Alabama Power Co. v. Alabama Electric Cooperative, Inc., 23016.
Citation | 394 F.2d 672 |
Decision Date | 02 April 1968 |
Docket Number | No. 23016.,23016. |
Parties | ALABAMA POWER COMPANY, Appellant, v. ALABAMA ELECTRIC COOPERATIVE, INC., et al., Appellees. |
Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
S. Eason Balch, John Bingham, Birmingham, Ala., Frank H. Hawthorne, Montgomery, Ala., James H. Hancock, Birmingham, Ala., for appellant.
Bennett Boskey, Washington, D. C., J. M. Williams, Jr., Montgomery, Ala., L. A. Beers, Jr., Andalusia, Ala., Alan S. Rosenthal, Harvey L. Zuckman, Attys., Dept. of Justice, Washington, D. C., for appellees.
Before RIVES, GEWIN and GODBOLD, Circuit Judges.
Alabama Power Company (hereafter Power Company) filed its complaint against Rural Electrification Administration (REA), Alabama Electric Cooperative, Inc. (AEC), Norman M. Clapp, the Administrator of REA, the Department of Agriculture and the Secretary of Agriculture. The complaint prayed for a preliminary and permanent injunction restraining the consummation or use of a $20,350,000.00 loan from REA to AEC for the purpose of financing the construction and operation of a generating plant and high voltage electric transmission and distribution lines. It prayed separately for a judgment avoiding certain 35-year all-requirements electric power contracts between AEC and fourteen electric distribution cooperatives as violative of the antitrust laws, and sought to recover from AEC treble damages, costs and attorneys' fees.
The defendants moved to dismiss and, alternatively, for summary judgment. Affidavits were filed in support of and in opposition to the plaintiff's motion for preliminary injunction and the defendants' motions for summary judgment. The district court, in an opinion reported in 249 F.Supp. 855, denied plaintiff's motion for preliminary injunction and granted the several motions of the defendants to dismiss the action. The district court held that the Power Company had no standing to enjoin the consummation of the REA loan. The 35-year all-requirements electric power contracts the district court held were the result of valid governmental action and, hence, not violative of the antitrust laws. Since we are in agreement with the district court, what was said in its able opinion need not be repeated and our opinion can be brief.
Power Company argues that it has standing to seek judicial review of the REA loan either as made in violation of the "central station service" limitation contained in Section 4 of the REA Act,1 or as being conditioned upon a violation of the antitrust laws.2 As to the claim of standing under the REA Act, it has been repeatedly held that increased competition which may result to a private power company does not give it sufficient standing to enjoin the making of a loan by a federal agency.3 The answer to the claim of standing under the antitrust laws was indicated in Kansas City Power & Light Co. v. McKay, supra note 3, and was clearly furnished in the Fifth Circuit case decided some months after the district court's decision in the instant case, Rural Electrification Administration v. Central Louisiana Electric Co., supra note 3. There, this Court said:
354 F.2d at 865.
The same thought had been earlier expressed by the D.C. Circuit in the Kansas City Power & Light Co. case, supra. See 225 F.2d at 930, 931. As later said by the Eighth Circuit in Rural Electrification Administration v. Northern States Power Co., 1967, 373 F.2d 686, 700:
In brief, review under the Administrative Procedure Act of 1946, 5 U.S.C.A. § 1009, is precluded by that statute's initial exception to the right of review: "Except as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion * * *." The REA Act, 7 U.S.C.A. § 904, commits to the discretion of the Administrator the making of loans for rural electrification, including the adequacy of the security for such loans. The statute not only fails to provide for judicial review, but when construed in the light of its purpose and of legislative history, the statute retains oversight of the Administrator's actions in the hands of Congress itself and precludes judicial review.
The same rationale would deny the plaintiff Power Company standing to enjoin the consummation of the loan or its claimed invalid provision for security directly under the antitrust laws. Further, it is settled that neither the Sherman Act nor the Clayton Act was intended to authorize restraint of governmental action.4 A different question might be presented if the Administrator went beyond the outer perimeter of the authority vested in him by the statute,5 or as expressed in Hardin v. Kentucky Utilities Co., cited supra note 3, "* * * outside the range of permissible choices contemplated by the statute." The Administrator's affidavit discloses that that condition does not arise under the circumstances of this case.
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