Kendler v. Wirtz

• Decision Date: 18 January 1968
• Docket Number: No. 16340.,16340.
• Citation: 388 F.2d 381
• Parties: Harold KENDLER, B. L. Millman, F. D. Walsh, Charles J. French, J. G. Schumann, H. J. Newbauer, Robert Kinnear and Manhattan Lodge No. 946, Brotherhood of Railroad Trainmen, Appellants, v. W. Willard WIRTZ, Secretary of Labor and Robert C. Weaver, Secretary, Department of Housing and Urban Development.
• Court: U.S. Court of Appeals — Third Circuit

388 F.2d 381 (1968)

Harold KENDLER, B. L. Millman, F. D. Walsh, Charles J. French, J. G. Schumann, H. J. Newbauer, Robert Kinnear and Manhattan Lodge No. 946, Brotherhood of Railroad Trainmen, Appellants, v. W. Willard WIRTZ, Secretary of Labor and Robert C. Weaver, Secretary, Department of Housing and Urban Development.

No. 16340.

United States Court of Appeals Third Circuit.

Argued September 26, 1967.

Decided January 18, 1968.

Francis J. Hartman, Hartman & Schlesinger, Mount Holly, N. J., Jan M. Schlesinger, Mount Holly, N. J., on the brief), for appellants.

Leonard Schaitmann, Dept. of Justice, Appellate Section, Civil Division, Washington, D. C. (Carl Eardly, Acting Asst. Atty. Gen., David M. Satz, Jr., U. S. Atty., Alan S. Rosenthal, Harvey L. Zuckman, Attys., Dept. of Justice, Washington, D. C., on the brief), for appellees.

Before McLAUGHLIN, HASTIE and FORMAN, Circuit Judges.

OPINION OF THE COURT

HASTIE, Chief Judge.

The plaintiffs in this action, appellants here, are seven employees of the Pennsylvania Railroad and the local of the Brotherhood of Trainmen to which they belong. They sued in a district court to enjoin the Secretary of Labor from certifying that "fair and equitable arrangements", within the meaning of section 10(c) of the Urban Mass Transportation Act of 1964, 49 U.S.C. § 1609 (c), have been made to protect the interests of railroad employees, as they may be affected by three proposed federal grants-in-aid to the State of New Jersey and certain state agencies for the purpose of improving railroad commuter service. The court also was asked to enjoin the Secretary of Housing and Urban Development from disbursing funds for the projects in question until such "fair and equitable arrangements" should be made.

The Secretaries moved to dismiss the complaint on the grounds that the plaintiffs lacked standing to sue and that the challenged administrative determinations are not judicially reviewable. This motion was granted and the plaintiffs appealed.

In the Urban Mass Transportation Act of 1964 Congress authorized the Secretary of Housing and Urban Development to make grants and loans from federal funds to states and local public bodies to assist the borrowers in defraying the capital costs of improvements in mass transportation services in urban areas. At the same time, Congress conditioned the extension of financial assistance in some circumstances upon a determination by the Secretary of Labor "that fair and equitable arrangements" had been made to protect the interests of employees adversely affected by the projects to be financed and a determination by the Secretary of Housing and Urban Development that an adequate relocation program had been provided for families displaced by the proposed projects. 49 U.S.C. §§ 1606(a), 1609(c). This responsibility of the Secretary of Labor is further defined by an additional direction that the employee protective "arrangements shall include * * * such provisions as may be necessary for * * * (3) the protection of individual employees against a worsening of their positions with respect to their employment; (4) assurances of * * * priority of reemployment of employees terminated or laid off * * *."

We assume for the purposes of this appeal that the plaintiffs have standing to sue. On that issue our decision in Pittsburgh Hotels Ass'n v. Urban Redevelopment Authority, 1962, 309 F.2d 186 is not controlling because the statute there, unlike the statute here, provided no basis for argument that Congress intended to create the claimed individual rights to protection against disadvantageous consequences of the legislation. It is true that the Court of Appeals for the Ninth Circuit has denied plaintiffs standing to sue in a case which seems indistinguishable from the present case. Johnson v. Redevelopment Agency, 1963, 317 F.2d 872. However, we leave open the question whether we would follow that decision.

Assuming standing to sue, the scope of permissible review is limited. A mere difference of judgment between a person disadvantageously affected by agency action and the responsible head of the agency over the merits of particular administration action as a means of achieving a legislative objective, when Congress has assigned authority to make and act upon such determinations to the agency, is not judicially reviewable. Panama Canal Co. v. Grace Line, Inc., 1958, 356 U.S. 309, 78 S.Ct. 752, 2 L.Ed. 2d 788; United States v. Carmack, 1946, 329 U.S. 230, 67 S.Ct. 252, 91 L.Ed. 209; Adams v. Nagle, 1938, 303 U.S. 532, 58 S.Ct. 687, 82 L.Ed. 999; Williamsport Wire Rope Co. v. United States, 1928, 277 U.S. 551, 48 S.Ct. 587, 72 L.Ed. 985. Moreover, section 10 of the Administrative Procedure Act¹ expressly excludes "agency action * * * by law committed to agency discretion" from judicial review. Nothing in the Urban Mass Transportation Act suggests that the exclusionary language of section 10 is inapplicable to the Secretary of Labor's required determination that protective arrangements adopted for the benefit of employees affected by a mass transportation project are "fair and equitable" and constitute "necessary" safeguards. To the contrary, the statutory standard is expressed in such general concepts that it requires and must contemplate the exercise of discretion in choice among various rational alternatives none of which can fully satisfy all demands of competing interests. Cf. Duesing v. Udall, 1965, 121 U.S.App.D.C. 370, 350 F.2d 748, cert. denied 383 U.S. 912, 86 S.Ct. 888, 15 L.Ed.2d 667. Moreover, the absence of any provision in the Mass Transportation Act for judicial review of the Secretary's determination suggests that Congress recognized that the Secretary of Labor is at least as competent as a court to achieve such an...