United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 17, 2000 Decided June 16, 2000
No. 99-1517
District No. 1, Pacific Coast District,
Marine Engineers' Beneficial Association,
Petitioner
v.
Maritime Administration, et al.,
Respondents
BLNG, Inc., et al.,
Intervenors
On Petition for Review of an Order of the
Federal Maritime Administration
Thomas L. Mills argued the cause for petitioner. With him
on the briefs were Constantine G. Papavizas, William
A. Anderson, II and W. Patrick Morris.
Bruce G. Forrest, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were David
W. Ogden, Acting Assistant Attorney General, Douglas N.
Letter and Robert S. Greenspan, Attorneys, John
Patrick Wiese and John G. Salisbury, Attorneys, U.S.
Department of Transportation. Edward Himmelfarb, Attorney,
U.S. Department of Justice, entered an appearance.
Michael Joseph argued the cause for intervenor. With him
on the brief were E. Alex Blanton and Joseph O. Click.
Before: Ginsburg, Sentelle and Garland,
Circuit Judges.
Opinion for the court filed by Circuit
Judge Ginsburg.
Ginsburg, Circuit Judge:
Pursuant to § 9 of the Shipping Act, 1916, the Maritime
Administration (MarAd) conditionally granted applications to
transfer the registry of eight vessels from the United States
to the Republic of the Marshall Islands. District No. 1, Pacific
Coast District, Marine Engi- neers' Beneficial Association, the
collective bargaining repre- sentative for the licensed officers
on the vessels, along with certain of its members (hereinafter
collectively, the Union), petitioned for review. The Union claims
that: (1) the Mar- Ad's decision was arbitrary and capricious;
(2) the MarAd accepted and relied upon ex parte communications
in violation of both the Administrative Procedure Act, 5 U.S.C.
§ 551 et seq., and the Fifth Amendment to the Constitution
of the United States; and (3) § 9 of the Shipping Act is
an unconsti- tutional delegation of legislative authority. Because
we lack jurisdiction over the claims based upon the APA, we dismiss
the petition in part. In all other respects we deny the petition:
MEBA did not properly raise its Fifth Amendment argument and
§ 9 of the Shipping Act is not an unconstitu- tional delegation
of authority.
I. Background
Section 9 of the Shipping Act prohibits
the owner of a vessel from transferring its registry out of the
United States without the approval of the Secretary of Transportation.
See 46 U.S.C. App. § 808(c)(2). The Secretary has
delegated his authority under that section to the MarAd, 49 C.F.R.
§ 1.66(a), which has in turn
promulgated regulations imple- menting the approval requirement.
The regulations provide in pertinent part:
(b) Vessels of 1,000 gross tons
or more.
(1) Applications for approval of
Transfer to foreign regis- try and flag ... of Documented Vessels
or vessels the last documentation of which was under the laws
of the United States and which are of 1,000 gross tons or more
will be evaluated in light of-
(i) The type, size[,] speed, general
condition, and age of the vessel;
(ii) The acceptability of the owner,
proposed transfer- ee and the country of registry ...; and
(iii) The need to retain the vessel
under U.S. documen- tation, ownership or control for purposes
of national defense, maintenance of an adequate merchant marine,
foreign policy considerations or the national interest.
46 C.F.R. § 221.15(b).
BLNG applied to the MarAd for permission
to transfer the registry of eight vessels from the United States
to the Republic of the Marshall Islands. Although not required
by statute or regulation to do so, the MarAd published in the
Federal Register notice of the applications and a call for comments
thereon. After the announced period for the sub- mission of comments
had ended, however, the MarAd accept- ed additional comments
from, among others, BLNG and its attorneys.
In its decision the MarAd canvassed
the arguments put forth in the comments and determined that the
following regulatory criteria were relevant to its decision:
(1) the general condition of the vessels; (2) the acceptability
of the Republic of the Marshall Islands; (3) national defense;
(4) the maintenance of an "adequate merchant marine";
(5) "foreign policy considerations"; and (6) other
aspects of the "national interest."
