National Railroad Passenger Corporation v. National Association of Railroad Passengers – Oral Argument – November 12, 1973

Media for National Railroad Passenger Corporation v. National Association of Railroad Passengers

Audio Transcription for Opinion Announcement – January 09, 1974 in National Railroad Passenger Corporation v. National Association of Railroad Passengers

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Warren E. Burger:

We will hear arguments first this morning in Number 72-1289, National Railroad Passenger Corporation and others against National Association of Railroad Passengers.

Mr. Prettyman, you may proceed whenever you’re ready.

E. Barrett Prettyman, Jr.:

Mr. Chief Justice and may it please the Court.

I’m Barrett Prettyman and I represent the petitioners in this case which is hereon certiorari from the D.C. Circuit.

The case presents rather a narrow question, namely, which parties can sue for alleged violations of the Rail Passenger Service Act of 1970, the Amtrak Act.

We claim, petitioner’s claim that under the statutory language and pursuant to the Congressional intent, only the Attorney General and where a labor agreement is involved, employees and their representatives can sue for these alleged violations.

Respondent which is an association of railroad passengers, claims that anyone who is injured and aggrieved by an alleged violation of the Act can bring suit to Federal District Court.

That really is the only issue before the Court this morning.

Before I go into the facts of the immediate case, I’d like to give you just a brief background of the Act itself because it bears on the problem.

This Act was passed because of a genuine concern on behalf of the Congress and the people that all intercity passenger traffic in this country was going to disappear.

In 1929, there were 20,000 passenger trains in this country.

And by 1970, there were only 360.

The plain, hard, cold fact of the matter is that the passengers in this country simply could not pay the high cost of operating this train.

At the same time, Congress in passing the Act did not intend to stop all discontinuances of trains.

Quite to the contrary, it recognized that some additional paring was in order if any rail passenger traffic was going to be preserved.

That’s P-A-R-I-N-G or P-A-I-R, paring?

E. Barrett Prettyman, Jr.:

P-A-R sir. P-A-R-I-N-G, paring.

Paring.

E. Barrett Prettyman, Jr.:

Some additional cutting down, yes sir.

Therefore Congress devised a rather elaborate plan, purpose of which was instead of the individual railroads hereafter deciding which train and when it was going to submit the ICC for paring down, instead the Secretary of Transportation would construct a basic system of passenger service.

The minimum system that the country should have and that would consist therefore of all essential service which hopefully would be preserved.

And a corporation was formed, Amtrak, which was given power to enter into contracts with various — to railroads and take over their passenger service to be funded by government funds, tickets, and the railroads themselves paying entry fees.

The corporation, Amtrak would operate this basic system and would either operate or discontinue the excess service above the basic system.

I’d like to emphasize again now that the purpose of the Act was not to preserve all passenger service but rather in the words of the House Report to effect a rational reduction of present service in order to save any passenger service.

When the Act became effective, the Secretary of Transportation did designate the basic system, a 21-city pairs (P-A-I-R) with 42 trains running daily as part of the basic system as it developed.

When Amtrak took over passenger service, it actually operated originally some 180-passenger trains and today that’s up to a 198.

The Central of Georgia’s only remaining passenger trains just prior to the passage of this Act were the Nancy Hanks between Savannah and Atlanta and Trains 13 and 14 between Albany, Georgia and Birmingham.

And these trains were not part of the basic system.

Consequently, notice was given of their discontinuance and on April 1, 1971 when the Act did become effective, those trains were discontinued.

However, prior to that the respondent here brought a suit in the Federal District Court against Amtrak, the Central of Georgia and the Southern Railway seeking a temporary restraining order to prevent the discontinuance of these three trains.

E. Barrett Prettyman, Jr.:

It was alleged that the Act was violated because of the relationship between Central and Southern.

Southern down and virtually all of the stock of Central.

Southern itself had decided not to enter into contract with Amtrak.

But the Central of Georgia had and they claimed north, the railroad association here claimed that either the entire railway system had to enter into a contract or no part of it could.

No subsidiary could.

And it sought a permanent injunction restraining the parties from enforcing any contract which did not include the entire Southern system.

The District Court denied the temporary restraining order and dismissed the complaint on the theory that NARP had no standing because of Section 307 which provides that if Amtrak or any railroad violates the Act, the District Court shall have jurisdiction upon petition of the Attorney General of the United States or in the case involved in the labor agreement upon petition of any employee affected thereby including duly authorized employee representatives.

And the District Courts were given jurisdiction to grant equitable release upon petition of those parties.

Now it’s clear that the Court of Appeals reversed and held that there was standing.

That’s clear that Congress has the authority to limit the right to sue under an Act of this kind.

This Court has so held in other cases.

So the only question here really is whether Congress intended to do so.

Did it intend to restrict the right to sue?

We think very clearly it did.

We just take the statutory language standing alone.

We’ll note that it doesn’t provide specifically that anyone aggrieved or injured can sue.

It does not even provide that the specified remedies in the statute are in addition to other remedies.

It doesn’t even provide that the specified remedies didn’t extinguish any remedy or right of action not in consistent herewith which it has done in other statutes.

And instead, specifically names the persons who are going to be able to petition the Court.

In this case however, we do not have to rely upon the words of the statute alone because there are some very specific and direct legislative history that goes right to the point before the Court.

In the original draft of the bill, the District Court was given jurisdiction to sue Amtrak, Amtrak alone — given jurisdiction when there is a suit against Amtrak alone.

Upon petition of the Attorney General or in the case involved in a labor agreement upon petition of any individual affected thereby.

Now, you’ll note two things about that.

First of all, Amtrak alone could be sued and secondly, it didn’t say anything about labor representatives just the employees.

At the hearings which ensue labor representatives came along with ten proposed amendments to the Act.

One of them would have specifically allowed any aggrieved party to bring a suit for violation of the Act.

As labor spokesman said as the Bill now reads, only the Attorney General except in cases involving a labor agreement could bring actions.

