335 F.2d 292 (D.C. Cir. 1964), 17753, Pennsylvania Railroad Co. v. Dillon

Docket Nº17753, 17755, 17756, 17764.
Citation335 F.2d 292
Party NameThe PENNSYLVANIA RAILROAD COMPANY et al., Appellants, v. C. Douglas DILLON, Secretary of the Treasury, et al., Appellees. AMERICAN UNION TRANSPORT, INC., Appellant, v. C. Douglas DILLON, Secretary of the Treasury, et al., Appellees. AMERICAN-HAWAIIAN STEAMSHIP COMPANY, Appellant, v. C. Douglas DILLON, Secretary of the Treasury, et al., Appellees. S
Case DateJune 26, 1964
CourtUnited States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 292

335 F.2d 292 (D.C. Cir. 1964)

The PENNSYLVANIA RAILROAD COMPANY et al., Appellants,

v.

C. Douglas DILLON, Secretary of the Treasury, et al., Appellees.

AMERICAN UNION TRANSPORT, INC., Appellant,

v.

C. Douglas DILLON, Secretary of the Treasury, et al., Appellees.

AMERICAN-HAWAIIAN STEAMSHIP COMPANY, Appellant,

v.

C. Douglas DILLON, Secretary of the Treasury, et al., Appellees.

SEATRAIN LINES, INC., Appellant,

v.

C. Douglas DILLON, Secretary of the Treasury, et al., Appellees.

Nos. 17753, 17755, 17756, 17764.

United States Court of Appeals, District of Columbia Circuit.

June 26, 1964

Argued Jan. 2, 1964.

Certiorari Denied Dec. 14, 1964.

See 85 S.Ct. 437.

Page 293

Mr. Warren E. Baker, Washington, D.C., for appellant in No. 17756, argued for all appellants.

Mr. Joseph F. Healy, Jr., Washington, D.C., also entered an appearance for appellant in No. 17764.

Mr. Jeremiah C. Waterman, Washington, D.C., was on the brief for appellants in No. 17753.

Mr. George F. Galland, Washington, D.C., was on the brief for appellant in No. 17755.

Mrs. Amy Scupi, Washington, D.C., also entered an appearance for appellant in No. 17755.

Mr. Gordon P. MacDougall, Washington, D.C., was on the brief for appellant in No. 17756.

Miss Kathryn H. Baldwin, Atty., Dept. of Justice, with whom Messrs. David C. Acheson, U.S. Atty., and Alan S. Rosenthal, Atty., Dept. of Justice, were on the brief, for appellees Dillon, Nichols and Bureau of Customs.

Mr. Daniel M. Gribbon, Washington, D.C., with whom Mr. William H. Allen, Washington, D.C., was on the brief, for appellee Sea-Land Service, Inc.

Mr. Robert L. Randall, Washington, D.C., also entered an appearance for appellee Sea-Land Service, Inc.

Before BAZELON, Chief Judge, and FAHY and BURGER, Circuit judges.

BURGER, Circuit Judge:

Complaints filed by appellants in the District Court sought declaratory judgments and injunctive relief to require appellees to apply Section 27 of the Merchant Marine Act of 1920, 41 STAT. 999 (1920), as amended, 74 STAT. 321 (1960), 46 U.S.C. § 883 (Supp. IV 1963), and pertinent Treasury Regulations adopted pursuant thereto 1 so as to deny enrollment in the coastwise trade to certain vessels. The District Court dismissed the complaints and these appeals followed.

Three of appellants are coastwise carriers who compete directly with Sea-Land Service, Inc., intervenor, the present owner of the two vessels claimed by appellants to have been illegally enrolled; other appellants are railroads who were granted leave to intervene in the District Court on their allegation that their transcontinental freight carriage is also in substantial direct competition with Sea-Land. Appellants claim that the documenting of two rebuilt vessels by the Commissioner of Customs was a violation of Section 27 of the Act as amended in 1960 2 and its relevant regulations. The 1960 amendment, except for a limited saving clause, 3 prohibited enrollment and licensing of vessels 'jumboized' by installation of foreign-made midbodies, or midsections. Additionally, two appellants contend that an administrative

Page 294

hearing was required on the eligibility of the vessels for enrollment. 4

Appellees contend that appellants are without standing to challenge in court the actions of the Commissioner of Customs and the Secretary of the Treasury with regard to these ships. We agree. Allegation of a legally protected right is a constitutional predicate of standing to attack governmental action. See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 140, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (principal opinion); Gonzalez v. Freeman, 118 U.S.App.D.C., , 334 F.2d 570, p. 576. The tests for standing to review agency action are found in Section 10(a) of the Administrative Procedure Act:

'Right of Review

'Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.'