The MarAd applied these criteria
as follows: (1) The vessels, which are used to ship liquified
natural gas, are in good working condition. (2) The agency has
previously found the Republic of the Marshall Islands to be an
acceptable transferee. (3) The Department of Defense, upon the
Mar- Ad's inquiry, determined that the vessels are not necessary
for national defense; in any event, the transfer was condi- tioned
so that the vessels could be returned to the United States if
needed in an emergency. (4) Maintenance of an adequate merchant
marine does not require retaining the vessels. The Department
of Energy confirmed there are no current projects planned that
would require the vessels and, although some jobs might be lost
to United States seamen because of the transfer, BLNG has agreed
for at least five years to maintain crews composed significantly
of United States seamen on six of the eight vessels. (5) The
Depart- ment of State informed the MarAd that no foreign policy
consideration required retaining the vessels in United States
registry. (6) The national interest did not otherwise require
retaining the vessels, primarily because the Republic of the
Marshall Islands adequately regulates safety aboard vessels and
the crew will continue to be composed mainly of United States
seamen.
II. Analysis
As indicated above, the Union raises
three objections to the MarAd's order: (1) It is arbitrary and
capricious and there- fore invalid under the APA; (2) the MarAd's
acceptance of and reliance upon ex parte comments violated
both the APA and the Fifth Amendment; and (3) § 9 is an
unconstitutional delegation of lawmaking authority. Before reaching
the mer- its of those arguments, we address whether the Union
has standing to raise them.
BLNG contends that the Union lacks
standing under Arti- cle III of the Constitution because it has
demonstrated neither a legally significant injury nor that the
MarAd's order is the cause of any injury the Union may have suffered.
BLNG also maintains that the Union lacks prudential stand-
ing to sue under § 9 of the
Shipping Act because the interests the Union is seeking to protect
are not "arguably within the zone of interests to be protected
or regulated by" § 9. Reytblatt v. NRC, 105
F.3d 715, 721 (D.C. Cir. 1997).
BLNG does not dispute that, as a
result of the MarAd's order, some of the Union's members among
the crews will lose their jobs and the Union will be displaced
as the exclu- sive bargaining representative. That is surely
enough to give the Union standing for the purposes of Article
III. In addition, the Union's claimed interest in "maintaining
and promoting jobs in the U.S. merchant marine to service this
nation's economic and national defense needs" is arguably
within the zone of interests protected by § 9. The preamble
to the Shipping Act states as its purposes in creating the MarAd's
predecessor "encouraging, developing, and creating a naval
auxiliary and naval reserve and a merchant marine," 39 Stat.
728 (1916), and the MarAd reasonably concluded in its order that
a meaningful merchant marine is one with "a trained and
efficient citizen personnel." See also Meacham Corp.
v. United States, 207 F.2d 535, 542-43 (4th Cir. 1953) (tracing
legislative history of and amendments to Shipping Act). Indeed,
the MarAd's organic statute provides that "the United States
shall have a merchant marine ... operated under the United States
flag by citizens of the United States insofar as may be practicable."
46 U.S.C. App. § 1101. We therefore conclude that the Union
clearly has demonstrated both the injury in fact and the causation
necessary to give it constitutional standing and that its interests
are arguably within the zone of interests protected by §
9.
A.Claims based upon the APA
The Union first contends that MarAd's
order is invalid under the APA because it is arbitrary and capricious.
See 5 U.S.C. § 706(2)(A). The MarAd responds that
decisions re- garding transfers of registry are "committed
to agency dis- cretion by law," 5 U.S.C. § 701(a)(2),
and therefore outside the range of judicial review authorized
in the APA. If the MarAd is correct, then this court lacks jurisdiction
over the Union's claims based upon the APA. See, e.g.,
ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270,
282, 287 (1987).