Now the Secretary of Transportation who had a good deal to do with this Act in including — following up on various sections of it, thereupon wrote the committee a letter addressing himself to the various proposed amendments.

And he said, I would oppose — I would be opposed to permitting any person to seek enforcement of Section 307.

Now thereupon what happen?

E. Barrett Prettyman, Jr.:

This is important because this is not a case oPassengers. f legislative history where we have the committee ignoring people who have submitted views on the contrary.

The committee actually did make specific changes in the bill.

For example, according to following labor’s wish which the Secretary had no objection to; they added specifically that representatives of employees could sue as well as the employees themselves.

Again, following labor’s wish and the secretary thought it was unnecessary but it didn’t oppose it.

They introduced the allowing other railroads to be sued as well as Amtrak.

In other words, not just Amtrak alone but other railroads could also be sued under the Act.

But because of the Secretary’s objection, the committee specifically refused to introduce this concept of permitting all aggrieved persons to sue.

The Secretary had objected to it and the committee left it out and the Bill was passed without it.

It seems perfectly clear to us from this that Congress intended only those parties that were designated in the Bill in the statute to be able to sue.

This case therefore becomes like Switchmen’s Union and Montana-Dakota Utilities and Fleischmann Distilling, and Calhoon versus Harvey and so forth.

The cases where the specific remedies which were mentioned excluded others including suits by aggrieved parties.

In addition however, there are very important policy reasons why Congress left out aggrieved parties and why this Court should not sanction it.

The Secretary of Transportation, the ICC and Amtrak, all were given very unusual authority and responsibility to fashion a workable passenger transportation system in this Act.

For example, this Amtrak is supposed to make a profit eventually even though it was recognized that these various railroads were losing millions on their passenger traffic.

So it is a very complex and difficult job that was fashioned here.

And if anybody can sue the railroad, certain things are clearly going to happen.

For example, even if there’s a single suit in regard to the discontinuance of an important line, you are going to have delays if temporary restraining orders are entered which as our brief shows could cost literally millions to Amtrak.

But even more importantly, if more than one person sues, if suits are brought in regard to a single discontinuance in Alabama and then Georgia, etcetera, you’re going to have the possibility of not only the temporary delays of one case but you’re going to have possibilities of conflict between circuits which are going to unduly delay the discontinuances that are clearly called for by the Act.

This case therefore becomes similar to Halloway versus Brist-Myers which is cited to the Court in our reply brief which interestingly was decided by — also by the D.C. Circuit but by a completely different panel from the panel that decided the instant case.

And they decided that the private party even though aggrieved does not have a right to sue under the Federal Trade Commission Act.

And the Court specifically pointed out the vexatious litigation that could ensue.

It pointed out to private parties may institute piecemeal lawsuits reflecting disparate concerns and not a coordinated enforcement program.

That same principle is precisely applicable here.

You filed it with reply brief, Mr. Prettyman?

E. Barrett Prettyman, Jr.:

Yes, sir.

And I hope you have it.

I don’t seem to have it here.

E. Barrett Prettyman, Jr.:

I’ll see that you get one, (Voice Overlap) I’m sorry.

Well, I’ll get it if you file this.

Thank you.

E. Barrett Prettyman, Jr.:

It was filed about a week ago.

Finally, to allow brief persons to sue here simply makes no sense if you look at the overall plan of the Act.

Right now, no discontinuances of the basic system are allowed.

They won’t be allowed until July 1 of 1974.

After July 1 of 1974, the Railroad Amtrak if it wants to discontinue a basic service train it has to give 30 days notice.

Thereupon, the Interstate Commerce Commission, if it decides not to investigate under Section 13 (a) of the Interstate Commerce Act that is the end of it.

And this Court has said in City of Chicago that there is no appeal by a private person from that decision not to investigate.

On the other hand, if the ICC does investigate the discontinuance and passes upon it, an aggrieved party can appeal that ruling to the Court.

It seems to us clear that certainly in regard to the basic system, it makes no sense whatever to allow an aggrieved party to bypass this procedure which has been established and to rush in to the District Court with an original suit even before the ICC had a chance to operate.

In other words, so that I’m clear, a notice is given a discontinuance and before the ICC even gets to decide whether it’s going to investigate private party runs into the District Court and brings on original suit and wants to sue because of the discontinuance.

That doesn’t make any sense.

As to the non-basic system track, certainly the Court would not allow a private party, a broader authority to attack the discontinuance of a non-basic system train than it would, a basic system train because Congress has specifically provided right here in the Act that a non-basic system train can be discontinued at any time just with 30 days notice.

That’s all that’s necessary.

And the Congressional will having been expressed that you can discontinue that easily a non-basic service train, it certainly makes no sense to allow an aggrieved person to run into Court and attempt to attack it.

So on all of these grants it seems to us on the basis — the statutory language as it stands, on the basis of the legislative history which I pointed out where the aggrieved party was specifically left out on the basis of the public interest involved and seen that Amtrak can really operate and discontinue, etcetera and finally on the basis of common sense in the light of the legislative scheme.

We think that clearly that District Court was right in throwing out this case.

I might just add that the Attorney General, the responsible official under the Act agrees with us as expressed both in letters and by the position of the Solicitor General which has been filed before the Court.

The United States agrees that aggrieved parties cannot sue and that the responsible official for bringing lawsuits for discontinuance etcetera is the Attorney General.

I’d like to reserve the remainder of my time unless the Court has questions.

Warren E. Burger:

Very well, Mr. Prettyman.

Mr. MacDougall.

Gordon P. Macdougall:

Mr. Chief Justice and may it please the Court.

My name is Gordon P. MacDougall representing the respondent here, the National Association of Railroad Passengers.

It’s a non-profit corporation, with its principal office in Washington D.C., also joined us on amicus by the National Association of Regulatory Utility Commissioners or the State Regulatory Agencies of the 50 states.

And we support the decision below which held that public — for a non — I might say persons other than the Attorney General and labor organizations have a right to enforce legal duties imposed by the Rail Passenger Service Act of 1970.

