Doak v. City of Claxton, Georgia

• Decision Date: 14 January 1975
• Docket Number: No. CV474-216,CV474-285 and CV474-286.,CV474-216
• Citation: 390 F. Supp. 753
• Parties: Richard C. DOAK v. CITY OF CLAXTON, GEORGIA, a Municipal Corporation, et al. Marie Perry BARNETT v. CITY OF CLAXTON, GEORGIA et al. Nellie B. SMITH v. CITY OF CLAXTON, GEORGIA, a Municipal Corporation, et al.
• Court: U.S. District Court — Southern District of Georgia

390 F. Supp. 753

Richard C. DOAK v. CITY OF CLAXTON, GEORGIA, a Municipal Corporation, et al.

Marie Perry BARNETT v. CITY OF CLAXTON, GEORGIA et al.

Nellie B. SMITH v. CITY OF CLAXTON, GEORGIA, a Municipal Corporation, et al.

Nos. CV474-216, CV474-285 and CV474-286.

United States District Court, S. D. Georgia, Savannah Division.

January 14, 1975.

Milton A. Carlton, Charles B. Merrill, Jr., Spivey, Carlton, Clark & Merrill, Swainsboro, Ga., for Richard C. Doak.

Charles E. Moore, Jr., Atlanta, Ga., for Nellie B. Smith and Marie Perry Barnett.

James E. Findley, Findley, Ratcliffe & Callaway, Claxton, Ga., for City of Claxton.

ORDER ON MOTIONS OF CITY OF CLAXTON TO DISMISS FOR WANT OF FEDERAL JURISDICTION

LAWRENCE, Chief Judge.

I The Litigation

These damage suits grow out of injuries to the plaintiffs which resulted from an explosion allegedly caused by negligence in the manufacture, installation, maintenance and operation of a natural gas supply system in the City of Claxton. Liability of the defendants, other than the municipality, is predicated on negligent manufacture, design and installation. Similar suits by the same plaintiffs against the City of Claxton are pending in the Superior Court of Evans County, Georgia.

It is alleged in the federal actions that an excessive internal gas pressure was permitted to exist in the supply system which in turn imposed excessive pressure on the Claxton Poultry Company facility as a result of which the explosion occurred. The allegations of negligence include the failure "to provide sufficient safety precautions, including, but not limited to, the providing of only one industrial diaphragm, providing no strainer, no relief valve, and no safety shutoff valve".

Jurisdiction is predicated upon existence of a federal question under a federal statute,¹ namely, The Natural Gas Pipeline Safety Act of 1968. See 49 U. S.C. § 1671 et seq. The complaint alleges that, pursuant to that Act, certain minimum federal safety standards were established by regulations of the Department of Transportation (particularly 49 CFR §§ 192.197 and 192.195) and that violations thereof caused the explosion at the Poultry Company Plant in Claxton where Doak, Smith and Barnett were employed.²

II The Legal Issue

The City of Claxton moves to dismiss the complaint on the ground that it shows on its face that the claim alleged against such municipality does not arise under the Constitution or laws of the United States.

The Natural Gas Pipeline Safety Act authorizes the Secretary of Transportation to establish minimum Federal safety standards for the transportation of gas.³ The Act provides for civil penalties not to exceed $1,000 for each violation for each day it persists. § 1678 (a). Any person aggrieved by any order may file a petition for review in a United States Court of Appeals which can grant appropriate relief. Upon petition by the appropriate United States attorney or the Attorney General on behalf of the United States, district courts have jurisdiction to restrain violations of the Act and to enforce standards established thereunder. Actions to recover civil penalties for violations may be brought in the district wherein any act or transaction constituting such violation occurred. 49 U.S.C. §§ 1675(a), 1679(a).

The statute is silent as to civil liability of pipeline companies for injury or damage to persons resulting from violation of safety standards prescribed by the Secretary. The failure to provide a private remedy and express jurisdiction in such cases raises a familiar question. Does the Act by implication create a private right of action over which federal district courts have jurisdiction? The question is as old as Texas & Pacific Railway Company v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874 and as new as Phillips Petroleum Company v. Texaco, Inc., 415 U.S. 125, 94 S.Ct. 1002, 39 L.Ed.2d 209.⁴ In the sixty-year span between the two decisions the subject of implied private civil remedy under federal legislation has provided much grist for the federal judicial mill.

