Passenger Corp. v. Passengers Assn., 414 U.S. 453 (1974)

MR. JUSTICE DOUGLAS, dissenting.

Discontinuance procedures contained in 49 U.S.C. § 13a. 45 U.S.C. § 501 et seq., authorized the creation of Amtrak to provide inter-city rail passage. With "the expectation that the rendering of such [rail] service along certain corridors [could] be made a profitable commercial undertaking," the Act established Amtrak as a private for-profit corporation. 45 U.S.C. § 541; H.R.Rep. No. 91-1580, p. 1 (1970). Amtrak has until January 1, 1975, to tender a contract to a railroad to release the latter of its entire responsibility for the provision of inter-city rail passenger service. 45 U.S.C. § 564(a). Unless a railroad has a contract with Amtrak to render the service, it may not discontinue inter-city passenger service prior to January 1, 1975,

the provisions of any other Act, the laws or constitution of any State, or the decision or order of, or the pendency of any proceeding before, a Federal or State court, agency, or authority to the contrary notwithstanding.

Ibid. Those inter-city services are not yet a part of "the basic system" put together by Amtrak, a system which by § 202 of the Act is unique in the sense that it "shall not be reviewable in any Court."{1} 45 U.S.C. § 522.

Our problem concerns not "the basic system" created by Amtrak, but what were called on oral argument the "excess" lines that, absent a contract with Amtrak, are under a congressional mandate not to discontinue "any inter-city passenger train whatsoever prior to January 1, 1975." 45 U.S.C. § 564(a).

The Court phrases the question in terms of whether a "right of action" exists, saying that no question of "standing" or "jurisdiction" is presented. Whatever the merits of the distinction between these three concepts may be in some situations, the difference here is only a matter of semantics. The District Court dismissed the cause for lack of "standing." The Court of Appeals reversed, ruling that there was "standing." The parties argue the case on the basis of "standing." Even the Solicitor General, who appeared as amicus curiae in support of granting the petition for certiorari, conceives of the issue in terms of "standing." By the Court’s own admission, this is not a case where all judicial review is foreclosed. For § 307(a), 45 U.S.C. § 547(a), does create a cause of action. May that cause of action be enforced by passengers, or only by the Attorney General, or by individual employees or railroad unions? Standing of passengers to sue or the existence of a cause of action in passengers is identical in that posture of the case.

Whatever the semantics, the question is whether respondent, National Association of Railroad Passengers, a national organization of railroad patrons, may bring this action to enjoin the discontinuance by Central of Georgia Railway Co.{2} of passenger trains between Savannah and Atlanta, Georgia, and between Albany, Georgia, and Birmingham, Alabama.

Section 307(a), 45 U.S.C. § 547(a), gives the Attorney General of the United States and employees under labor agreements the power to obtain from a district court equitable relief against either Amtrak or any railroad acting in violation of the Act.{3} Petitioners argue that § 307(a) restricts suits to the Attorney General and to employees. That seems a strained construction. The most, I think, that can be drawn from the words of § 307(a) and the legislative history is that Congress wanted to make sure that some federal agency had some oversight over the public activity of this private-for-profit corporation. Hence, the grant of standing, or cause of action, to the Attorney General. Moreover, it took out of the penumbra of aggrieved persons employees having rights under collective agreements. Congress left untouched 28 U.S.C. § 1337, which provides that "[t]he district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce. . . ."

Aggrieved passengers are the most obvious complainants when it comes to saving passenger trains from extinction. Certainly passengers of discontinued trains suffer injury, in fact, and are within the zone of interests protected by the Amtrak Act, and thus satisfy two of the three requirements of Data Processing Service v. Camp, 397 U.S. 150. As to the third -- that judicial review has not been precluded -- it seems as plain to me as it did to the Court of Appeals. Where, as here, there is no express denial of judicial review, the test is whether "nonreviewability can fairly be inferred." Barlow v. Collins, 397 U.S. 159, 166. And since judicial review "is the rule, and nonreviewability an exception which must be demonstrated," preclusion of judicial review "is not lightly to be inferred." Ibid. "[O]nly upon a showing of `clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review." Abbott Laboratories v. Gardner, 387 U.S. 136, 141.

