Matson Navigation Company, Inc v. DOT

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 12, 2018 Decided July 17, 2018
No. 17-1144
MATSON NAVIGATION COMPANY, INC.,
PETITIONER
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION AND
MARITIME ADMINISTRATION,
RESPONDENTS
APL MARINE SERVICES, LTD. AND APL MARITIME, LTD.,
INTERVENORS
On Petition for Review of Decision and Order of the Maritime
Administration
Mark A. Perry argued the cause for petitioner. With him
on the briefs was Rachel S. Brass.
Casen B. Ross, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the briefs were
Jessie K. Liu, U.S. Attorney, Matthew M. Collette, Attorney,
Steven G. Bradbury, General Counsel, U.S. Department of
Transportation, Paul M. Geier, Assistant General Counsel for
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Litigation and Enforcement, Joy Park, Senior Trial Attorney,
and Joseph O. Click, Attorney-Advisor.
Brian T. Burgess argued the cause for intervenors. With
him on the brief were William M. Jay, Robert T. Basseches, and
Gerard J. Cedrone.
Before: ROGERS, GRIFFITH, and MILLETT, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Matson Navigation Company,
Inc., a competitor of APL Marine Services, Ltd., and APL
Maritime, Ltd. (together, “APL”), petitions for review of three
orders of the Maritime Administration approving APL’s
requested replacement vessels in the Maritime Security Fleet.
For the following reasons, we dismiss the petition for review
for lack of jurisdiction under 28 U.S.C. § 2342.
I.
The Maritime Security Fleet, established by the Secretary
of Transportation, in consultation with the Secretary of
Defense, is to consist of “active, commercially viable,
militarily useful, privately owned vessels to meet national
defense and other security requirements and maintain a United
States presence in international commercial shipping.” 46
U.S.C. § 53102(a). The Fleet is a part of the Merchant Marine
“necessary for the national defense and the development of the
domestic and foreign commerce.” Id. § 50101(a). It is “owned
and operated as vessels of the United States by citizens of the
United States.” Id. § 50101(a)(3). Fleet vessels must be
covered by a Maritime Security Program Operating Agreement
with the owner or operator. Id. § 53103(a). The owner or
operator, known as a “contractor,” must meet citizenship
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requirements and, in turn, can receive operating subsidies for
its vessels. Id. §§ 53101(2), 53102(b) & (c), 53105(b). As
relevant here, “[a] contractor may replace a vessel under an
operating agreement with another vessel that is eligible to be
included in the Fleet under section 53102(b), if the Secretary,
in conjunction with the Secretary of Defense, approves the
replacement of the vessel.” Id. § 53105(f).
The Maritime Security Program (“MSP”) is administered
by the Maritime Administration (“MARAD”). See 46 C.F.R.
§ 296.1. MARAD regulations provide that:
A Contractor who disagrees with the findings,
interpretations or decisions of the Maritime
Administration or the Contracting Officer with
respect to the administration of this part or any other
dispute or complaint concerning MSP Operating
Agreements may submit an appeal to the
Administrator . . . within 60 days following the date
of the document notifying the Contractor of the
administrative determination . . . . Such an appeal is
a prerequisite to exhausting administrative remedies.
Id. § 296.50(a). The regulations state a “contractor” refers to
“the owner or operator of a vessel that enters into an MSP
Operating Agreement for the vessel with the Secretary of
Transportation (acting through MARAD).” Id. § 296.2.
APL, after reviewing its “total network of U.S. flag
operations,” requested MARAD on December 4, 2014, to
approve, with regard to APL reinstating its U.S.-Guam
shipping service, replacement of two “S-12” vessels, pursuant
to 46 U.S.C. § 53105(f). Letter from Eric L. Mensing, Chief
Executive Officer of APL, to Paul N. Jaenichen, Sr., MARAD
Administrator at 1, 3 (Dec. 4, 2014). The vessels were covered
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under MSP Operating Agreements but no longer met the
eligibility requirements in 46 U.S.C. § 53102(b) on
“commercial viability” or requirements in the Operating
Agreements on “militarily useful capability.” Id. at 1. APL
sought their replacement by two smaller “feeder” vessels that
met those requirements, and sought MARAD’s approval
before proceeding with acquisition and U.S. flagging. After
receiving approval in principle by MARAD and the U.S.