I might say it’s not in the briefs and all of the reply brief of the petitioner Amtrak was filed I guess about a week ago.

But also the president just a week ago signed a new law, Public Law 93146 which made substantial revisions in Amtrak Act.

Now that PL 93146 was not available as of Friday and hadn’t been printed (Voice Overlap).

Does that have anything in the bearing of this?

Gordon P. Macdougall:

Yes, it makes certain changes in the periods of Section 404.

Gordon P. Macdougall:

I don’t think it changes the principles involved in this case.

Well, does the change having the language of that particular statute?

Gordon P. Macdougall:

Yes, it does change the statute.

Yes.

Was was changed?

307?

Gordon P. Macdougall:

It changes a number about seven or eight sections of the statute.

No, but does it — like any change (Voice Overlap).

Gordon P. Macdougall:

No change in Section 307 (a).

I might say that the Department of Transportation as shown in the appendix to the brief of the petition here.

I have the March 15, 1973 report of the Department of Transportation upon the Amtrak Act with certain legislator recommendations.

And one of the legislator recommendations of DOT was to eliminate judicial review of passenger train discontinuance as Congress did not adopt that recommendation and the extensive amendments which were approved by the president last week do not embrace any changes to section 307 (a) or to the right of persons to take decisions of the ICC and pass the discontinuance cases to Court and for judicial review left — that part was left unchanged.

The DOT’s recommendations were not followed.

Now the opinion below was 35 pages, it was unanimous and it’s our judgment that the Southern Railway is under illegal duty by virtue of Section 404 of the Amtrak Act to operate in Nancy Hanks Passenger Train between Atlanta and Savannah until at least January 1, 1975, unless it contracts with Amtrak before that time.

And that the discontinuance which took place on May 1, 1971 purportedly under Section 401 (a), one of the Act was in violation of the Act and breached its duty to the public the way every passenger train operating between those two cities.

We, Passengers Association are in the class to be protected by the Act and it is the interest to be protected.

We do not look at the Amtrak Act as being primarily as indicated perhaps this morning as a way for the railroads to unload their passenger trains.

To be sure, there is some wordings in the Committees’ Report particularly the House Committee reports say that certainly some kinds of an Act have to be discontinued but the purpose of the statute was not to discontinue trains but to keep trains in operation to expand trains.

The purpose was to prevent the complete abandonment of service.

The complete corporation was selected to “revitalize real passenger service.”

And that the overriding, the committee said the overriding purpose of this legislation is to preserve and promote intercity rail passenger service.

That the — we just — we were very active.

The NARP were very active in getting the Amtrak Act through Congress and we do not look at it as the primary function was to allow discontinuance of trains.

We look at it as to —

Did you make an effort to get a provision in that to give you a right to sue?

Gordon P. Macdougall:

We look at Section 307 (a) as a super section.

But that is that we have the right to sue that 307 (a) was something because this was going to be a quasi governmental corporation too and since the Attorney General might not have the right to go in and sue Amtrak, we look at this is a super section.

Otherwise, to give the Attorney General remedies beyond that which any ordinary person would have or which the Attorney General would otherwise have.

I interpreted your answer to be no, you didn’t make any effort?

Gordon P. Macdougall:

No, we made no effort to put a specific section on judicial review and in fact, there is nothing in the legislative history that shows anything on this other than that the railway labor people, certainly, the railway labor people, AL Chesser of the UTU testified, he said, to the way it looks it appears that the public doesn’t have the right to judicial review, he said it appears.

Gordon P. Macdougall:

Attorney Hickey who represented a competing or a rather different Railway Labor Group which Mr. Chesser is not in, the Railway Labor Executive Association, he said, well, look to him that the statute did not allow judicial review.

So he proposed both Mr. Chesser and Mr. Hickey propose amendments that were exactly the same to amend Section 307 (a) on their theory, to get judicial review.

The committee said nothing about it in the report.

The Railway Management opposed Labor’s Amendment and hence, Labor Management didn’t say what they opposed of the amendment.

It just said we opposed.

Mr. Hickey said that to the committee and as soon the tetimony said Railway Management has opposed to it.

Were — but has nothing to do with your position at all, don’t you?

Gordon P. Macdougall:

No, our position is that —

The opposition is that the language you figured was broad enough and now you’re going to litigate it?

Gordon P. Macdougall:

Well, we —

Instead of asking Congress to include it?

Gordon P. Macdougall:

No, the — we look at Section 307 which was taken from the Comsat Act.

This was taken as — what the changes from the Comsat Act.

If we looked at that Section, it has given the Attorney General powers that an ordinary person wouldn’t have.

We felt that we have and there was no need of what we have the right to go to Court.

The Courts have jurisdiction under 1337, 28 U.S.C. 1337.

This is a –- there is no question that the Courts have jurisdiction.

There is no question that under Section 404, the certain duties the railroad has to continue train service unless it contracts with Amtrak.

And we didn’t see any particular need for a specific section just to duplicate 28 U.S.C. 1337, it says you can go to Court.

The Courts do have jurisdiction.

he Owen effect — what Wolby said, Secretary Wolby came, the title of this Section is by the way “Sanctions.”

He said, Sanctions are normally imposed by the government.

Just consequently he would be opposed to meeting any person to seek enforcement of the Act of Section 307.

As he looked at the Sanctions. something above and beyond judicial review.

And then he said with respect to inclusion of railroads, he said he thinks existing statutes apply to them.

And it says to a certain — to an extent the corporation is exempt from such statutes or statutory requirements.

The consequent basis I am not sure that would be necessary to make Sanctions applicable to any railroad.

So this is particularly so here for such Sanctions expressly reached “any action practice for policy.”

The corporation has a quasi public character in many respects and the scope of the sanctions with respect to it is appropriate.

What I — so I turned Section 307 as a super section, to safeguard the public interest because Congress was creating a quasi public corporation.

Gordon P. Macdougall:

And I didn’t want to have all the litigation controlled by private parties.

