Curran v. Laird

• Decision Date: 12 November 1969
• Docket Number: No. 21040.,21040.
• Parties: Joseph CURRAN, Individually and on Behalf of all the Members of the National Maritime Union of America, AFL-CIO, Appellant, v. Melvin R. LAIRD et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

420 F.2d 122 (1969)

Joseph CURRAN, Individually and on Behalf of all the Members of the National Maritime Union of America, AFL-CIO, Appellant, v. Melvin R. LAIRD et al., Appellees.

No. 21040.

United States Court of Appeals District of Columbia Circuit.

Reargued June 20, 1969.

Decided November 12, 1969.

Mr. Martin J. Vigderman, Philadelphia, Pa., with whom Mr. Abraham E. Freedman, Philadelphia, Pa., was on the brief, for appellant. Mr. Stephen C. Sussman, Philadelphia, Pa., also entered an appearance for appellant.

Mr. Alan S. Rosenthal, Attorney, Department of Justice, with whom Mr. David G. Bress, U. S. Atty., at the time the brief was filed, was on the brief, for appellees. Messrs. Richard S. Salzman and Norman Knopf, Attys., Department of Justice, also entered appearances for appellees.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON and ROBB, Circuit Judges, sitting en banc.

ON REHEARING EN BANC.

LEVENTHAL, Circuit Judge:

This case involves an action brought by the President of the National Maritime Union, on behalf of all members of that union, against United States officials responsible for the shipment of American military cargo. Appellant seeks enforcement of the Cargo Preference Act. This statute, passed in 1904, and reenacted in the codification law of August 10, 1956, provides as follows, see 10 U.S.C. § 2631 (1964):

Only vessels of the United States or belonging to the United States may be used in the transportation by sea of supplies bought for the Army, Navy, Air Force, or Marine Corps. However, if the President finds that the freight charged by those vessels is excessive or otherwise unreasonable, contracts for transportation may be made as otherwise provided by law. * * *

It is undisputed that the Military Sea Transportation Service (MSTS) has used foreign flag ships to transport American military cargo to Vietnam. The Government replies that foreign vessels were not used while operating American bottoms were available. It also defends the action on various legal grounds.

After receiving depositions and affidavits the District Court granted summary judgment for appellees. We agree that appellant Curran has standing, in behalf of the members of the National Maritime Union (NMU), to bring this action. However, we reject appellant's several contentions on the merits. Accordingly we affirm.

I. STANDING

The Government argues that neither the NMU nor its members have standing to complain in court of a violation of the Cargo Preference Act.

Plainly the NMU, representing the interests of its members, is aggrieved in fact by the allegedly unlawful action of the Secretary of Defense. A requirement that the Secretary use American flag vessels will expand employment opportunities for the members of the NMU, who man those vessels.¹

Aggrievement in fact presents the kind of concrete, adversary interest underlying the recent decisions rejecting objections to standing, especially in the constitutional sphere.² It establishes "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination" of difficult and far-reaching questions. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). It is also significant in determining the existence of standing to seek a mandate for enforcement of a statutory provision, though we agree with the Government that is not decisive.³ Section 10 of the Administrative Procedure Act⁴ makes cross-reference to the legislative trend of enacting statutes that provide standing to persons aggrieved in fact. E. g., FCC v. Sanders Bros., 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869 (1940). Under the liberal approach developed by the Supreme Court, a person's ability to vindicate his statutory rights permits an action attacking broad regulation claimed inconsistent with the statute, even though complainant is not now or imminently engaged in or proposing activities interdicted by the regulation, provided his ability to undertake cogent planning of his present or future operations is inhibited. United States v. Storer Broadcasting Co., 351 U.S. 192, 200, 76 S.Ct. 763, 100 L.Ed. 1081 (1956). The Legislature's additional provision, that any person suffering legal wrong because of agency action is entitled to judicial review, confirms and strengthens the doctrine whereby courts have found standing on the basis of a legally protected interest. The statute's expansion of judicial review intermeshes with and reenforces a judicial trend liberalizing standing through discernment of a protected interest. The general line of development is underscored by the observation of Justice Harlan in Abbott Laboratories v. Gardner, 387 U.S. 136, 140-141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967):

