or duty, their sole interest and objective being to eliminate the competition which they feared.
In the Benson case, the Court held that the plaintiffs had no legal right invaded by lawful competition facilitated by governmental action in respect of a Federal milk marketing order. They did not 'rely upon any provision of the Act itself as affording them standing to attack' the order, and the Court held that 'injury from lawful competition is damnum absque injuria and affords no standing to the party damaged to seek judicial relief therefrom, absent statutory aid to standing.' (Italics supplied.) (96 U.S.App.D.C. 227, 225 F.2d 529.)
The other cases cited are similar in character.
Here, however, as distinguished from the cases relied on by defendants, plaintiff and all others engaged in the industry are regulated, not to the extent of a public utility, but to the extent of being required by statute to become a member of the Rating Bureau organized for the purpose of administering rates for insurance. Here plaintiff and all others engaged in the industry are forbidden to charge, apply, or enforce any rate, premium, schedule, rating method, rule, bylaw, agreement, or regulation until it shall have been first filed with and approved by the Superintendent. Here, as distinguished from the cases relied on by defendants, plaintiff has a statutory right to sue if 'aggrieved' or 'affected'; and this brings me to the authorities which, in my opinion, are dispositive of this issue.
This statutory right to sue enlarges the standing-to-sue doctrine, which forbids suits by parties who are merely taxpayers, interested in obtaining Government contracts, desirous of preventing competition caused by Government activity, or the like. This enlarged right is set forth in the cases which I shall now discuss.
In Federal Communications Commission v. Sanders Brothers Radio Station, 309 U.S. 470, 642, 60 S. Ct. 693, 84 L. Ed. 869, 1037, the Federal Communications Commission contended economic injury to a competitor was not ground for refusing a broadcasting license to another, and that therefore Sanders Brothers, which complained, was not a person aggrieved or a person whose interest was adversely affected by the Commission's actions. But the Court held that it had the requisite standing under the statute giving a right of appeal similar to the one here involved.
In Scripps-Howard Radio v. Federal Communications Commission, 316 U.S. 4, 62 S. Ct. 875, 86 L. Ed. 1229, this doctrine is reiterated.
In Associated Industries of New York, Inc., v. Ickes, 2 Cir., 1943, 134 F.2d 694 the principle here involved was fully discussed and analyzed. There the petitioner was a corporation organized to promote the interests of large-scale consumers of bituminous coal and sought to enjoin the enforcement of an order of the Secretary of the Interior fixing the price of such coal under the provisions of the Bituminous Coal Act of 1937. The Act, 50 Stat. p. 85, provided that 'any person aggrieved by an order issued by the Commission' is authorized to seek review by petition in an appropriate United States Court of Appeals. Respondents contended that the petitioner was not a person aggrieved. The Court denied this contention, holding that the Supreme Court in the Sanders and Scripps-Howard cases, supra, had construed the 'person aggrieved' review provision as a constitutionally valid statute authorizing a class of 'persons aggrieved' to bring suit to prevent alleged unlawful action in order to vindicate the public interest, although no personal substantive interest of such persons had been invaded. The Court further stated that, although one threatened with financial loss through increased competition resulting from unlawful action of an official cannot, solely on that account, make the proper showing to maintain the suit against the official absent such a statute, yet the 'person aggrieved' statute gives the needed authority to do so to one who comes within that description. Further, the Court stated that not every person is a person aggrieved, but that one threatened with financial loss through increased competition resulting from a commission order is 'aggrieved' and entitled to such a review notwithstanding that the very statute pursuant to which he obtains review is designed to keep competition alive and confers upon him no property right which gives him any kind of immunity from competition. And in further referring to the Sanders and Scripps-Howard cases, the Court stated that it had been held that a 'person aggrieved,' seeking review under such a statutory provision, need not show that he has such a 'standing' as is ordinarily required, either in injunction suits to restrain action by officials alleged to be unlawful, or in declaratory judgment suits brought to determine the validity of such action.
This comprehensive discussion of the principle involved in the Ickes case, supra, has been considered and approved by the United States Court of Appeals for this Circuit in National Coal Association v. Federal Power Commission, 89 U.S.App.D.C. 135, 191 F.2d 462. In that case the petitioners, representing coal companies, miners, and railroad employees, respectively, alleged they would be injured by the displacement of coal by natural gas which would result from the issuance of a certificate of public convenience and necessity to the East Tennessee Natural Gas Company, to construct a gas pipe line under the Gas Act. The coal companies would lose markets, and the miners and railroad employees would lose employment previously enjoyed by them, by reason of the displacement of coal by natural gas, and petitioners were directly affected by such competition. The Court of Appeals held that petitioners were 'aggrieved' within the meaning of a statute similar to the one herein involved.
To the same effect are United States v. Public Utilities Commission, supra, and American President Lines v. Federal Maritime Board, D.C., 112 F.Supp. 346, restating the same rule of law.
It would therefore appear that plaintiff has standing to sue as a 'person aggrieved,' under the principle laid down by the cases referred to.
The other points raised by defendants are that there are no valid constitutional issues involved, and that the plaintiff has not made a showing of injury. The constitutional issues need not be discussed in the light of the construction herein of the statute involved, permitting review under the Jordan case, supra; and the showing of injury as set forth in the complaint and amplified by the supporting affidavits is sufficient to survive a motion to dismiss or for summary judgment.
The motion of defendants will therefore be denied. Counsel will submit appropriate order.
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