60 STAT. 243 (1946), 5 U.S.C. § 1009(a) (1958). Under this statute appellants have standing to challenge agency action which they allege either causes them a 'legal wrong, ' or adversely affects or aggrieves them 'within the meaning of any relevant statute.'

'Legal wrong, ' as we have only recently noted, is the invasion of a legally protected right. See Gonzalez v. Freeman, supra, 117 U.S.App.D.C. at n.6, 334 F.2d at 576 n.6. Thus, in order to make out a claim of 'legal wrong' under Administrative Procedure Act § 10(a), appellants must assert some legally protected right to be free of the competition provided by the two vessels whose documentation they are challenging. This court has very recently spoken on this aspect of standing. When 'Congress has not given them any such standing by express

Page 295

or implied provision of statute * * *, mere economic competition made possible by governmental action (even if allegedly illegal) does not give standing to sue in the courts to restrain such action. Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1939); Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938); Kansas City Power & Light Co. v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924, cert. denied, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955).' Texas State AFL-CIO v. Kennedy, 117 U.S.App.D.C. 343, 345, 330 F.2d 217, 219 (1964). For purposes of standing in this case, the sufficiency of appellants' allegations of 'legal wrong' thus depend upon congressional intent to bestow upon them a legal right to protection from such competition.

Similarly, appellants' allegations that they are 'adversely affected or aggrieved * * * within the meaning of any relevant statute' depend for their adequacy as to standing upon the congressional purpose underlying the relevant sections of the Merchant Marine Act of 1920, as amended. See Kansas City Power & Light Co. v. McKay, 96 U.S.App.D.C. at 281, 225 F.2d at 932; Jaffe, Standing to Secure Judicial Review: Private Actions, 75 HARV.L.REV. 255, 287 (1961). Under either leg of Section 10(a), therefore, since appellants complain only of government enhancement of economic competition, they must demonstrate 'statutory aid to standing.' Cf. United Milk Producers of New Jersey v. Benson, 96 U.S.App.D.C. 227, 229, 225 F.2d 527, 529 (1955).

Appellants contend that the statutory scheme of barring from the coastwise trade ships which were rebuilt abroad or whose midbodies were built abroad was intended to promote on equal terms competition between coastwise carriers and thus to protect and benefit the shipowner appellants in the interests they are asserting. That some competitive parity is one of the consequences of these statutory provisions is doubtless correct; but the broad congressional purpose underlying these particular enactments was to stimulate and encourage resort to domestic shipyards and thus ensure them sufficient business so that their facilities would be adequate in time of national emergency. Congress did not intend to insulate coastwise carriers from other domestic competition or to give them any legally protected right to be free of such competition. 5

Page 296

Finally, appellants rely upon Atchison, Topeka and Santa Fe Railway Company v. Summerfield, 97 U.S.App.D.C. 203, 229 F.2d 777 (1955), cert. denied, 351 U.S. 926, 76 S.Ct. 779, 100 L.Ed. 1456 (1956), for the proposition that

Page 297

their prior investments in American-built and-rebuilt ships as prerequisite to engaging in the coastwise trade give them standing to challenge action which may diminish the value of those investments. The Atchison case does not stand for that proposition; there this court found that the appellant railroads had standing to challenge a decision of the Postmaster General to conduct an experimental program of transporting first-class mail between certain points via air rather than the customary rail route. It was the...