Transportation Command, provided the replacement vessels
met all MSP requirements, APL requested, on August 27,
2015, approval of the NEW DYNAMIC as a replacement
vessel. On September 16, 2015, APL sought to rename that
vessel as APL Guam, and to substitute its contractor under the
Operating Agreement.
On October 22, 2015, MARAD approved APL Guam as a
replacement, in light of the recommendation by the
Commander of the U.S. Transportation Command that section
53102(b) requirements had been met and that those findings
sufficed to fulfill the joint approval contemplated in 46 U.S.C.
§ 53105(f). MARAD’s 2015 Approval Order stated that the
replacement vessel’s owner was “a citizen of the United States
within the meaning of 46 U.S.C. § 50501”; that the
“[r]eplacement vessel will provide transportation in foreign
commerce pursuant to the requirements of 46 U.S.C.
§ 53102(b)(2)”; and that it is “commercially viable.” 2015
Approval Order at 3.
Because APL Guam did not satisfy APL’s shipping needs
in the U.S.-Guam route, APL requested MARAD, on August
24, 2016, to approve replacement of another of its Fleet vessels
with APL Saipan pursuant to 46 U.S.C. § 53105(f). On
December 20, 2016, MARAD approved the replacement. The
2016 Approval Order stated that APL Saipan met statutory
eligibility and citizenship requirements under 46 U.S.C.
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§ 53102(b)(1) & (c)(2); that it provided foreign commerce or
mixed foreign commerce and domestic trade allowed under a
registry endorsement, 46 U.S.C. § 12111, pursuant to the
requirements of 46 U.S.C. §§ 53102(b)(2) and 53105(a)(1)(A);
and that it met the commercial viability requirements, 46
U.S.C. § 53102(b)(4)(B). 2016 Approval Order at 1–2.
Matson also operates vessels in the U.S.-Guam route but
does not have an MSP Operating Agreement with MARAD.
Shortly before MARAD’s approval of APL Saipan as a
replacement vessel, Matson had urged MARAD not to allow
APL to operate APL Guam and APL Saipan in the U.S.-Guam
trade route because they did not meet the statutory
requirements for “replacement vessels” and the operation of
APL Guam was “distorting the market and creating an unlevel
playing field” in service to Guam. Letter from Matthew J. Cox,
President and Chief Executive Officer of Matson Navigation
Co., Inc., to Paul N. Jaenichen, MARAD Administrator at 1–2
(Dec. 12, 2016); see Letter from Michael F. Scanlon, K&L
Gates, to David J. Tubman, Jr., Chief Counsel of MARAD and
Dep’t of Transp. (Dec. 15, 2016). Matson also filed a protest,
styled as “Amended Appeal of the Determinations under
Maritime Security Program Operating Agreement Numbers
MA/MSP-54 and MA/MSP-57,” on February 17, 2017, as
amended March 17. It raised the issue “whether assistance
payments awarded to support U.S.-flag vessels operating in the
international trades under the Maritime Security Program . . .
can be used to subsidize vessels operating in regular service in
Guam, a domestic trade.” Am. Appeal at 1. Matson challenged
the 2015 and 2016 Approval Orders on the principal grounds
that APL’s replacement vessels did not operate in foreign
commerce and were not commercially viable.
On April 7, 2017, the Acting Chief Counsel of MARAD
rejected Matson’s appeal on two grounds. First, because it was
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not an MSP “contractor” under 46 C.F.R. § 296.2, Matson
lacked standing to appeal the 2015 and 2016 Approval Orders
pursuant to MARAD’s regulation, 46 C.F.R. § 296.50(a).
Second, on the merits, “the APL replacement vessels provide
transportation in mixed foreign commerce and domestic trade,
as authorized by 46 U.S.C. §§ 12111 and 53105(a)(1)(A),” and
“APL’s operation of the replacement vessels complies with the
MSP statute, as did MARAD’s approval of the vessel
replacements.” 2017 Appeal Decision at 3.
On June 2, 2017, Matson filed a petition for review in this
court of MARAD’s 2017 Appeal Decision, as well as its 2015
and 2016 Approval Orders.
II.
The Administrative Orders Review Act (known as the
“Hobbs Act”) provides that courts of appeals shall have
exclusive jurisdiction to enjoin, set aside, suspend (in
whole or in part), or to determine the validity of . . . all
rules, regulations, or final orders of . . . the Secretary of
Transportation issued pursuant to section 50501,
50502, 56101–56104, or 57109 of title 46 or pursuant
to part B or C of subtitle IV, subchapter III of chapter
311, chapter 313, or chapter 315 of title 49.
