Local Division 1285, Amalgamated Transit Union v. Jackson Transit Authority

MERRITT, Circuit Judge,

dissenting.

The key question in this case is whether § 13(c) of the Urban Mass Transportation Act, 49 U.S.C. § 1601 et seq. (1976), a grant program established in 1964, creates a private federal right of action for breach of contract for employees against local municipal transit authorities receiving federal funds. Section 13(c) provides that there shall be no federal funding under the Act in the absence of “fair and equitable arrangements ... as determined by the Secretary of Labor, to protect the interests of employees affected by” the program. The section goes on to say that “[s]uch protective arrangements shall include ... provisions” respecting topics such as the “preservation” and “continuation” of collective bargaining rights and prevention of “a worsening” of employee rights. The section says that “[t]he contract for the granting of any such assistance shall specify the terms and conditions of the protective [employee] arrangements.” 49 U.S.C. § 1609(c).

In this case the municipal transit authority allegedly decided after a collective bargaining agreement had been in effect for several months not to abide by portions of the agreement that required cost of living increases. The employees sued the city in federal court for enforcement of their contract.

Last week the Supreme Court decided another in a long line of private right of *1389action cases. It unanimously held that § 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403, does not create a private right of action, California v. Sierra Club, - U.S. -, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981). Our Court had previously decided the question the other way. Norfolk & Western Co. v. United States, 641 F.2d 1201 (6th Cir. 1980). The concurring opinion in the Sierra Club case by Justice Rehnquist for himself, the Chief Justice, and Justices Stewart and Powell, observes that courts of appeals are continuing to analyze the private right of action problem incorrectly and to imply too much — in “five of the last six statutory implied right of action cases” creating a new action the “analysis by the Courts of Appeals” has been wrong, - U.S. at -, 101 S.Ct. at 1783.

The opinion for the court in the Sierra Club case, written by Justice White, emphasizes that the inquiry in such cases is now fairly narrow:

As recently emphasized, the focus of the inquiry is on whether Congress intended to create a remedy [citing recent cases]. The federal judiciary will not en-graft a remedy on a statute, no matter how salutary, that Congress did not intend to provide.
- U.S. at -, 101 S.Ct. at 1781.

Although Congress intended to have the Secretaries of Labor and Transportation protect the interests of transit employees as a class, I do not see in this statute or its legislative history that Congress intended to create a new, original, federal, private right of action for breach of contract claims. The Secretary of Transportation can withhold funds, or perhaps the Secretary of Labor can take administrative steps, if they disapprove of the city’s conduct toward its transit employees. The Secretary of Transportation can sue to enforce his agreement with a municipality. 49 U.S.C. § 1608(a). But there is nothing in the statute itself or the committee reports and debates that even hints that Congress contemplated that federal courts would decide what contractual rights should be preserved and what salary and fringe benefits are “fair and equitable” when a municipal transit worker is aggrieved by the action of his employer. There is a large number of bus drivers in the country, and Congress wanted them to know that it had considered their interests and authorized some administrative protection. But this does not mean that Congress intended to engraft a judicial remedy on the statute. Congress has not provided a principle or rule of decision for us to administer in such cases — other than general fairness. There is at stake no clearly enunciated national policy relating to municipal employee relations. There is no reason to think that state courts in the performance of their traditional, common law role cannot decide these private breach of contract cases just as fairly and just as efficiently as federal courts.