The MarAd concedes that its regulations
provide specific criteria to govern its decisions regarding transfers
of registry, but contends that, as in National Federation
of Federal Employees v. United States, 905 F.2d 400 (D.C.
Cir. 1990) (NFFE), the subject matter of the agency's
decision does not admit of judicially manageable standards. We
agree. In NFFE, we were asked to review an APA challenge
to the closure of certain military bases. The Secretary of Defense
had created a Commission on Base Realignment and Closure and
directed it to "identify which bases should be closed or
realigned." Id. at 402. The Secretary listed nine
criteria upon the basis of which the Commission was to make its
recommendations, see id., but the Commission itself decided
that, of the nine, the "military value of a base should
be the preeminent factor." Id. at 405-06. After the
Commission had submitted its recommendations to the Secretary,
the Congress passed the Base Closure Act directing the Secre-
tary to implement them. See id. at 403.
The court held that the Secretary's
decisions regarding base closures and realignments were "committed
to agency discretion by law" and hence not subject to review
under the APA. See id. at 405. Although the Base Closure
Act incor- porated the nine specific criteria that had informed
the Secretary's closure and realignment decisions, the court
held that his decisions were not reviewable because the "subject
matter of those criteria is not 'judicially manageable.' "
Id. at 405; see Heckler v. Cheney, 470 U.S. 821,
830 (1985). Review of the Secretary's decisions would require
"second guessing the Secretary's assessment of the nation's
military force structure and the military value of the bases
within that structure," and courts are "ill-equipped
to conduct reviews of the nation's military policy." Id.
at 405-06.
Even a cursory examination of the
order under review in this case reveals that the primary factors
driving the MarAd's decision are national defense, the adequacy
of the merchant marine, foreign policy, and the national interest.
Indeed, the
MarAd specifically consulted the
Departments of State, De- fense, and Energy to aid in its decision,
and the overwhelming majority of the analysis in the agency's
decision relates to these factors. Were we to decide whether
the MarAd's order is reasonable, we would necessarily be "second
guessing" not only the Executive's determinations regarding
the military value of the eight vessels but also its judgments
on questions of foreign policy and national interest. These are
not sub- jects fit for judicial involvement. See, e.g.,
People's Mojahe- din Org. v. Dep't of State, 182
F.3d 17, 23 (D.C. Cir. 1999).
The Union attempts to distinguish
NFFE on the ground that the concededly "preeminent
factor" in the decision under review in that case was the
military value of the bases, whereas in this case consideration
of the national defense was "but one factor [the MarAd]
was required to consider per its own regulations." As we
have noted, however, considerations of national security, foreign
policy, and national interest were clearly at the center of the
MarAd's decision; the Union does not even suggest that the other
criteria listed in the regula- tions were given similar weight
in this case.
The Union also argues that the MarAd's
decision must be subject to review for conformity with the APA
because the Hobbs Act specifically provides that the courts of
appeal have:
jurisdiction ... to determine the
validity of-
(3) all rules, regulations, or final
orders of-
(A) the Secretary of Transportation
issued pursuant to section 2, 9, 37, or 41 of the Shipping Act,
1916 ...
28 U.S.C. § 2342(3)(A). That
the courts have statutory jurisdiction over an act of the Executive
in some contexts does not automatically imply, however, that
the courts always have jurisdiction to review that act for conformity
with the APA. In ICC v. Brotherhood of Locomotive Engineers,
the Supreme Court held, despite the grant of jurisdiction in
the Hobbs Act over "final orders" issued by the ICC,
that the agency's order denying reconsideration of a prior order
was not subject to review under the APA because the latter decision
was "com-
mitted to agency discretion by law."
See 482 U.S. at 282. Having held that the MarAd's decision
is likewise committed to agency discretion by law, it follows
that the grant of jurisdiction in the Hobbs Act to review final
orders issued under § 9 is similarly qualified.