28 U.S.C. § 2342(3)(A) (emphasis added). Petitions for review
under the Hobbs Act must be filed “within 60 days” of the
“entry” of the agency’s final order. Id. § 2344; see Energy
Probe v. NRC, 872 F.2d 436, 438 (D.C. Cir. 1989). The time
limit “is jurisdictional in nature, and may not be enlarged or
altered by the courts.” All. for Safe, Efficient & Competitive
Truck Transp. v. Fed. Motor Carrier Safety Admin., 755 F.3d
946, 950 (D.C. Cir. 2014) (internal quotation marks and
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citation omitted). This period can be tolled by “[t]he timely
filing of a motion to reconsider,” Stone v. INS, 514 U.S. 386,
392 (1995) (citing ICC v. Bhd. of Locomotive Eng’rs, 482 U.S.
270, 284 (1987)), but no “basis for tolling” exists where “there
is no provision for rehearing or reconsideration” or
administrative appeal available to the petitioner, Laminators
Safety Glass Ass’n v. Consumer Prod. Safety Comm’n, 578
F.2d 406, 411 (D.C. Cir. 1978).
In the three challenged orders, MARAD made and upheld
final determinations of APL’s contractual obligations for the
two approved replacement vessels. See Citizens Ass’n of
Georgetown v. Fed. Aviation Admin., 886 F.3d 130, 136 (D.C.
Cir. 2018); Adenariwo v. Fed. Mar. Comm’n, 808 F.3d 74, 78
(D.C. Cir. 2015); 46 U.S.C. § 53105. Unless the three orders
were issued pursuant to a statute listed in the Hobbs Act vesting
exclusive jurisdiction in the courts of appeals, 28 U.S.C.
§ 2342(3)(A), and the petition for their review is timely, id.
§ 2344, this court lacks jurisdiction to address Matson’s
petition for review. If the court lacks exclusive jurisdiction
because an order was not issued pursuant to a statute listed in
the Hobbs Act, then Matson is subject to the “‘default rule’”
and must “‘go first to district court rather than to a court of
appeals.’” Watts v. SEC, 482 F.3d 501, 505 (D.C. Cir. 2007)
(quoting Int’l Bhd. of Teamsters v. Peña, 17 F.3d 1478, 1481
(D.C. Cir. 1994) (“IBT”)). Here, Subtitle V (Merchant Marine)
of Title 46 of the United States Code is silent on judicial
review.
In determining whether this court has exclusive
jurisdiction over Matson’s challenges to MARAD’s three final
orders, the Supreme Court’s recent decision in National
Association of Manufacturers v. Department of Defense, 138
S. Ct. 617 (2018) (“NAM”), is instructive. There, the Court
considered a provision of the Clean Water Act, 33 U.S.C.
8
§ 1369(b)(1), which enumerated seven categories of agency
actions that must be challenged directly in the courts of
appeals, including certain limitations issued under 33 U.S.C.
§ 1311. NAM, 138 S. Ct. at 626. The Court concluded that,
viewed in context, the word “under” in “under section 1311” is
“most naturally read to mean that the effluent limitation or
other limitation must be approved or promulgated ‘pursuant to’
or ‘by reason of the authority of’ § 1311.” Id. at 630 (citing St.
Louis Fuel & Supply Co. v. FERC, 890 F.2d 446, 450 (D.C.
Cir. 1989); BLACK’S LAW DICTIONARY 1368 (5th ed. 1979)).
Further, the Court instructed, the provision pursuant to which
an agency acts is the statute that “direct[s] or authorize[s]” the
agency to take the relevant action. Id.
APL’s requests that MARAD approve replacement vessels
in the Fleet pursuant to 46 U.S.C. § 53105(f), MARAD’s 2015
and 2016 Approval Orders, as well as the 2017 Appeal
Decision suggest MARAD acted pursuant to its authority to
“approve[] the replacement of the vessel[s]” under section
53105(f), which is not listed in the Hobbs Act. Cf. Dist. No. 1,
Pac. Coast Dist., Marine Eng’rs’ Beneficial Ass’n v. Mar.