To continue reading

Request your trial
47 practice notes
  • 270 F.Supp. 537 (D.Md. 1967), Civ. 17866, Congress of Racial Equality (Target City Project) v. Commissioner, Social Sec. Administration
    • United States
    • Federal Cases United States District Courts 4th Circuit District of Maryland
    • June 20, 1967
    ...U.S. 123, 140, 71 S.Ct. 624, 95 L.Ed. 817 (1951) Page 543 (principal opinion); Pennsylvania Railroad Co. v. Dillon, 118 U.S.App.D.C. 257, 335 F.2d 292, 294 (1964), cert. den. 379 U.S. 945, 85 S.Ct 437, 13 L.Ed.2d 543 (1964). See also Hackett v. Kincaid, 36 F.R.D. 442 (N.D.Miss.,1964); Nesbi......
  • 277 F.Supp. 525 (C.D.Cal. 1967), 67-1225, Los Angeles Customs & Freight Brokers Ass'n, Inc. v. Johnson
    • United States
    • Federal Cases United States District Courts 9th Circuit Central District of California
    • December 7, 1967
    ...of a legally-protected right. Braude v. Wirtz, 350 F.2d 702, 707 (9th Cir. 1965); Pennsylvania R.R. Co. v. Dillon, 118 U.S.App.D.C. 257, 335 F.2d 292, 294 (1964), cert. den. 379 U.S. 945, 85 S.Ct. 437, 13 L.Ed.2d 543 The rule on standing preserved by 5 United States Code, Section 702 is tha......
  • Safeco Insurance Company of America v. Nelson, 062420 CASDC, 20-cv-00211-MMA (AHG)
    • United States
    • Federal Cases United States District Courts 9th Circuit Southern District of California
    • June 24, 2020
    ...Cir. 1955). In other words, “the invasion of a legally protected right” is a “legal wrong.” See Pa. R.R. Co. v. Dillon, 335 F.2d 292, 294 (D.C. Cir. 1964) (citing Gonzales v. Freeman, 334 F.2d 570, 576 n.6 (D.C. Cir. Here, it is far from clear that the United S......
  • 486 F.Supp. 1305 (W.D.N.Y. 1980), Civ-78-185, Great Lakes Dredge & Dock Co. v. Ludwig
    • United States
    • Federal Cases United States District Courts 2nd Circuit
    • March 26, 1980
    ...by the statute, and (2) there is "injury in fact." Id. at 153, 90 S.Ct. at 830. In Pennsylvania Railroad Co. v. Dillon, 335 F.2d 292, 295 (D.C.Cir. 1964), cert. denied, 379 U.S. 945, 85 S.Ct. 437, 13 L.Ed.2d 543 (1964), the District of Columbia Court of Appeals, per Burger, C. J.,......
  • Request a trial to view additional results
47 cases
  • 270 F.Supp. 537 (D.Md. 1967), Civ. 17866, Congress of Racial Equality (Target City Project) v. Commissioner, Social Sec. Administration
    • United States
    • Federal Cases United States District Courts 4th Circuit District of Maryland
    • June 20, 1967
    ...U.S. 123, 140, 71 S.Ct. 624, 95 L.Ed. 817 (1951) Page 543 (principal opinion); Pennsylvania Railroad Co. v. Dillon, 118 U.S.App.D.C. 257, 335 F.2d 292, 294 (1964), cert. den. 379 U.S. 945, 85 S.Ct 437, 13 L.Ed.2d 543 (1964). See also Hackett v. Kincaid, 36 F.R.D. 442 (N.D.Miss.,1964); Nesbi......
  • 277 F.Supp. 525 (C.D.Cal. 1967), 67-1225, Los Angeles Customs & Freight Brokers Ass'n, Inc. v. Johnson
    • United States
    • Federal Cases United States District Courts 9th Circuit Central District of California
    • December 7, 1967
    ...of a legally-protected right. Braude v. Wirtz, 350 F.2d 702, 707 (9th Cir. 1965); Pennsylvania R.R. Co. v. Dillon, 118 U.S.App.D.C. 257, 335 F.2d 292, 294 (1964), cert. den. 379 U.S. 945, 85 S.Ct. 437, 13 L.Ed.2d 543 The rule on standing preserved by 5 United States Code, Section 702 is tha......
  • Safeco Insurance Company of America v. Nelson, 062420 CASDC, 20-cv-00211-MMA (AHG)
    • United States
    • Federal Cases United States District Courts 9th Circuit Southern District of California
    • June 24, 2020
    ...Cir. 1955). In other words, “the invasion of a legally protected right” is a “legal wrong.” See Pa. R.R. Co. v. Dillon, 335 F.2d 292, 294 (D.C. Cir. 1964) (citing Gonzales v. Freeman, 334 F.2d 570, 576 n.6 (D.C. Cir. Here, it is far from clear that the United S......
  • 486 F.Supp. 1305 (W.D.N.Y. 1980), Civ-78-185, Great Lakes Dredge & Dock Co. v. Ludwig
    • United States
    • Federal Cases United States District Courts 2nd Circuit
    • March 26, 1980
    ...by the statute, and (2) there is "injury in fact." Id. at 153, 90 S.Ct. at 830. In Pennsylvania Railroad Co. v. Dillon, 335 F.2d 292, 295 (D.C.Cir. 1964), cert. denied, 379 U.S. 945, 85 S.Ct. 437, 13 L.Ed.2d 543 (1964), the District of Columbia Court of Appeals, per Burger, C. J.,......
  • Request a trial to view additional results