They want to give the Attorney General power to jump in at some times.

I might say that Section 307 doesn’t say that only the Attorney General can bring suits.

It says that the Attorney General is authorized to bring suit and the word authorize comes from the committee report.

The committee report in describing Section 307 said it authorize the Attorney General to go to Court.

Warren E. Burger:

Do you think he could have that right if the Act has been silent on the subject?

I don’t think the Attorney General —

Just mentioned the employees and labor organizations?

Gordon P. Macdougall:

You mean if — I don’t quite get your question Mr. Justice.

Warren E. Burger:

Well —

Gordon P. Macdougall:

It’s a question if there was a —

Warren E. Burger:

Take the attorney’s all references to the Attorney General out statute?

Could he bring the suit?

Gordon P. Macdougall:

I question whether he could.

Under Section 517 of the Title 28 as I — it says the Attorney General can go to Court to protect the interest of the United States.

It says of — and it doesn’t say much more than that.

It’s kind of a weak section.

It just says that the Attorney General can always go to Court but it doesn’t say what he can do and this question came up during the legislative history of the Comsat Law, Communications Sattelite Act of 1962.

That’s where Section 307 comes from and there was a lot of debate on setting up Comsat.

All of the government research, that they’re going to the space program and it wants it’s — as a result special powers in the Attorney General and therefore I think that if the section had been silent as to the Attorney General, there’s a severe doubt that he could do the things that Congress intended him to because this Section says, Attorney General can go to anything that violates the purposes and policies of the Act.

That’s what it is, purposes and policies.

And it says any threatened action, he can go and get an injunction.

It’s kind of broad.

In fact, there’s some doubt.

The Justice Department has expressed some doubt as to the powers from our brief which is the white covered brief on pages 29 and 30.

Particularly on page 30, we have a letter there — Mr. Gray, Assistant Attorney General to Congressman Slack which was submitted in the case to which this was consolidated below and they say that Department Justice said that the Attorney General does not have the authority to sue for construction of the Act or to enjoin a purely technical violation rather the authority to sue is granted to protect and enhance the legislative purpose.

And they have a lot of doubt about it and the reason for that is that when the Comsat Section, which is Section 403, Communications Sattelite Act of 1962 was carried over to the Amtrak Section.

A certain phrase was deleted and that was the phrase that allows — would allow the Attorney General to go for a specific violation of the Act.

That clause reads, “Or if the corporation or any other person shall violate any provision of this chapter.”

None other words, the authority of the Attorney General to go after a violation of any provision was deleted from the Communication’s Act when it was carried over to the Amtrak Act.

Gordon P. Macdougall:

And there’s some doubt as to what — considerable doubt as to what power the Attorney General really has here.

And as a practical matter, the Attorney General has never gone into Court.

We’ve asked them to do it.

We filed a suit.

NARP did in the fall of 1970 against Union Pacific.

Judge Jones granted an injunction and the railroad withdrew the Discontinuance Act in Kansas City.

It filed another suit in the Supreme of 1971 against the Southern Railway for discontinuance.

Judge June Green gave us an injunction, railroad dropped it.

Both these cases, the Attorney General didn’t come in, we had to do it ourselves.

And there was of course the question of standing at that time.

William H. Rehnquist:

Mr. Gordon MacDougall.

Gordon P. Macdougall:

Yes.

William H. Rehnquist:

In the Amtrak enabling legislation, do you find the sort of provision that you find in the creation of some Federal Corporations authorizing it to sue and be sued?

Gordon P. Macdougall:

There is a section in the Amtrak Act which when the early section, Section 301, it doesn’t say anything about that.

It just says the corporation is hereby created in Washington D.C.

Section 301 and 302 and I see nothing in it that authorize the corporation to be sued or be sued.

In fact one of the matters raised by the Court of Appeals was, what if Amtrak has to dispute with another railroad, particularly was stick to the amounts due under Section 401 that cause for joining Amtrak and so forth.

What if Amtrak disagrees?

Amtrak is not giving power to sue under Section 307 (a) if you look at it that way.

It just says the Attorney General can do it or Labor Organization, Amtrak or railroad are not covered as plaintiffs the way Section 307 reads.

So that’s why we think that Section 307 is really meant to be a super section to protect (Voice Overlap).

William H. Rehnquist:

How about the Savings Clause in 307 that speaks that there’s — I can’t — I can’t quote (Voice Overlap)?

Gordon P. Macdougall:

Well, it says they can sue.

They said the District Court has jurisdiction unless otherwise prohibited by law.

That’s a certain Savings Clause and there is also Section B to which allows other remedies beyond the Amtrak Act.

Gordon P. Macdougall:

A part of it, unless otherwise prohibited seems to have come from the Comsat Acts and not to allow the Attorney General to get injunction against labor unions.

It appears to be that’s where it comes in.

Not — no history about it though when Congress was debating the Amtrak Act.

Mr. MacDougall, ain ordinary circumstances when a railroad wants to discontinue a train, what does it do?

Gordon P. Macdougall:

It goes to either the State Commission or to the Interstate Commerce Commission.

Depending on what kind of a train it is?

Gordon P. Macdougall:

That?

Let’s assume they go into Interstate Commerce Commission.

They have just given notice today?

Gordon P. Macdougall:

If it’s a — the train operates between two states to give a notice.

Give a notice to the Interstate Commerce Commission?

Gordon P. Macdougall:

Right.

And then what happen?

Gordon P. Macdougall:

The ICC, they need to decide as to hold an investigation or not to?

And how long does it have to do that?

Gordon P. Macdougall:

That’s four months.

And the train goes on during that period?

Gordon P. Macdougall:

If the commission institutes an investigation that requires continued operation during that period.

If the train operates wholly within one state which is the Nancy Hanks, it must go to the State Commission.

Yes.

Gordon P. Macdougall:

It must go to State Commission first.

You cannot go to ICC and that is carried over unto the Amtrak.

Now except for the Amtrak Act, would you say you can go directly into the Court prior to any proceedings before the commission?

