Mitchell v. Covington Mills, Inc. ( 1955 )

DANAHER, Circuit Judge

(concurring).

I concur in the entire opinion by Chief Judge EDGERTON.

I feel impelled to say this: were it not for Textile Workers Union of America, CIO v. Allendale Company,¹ I would dismiss 144 plaintiffs on the present record. Moreover, I believe the District Court should have denied intervention by defendants National Association of Cotton Manufacturers, Berkshire Fine Spinning Associates, Inc., Fitchburg Yarn Company, Hathaway Manufacturing Company and the Textile Workers Union of America, CIO, who are now here as appellants on the side of the Secretary. The Supreme Court held² in 1940 that determinations by the Secretary under the Walsh-Healey Act³ as it then was written, are not judicially reviewable. The Act “was not intended to be a bestowal of litigable rights upon those desirous of selling to the Government; it is a self-imposed restraint for violation of which the Government — but not private litigants — can complain.” ⁴ The function of the Secretary, acting in behalf of the Government, is to find the facts,⁵ and make his determination which shall be conclusive upon all agencies of the United States. The Act was designed to permit the Government to supply its needs without the delays necessarily incident to judicial supervision of administrative procedure. “If the general law permits prospective bidders to challenge each wage determination of the' Secretary in the courts, by a like token all employees affected could obtain judicial review.”⁶ We have been advised that “Courts should not, where Congress has not done so, subject purchasing agencies of the Government to the delays necessarily incident to judicial scrutiny at the instance of potential sellers, which would be contrary to traditional governmental practice and would create a new concept of judicial controversies.” ⁷ Not only do such expressions by the Court correctly, in my opinion, reflect the understanding and purpose of the Congress, but this case illustrates peculiarly the situation which Congress sought to avoid. It is now nearly three years since the Secretary’s determination was promulgated, and it is no more nearly effective now than when it was first made. Yet 144 plaintiffs and 5 defendants as “parties” in the District Court still, because of their status as parties, respectively have rights of appeal no matter which way our order goes.⁸

It is said that these “parties” are thus able completely to frustrate the reasonable fulfillment of the Congressional objective because “rights” have been conferred upon them by the Fulbright amendment,⁹ adopted in 1952. In terms it was provided that review “may be had within 90 days after such determination is made,” and ten of the original plaintiffs sought review after the 90 day statutory period had expired. As to them the motion to dismiss should be granted. The Fulbright amendment further provided that review was to be had only “by any person adversely affected or aggrieved” by the determination. Only 14 plaintiffs have made a showing that the determination “results in direct and immediate injury.”¹⁰ So, I would dismiss as to 144 “plaintiffs,” leaving only the 14 in the Alabama case and none in the Covington case. The named intervening appellants by the Secretary’s determination have not been subjected to or threatened with any legal wrong. They have shown no independent legal right. They are not “private Attorney Generals,”¹¹ and the Secretary is ably represented here by the Attorney General. Even the Fulbright amendment confers no standing upon those who appear on the side of the Secretary. I believe their intervention never should have been allowed.

This is not a case involving a determination of public convenience and necessity such as National Coal Ass’n v. Federal Power Commission.¹² This is not a case like Columbia System v. United States,¹³ where “the regulations purport to operate to alter and affect adversely appellant’s contractual rights and business relations with station owners whose applications for licenses the regulations will cause to be rejected and whose licenses the regulations may cause to be revoked.” This is not a case like Associated Industries v. Ickes,¹⁴ where by administrative carder, the minimum prices at which coal could be sold were increased, thus affecting the very basis upon which transactions in the coal business could be conducted. Nor is the case like United States Cane Sugar Refiners’ Ass’n v. McNutt,¹⁵ or Longshoremen’s Union v. Boyd,¹⁶ where the suit was dismissed for want of a “ ‘case or controversy.’ ” This is a case, sui generis, where “Congress, as incident to its power to authorize and enforce contracts for public works, may require that they shall be carried out only in a way consistent with its views of public policy . . ..”¹⁷ No one is forced to bid for Government contracts. Not foreign to our problem are the considerations reasoned by this court in Alabama Power Co. v. Ickes.¹⁸ I believe the Congressional interest in the attainment of the objectives of the Walsh-Healey Act and the Government’s undoubted right to lay down the conditions upon which its own business will be conducted compel a strict construction of the Fulbright amendment. Any other view makes a shambles of the WalshHealey Act, for the delays and confusion occasioned by the hordes of “parties” render a determination obsolete and ineffective. Thus those who properly may be parties are those, and only those, who can show themselves by direct and immediate injury to have been adversely affected or aggrieved by the Secretary’s determination.

1 . 90 U.S.App.D.C. 401, 226 F.2d 765. But see the dissenting opinions.

2 . Perkins v. Lukens Steel Co., 1940, 310 U.S. 113, 128, 60 S.Ct. 869, 84 L.Ed. 1108.

3 . 49 Stat. 2036-2040 (1936), as amended, 41 U.S.C.A. §§ 35-45.

4 . Supra note 2, 310 U.S. at page 127, 60 S.Ct. at page 877.

5 . § 4, 49 Stat. 2038. (1936), as amended, 41 U.S.C.A. § 38; (re the fact-finding function see Shannahan v. United, States, 1938, 303 U.S. 596, 599, 58 S.Ct. 732, 82 L.Ed. 1039).

6 . Supra note 2, 310 U.S. at page 131, 60 S.Ct. at page 879.

7 . Id. 310 U.S. at page 130, 60 S.Ct. at page 878.

8 . Cf. Fishgold v. Sullivan Corp., 1946, 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230; Boston Tow Boat Co. v. United States, 1944, 321 U.S. 632, 633, 64 S.Ct. 776, 88 L.Ed. 975.

9 . 41 U.S.C.A. § 43(a).

10 . National Coal Ass’n v. Federal Power Commission, 1951, 89 U.S.App.D.C. 135, 138, 191 F.2d 462, 465.

11 . Associated Industries v. Ickes, 2 Cir., 1943, 134 F.2d 694, 704, order vacated, 1943, 320 U.S. 707, 64 S.Ct. 74, 88 L.Ed. 414. The able opinion by Judge Frank treats of almost every conceivable situation except that presented on the record here.

12 . Supra note 10. (Even there Judge Clark, in his dissent, argued well that the petitioners were not “parties aggrieved” within the meaning of the Natural Gas Act, 15 U.S.C.A. § 717 et seep)

13 . 1942, 316 U.S. 407, 422, 62 S.Ct. 1194, 1203, 86 L.Ed. 1563.

14 . Supra note 11.

15 . 2 Cir., 1943, 138 F.2d 116 (where the petition was dismissed for lack of jurisdiction).

16 . 1954, 347 U.S. 222, 74 S.Ct. 447, 448, 98 L.Ed. 650. (The point is certainly present here.)

17 . Ellis v. United States, 1907, 206 U.S. 246, 256, 27 S.Ct. 600, 601, 51 L.Ed. 1047.

18 . 1937, 67 App.D.C. 230, 91 F.2d 303, affirmed 1938, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374.