The issue presented in the case before this Court, as I conceive it, is whether Natural Gas Pipeline Safety Act of 1968 by implication creates a right in a member of the public to maintain a private civil action for damages caused by a violation of the Federal safety standards established thereunder by the Secretary of Transportation. If so, the action arises under the laws of the United States and this Court possesses original jurisdiction pursuant to 28 U.S.C. § 1331(a).

III Legislative History of the Natural Gas Pipeline Safety Act

The House Committee on Interstate and Foreign Commerce pointed out in reporting out the Act that authority to improve the public safety as it is affected by transportation by private automobile, bus, truck, railroad train, airplane, ship and pipelines already existed in the Department of Transportation and that the only significant motor transportation "presently beyond the reach of effective comprehensive safety regulation is the transportation of gases by pipeline." 3 U.S.Code Congressional and Administrative News 1968, p. 3224.

Under the heading "Persons Covered", the Committee Report states that the bill covers persons engaged in the transportation of gas who own or operate pipeline facilities and that "person" includes any individual state or municipality. It is clear from the legislative history that the purpose of the statute is the safety and protection of the public. See 3 U.S.Code Congressional and Administrative News 1968, pp. 3225-3227, 3231. However, the means of protecting the public is through establishment of adequate safety standards in the industry and the Congressional grant of jurisdiction to district courts in the Act is limited, at least in terms, to injunctive enforcement of the safety requirements adopted.

The Pipeline Safety Act provides that nothing therein "shall affect the common law or statutory tort liability of any person". § 1677. According to the House Committee, "This language is designed to assure that the tort liability of any person existing under common law or any statute will not be relieved by reason of the enactment of this legislation or compliance with its provisions." § 1677(b).

IV Decisional Law Examined

In favor of implying a private cause of action under federal regulatory statutes, asserts a commentator on this subject, is that it "may increase the likelihood of compliance with the statute by giving victims incentive to assist in its enforcement and potential violators, faced with an additional penalty, added reason to conform their conduct to it. The implied cause of action can also provide direct relief for members of a class that the legislature wished to protect." See Note, "Implying Civil Remedies from Federal Regulatory Statutes", 77 Har.L.Rev. (1963), 285, 291.

The reverse side of the medal is, another writer points out, the fact that thereby the ancient maxim of statutory construction becomes, "The expression of one thing is the inclusion of another." "Must Congress now explicitly exclude what it does not mean to include?" he asks—"Surely an affirmative answer would unduly burden the legislative process. It would place representatives in the untenable position of having to predict all possible future uses of present legislation. Realistically, such prognostication is beyond the power of any person. Under most circumstances, judicial imputation of this power to Congress protects short-range interests at the expense of long-range goals." See Timothy J. Armstrong, "Expressio Unius, Inclusio Alterius: The Fagot-Gomez Private Remedy Doctrine", 5 Ga. L.Rev. (1970), 97, 126.

I shall shortly get to Fagot v. Flintkote Company, 305 F.Supp. 407 and Gomez v. Florida State Employment Service, 417 F.2d 569. The former is a district court decision in the Eastern District of Louisiana. Gomez is a decision by the Fifth Circuit Court of Appeals.

My intention is to limit my discussion of precedents, pro and con, to holdings in our Circuit.⁵ Little profit would result from any elaborate effort at analysis, differentation and analogizing of the numerous cases dealing with the subject of implied remedies under federal statutes which are silent on the creation of a right of a private action for the violation of standards established under the particular federal law. The cases in the Fifth Circuit are representative of the dichotomy of approach, the relative weight accorded various factors involved and the differing results reached by federal courts.

Gomez v. Florida State Employment Office, supra, involved the Wagner-Peyser Act under which the United States Employment Service, Department of Labor, was established to aid migratory workers through a system of employment offices for clearing labor between the several states. 29 U.S.C. § 49. A number of migratory workers brought suit claiming that they had been inadequately paid and had been subjected to intolerable living conditions contrary to the regulations. The Fifth Circuit held in Gomez that the Act and regulations pursuant thereto implied existence of private remedies. The Court said that "the private civil remedy is a method of policy enforcement long honored explicitly in statutes and by implication with the help of courts". See 417 F.2d at 576.

In Fagot v. Flintkote Company, supra, 305 F.Supp. 407 the District Judge held that there was federal-question jurisdiction in a private action brought by a discharged employee against his former employer on the basis of violation of the Federal Labor Standards Act. The Court said (at 410):

"Where Congress creates a right by legislation the federal courts have a duty to implement the statutory intent by providing the appropriate remedy. * * * The general theoretical basis for inferring a right to sue where the statute is silent rests on the conviction that the protection given those persons for whose benefit the statute was

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