Before BAZELON, Chief Judge, and FAHY and BURGER, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1964.CDC.95
DILLON, Secretary of the Treasury, et al., Appellees.
Nos. 17753, 17755, 17756, 17764
Certiorari Denied Dec. 14, 1964.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BURGER
Complaints filed by appellants in the District Court sought declaratory judgments and injunctive relief to require appellees to apply Section 27 of the Merchant Marine Act of 1920, 41 STAT. 999 (1920), as amended, 74 STAT. 321 (1960), 46 U.S.C. § 883 (Supp. IV 1963), and pertinent Treasury Regulations adopted pursuant thereto *fn1 so as to deny enrollment in the coastwise trade to certain vessels. The District Court dismissed the complaints and these appeals followed.
Three of appellants are coastwise carriers who compete directly with Sea-Land Service, Inc., intervenor, the present owner of the two vessels claimed by appellants to have been illegally enrolled; other appellants are railroads who were granted leave to intervene in the District Court on their allegation that their transcontinental freight carriage is also in substantial direct competition with Sea-Land. Appellants claim that the documenting of two rebuilt vessels by the Commissioner of Customs was a violation of Section 27 of the Act as amended in 19602 and its relevant regulations. The 1960 amendment, except for a limited saving clause3, prohibited enrollment and licensing of vessels "jumboized" by installation of foreign-made midbodies, or midsections. Additionally, two appellants contend that an administrative hearing was required on the eligibility of the vessels for enrollment4
Appellees contend that appellants are without standing to challenge in court the actions of the Commissioner of Customs and the Secretary of the Treasury with regard to these ships. We agree. Allegation of a legally protected right is a constitutional predicate of standing to attack governmental action. See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 140, 71 S. Ct. 624, 95 L. Ed. 817 (1951) (principal opinion); Gonzalez v. Freeman, 118 U.S.App.D.C. -, -, 334 F.2d 570, p. 576. The tests for standing to review agency action are found in Section 10(a) of the Administrative Procedure Act:
"Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof."
60 STAT. 243 (1946), 5 U.S.C. § 1009(a) (1958). Under this statute appellants have standing to challenge agency action which they allege either causes them a "legal wrong," or adversely affects or aggrieves them "within the meaning of any relevant statute."
"Legal wrong," as we have only recently noted, is the invasion of a legally protected right. See Gonzalez v. Freeman (supra) 117 U.S.App.D.C. at - n.6, 334 F.2d at 576 n.6. Thus, in order to make out a claim of "legal wrong" under Administrative Procedure Act § 10(a), appellants must assert some legally protected right to be free of the competition provided by the two vessels whose documentation they are challenging. This court has very recently spoken on this aspect of standing. When "Congress has not given them any such standing by express or implied provision of statute . . ., mere economic competition made possible by governmental action (even if allegedly illegal) does not give standing to sue in the courts to restrain such action. Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 59 S. Ct. 366, 83 L. Ed. 543 (1939); Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S. Ct. 300, 82 L. Ed. 374 (1938); Kansas City Power & Light Co. v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924, cert. denied, 350 U.S. 884, 76 S. Ct. 137, 100 L. Ed. 780 (1955)." Texas State AFL-CIO v. Kennedy, 117 U.S.App.D.C. 343, 345, 330 F.2d 217, 219 (1964). For purposes of standing in this case, the sufficiency of appellants' allegations of "legal wrong" thus depend upon congressional intent to bestow upon them a legal right to protection from such competition.
Similarly, appellants' allegations that they are "adversely affected or aggrieved . . . within the meaning of any relevant statute" depend for their adequacy as to standing upon the congressional purpose underlying the relevant sections of the Merchant Marine Act of 1920, as amended. See Kansas City Power & Light Co. v. McKay, 96 U.S.App.D.C. at 281, 225 F.2d at 932; Jaffe, Standing to Secure Judicial Review: Private Actions, 75 HARV.L.REV. 255, 287 (1961). Under either leg of Section 10(a), therefore, since appellants complain only of government enhancement of economic competition, ...