A survey of our cases shows 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 Congress. * * * Early cases in which this type of judicial review was entertained, e. g. Shields v. Utah Idaho Central R. Co., 305 U.S. 177, 59 S.Ct. 160, 83 L.Ed. 111; Stark v. Wickard, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733, have been reinforced by the enactment of the Administrative Procedure Act, which embodies the basic presumption of judicial review to one "suffering legal wrong because of agency action or adversely affected or aggrieved by agency action within the meaning of a relevant statute," 5 U.S.C. § 702, so long as no statute precludes such relief or the action is not one committed by law to agency discretion, 5 U.S.C. § 701(a). The Administrative Procedure Act provides specifically not only for review of "Agency action made reviewable by statute" but also for review of "final agency action for which there is no other adequate remedy in a court," 5 U.S.C. § 704. The legislative material elucidating that seminal act manifests a congressional intention that it cover a broad spectrum of administrative actions and this Court has echoed that theme by noting that the Administrative Procedure Act\'s "generous review provisions" must be given a "hospitable" interpretation. * * * Again in Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809, supra, at 379-380, 82 S.Ct. at 794, the Court held that only upon a showing of "clear and convincing evidence" of a contrary legislative intent should the courts restrict access to judicial review. See also Jaffe, Judicial Control of Administrative Action 336-359 (1965). Footnote omitted.

The area where the judicial liberalization of standing has made least headway relates to actions by one competitor complaining of another's lack of authority. In this context the courts have been reluctant to find standing "because of the policy encouraging free and open competition — a policy that favors competition in the market place, not in the courts."⁵ Yet even here there have been decisions upholding standing in a competitor upon "an indication of Congressional intent, explicit or implicit, in the relevant substantive acts to grant protection to the competitive interest * * *."⁶

In the recent case of Hardin v. Kentucky Utilities Co., 390 U.S. 1, 88 S.Ct. 651, 19 L.Ed.2d 787 (1968), the Court upheld the standing of a private utility to challenge the legality of TVA's activities in expanding its area of sales. The Court restated the general rule "that the economic injury which results from lawful competition cannot, in and of itself, confer standing on the injured business to question the legality of any aspect of its competitor's operations." But the Court stressed that another rule, established at least since the Chicago Junction Case, 264 U.S. 258, 44 S.Ct. 317, 68 L.Ed. 667 (1924), made it plain that even a competitor had standing to complain of non-observance of a statutory provision that reflected "a legislative purpose to protect a competitive interest." (390 U. S. at 6, 88 S.Ct. at 654.)

The reference to "a legislative purpose" is not a requirement that this be the principal purpose of the legislature. This is also the analysis of the Chicago Junction Case presented by Professor Jaffe,⁷ whose approach, it will be noted, was cited with approval by Justice Harlan in Abbott Laboraories.

A number of precedents have been cited to us. The Government relies especially on 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), and other pre-Hardin precedents of this court denying standing.⁸

In Hardin the Supreme Court limited the significance of our McKay decision. Our view, that the "long established doctrine" concerning actions by competitors meant that an explicit statutory provision was necessary to confer standing on a competitor, was held wholly inapplicable to actions by competitors to enforce statutory requirements concerned with protecting competitive interests. See 390 U.S. at 7, 88 S.Ct. 651.

The post-Hardin opinions have appeared for the most part in cases involving competitors protesting broadened activities of national banks. While the results are by no means uniform, there seems to be a trend toward recognition of standing accompanied by avowals of difficulty.⁹

There is little to be gained from examination of the precedents in detail. Obviously no simple touchstone can be provided for determination of standing questions. Each case turns on the nature of the parties, the grievances and the statutory provisions involved. However, it is clear that with the approach charted in Abbott Laboratories, a person aggrieved in fact may properly invoke not only the letter of the Administrative Procedure Act and its "generous" review provisions, but a broad conception that Congress is "hospitable" to the maintenance of complaints against officials charged with disregarding its substantive mandate. And it does...