Gordon P. Macdougall:

Yes, I would say that if a railroad –- well, let’s put it this way, yes in some cases and it depends upon the state law that would govern because the Interstate Section 1381 was an optional statute that go the ICC or go to each state served by the train.

So it will depend on the state law.

Our point is here, apart from that that the Congress said intercity rails passenger service shall be continued if a railroad doesn’t join Amtrak.

There’s a positive obligation in the Amtrak Law (Voice Overlap).

Discontinuance are still subject to the same provisions, aren’t they?

You’re going to —

Gordon P. Macdougall:

Not necessarily, only if the train has been operated by Amtrak for more than two years.

Otherwise, Amtrak could discontinue the trains without going to states.

But what about if a —

Gordon P. Macdougall:

Depends upon whether it’s in the basic system.

Trains in the basic system for two years or operated by Amtrak for two years then Amtrak must go through the ICC.

But what about a company railroad makes a contract with Amtrak to operate certain trains.

What about it’s other train?

Gordon P. Macdougall:

Under the statute, the way we construe it, the railroad must contract.

That’s the best our complaint below that they must contract for it with Amtrak for all of their intercity passenger service.

They can’t like the Southern does.

Pick and choose.

Take the profitable lines in Washington D.C. to New Orleans run that itself but let the Nancy Hanks join the subsidiary.

They’re joining Amtrak and discontinue that.

The statute says, 401 (a) (1) that the railroad must contract with Amtrak for all of the intercity passenger service operated by that railroad.

Well, do they extent it, there’s any administrative participation in the discontinuance process.

Your position is that you should be able to get into Court before or wholly aside from that?

Gordon P. Macdougall:

No.

Where it — no, where the — as the administrative procedure, that should — has to be followed but the Amtrak could discontinue trains apart from the administrative procedure, trains operated less than two years.

What about this train?

Gordon P. Macdougall:

This train was not subject to the ICC at all.

It was subject to what?

Gordon P. Macdougall:

It was subject to if the Southern had contracted for all of the intercity passenger service then it could give notices effective May 1, 1971 to discontinue all their intercity passenger service without any intervention by the ICC.

In fact, that’s what happens throughout the country.

Well, what about, was this Nancy Hanks, what was it subject to?

Gordon P. Macdougall:

It was subject to the Georgia Public Service Commission because it operated wholly within Georgia.

Did the railroad give notice there?

Gordon P. Macdougall:

No, it didn’t have to because under its theory it was contracting with Amtrak and thereby was able to just give a notice on May 1, they would discontinue the trains.

To whom?

Gordon P. Macdougall:

To the public.

To give a notice to the public and file it with the ICC.

And the ICC says —

Could the ICC have stopped it if it wanted.

Gordon P. Macdougall:

No.

The ICC issued regulations in March of 1971 saying that they do not have jurisdiction to stop it.

It was just a filing for notice provision, that’s all.

Thurgood Marshall:

But there is an interstate train involved in this case, isn’t it?

Gordon P. Macdougall:

Yes, there is inter and intrastate trains.

Thurgood Marshall:

Well, the interstate train, is it before the ICC?

Gordon P. Macdougall:

No.

There were no provisions to —

Thurgood Marshall:

I thought you said you have to give notice?

Gordon P. Macdougall:

Today, today now.

If we are to have a discontinuance today — today that is and of course these other railroads on operating trains today it’s mostly Amtrak just a few railroads operating today.

If the Southern works are discontinued today, they’d have to go to ICC.

So with Amtrak unless it’s a train of Amtrak is not operated for two years.

Thurgood Marshall:

In this particular one that’s in this case, are they required to go to the ICC or not?

Gordon P. Macdougall:

No, they were not.

Thurgood Marshall:

Then are they not required by law?

Gordon P. Macdougall:

No.

Even if they — even if it had been proper.

Thurgood Marshall:

Why not?

Gordon P. Macdougall:

Why not?

Because when the Amtrak Act was passed, if they followed certain procedures in the Amtrak statute they were allowed to discontinue the train.

Now if the Southern Railway contracted for all of its intercity service with Amtrak then the Southern was allowed by the statute to follow notice to discontinue the service.

Thurgood Marshall:

Notice with whom?

Gordon P. Macdougall:

With the governors of all the states and with the ICC and post it at all of the stations.

But that service would be picked up by Amtrak?

Gordon P. Macdougall:

No, no.

It hasn’t been.

No.

It would not be.

You see, there were 527 intercity trains before May 1, 19– there are some disputes how many — 527 intercity trains.

The Railroad was supposed to notice to discontinue all of them except those who didn’t join Amtrak and then Amtrak decided which ones to operate and operate its own service.

So who did the discontinuance?

Gordon P. Macdougall:

The Railroads.

This suit is primarily against the Railroad (Voice Overlap)

Amtrak also made the decision, isn’t it?

Not to operate?

Gordon P. Macdougall:

Yes, Amtrak only decid — well, Amtrak didn’t have complete freedom.

Amtrak had to operate the basic system service plus service above that which they wanted to operate.

Could they count — could Amtrak have operated these trains if it wanted to?

Was this train covered by the contract?

Gordon P. Macdougall:

This — Amtrak did not contract for any service to be maintained by the Central of Georgia Lines of the Southern?

Well, no, yes.

Could Amtrak would like to operate on these trains if it wanted to?

Gordon P. Macdougall:

I would think Amtrak — if the contract was valid with there Southern Railway System.

It could, yes.

It could have operate it.

Made an agreement with the Central of Georgia to operate, yes.

It could have but it didn’t?

Gordon P. Macdougall:

It didn’t.

Right.

We’re not — we’re assuming that on the ground that Southern has to have all of its service.

All or nothing?

Gordon P. Macdougall:

All or nothing.

I’m a little confused Mr. MacDougall.

Is it your position that assuming your basic premise, namely that it have to be all or nothing.

Gordon P. Macdougall:

Right.