In sum, the MarAd's decision regarding
the transfer of registry in this case is committed to its discretion
by law. We therefore lack jurisdiction over the Union's claims
based upon the APA. See Locomotive Engineers, 482 U.S.
at 282, 287. We also note, but we do not decide, that in a case
where considerations of national defense, foreign policy, and
the national interest do not play a significant role, if such
there be, we may well have jurisdiction to review the MarAd's
decision regarding a transfer of registry.
B.Ex Parte Communications
The Union next contends that the
MarAd's acceptance of and reliance upon ex parte communications
denied it "fundamental fairness" in violation of both
the APA and the Fifth Amendment. To the extent the Union's procedural
complaint rests upon the APA, again, we lack jurisdiction to
review it.
Although the APA prohibits ex
parte contacts in an adjudi- cation or rulemaking "required
by statute to be made on the record after opportunity for an
agency hearing," 5 U.S.C. § 553(c), see 5 U.S.C.
§§ 554(a), 557(d), there is no such requirement applicable
to the MarAd's review of an application under § 9. In the
absence of such a statutory command, of course, "[a]gencies
are free to grant additional procedural rights in the exercise
of their discretion, but reviewing courts are generally not free
to impose them if the agencies have not chosen to grant them."
Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519,
524 (1978). Here the agency has not granted anyone the right
to be free of ex parte communications. In the absence
of any statutory or self- imposed limitation, we have no jurisdiction
to review under the APA an agency's procedural decision regarding
how best to make a substantive decision committed by law to the
agency's discretion.
The Union attempts to circumvent
this analysis by arguing that once the MarAd requested comments
from interested parties, it relinquished its discretion to "accept
and rely upon ex parte communications without giving the
public an oppor- tunity to respond to them." The authorities
the Union cites as support for that claim, however, do not stand
for that broad proposition. In each case either the governing
statute or a regulation or both required the agency to afford
interest- ed parties an opportunity to submit comments. See
Independent U.S. Tanker Owners Comm. v. Lewis, 690 F.2d 908,
923 (D.C. Cir. 1982) (regulation requiring "opportunity
for com- ment by interested parties"); United States
Lines, Inc. v. FMC, 584 F.2d 519, 539 (D.C. Cir. 1978) ("Under
the Ship- ping Act notice and a hearing are required prior to
Commis- sion approval of any agreement subject to Section 15");
National Wildlife Fed'n v. Marsh, 568 F. Supp. 985, 992-93
(D.D.C. 1983) (statute requiring "notice and opportunity
for public hearings" and regulation requiring opportunity
for "meaningful comments"). As we have already noted,
no statute or regulation requires the MarAd to afford interested
parties the opportunity to submit comments on an application
for a transfer of registry under § 9 and, in the absence
of such a requirement, whether the MarAd permits comments and
how it deals with those comments are procedural deci- sions that,
like the underlying substantive decision, are mat- ters within
the agency's discretion. See Vermont Yankee, 435 U.S.
at 524.
To the extent the Union's objection
to ex parte communica- tions rests upon the Fifth Amendment,
its argument is not properly before the court. In its opening
brief the Union conclusorily asserted that the MarAd accepted
ex parte com- munications in violation of the Fifth Amendment.
The other parties understandably did not dignify this naked assertion
with a response; nor shall we. See Carducci v. Regan,
714 F.2d 171, 177 (D.C. Cir. 1983) ("We ... decline to entertain
appellant's asserted but unanalyzed constitutional claim");
see also United States v. Watson, 171 F.3d 695, 699 n.2
(D.C. Cir. 1999) (same). Even if the Union had developed the
argument in its reply brief beyond the vanishingly terse afterthought
it
did present, out of fairness to
the parties we still would not review the Union's argument. Cf.
Sitka Sound Seafoods, Inc. v. NLRB, 206 F.3d 1175, 1181 (D.C.
Cir. 2000) ("In order to prevent this sort of sandbagging
of appellees and respon- dents, we have generally held that issues
not raised until the reply brief are waived").
