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ASSOCIATION OF COMMUNITY ORGS. FOR REFORM NOW v. S

December 21, 1978

ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW (ACORN) and Philadelphia Welfare Rights Organization (WRO), and Delaware Valley Citizens' Council for Clean Air, on behalf of themselves, their members, and all others similarly situated
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (SEPTA), Joseph T. Mack, Richard S. Page, Urban Mass Transit Administration (UMTA), United States Department of Transportation (DOT), and Brock Adams



The opinion of the court was delivered by: BRODERICK

 Defendants have moved to dismiss, pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction and pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted. The defendants claim that this Court lacks jurisdiction because the federal claims do not present a justiciable case or controversy under Article III of the United States Constitution in that there is no final agency action ripe for review. *fn1" Briefs were submitted and oral argument was held on December 15, 1978. For the reasons hereinafter set forth, we have determined that this Court lacks subject matter jurisdiction over plaintiffs' federal claims and that defendants' motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) should therefore be granted.

 The plaintiffs are the Pennsylvania Association of Community Organizations for Reform Now (ACORN), the Philadelphia Welfare Rights Organization (WRO), and the Delaware Valley Citizens' Council for Clean Air (DVCCCA), and they bring this action on their own behalf and on behalf of their members and all others similarly situated pursuant to Fed.R.Civ.P. 23(a)(b)(2). Plaintiffs allege injury to their health from the deterioration of air quality that has occurred as a result of each recent SEPTA fare increase and that they will suffer greater injury if the proposed fare increase becomes effective and air quality then deteriorates further. Plaintiffs also represent that the fare increase will cause them economic injury and will further restrict the mobility of low-income members of the class, thereby limiting their access to jobs, doctors, and other essential services.

 The plaintiffs allege that jurisdiction is conferred upon this Court by 28 U.S.C. § 1331 as an action arising under an Act of Congress and under the Administrative Procedure Act, 5 U.S.C. § 701 Et seq. They allege further that the amount in question is greater than $ 10,000.

 Plaintiffs allege five causes of action in their Amended Complaint. First, plaintiffs allege that SEPTA's report submitted pursuant to Section 5(i)(1) of the Urban Mass Transportation Act (the UMT Act), 49 U.S.C. § 1604(i)(1), failed to describe the possible adverse effects of the project or its elements (Amended Complaint, Paragraph 43), and that SEPTA's certification submitted with its grant application pursuant to Section 5(i) of the UMT Act is meaningless and fails to comply with the provisions of said section (Amended Complaint, Paragraph 46). Second, plaintiffs allege that DOT and UMTA have failed to consider, and the Secretary of DOT has failed to assure that SEPTA considered, pursuant to Section 5(h)(2) of the UMT Act, 49 U.S.C. § 1604(h)(2), the possible adverse economic, social or environmental effects of the project and alternatives to it (Amended Complaint, Paragraphs 51, 53). Third, plaintiffs allege that no consideration has been given by SEPTA, UMTA or DOT, pursuant to Section 5(i)(3)(C) of the UMT Act, 49 U.S.C. § 1604(i)(3)(C), to the effect on energy conservation or to the economic, environmental or social impact of SEPTA's scheduled fare increase (Amended Complaint, Paragraphs 57, 58). Fourth, plaintiffs allege that UMTA's continued funding of SEPTA's Section 5 application is major federal action significantly affecting the environment, within the meaning of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 Et seq. and that neither SEPTA, UMTA nor DOT has prepared an environmental impact statement as required by 42 U.S.C. § 4332(C) (Amended Complaint, Paragraphs 60, 61). And fifth, plaintiffs allege that the action of SEPTA in raising fares without considering economic, social, and environmental impact and alternatives is such an abuse of discretion as to violate the Metropolitan Transportation Authorities Act, 66 P.S. § 2004(d)(9) and that SEPTA's failure to comply with federal funding conditions is a manifest and flagrant abuse of discretion in that it jeopardizes SEPTA's right to receive federal monies essential to SEPTA's continued operation.

 A careful analysis of the plaintiffs' Amended Complaint reveals that the plaintiffs' claim of federal question jurisdiction in connection with the first three causes of action alleged by the plaintiffs is based upon the defendants' alleged failure to comply with Sections 5(h)(2) and 5(i) of the UMT Act, 49 U.S.C. § 1604(h)(2), (i). In connection with these first three alleged causes of action, the Amended Complaint claims (a) that although SEPTA submitted a report and certification with its grant application, the report and certification do not comply with the provisions of Section 5(i); (b) that the Secretary has not assured that the effects of the project and alternatives to it were fully considered as provided in Section 5(h)(2); and (c) that the Secretary has not received assurance from SEPTA in connection with the fare increases as provided in Section 5(i)(3).

 Section 5(h)(2) of the UMT Act, 49 U.S.C. § 1604(h)(2), provides:

 
(h) . . . .
 
(2) In approving any project under this section, the Secretary shall assure that possible adverse economic, social, and environmental effects relating to the proposed project have been fully considered in developing the project, and that the final decisions on the project are made in the best overall public interest, taking into consideration the need for fast, safe, and efficient transportation, public services, and conservation of environment and natural resources, and the costs of eliminating or minimizing any such adverse effects, including
 
(A) air, noise, and water pollution;
 
(B) destruction or disruption of manmade and natural resources, esthetic values, community cohesion, and the availability of public facilities and services;
 
(C) adverse employment effects, and tax and property value losses;
 
(D) injurious displacement of people, businesses, ...

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