

by interested parties, pursuant to 28 U.S.C., $1336(a). City

of Chicago v. United States, 396 US: 162, 24 L. Ed. 2d

340, 90 S. Ct. 309 (1969). As this Court stated in City

of Chicago v. United States. Supra, at 164, 24 L. Ed. 2d

340, 343:

Certainly under §13a(1) the carrier, if over-

ruled by the Commission, could obtain review.

We can find no talismanic sign indicating that

Congress desired to deny review to opponents

of interstate discontinuances alone.

Also, as described above (pp. 8-10), Congress has man-

dated a large role for State and local authorities in the

8 Several investigations by the L.C.C. of Proposed discontinuance

by Amtrak are presently taking palce. See I.C.C. Finance Docket

No. 27436, National Railroad Passenger Corporation (Amtrak) — Dis-

continuance of Trains Nos. 30 & 31 , 530 & 531— Between New York,

New York/Washington, D.C., and Kansas City, Missouri (National Lim-

ited); ICC Finance Docket No. 27437, National Railroad Passenger Cor-

poration (Amtrak) — Discontinuance of Trains Nos. 52 & 53 Between

Chicago and St. Petersburg/Miami, Florida (The Floridian); and 1.C.C.

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 Whit-

comb Riley).

Consistent with Amtrak’s concern in this case that accountability

in the courts for their actions is too heavy a “burden” to bear, the

Department of Transportation has requested, but not received, from

Congress, a change in the discontinuance procedures Amtrak is pres-

ently required to follow. Report to Congress, The Rail Passenger

Service Act of 1970, pp. 104-105 (March, 1973). ‘

SE CREE Re

SELLE

20

to contest. violations of the Act will not frustrate, but

rather will ensure timely compliance with, the purposes

of the Act.

SECTION 307 DOES NOT DEPRIVE THE DISTRICT

COURTS OF JURISDICTION OVER SUITS BROUGHT

BY PARTIES OTHER THAN THE ATTORNEY GEN-

ERAL IN NON-LABOR CASES.

Petitioners contend that Section 307 restricts access to

the district courts, on jurisdictional grounds, to the Attor-

ney General, employees, and employee representatives. (Pet.

Br., pp. 29-34).

The Court below rejected this contention for essentially

the same reasons it rejected the argument that only the

Attorney General, in non4dabor agreement cases, has stand-

ing to sue Amtrak or a railroad for violations of the Act,

holding that the jurisdiction of the district court may rest

on 28 U.S.C., $1337.

Prior to passage of the Amtrak Act, train discontinu-

ances had to be approved by either the State Commissions

or by the Interstate Commerce Commission, pursuant to

49 US.C., §813a. 49 U.S.C., §13a(2), for example, requires

that application for approval of discontinuances of intra-

state trains must first be made to the appropriate state

agency. This Court, in rejecting a contention that requir-

ing the railroads to seek relief first from a State agency

9 28 US.C., §1337 provides that “the district courts shall have

original jurisdiction of any civil action or proceeding arising under

any Act of Congress regulating commerce or protecting trade and

commerce against restraints and monopolies.”

Se

2t

for its intrastate train operations would frustrate the pur-

pose of Congress in enacting $13a, stated:

“That purpose was, as the court below ob-

served, remedial. But it was conditioned by

a desire to protect state jurisdiction over lo-

cal operations. To ignore this we conclude

was error.”

New Jersey v. New York, S. & W. R. Co., 372 US. 1,

9,9 L. Ed. 2d 541, 546, 83 S. Ct. 614 (1963).

In the instant case, petitioners argue that the “Amtrak

Act expressly embodies a radical departure from past prac-

tice,” using as an example the discontinuance provisions

of 45 U.S.C., 8561(a). (Pet. Br., p. 33, n. 34). Petition-

ers fail to point out, though, that the “radical departure”

for discontinuances was limited in time. After July 1, 1973,

trains in the basic system may be discontinued by Amtrak

only in accordance with the procedures of 49 U.S.C., 813a

45 US.C., §564(b)(3). In addition, section 13a procedures

are to be employed after January 1, 1975, for discontinu-

ances proposed by railroads which have not entered into a

contract with Amtrak pursuant to 45 U.S.C., §564(a)(1).

45 US.C., 8564(a).

As the court below stated — when discussing procedures

for train discontinuances prior to the Amtrak Act in rela-

tion to the accessibilitiy of the district courts by aggrieved

parties to redress. violations of the Act (SA 45):

Passenger groups and other affected par-

ties were allowed to intervene and argue their

cases in these forums. We cannot help but

believe that if Congress had wanted to take

away these rights it would have done so in

a more explicit fashion. Thus for the same

reasons that we found no congressional in-

tent in Section 307 to overcome the strong

presumption of standing in favor of persons

Dad intended to be protected by legislation, we

now find no congressional intent to overcome

the general jurisdictional grant in Section 1337.

Petitioners rely extensively on the decision by this Court

in Switchmen’s Union of North America v. National Medi-

ation Board, 320 U.S..297, 88 L. Ed. 61, 64 S. Ct. 95 |

(1943), to support their contention that the courts have

no jurisdiction to entertain @his suit. However, that case

is distinguishable from the instant one not only for the ex-

cellent reasons given by the court below (SA 44-45). but

also because considerable discretion is lodged in Amtrak

and the railroads for taking, or not taking, actions which

affect the location and availability of rail passenger service

in this country.