Admin., 215 F.3d 37, 39, 42 (D.C. Cir. 2000). Matson
contends, however, this court has jurisdiction because
MARAD’s “decisions involve regulations and programs that
are ‘interrelated’ with citizenship determinations” in 46 U.S.C.
§ 50501. Appellant’s Br. 26–27.
46 U.S.C. § 50501 identifies which organizations are
“deemed citizens of the United States.” It “groups
corporations, partnerships, and associations into those deemed
United States citizens and those deemed non-citizens.” Alaska
Excursion Cruises, Inc. v. United States, 595 F. Supp. 14, 16
(D.D.C. 1984) (describing then-section 802(a)). It does not
“authorize” MARAD to act on a contractor’s request for
approval of a replacement vessel. NAM, 138 S. Ct. at 630. That
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authority is provided in section 53105(f), which empowers
MARAD, upon request of a contractor, to approve a vessel as
a replacement if it meets the requirements of section 53102(b),
which does not always require contractors to fit the definition
of a U.S. citizen in section 50501. Insofar as section 53105(f)
“direct[s] or authorize[s]” MARAD to approve replacement
vessels, NAM, 138 S. Ct. at 630, the relevant consideration,
assuming Matson acted timely, is whether MARAD’s three
orders were also issued pursuant to section 50501 or any other
statute listed in the Hobbs Act vesting exclusive jurisdiction in
the courts of appeals.
First, in its 2015 order approving APL Guam as a
replacement, MARAD found the vessel was owned by a citizen
of the United States “within the meaning of 46 U.S.C.
§ 50501,” thus satisfying the owner’s eligibility requirements
in 46 U.S.C. § 53102(c)(2). 2015 Approval Order at 3. Then,
in view of all of its findings, MARAD “determined” that APL
Guam “meets the requirements of 46 U.S.C. § 53105(f)
regarding replacement vessels.” Id. at 4. MARAD’s “explicit
reliance” on section 50501 could provide this court with
jurisdiction under the Hobbs Act over the 2015 approval. See
IBT, 17 F.3d at 1482.
But the court has no occasion to decide this question
because Matson failed to file a timely petition for review. Its
petition for review was not filed until June 2, 2017, long after
the jurisdictional 60-day period in the Hobbs Act for seeking
review of the 2015 Approval Order had run. 28 U.S.C. § 2344;
All. for Safe, Efficient & Competitive Truck Transp., 755 F.3d
at 950. Matson maintains its administrative appeal tolled the
60-day clock. But even assuming Matson was eligible to file
an administrative appeal under MARAD regulations, its appeal
was untimely because it was filed more than a year after the
approval order and MARAD’s regulation sets a 60-day filing
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period for seeking review, 46 C.F.R. § 296.50(a). Matson
suggests that because the merits of its challenges were
addressed in the 2017 Appeal Decision, MARAD eschewed
reliance on any untimeliness principles. It relies on Bowden v.
United States, 106 F.3d 433, 438–39 (D.C. Cir. 1997), where
the court held on the particular facts that the agency had waived
its timeliness defense by addressing the merits of a complaint
and failing to mention timeliness on three occasions — during
the administrative process and before two courts. Even if
MARAD forfeited a timeliness defense, Matson has no vessels
in the Fleet and is therefore not a “contractor,” 46 C.F.R.
§ 296.2, for whom MARAD’s regulations provide an
administrative appeal, see id. § 296.50(a). “Because there is no
provision for rehearing or reconsideration” applicable to
Matson, there is no “basis for tolling the 60 day statutory period
for judicial review in this case.” Laminators Safety Glass
Ass’n, 578 F.2d at 411.
Second, the 2016 Approval Order also does not trigger
Hobbs Act jurisdiction. Matson’s petition for review was not
filed within sixty days of this Approval Order and it is likely
untimely as well. Unlike the 2015 Approval Order, Matson
timely filed an administrative appeal of the 2016 Approval
Order. Matson therefore maintains that it would suffer “‘unfair
surprise’” if the Hobbs Act time limit were not thereby tolled.
Pet’r’s Reply Br. 23–24 (quoting Christopher v. SmithKline
Beecham Corp., 567 U.S. 142, 156 (2012)). In its view,
MARAD’s regulation on administrative appeals, 46 C.F.R.