Since it was not, but then Southern or Central Georgia, it’s wholly on subsidiary, may not discontinue the Nancy Hanks unless Southern does what?

Gordon P. Macdougall:

No, it must — the Nancy Hanks must not be discontinued until January 1, 1975 by Section 404 of the Amtrak Statute.

Well, but if it wants to discontinue — oh! You mean that’s not prohibition?

Gordon P. Macdougall:

Absolute prohibition.

It can’t discontinue by State Law, ICC or anything unless through the Southern Railway.

The Southern Railway if we assume they could — not contract for their — to Amtrak for their New Orleans to Washington D.C. train, the Southern Railway cannot discontinue that train until January 1, 1975.

Unless meanwhile may they contract with Amtrak?

Gordon P. Macdougall:

Unless it decides —

To cover all of the –-

Gordon P. Macdougall:

Yes, right.

That’s a specific obligation on the public.

I mean on the railroads it must maintain the service to the public until January 1, 1975.

That took it out you say of the regular discontinuance?

Gordon P. Macdougall:

Yes, it made an affirmative duty on the railroad, an affirmative right from the railroad passenger to get that service to January 1, 1975.

It cannot discontinue andyu transport —

Thurgood Marshall:

Enunciates — running now?

Gordon P. Macdougall:

Nope.

Thurgood Marshall:

Where is it?

Gordon P. Macdougall:

I really don’t know.

Its —

Discontinued.

It’s been — it was discontinued.

Thurgood Marshall:

How are you going to start to run again if you don’t know where it is?

Gordon P. Macdougall:

Well, the Southern Railway has the equipment to run the train.

I’m pretty sure they do have the trains in this (Inaudible).

They’re operating their own train service between Washington and —

Thurgood Marshall:

You’re talking about the Nancy Hanks.

Gordon P. Macdougall:

Yes.

Thurgood Marshall:

You don’t even know where the engine is?

Gordon P. Macdougall:

[Laughter attempt] I think — I really don’t know.

I really don’t know where it is.

Its part of — I just don’t know who discontinued and if we basically (Voice Overlap).

Thurgood Marshall:

If its all that it need, that you have to go find the Nancy Hanks and if you told it (Inaudible)?

Gordon P. Macdougall:

Well, the Southern –- it doesn’t that way to have a pool of equipment of diesel equipment and a pool of coach cars.

I don’t think and in fact there is a surplus now if railroad coaches and railroad equipment and I don’t think there’s any difficulty in restoring that one train should — would be entitled to.

Thurgood Marshall:

I don’t agree with you though. (Inaudible).

Mr. MacDougall you’ve been very responsive and very informative in your answer to questions from the bench about the merits of your claim.

But, do you agree with your Brother, Mr. Prettyman that the merits of your claim aren’t here at all, that what we have here is just the meaning of Section 307?

Gordon P. Macdougall:

Right.

You’re having here whether —

Whether or not you have the right to —

Gordon P. Macdougall:

Right to go to court to assert a duty which still the Railroad owes —

You would agree with him if that’s the only issue?

Gordon P. Macdougall:

Yes, the lower court assumed the validity of our position and one under the —

For purposes of this issue?

Gordon P. Macdougall:

Right.

I’ll point out to you that the — there’s no structure within the government, within the Attorney General’s Office for making any decision as to whether to go to Court or not.

In fact, if you look at page 42 (a) — 43 (a) of the petition for cert which is a very dark blue document.

What the Attorney General does is it gives to Amtrak, in this case to Mr. William O. Bittman who was the attorney for Amtrak in this case.

He is to Mr. Bittman the authority to raise the question or if he wants him or not.

When the Attorney General does decide to go to Court — as indicated in the petition for cert.

They just tell Amtrak, well, if you want raise it for the judge you can and here’s your authority to speak on behalf of the Attorney General.

There is no section on — to enforce the Amtrak law within the Department of Justice.

There is no framework of expertise as a letter of a certain Attorney General Gray which I pointed out in page 30 of our brief — 130 of our brief says, DOT has the expertise.

Department of Justice doesn’t have any expertise on this.

There’s no statutory framework or administrative agencies such as we have on the Halloway case which was cited to us this morning.

And if there isn’t a right to go to Court there is just as not going to be anyway to — for us to have our rights asserted.

There is no way.

The Attorney General is not qualified.

All it does is delegate to the attorney for the Amtrak to represent the position of the government and there is nothing in the legislative history to show why a committee.

The next it was a sub-committee of the house.

Why the sub — it rejected Labor’s Amendment, Labor’s Amendment would’ve gone further and ask for right for damages and other things and the only thing that go — the way we look at it is that, this section was to be a super section.

A section to authorize the Attorney General to go into Court because there are important interests of the government at stake in setting up the Amtrak Act.

There’s a lot of money involved.

It was a quasi public thing.

The president appoints all the directors and that this required special public attention, special standing for the Attorney General.

The last thing I like to say is that, allowing access to Court will not frustrate the statutory purpose.

It counts from the petitioner said that the — this one single train that’s continued why it’s going to be disaster.

Gordon P. Macdougall:

What Congress assumed that sometimes Amtrak would not be allowed to discontinue a train that Amtrak wanted to discontinue?

They contemplated Amtrak might lose a case here or there.

And there’s just as the only way to allow the purposes of the Amtrak Act to be fulfilled is to allow private suits we feel.

I made a lot of argument in their brief on adequacy of services while forgetting discontinuances.

What about people who have complaints as to meal service, private cars, reservation proceeding — procedures, no smoking sections and so forth.

Can anybody to go to Court on that.

Well, the answer is the Amtrak Act by Section 801 has said you go to the ICC on that.

They say the ICC shall set the standards so there’s no danger from inadequacy of service standpoint that they are going to be a multitudes of suits.

The real thing is —

Thurgood Marshall:

You’re telling me the ICC is on that duly?

Gordon P. Macdougall:

Yes, they do.

Thurgood Marshall:

Why?

Gordon P. Macdougall:

They — in the Amtrak Act Section —

Thurgood Marshall:

Aren’t the private suits going to take over all of that?