In Switchmen’s Union, supra, this Court described the

functions of the Mediation Board under the act in question

as “more the function of a referee” with “‘no discretion to

take or withhold action.” 320 U.S. at 304, 305, 88 L.Ed.

at 66.

A characterization of Amtrak as merely a “referee” with ©

no “discretion to take or withhold action” would be to-

tally inappropriate.

For example, 45 U.S.C., 8564(b)(3) provides that trains

in the basic system which Amtrak determines are not re-

quired by public convenience and necessity “may be dis-

continued.” 45 U.S.C., 8564(b)(2) provides: “Except as

provided in section 563(a) of this title, service beyond that

prescribed for the basic system undertaken by the Corpo-

ration upon its own initiative may be discontinued at any

time.”” 45 U.S.C., §563(a) provides, in part: “The Corpo-

‘ration may provide intercity rail passenger service in excess

of that prescribed for the basic system, . . . .” (Underscores

all supplied).

td

23

Finally, petitioners contend that the respondents are

barred from instituting this action because the Amtrak Ac’

does not explicitly provide for private causes of action.

(Pet. Br., pp. 34-36).

Such a contention lacks persuasiveness in light of this

Court’s opinions in J. 1. Case Co. v. Borak, 377 U.S. 426.

12 L. Ed. 2d 423, 84 S. Ct. 1555 (1964), and Allen y.

State Board of Elections, 393 US. 544, 22 L. Ed. 2d 1,

89 S. Ct. 817 (1969). As the Court stated in the Allen

case, supra, at 557, 22 L. Ed. 2d at 12:

We have previously held that a federal stat-

ute passed to protect a class of citizens, al-

though not specifically authorizing members

of the protected class to institute suit, never-

theless implied a private right of action. In

J. I. Case Co. v. Borak, 377 US 426, 12 L

Ed 2d 423, 84 S Ct 1555 (1964), we were

called upon to consider §14(a) of the Securi-

ties Exchange Act of 1934. 48 Stat 895, 15

USC §878n(a). That section provides that it

shall be “unlawful for any person . . . [to

violate] such rules and regulations as the Com-

mission may prescribe as necessary or appro-

priate in the public interest or for the protec-

tion of investors.” We held that “[w)hile this

language makes no specific reference to a priv-

ate nght of action, among its chief purposes

is ‘the protection of investors,’ which certainly

implies the availability of judicial relief where

necessary to achieve that result.” 377 US, at

432, 12 L Ed 2d at 427.

The Court further pointed out in the Allen case, when

commenting upon a provision in the Voting Rights Act

24

> permitting the Attorney General of the United States to

institute actions to enforce provisions of that Act: “The

+ achievement of the Act’s laudable goal could be severely

> hampered, however, if each citizen were required to de-

) pend solely on litigation instituted at the discretion of the

Attorney General.” 393 U.S. 566, 12 L. Ed. 2d at 12.

+ (Underscore supplied).

Certainly, railroad passengers — present and future —

+ were intended to be prime beneficiaries of the passage of

> the Amtrak Act. Petitioners attempt to distinguish this

case from the J. J. Case Co. and Allen cases, supra, by

suggesting that “possible violations of the Amtrak Act are

* not so numerous” as to overwhelm the resources available

* to the Attorney General for monitoring the Act. (See Pet.

’ Br., p. 35, n. 36). This argument is rather curious, given

) petitioners’ fears, expressed earlier in their brief (Pet. Br.,

\ pp. 22-23), that allowing access to the courts by poten-

} tially aggrieved parties, including the “several million pas-

* sengers”’ across the country, will seriously frustrate the pur-

poses of the Act.

* Furthermore, as indicated above, Congress made discon-

tinuances by Amtrak of basic system trains after July 1,

+ 1973, (and discontinuances by the railroads after January

+1, 1975) expressly subject to the provisions of Section 13a

of the Interstate Commerce Act. Section 13a proceedings

* before the I.C.C. typically involve a large number of par-

4 ticipants, including State Commissions. Appeals to the

‘courts from I.C.C. decisions in Section 13a proceedings

have been assured by this Court in City of Chicago v.

United States, supra.

> Since Congress, among other things, provided that dis-

j continuances by Amtrak and the railroads shall be subject

25

to extensive public scrutiny and eventual accountability

in the courts, it can hardly be argued, as petitioners do

here, that Congress intended, by the provisions of Section

307 of the Act, to make the Attomey General the sole ar

biter, in non-labor cases, as to when actions taken by the

Corporation or by the railroads pursuant to the Act shoulc

be contested in the courts.

CONCLUSION

For the foregoing reasons, the judgment of the Court be

low should be affirmed.

Respectfully submitted,

PAUL RODGERS

General Counsel

SUMNER J. KATZ

Assistant General Counsel

National Association of

Regulatory Utility Commissioners

1102 ICC Building

Post Office Box 684

Washington, D.C: 20044

(202) 628-7324

September 4, fo73