§ 296.50, is ambiguous on whether non-contractors must file
an administrative appeal in order to exhaust administrative
remedies. The text of the regulation refers to contractors and
Matson has never claimed to be a contractor, for it has no MSP
Operating Agreement covering its vessels in the U.S.-Guam
trade. Matson suggests that even if its administrative appeal
were defective, it was filed in good faith and merits tolling the
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time limit. Pet’r’s Reply Br. 24–25 (citing Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 90, 95–96 (1990)).
The court need not decide whether the Hobbs Act clock
was tolled because even if Matson’s petition for review were
timely as to the 2016 Approval Order, this court lacks
jurisdiction for another reason. See Sinochem Int’l Co. v.
Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007). In
contrast to the 2015 Approval Order, MARAD never explicitly
invoked section 50501 in reaching its eligibility determination
in 2016. Nor is it apparent from its decision that it was
addressing U.S. citizenship within the meaning of section
50501. The 2016 Approval Order stated that APL Saipan “will
be owned by a U.S. Citizen Trust and demise chartered to a
U.S. documentation citizen” and thereby “meets the citizenship
requirements . . . established by 46 U.S.C. § 53102(c).” 2016
Approval Order at 1. That section references section 50501
and in some circumstances requires the entity chartering the
vessel to be a section 50501 U.S. citizen. 46 U.S.C.
§ 53102(c)(2)(A)(ii)(II) & (B). In this order, MARAD did not
make an explicit finding that the entities involved were U.S.
citizens within the meaning of section 50501.
Assuming that MARAD implicitly made a section 50501
finding in order to approve APL’s second replacement request
pursuant to section 53105(f), the 2016 Approval Order does not
“interpret” section 50501 citizenship, unlike in Conoco, Inc. v.
Skinner, 970 F.2d 1206, 1214–15 (3d Cir. 1992), and Liberty
Glob. Logistics LLC v. U.S. Mar. Admin., No. 13-cv-0399,
2014 WL 4388587, at *4 (E.D.N.Y. Sept. 5, 2014), on which
Matson relies. Statutory grounds for jurisdiction are not to be
given “a more expansive interpretation than their text
warrants.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545
U.S. 546, 558 (2005). Absent explicit reference or its
functional equivalent in the 2016 Approval Order to a statute
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listed in the Hobbs Act, the court would expand its exclusive
jurisdiction beyond that which Congress intended. See Fla.
Power & Light Co. v. Lorion, 470 U.S. 729, 746 (1985); cf.
NAM, 138 S. Ct. at 634; Am. Portland Cement All. v. EPA, 101
F.3d 772, 776 (D.C. Cir. 1996). Background principles relied
on by the agency in making a final determination are
insufficient to vest exclusive jurisdiction in the courts of
appeals. See NAM, 138 S. Ct. at 631. Because there is no
indication that the 2016 Approval Order was issued pursuant to
section 50501 or other statute listed in the Hobbs Act, this court
lacks exclusive jurisdiction to consider Matson’s challenge,
and it must initially pursue its challenge in the district court.
Finally, although Matson’s petition for review of the 2017
Appeal Decision was timely, this court lacks jurisdiction to
consider it. To the extent that decision rested on administrative
standing, Matson has not challenged that aspect of the decision,
so any challenge on that ground is forfeited. U.S. Telecom
Ass’n v. FCC, 825 F.3d 674, 708 (D.C. Cir. 2016). The
Decision also addressed the merits of Matson’s challenges.
Even if construed as a denial of a proper motion for
reconsideration of the 2015 and 2016 Approval Orders, the
Decision did not reopen or reference earlier determinations on
citizenship or any portion of the Approval Orders issued
pursuant to MARAD’s authority under section 50501. See Am.
Ass’n of Paging Carriers v. FCC, 442 F.3d 751, 756 (D.C. Cir.
2006). Nor does the Decision cite or rest its analysis on section
50501. Cf. IBT, 17 F.3d at 1482. To the extent the 2015 and
2016 Approval Orders are discussed, the Decision invokes only
MARAD’s authority to interpret and apply the meaning of
“foreign commerce,” as defined in 46 U.S.C. §§ 12111 and
53105(a)(1)(A), and to approve replacement vessels, as
authorized by section 53105(f). Consequently, the Decision on
the merits was not issued pursuant to section 50501 or other
statute listed in the Hobbs Act, and this court lacks exclusive
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jurisdiction to review it. Matson’s challenge to the 2017
Appeal Decision must initially be pursued in the district court.
Accordingly, we dismiss the petition for review for lack of
jurisdiction under the Hobbs Act.