MEMORANDUM OF DECISION, FINDINGS OF FACT and CONCLUSIONS OF LAW
BLUMENFELD, Chief Judge.
This is an action in which the plaintiff, A. Earl Wood, the Commissioner of Transportation for the State of Connecticut, seeks an injunction restraining the defendant, the National Railroad Passenger Corporation (hereinafter Amtrak), which was created by the Rail Passenger Service Act, Pub.L. 91-518 (Oct. 30, 1970) Sections 101 et seq., 45 U.S.C. § 501 et seq., and incorporated under the laws of the District of Columbia,
On December 29, 1971, the court issued an order temporarily restraining the defendant from discontinuing the aforementioned service. On January 6, 1972, a hearing was held on the plaintiff's motion for a preliminary injunction and on the defendant's motions to vacate the temporary restraining order and to dismiss. These motions were grounded on (1) failure to state an action on which relief can be granted; (2) the absence of standing for the plaintiff to bring the action; and (3) lack of jurisdiction over the subject matter of this action. On January 7, 1972, the court extended the temporary restraining order for not more than ten days or until the case was decided.
Title 28 U.S.C. § 1337
The defendant contends, however, that this court is without jurisdiction because only the Attorney General and not the plaintiff has standing to bring this action by virtue of Section 307(a) of the Act, which states:
While Section 307(a) gives the Attorney General the right to bring actions to restrain Amtrak from violating the provisions of the Act, it does not by its terms specify that a court may never exercise jurisdiction over claims against the corporation unless the action is brought by the Attorney General. A distinction must be drawn between whether a certain plaintiff is a proper party to request an adjudication of a particular issue and whether the court has the power to adjudicate it.
As noted initially, 28 U.S.C. § 1337 provides that "the district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce ...." On its face, this language is a clear predicate for jurisdiction of this case. It is true that Section 307 of the Act is concerned with jurisdiction, but it does not purport to carve out an exception to the traditional grants of jurisdiction. To the contrary. To emphasize that such jurisdiction is not diminished, it expressly states that the district court shall have jurisdiction "except as otherwise prohibited by law." (Emphasis added).
On this threshold jurisdictional issue, I hold that Section 307 does not deprive this court of the jurisdiction predicated on 28 U.S.C. § 1337.
It is also true that Section 307 specifically authorizes federal district courts to grant equitable relief "upon petition of the Attorney General of the United States ...." The defendant argues that by the well-established maxim of statutory construction expressio unius est exclusio alterius the plain words of the statute indicate that only the Attorney General may petition for the imposition of equitable sanctions for violations of the Act. In this instance, too much is claimed for the maxim. See United States v. Barnes, 222 U.S. 513, 519, 32 S.Ct. 117, 56 L.Ed. 291 (1912). The defendant has cited Potomac Passengers Ass'n v. Chesapeake & Ohio Ry., reported sub nom. Congress of Ry. Unions v. Hodgson, 326 F.Supp. 68, 78 (D.D.C. 1971), which does support this contention. The court there stated: "As this section (307(a)) clearly states, the jurisdiction of the courts to apply sanctions for violation of the Act attaches only upon the petition of the Attorney General of the United States." (Emphasis added). Since I do not find the italicized word in that section, I do not feel compelled to agree, and with all deference I do not. Nor do I embrace the view that by refusing to adopt the suggestion to a subcommittee of the House Interstate and Foreign Commerce Committee, which held hearings on H.R. 17849 and S. 3706, by a representative of the Railway Labor Executive Association that the words "of any person adversely affected or aggrieved thereby including the duly authorized representatives of any employees of any railroad or of the Corporation" be substituted for the italicized portion of the text of the bill: "upon petition of the Attorney General of the United States, or in a case involving a labor agreement, upon petition of any individual affected
The express authority of the Attorney General to petition for equitable relief
This is not the first time that Congress has recognized that the Attorney General should be given a substantial role in obtaining sanctions to obtain enforcement of responsibilities imposed on persons who carry out government-assisted projects. See, e. g., 42 U.S.C. §§ 3611 (g), 3613.
It should also be noted that if the Attorney General refuses to act, his discretion, if reviewable at all, would be reviewable only under a very limited standard. Cf. Littell v. Morton, 445 F.2d 1207, 1211 (4th Cir. 1971); Fook Hong Mak v. Immigration & Naturalization Serv., 435 F.2d 728 (2d Cir. 1970). The practical effect of his refusal would be to cloak Amtrak and the railroads with governmental immunity. I am reluctant to think Congress intended such a result. Nor is there any indication that the purpose of Congress was to protect the courts against the possibility that they would become overburdened with increased litigation.
The plaintiff is an officer of the State of Connecticut, who has brought this action in his official capacity as Commissioner of Transportation of the State of Connecticut. As such, he has sufficient "`stake in the outcome of the controversy as to assure ... concrete adverseness.'" Flast v. Cohen, supra, 392 U.S. at 99, 88 S.Ct. at 1952, quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
Accordingly, for the foregoing reasons the motion to dismiss on the grounds that this plaintiff has no standing to bring this action, and that this court lacks jurisdiction over the subject matter of this action is denied.