C.Delegation of Legislative Authority
The Union's final contention is
that § 9 of the Shipping Act is an unconstitutional delegation
of legislative authority to the Executive. Relying primarily
upon our recent decision in American Trucking Ass'ns v. EPA,
175 F.3d 1027, modified, 195 F.3d 4 (1999), cert. granted
sub nom. Browner v. Ameri- can Trucking Ass'ns, No.
99-1257, 2000 U.S. LEXIS 3577 (May 22, 2000), and No.
99-1426, 2000 U.S. LEXIS 3629 (May 30, 2000), the Union argues
that neither the statute nor the MarAd's regulations provide
an "intelligible principle" to guide the agency's decisionmaking
under § 9. For its part, the MarAd contends there is an
intelligible principle but, even were there not, the constraints
upon the ability of the Congress to delegate its lawmaking authority
do not apply in this case. Because we agree with the latter point,
we do not address the former.
In United States v. Curtiss-Wright
Corporation, 299 U.S. 304 (1936), the Supreme Court held
that the bar against excessive delegation of the Congress's lawmaking
authority did not apply to a Joint Resolution authorizing the
President to declare unlawful the sale of arms to certain countries
if he determined such a ban would encourage peace between them.
See 299 U.S. at 312. The Court offered two general ratio-
nales. First, it reasoned that the "investment of the federal
government with the powers of external sovereignty did not depend
upon the affirmative grants of the Constitution," id.
at 318, and, in the realm of "external affairs," "the
President alone has the power to speak or listen as a representative
of the nation." Id. at 319. The Court noted especially
the need for the President to have wide discretion in order to
avoid embarrassing our relations with foreign nations. See
id. at 320. Second, the Court traced the long historical
practice
supporting the delegation of broad
discretion to the Executive in external affairs. See id.
322-326. The legislation noted by the Court includes: (1) an
act permitting the President to "lay the embargo upon all
ships and vessels in the ports of the United States, including
those of foreign nations," when- ever he determined the
public safety so required, id. at 322; (2) an act authorizing
the President, "whenever an armed vessel entering the harbors
or waters within the jurisdiction of the United States and required
to depart therefrom should fail to do so," to "forbid
... all intercourse with such vessel ... and the officers and
crew thereof" and to "prohibit all supplies and aid
from being furnished them," id. 323-24; and (3) numerous
acts permitting the President to suspend the duties laid upon
foreign vessels if he determined that duties laid upon ships
of the United States were removed. See id. at 324-25 n.2.
On the basis of these two lines of reasoning, the Court held
that the "uniform, long-continued and undis- puted legislative
practice just disclosed rests upon an admissi- ble view of the
Constitution which, even if the practice found far less support
in principle then we think it does, we should not feel at liberty
at this late day to disturb." Id. at 329.
The transfer of a vessel's registry
from the United States to a foreign nation involves considerations
and concerns similar to those operative in Curtiss-Wright.
Little imagination is required to envision situations in which
a request to transfer the registry of a vessel might involve
delicate foreign policy and national defense concerns. Indeed,
in the course of granting the application in this case, the MarAd
consulted with the Departments of State, Defense, and Energy
in an effort to gauge just those types of concerns. Furthermore,
as the Court noted in Curtiss-Wright, there is a long
tradition of permitting the Executive broad discretion in the
area of international shipping; the Union has offered no reason
to treat § 9 differently. Instead, the Union simply asserts
that "[s]ection 9 does not involve delicate negotiations
with other governments or any manner of interaction with other
coun- tries." In fact, however, the Union itself opposed
the application below on the ground that the transfer would adversely
affect the balance of trade with Japan and that the Republic
of the Marshall Islands would not
adequately regulate the safety of the vessels. In sum, because
"the whole aim of [§ 9] is to affect a situation entirely
external to the United States," it is not "open to
... challenge [as] an unlawful delegation of legislative power
to the Executive." Curtiss-Wright, 299 U.S. at 315.
III. Conclusion
For the foregoing reasons, the petition
for review is
Dismissed in part and denied
in part.
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