Railway Express Agency v. Kennedy
| Decision Date | 05 June 1951 |
| Docket Number | No. 10317.,10317. |
| Citation | 189 F.2d 801 |
| Parties | RAILWAY EXPRESS AGENCY, Inc. v. KENNEDY et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Douglas F. Smith, Howard P. Robinson, John R. Taylor, Arthur R. Seder, Jr., all of Chicago, Ill., Sidley, Austin, Burgess & Smith, Chicago, Ill., of counsel, for appellant.
Milton Kramer, Lester P. Schoene and Schoene & Kramer, all of Washington, D. C., for amici curiæ.
Myles F. Gibbons, General Counsel, Railroad Retirement Board, and David B. Schreiber, Associate General Counsel, Railroad Retirement Board, Chicago, Ill., Paul M. Johnson, Edward E. Reilly, Asst. General Counsels, Chicago, Ill., Railroad Retirement Board, of counsel, for appellees Kennedy and Harper.
Before FINNEGAN, LINDLEY and SWAIM, Circuit Judges.
This is an appeal from an order of the District Court dismissing plaintiff's petition for an injunction and for other incidental relief against the defendants individually and as members of the Railroad Retirement Board. There is in effect a temporary injunction pending the final decision of this appeal.
The plaintiff seeks to enforce its view of the provisions of the Railroad Unemployment Insurance Act, 45 U.S.C.A. § 354(a-2) (iii), that unemployment compensation shall not be paid to workers for unemployment caused by a strike "commenced in violation of the provisions of" the Railway Labor Act, 45 U.S.C.A. § 151 et seq. The Board has already paid such compensation in excess of $90,000 to 2300 of plaintiff's employees for one 14 day period and intends, unless enjoined from doing so, to pay said employees $38,103.75 for a second period.
The strike involved plaintiff's employees who were members of two locals of the Teamsters' Union in the New York metropolitan area. On June 1, 1950, the unions representing the employees here involved submitted to plaintiff demands for a new union contract. Thereafter, for a period of several weeks the plaintiff and representatives of the unions engaged in negotiations for a new agreement. On September 21, negotiations having broken down, the plaintiff sought the intervention and services of the National Mediation Board. On the following day, September 22, the Mediation Board notified the parties that its services had been invoked. On the next day, September 23, the employees went out on a strike, which continued to and including October 20, 1950. In the meantime, on October 3, a Presidential Emergency Board was created to investigate and report concerning the dispute.
The plaintiff argues that the Railway Labor Act requires that the employees, as well as the employer, cooperate in the several steps outlined in that Act before resort can be had to a strike. Plaintiff further argues that under the provisions of the Railway Labor Act the strike here definitely became illegal upon the appointment of the Emergency Board.
The District Court assigned, among others, the following reasons for dismissing the complaint:
(1) The United States is the owner of the fund, and the plaintiff has no such interest as gives it the right to sue;
(2) The Statute makes the decisions of the Board final, except as to appeals provided for objecting employees; and
(3) Carriers have no right of appeal from the decisions of the Board.
If the plaintiff has such an interest in the fund as to give it a standing to sue, it must show that the action of the Board in allowing compensation claims is subject to judicial review on the complaint of a carrier. The plaintiff in its complaint admits, however, that "There is no provision in the Railroad Unemployment Insurance Act nor any other act of Congress, whereby this plaintiff or any other employer similarly situated can effect an appeal to any competent court from any decision of the Board."
The Railroad Unemployment Insurance Act, 45 U.S.C.A. § 355(b) expressly authorizes the Board "to make findings of fact with respect to any claim for benefits and to make decisions as to the right of any claimant to benefits." Subsection (c) of this section, after providing for reviews of the initial action on claims by the Board and for notification of the interested parties, states that:
Subsection (f) of this section provides for judicial review by the U. S. Court of Appeals only of decisions of the Board, (1) denying claims in whole or in part, on the petition of the claimant or of the labor organization of which claimant is a member, and (2) granting claims where the Board has found claimant to be an employee of an employer which denies such relationship.
Subsection (g) of this section then repeats that: "Findings of fact and conclusions of law of the Board in the determination of any claim for benefits or refund * * * shall be, except as provided in subsection (f) of this section, binding and conclusive for all purposes and upon all persons, * * * and shall not be subject to review in any manner other than that set forth in subsection (f) of this section."
A careful consideration of all of these sections of the Act convinces us that Congress intended to grant a judicial review of the decisions of the Board on claims for compensation where the employee status was not denied by the carrier, only to employees whose claims to compensation have been disallowed in whole or in part.
Nor do we believe the plaintiff can maintain an action under the Federal Administrative Procedure Act. Section 10 of that Act, 5 U.S.C.A. § 1009, provides that: "Except so far as (1) statutes preclude judicial review", any person suffering legal wrong or adversely affected or aggrieved by agency actions shall be entitled to judicial review thereof.
Since the Railroad Unemployment Insurance Act does preclude judicial review of the decision of the Board in the instant case on the petition of a carrier, it follows that the carrier is given no right to such judicial review by the Administrative Procedure Act.
If, however, we assume, arguendo, that the Railroad Unemployment Insurance Act does not preclude the judicial review sought by the carrier here, the plaintiff, in order to have a standing to sue, must show that it has sufficient interest in the Unemployment Fund to be a "person suffering legal wrong, or adversely affected or aggrieved" by the action of the Board in granting these claims. It is not sufficient that plaintiff as a...
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...order. 13 F.Supp. at 907 (citing Howard v. Monahan, 33 F.2d 220 (S.D.Tex.1929)).7 Gange Lumber Co. was followed in Railway Express Agency v. Kennedy, 189 F.2d 801 (7 Cir.), cert. denied, 342 U.S. 830, 72 S.Ct. 54, 96 L.Ed. 628 (1951) (denying employer standing to challenge unemployment comp......
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