The grant of jurisdiction to the Attorney General to screen state voting right procedures that might have a discriminatory effect did not, we held in Allen v. State Board of Elections, 393 U.S. 544, deprive individual citizens of standing to sue.

The achievement of the Act’s laudable goal could be severely hampered, however, if each citizen were required to depend solely on litigation instituted at the discretion of the Attorney General. For example, the provisions of the Act extend to States and the subdivisions thereof. The Attorney General has a limited staff and often might be unable to uncover quickly new regulations and enactments passed at the varying levels of state government. It is consistent with the broad purpose of the Act to allow the individual citizen standing to insure that his city or county government complies with the § 5 approval requirements.

Id. at 556-557 (footnotes omitted).

The Attorney General is a busy person, and it is not credible to believe that a grant of power to him to sue precludes the standing of passengers who are the prime casualties when passenger service is discontinued.

Each case involving the availability of judicial review stands on its own feet. In Switchmen’s Union v. National Mediation Board, 320 U.S. 297, we denied judicial review since the collective bargaining right was being protected by a neutral agency, the National Mediation Board. There is no such body standing between the passengers and Amtrak. Amtrak is a private for-profit corporation which is only construing its own enabling Act. If passengers are denied standing to sue, Amtrak is largely on its own. Especially is this so in light of the Attorney General’s own view that the grant of power in § 307(a) is limited, and does not authorize him to seek correction of all violations of the Act.{4} So far as I can ascertain, the Attorney General has not intruded in any case.{5} To leave the complete oversight to employees is to make nonreviewable most of Amtrak’s decisions. Congress specifically did that when it came to "the basic group" of carriers. But its mandate not to discontinue passenger service until January 1, 1975, except on a contract with Amtrak is clear. If, in that interim, there can be no policing of the Act, we have given a corporation which is private and operating for a profit an administrative absolution we seldom have been willing to conclude that Congress has bestowed even on federal agencies. I cannot believe the Congress had any such purpose.

We deal here with a federal cause of action, and it is the judicial tradition "for federal courts to fashion federal law where federal rights are concerned." Textile Workers v. Lincoln Mills, 353 U.S. 448, 457. The fact that a private suit to enforce a federal law is not specifically sanctioned by Congress seldom means that standing to sue is foreclosed. The purpose of the Amtrak Act was to preserve and improve train service. The object was not to protect trains per se, nor to create an in rem action. The purpose, which the Court, in its dedication to legalisms, overlooks, was to protect the people who ride the trains. The case is very much on all fours with J. I. Case Co. v. Borak, 377 U.S. 426, where Congress made it unlawful to solicit proxies in violation of rules prescribed by the Securities and Exchange Commission. No standing, no cause of action, was expressly given stockholders who might suffer from corporate action pursuant to a deceptive proxy solicitation. Yet we held that the Commission was not granted an exclusive role to play in policing the area:

Private enforcement of the proxy rules provides a necessary supplement to Commission action. As in antitrust treble damages litigation, the possibility of civil damages or injunctive relief serves as a most effective weapon in the enforcement of the proxy requirements. The Commission advises that it examines over 2,000 proxy statements annually, and each of them must necessarily be expedited. Time does not permit an independent examination of the facts set out in the proxy material, and this results in the Commission’s acceptance of the representations contained therein at their face value unless contrary to other material on file with it.

Id. at 432.

The Court is in the mood to close all possible doors to judicial review so as to let the existing bureaucracies roll on to their goal of administrative absolutism. When the victims of administrative venality or administrative caprice are not allowed even to be heard, the abuses of the monsters we have created will become intolerable. The separation of powers was designed to provide not for judicial supremacy, but for checks and balances. When we turn back this respondent, we turn back passengers who are the victims of the present transportation debacle. Those who complain are not adventurers who seek personal aggrandizement as do jackals who historically have fattened on some economic debacles. The passengers are the victims of the transportation crisis out of which Amtrak seeks to make a fortune. These passengers should be heard. They satisfy the stringent test we laid down in Baker v. Carr, 369 U.S. 186; they have "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues. . . ." Id. at 204.

I would affirm the judgment of the Court of Appeals whether the rationalization be based on standing, cause of action, or jurisdiction.