Gordon P. Macdougall:

No, the Amtrak statute says for adequacy of service.

The ICC is obligated to set up the regulations and also that section was one of those amended last and is known part of Public Law in 93146.

So as to the standards of service and everything, there is a procedure and that’s the ICC, was put in there.

So really what we’re talking about is discontinuances and allowing private suits will enhance the statutory scheme.

There simply is no remedy elsewhere.

There is no staff at the Department of Justice.

What if a locality wants a railroad to continue or the Amtrak to continue some local service but Amtrak doesn’t want to continue and the Amtrak says, well, you can pay for our lawsuits?

Gordon P. Macdougall:

That’s one of the options.

And what if they get into an argument about that, where is that argument to be settled?

Gordon P. Macdougall:

The statute is as clear — if they have a case, they can file it in Court but that would have to be —

That provision specifically provides?

Gordon P. Macdougall:

No, it does not.

They’d have to go to court and say — point to some of sections of the Amtrak Statute that gives — that makes Amtrak is a duty upon Amtrak to provide certain service to a community on a certain circumstances.

It have to point to where the Amtrak Statute makes a duty on Amtrak to do something.

Well it does make a duty — put a duty as long as the locality is willing to pay for the lawsuits?

Gordon P. Macdougall:

That’s right.

Gordon P. Macdougall:

There is a duty in that.

Right.

And —

Gordon P. Macdougall:

And if Amtrak didn’t do it, presumably they would — that they wold go to court and say Amtrak is in violation of the statute.

No administrative —

Gordon P. Macdougall:

There is on that — I believe in that there’s a provision for arbitration by the Department of Transportation.

I’m not sure there is a section on that.

Section 403 (Voice Overlap)

Without exhausting that you wouldn’t think you could go right in the Court, don’t you?

Gordon P. Macdougall:

I would think it have to — in any time, you go to Court you have to exhaust.

But you say there’s nothing to exhaust in your –-

Gordon P. Macdougall:

And ours is not because these are the discontinuances that came effective May 1, 1971 when the railroad posted 527 intercity trains.

We thought there were only 360.

There’s a question of what is an intercity train, what’s a commuter train, that is one issue now on the Courts.

Other issue is did the Southern Railway contract for all of its service, did they or did they not?

And there’s no remedy administered to remedy for that and there’s no remedy in the Department of Justice.

We tried mandamus in one case and mandamus is not the remedy either.

Warren E. Burger:

Thank you Mr. MacDougall.

Do you have anything further Mr. Prettyman?

E. Barrett Prettyman, Jr.:

Yes, sir.

Indulge just a moment because —

I am little confused Mr. Pretyman (Voice Overlap) precisely what role now the ICC or the other state agencies play?

E. Barrett Prettyman, Jr.:

Yes sir, I thought perhaps —

Yes, I’ll answer that and track it through for you if I may just quickly refer Mr. Justice White to 403 (b) sir, there is a specific provision if the community and the railroad and Amtrak can’t reach an agreement, it goes to the Secretary of Transportation forum.

Now let’s go back before the Act was passed and follow this through.

And Mr. Justice White raised the key question here, this Act is not cutoff a right which was a prior right which existed before.

Before this Act was passed, in so far as the Nancy Hanks wan concern, a party could not go to the Court.

He would do one or two things.

If the Nancy Hanks — the Railroad wanted to cutoff the Nancy Hanks, they would go first if they wanted to to the state, the Public Service Commission of Georgia.

If they didn’t’ get relief there, they could go under 13 (a) 2 before the ICC.

E. Barrett Prettyman, Jr.:

He could not — a private party could not go to Court.

He could bring a complaint before the Public Service Commission or the ICC.

But if the ICC decided to do nothing about it, as Mr. Justice Douglas said for the Court in the City of Chicago, it was no right of appeal of that decision.

So before the Act in terms of an intrastate train like the Nancy Hanks, the procedure was administrative and you went to Court only if the ICC took the matter or passed upon it and decided for example that it wasn’t going to discontinue, then and only then there was a right to review.

Now in terms of trains 13 and 14 which were interstate, what happened before this Act was that again the private party could make a complaint to the ICC.

The ICC, if it decided not to investigate, that ended the matter.

If it decided to investigate and pass on the merits then there was an appeal to three-judge District Court.

So this Act didn’t cutbakc — cutoff a right which existed before.

This Act substituted a slightly different system.

Now here’s what happens under the Act, if it is a basic system train —

One designated by the Secretary?

E. Barrett Prettyman, Jr.:

Exactly, designated as part of the basic system which means that it is essential to our transportation needs in passenger train.

If it is part of that, no discontinuances can take place until July 1, 1974, none.

After July 1, 1974, if they want to discontinue a train, they go pursuant to 13 (a).

And they go before the ICC and they file their notice and the ICC either decides to do nothing, let it be discontinued in which case as this Court has said there is no appeal or it decides to investigate.

It makes the decision on the merits and then there is the normal appeal through the Court.

Now as to excess trains, that is trains which are not part of the basic system.

And this would’ve affected the trains involved in this case.

They weren’t part of the basic system.

They were purely excess train.

In so far as those trains are concern, they can be discontinued at anytime with two exceptions.

There has to be a 30-day notice to alert the public so they can make their plans and so forth.

Or if the train is operated continuously by Amtrak, picked up by Amtrak and operated continuously for two years, it becomes part of the basic system and then everything it relates to the basic system.

But otherwise all it’s required to discontinue was the notice?

E. Barrett Prettyman, Jr.:

Is the notice and that shows Congress’ clear intent you see, as I indicated before, it recognized that there has to be still some more paring to get down to (Voice Overlap) what we can support.

You were saying, when this is a Nancy Hanks, it was just a notice, 30-day notice; you agree apparently that no administrative agency could stop it?

E. Barrett Prettyman, Jr.:

Exactly and sir, let’s assume —

Well, excuse Mr. Prettyman is this — is there an expressed exception from the Section 13 procedures?