Having held that this court has the power to proceed in this action, and that it may be adjudicated on the complaint of the plaintiff, I now turn to the merits
Section 404(b) (1) of the Act provides:
The import of these provisions was succinctly explained in the report of the House Committee on Interstate and Foreign Commerce which accompanied the bill which was subsequently enacted as the Rail Passenger Service Act. This report states:
The complaint, tracking the provisions of Section 404(b), alleges that the Clamdigger rail passenger service between New Haven and New London is "service included within the basic system" and as such must be provided by Amtrak. The plaintiff points to an Amtrak time schedule, effective May 1, 1971, the first schedule issued by Amtrak after its establishment, as evidence showing that the Clamdigger service was "service included within the basic system."
The basic system is defined in Section 102(4) as "the system of intercity rail passenger service designated by the Secretary under Title II and Section 403(a) of this Act." Service set forth in time schedules issued by Amtrak does not establish what constitutes the basic system. The manner in which the "basic system" is established is defined by the Act. Title II, Section 201 of the Act, provides:
Pursuant to Section 201, the Secretary specified New York and Boston as end points "between which intercity passenger service shall be operated" and identified a route through New Haven and New London as a route "over which service may be provided." John A. Volpe, Secretary of Transportation, Final Report on Basic National Rail Passenger System at 11-4 (January 28, 1971) (hereinafter referred to as Secretary's Report) (emphasis added). In so doing, the Secretary specifically stated:
New Haven and New London were not specified by the Secretary as end points between which service must be provided. Hence, service between these points cannot be deemed "service included within the basic system" within
However, the plaintiff has another string to his bow. During the hearing the plaintiff contended that, even if there is no statutory obligation on the defendant to provide the Clamdigger service, it is under a contractual obligation to do so. In suing on the contract, the plaintiff comes into court on a claim of its own, quite apart from the one based on the Act.
It is not disputed that there is a contract between Amtrak and the Penn Central under which the latter provides the Clamdigger service. Although the actual contract document was not offered in evidence, a "Standard National Railroad Passenger Corporation Contract," which the parties have represented is in essence the contract, was received in evidence. Under this contract, the Penn Central agrees to provide Amtrak with services requested by it for or in connection with intercity passenger service.
Since such service was provided and its availability is specifically advertised in a timetable issued by the defendant, the plaintiff argues that the defendant may not terminate or modify that service. However, the contract provides that Amtrak has the right to request modification of rail passenger service. (Article 3, Section 3.2, at 6 of the form contract). Whatever rights the plaintiff may have as a third-party beneficiary are subject to this provision of the contract. The discontinuance of the trains in question would constitute a permissible modification of the service presently provided between New Haven and New London. The defendant's request to the Penn Central to eliminate the Clamdigger service is not in derogation of any rights of the plaintiff.
Following the hearing in open court on the plaintiff's application for a temporary injunction, as well as on the defendant's motion to dismiss, the parties agreed in chambers that the hearing should be treated as a trial on the merits. Fed.R.Civ.P. 65(a) (2). Furthermore, since matters outside the pleadings were presented and both parties agreed that no further material was to be presented, the motion to dismiss for failure to state a claim upon which relief can be granted must be treated as one for summary judgment. See Fed.R.Civ.P. 12(b) (6).
Having considered the pleadings, the evidence and other materials submitted
Ordered that judgment be entered for the defendant.
This memorandum of decision constitutes the court's findings of fact and conclusions of law under Fed.R.Civ.P. 52.
In discussing the amount of security which the plaintiff ought to give pending the temporary restraint imposed on the defendant by order of the court, the parties agreed that the losses which the defendant might suffer on account of continuance of the Clamdigger service might run to $6,000 per month. Since the defendant had expressed a willingness to continue the service if requested to do so by the plaintiff, and if the plaintiff agreed to reimburse the defendant for no less than 66 2/3 % of its losses, pursuant to Section 403(b) and (c) of the Act, the court ordered the plaintiff to give security required by Fed.R.Civ.P. 65(c) in the amount of $4,000. Under the circumstances, the bond in that amount may be regarded as affording sufficient security against loss to the defendant for a further period of three days. The court, in its discretion, deems the circumstances sufficient to justify a preservation of the status quo for a further period of three days in order to permit the plaintiff to file a notice of appeal and furnish a bond proper for the security of the rights of the defendant pending an appeal.
Accordingly, the dissolution of the restraining order heretofore entered is stayed for a further period of three days to afford the plaintiff an opportunity to obtain a further stay pending appeal, if it is deemed advisable. The filing of a proper bond or security in the amount of $72,000 pending appeal shall be effective to continue the stay order presently in effect pending an appeal.