E. Barrett Prettyman, Jr.:

Yes, sir.

In other cases?

E. Barrett Prettyman, Jr.:

Yes, sir.

If you look at 14 — look at 404 (b) (2).

Oh! Where is that?

E. Barrett Prettyman, Jr.:

Well, unfortunately Mr. Justice ,I’m most apologetic, we don’t give you the entire statute in our briefs which we should have.

What if there is not 4–?

It’s 4 — Section 404 (b) (2).

I was not in the case originally and I —

(Inaudible)But with respect to the train involved in this case there were no administrative remedies to be solicited or (Voice Overlap) to go primary jurisdiction of any administrative agency?

E. Barrett Prettyman, Jr.:

Congress didn’t want any.

No.

Only the notice would (Inaudible)?

E. Barrett Prettyman, Jr.:

Yes.

Do you have the pertinent provision of 404 (b) (2) before you?

E. Barrett Prettyman, Jr.:

Yes, sir.

Would you like me to read it to you?

If you don’t mind?

It does take a long time to find it.

E. Barrett Prettyman, Jr.:

Sure, 40 (b) —

Yes.

404 (b) (2) says, “Except as otherwise provided in this paragraph and in Section 403 (a)”, that would relate to the two trains — for the trains operated for two years, “service beyond that proscribed for the basic system undertaken by the corporation upon its own initiative may be discontinued at anytime.

No such service undertaken by the corporation on or after January 7 — January 1, 1973, this is now as amended, shall be discontinued until the expiration of a one year period beginning on the date of the enactment of the sentence.”

Originally, they could simply be discontinued at anytime when this was amended.

In 1973, they put a one year cut Your Honor.

Warren E. Burger:

Is that what you call the excess service?

E. Barrett Prettyman, Jr.:

That’s the excess service, yes, sir.

In other words, let’s assume that instead of these trains being discontinued when the Act came into effect, let’s supposed that Amtrak would pick them up which it could have done and answered to your question sir.

The Amtrak could have decided even though they weren’t part of the basic system to operate the Nancy Hanks in Trains 13 and 14.

If it had decided to do so and it has operated a number of trains in excess to the basic system then this would come into play and it would be operating them.

If they — if it operated them for two years, they became part of the basic system.

If they were not part of the basic system and they wanted to discontinue then this Section would come into play.

And if they never pick them up at all?

E. Barrett Prettyman, Jr.:

Then the —

They’ll use that notice if that —

E. Barrett Prettyman, Jr.:

In this case, it was just prior to April 1, 1973 — 1971 and the Central of Georgia gave the notice that on the effective date, April 1, 1971, the trains would be discontinued pursuant to 404.

You see, the statute allowed as the April 1, 1971 was the date under the Act when the discontinuance thence forth could take place if they were not part of the (Voice Overlap).

(Inaudible) As you read that Mr. Prettyman, I detect no expressed reference to an exception from the Section 13 procedures.

Not in terms at least to it.

There’s no reference to Section 13?

E. Barrett Prettyman, Jr.:

That is correct.

And that is because if you look at the way the Act is set up, it is pure dichotomy between basic system trains.

Where is the provision for a 30-day notice?

Is that in the section or some other?

Does the 30 days apply to these trains?

E. Barrett Prettyman, Jr.:

It would apply to these trains, that is if –-

Where is that?

What section is that?

E. Barrett Prettyman, Jr.:

Well, 401 I believe that this is —

Is this not a simple Act, is it?

E. Barrett Prettyman, Jr.:

Sir, it’s a very complicated Act, it certainly is.

Well, 13 (a) (1) provides that any Railroad discontinuing a train here under must give notice and accordance with the notice procedures contained in 13 (a) (1) of Title 49 and that is the 30 days.

The ICC has interpreted that not as calling the ICC into it but simply as meaning that —

Then give notice?

E. Barrett Prettyman, Jr.:

That they give the notice provided in 13 (a) which happens to be —

Well, the ICC has decided they have no jurisdiction to stop the discontinuance of excess?

E. Barrett Prettyman, Jr.:

Of excess, but they’ve already definitely do in terms of the basic system.

What about local agencies are they (Inaudible)?

E. Barrett Prettyman, Jr.:

No sir, because there is a provision I think its 802 which says, that no discontinuance of any train can be made anywhere except pursuant to this Act.

In other words, that the procedures in the Act must be followed as to all trains throughout United States.

The main point though Mr. Justice is that if you go back before the Act, you will find that there was simply no right at any time just to go directly in the Court prior to the state agency or the ICC having that and that is precisely the situation that they are trying to get around now by saying they can come in before the ICC or anybody else even offered?

Or they can come in even though the Attorney General does not?

E. Barrett Prettyman, Jr.:

Yes.

The Attorney General like the agency might decide not to intervene?

E. Barrett Prettyman, Jr.:

Well, yes.

The Attorney General — it’s not quite the picture painted here.

The Attorney General has been investigated in tremendous number of complaints.

It has one right now involving the Penn Central that the Attorney General is investigating and while there had been no suits, the Department of Justice has a man who follows this carefully.

There are continuous reports to the Congress, to the Secretary, to the President about the operations and he exercises a very diligent role in this matters.

William H. Rehnquist:

Mr. Prettyman, what if the operator of an excess train simply discontinues it without giving the 30-day notice?

Does anybody have any remedy?

E. Barrett Prettyman, Jr.:

Then the Attorney General, I’m sure is authorize to bring suits under the act could go in and perhaps the ICC itself.

I don’t know.

But if he wouldn’t — since he would not be following the Act — Let me answer it this way.

Since the Act specifically provides for the 30-day notice and since he would be in effect disobeying the Act then the Attorney General would have the obligation to go in and make sure that the 30-day notice was given.

William H. Rehnquist:

Just as he presumably does in the respondents case here if the respondents are right on the merits?

E. Barrett Prettyman, Jr.:

Exactly.

And he looked at this and decided that they were owrong.

Thank you very much.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.