Safir v. Kreps

• Decision Date: 11 February 1977
• Docket Number: No. 75-2050,75-2050
• Citation: 551 F.2d 447,179 U.S.App.D.C. 261
• Parties: Marshall P. SAFIR, Appellant, v. Juanita M. KREPS, Individually and as Secretary of Commerce, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 447

551 F.2d 447

179 U.S.App.D.C. 261

Marshall P. SAFIR, Appellant, v. Juanita M. KREPS, Individually and as Secretary of Commerce, et al.

No. 75-2050.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 27, 1976.

Decided Feb. 11, 1977.

Marshall P. Safir, appellant pro se.

Richard A. Olderman, Atty., Dept. of Justice, Washington, D. C., with whom Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and William Kanter, Atty., Dept. of Justice, Washington, D. C., were on the brief, for federal appellees. Barbara L. Herwig, Atty., Dept. of Justice, Washington, D. C., also entered an appearance for federal appellees.

Robert T. Basseches and Daniel H. Margolis, Washington, D. C., with whom Warren L. Lewis, Washington, D. C., was on the brief, for intervenors-appellees American President Lines, Ltd., Prudential Lines, Inc., and PSS Steamship Co., Inc.; Verne W. Vance Jr., Boston, Mass., was on the brief for intervenor-appellee Farrell Lines, Inc.

J. Franklin Fort, Washington, D. C., with whom T. S. L. Perlman and William H. Fort, Washington, D. C., were on the brief, for intervenors-appellees Lykes Bros. Steamship Lines, Inc. and Moore-McCormack Lines, Inc.

James N. Jacobi, Washington, D. C., was on the brief for intervenor-appellee American Export Lines, Inc.

Elmer C. Maddy, New York City, was on the brief for intervenor-appellee United States Lines, Inc.

Before WRIGHT, McGOWAN and MacKINNON, Circuit Judges.

Opinion for the court filed by J. SKELLY WRIGHT, Circuit Judge.

J. SKELLY WRIGHT, Circuit Judge:

This case involves the most recent episode in a ten-year battle by appellant, Marshall P. Safir, to force the United States Government, acting at various times through the Maritime Subsidy Board, the Maritime Administrator, and the Secretary of Commerce, to recover construction differential subsidies and operating differential subsidies paid to various shipping companies collectively called the Atlantic and Gulf American Flag Berth Operators (AGAFBO). At this stage in the proceedings appellant has won decisions in the Second Circuit forcing the Maritime Administrator to take action on appellant's claims, Safir v. Gibson, 417 F.2d 972 (2d Cir. 1969) (Safir I ), and further holding that the AGAFBO lines are estopped from relitigating a finding of the Federal Maritime Commission that the lines engaged in predatory behavior against appellant's steamship company, Sapphire Steamship Lines, Inc., Safir v. Gibson, 432 F.2d 137 (2d Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 57, 27 L.Ed.2d 88 (1970) (Safir II ). Safir I also established that Section 810 of the Merchant Marine Act of 1936, 46 U.S.C. § 1227 (1970), which prohibits payment of subsidies to lines engaging in predatory practices, also allows the United States to seek recovery of subsidies paid to shipping lines during the period of their predatory behavior but before it is discovered. Safir I at 977. The Maritime Subsidy Board has now rendered an opinion, Investigation of Alleged Section 810 Violation, 3 Maritime Subsidy Board Reports 128 (1973) (interim order), Supp.App. 160, --- Maritime Subsidy Board Reports ---, 14 P & F Shipping Regulation Reports 77 (1973) (final order), JA 33, requiring various amounts of operating differential subsidies to be recovered from lines in direct competition with Sapphire Steamship Lines, Inc. (the "Trade intervenors"), but exonerating certain other AGAFBO members (the "Non-Trade intervenors"). This decision was appealed by the AGAFBO lines to the Secretary of Commerce who, in an order dated September 9, 1974, JA 2, affirmed the Board in all respects except that he further mitigated the amount of subsidy to be recovered from the Trade intervenors. ¹

Directly at issue here is an order of the District Court denying appellant's motion for summary judgment and granting appellees' and intervenors' motions for summary judgment. ² We reverse and remand this case to the District Court for further proceedings as indicated in this opinion.

At the outset, a word is in order about the general approach which ought to be taken to this case. As all parties are well aware, the administrative proceedings sought to be reviewed here would never have been instituted in the absence of the Second Circuit's decision in Safir I. And, although that court did not order the precise form of proceedings which have been conducted here, ³ it indicated that comparable proceedings would have been ordered in the absence of voluntary action intended to discharge the obligation of the Maritime Administrator "to make a considered decision whether to recover the subsidies paid in the past," Safir I at 978. See Safir II at 144. The vagaries of the form and venue of proceedings for judicial review of administrative action should not, therefore, be allowed to obscure the fact that the central issue here is whether the mandate of the Second Circuit has been discharged. Nor should the discontinuous nature of the judicial proceedings or the change of forum from New York to Washington cloud the fact that we are here dealing for all practical purposes with a single continuing lawsuit. For this reason we think it inappropriate to reopen issues which have been resolved by the Second Circuit unless there has been a supervening change of law or fact which makes the prior resolution of an issue plainly erroneous.

I

We now take up seriatim issues raised by the intervening Trade and Non-Trade Lines and the Secretary of Commerce in support of their respective motions for summary judgment. We deal here only with those points raised on appeal, assuming that points raised below but not pressed here have been abandoned by the parties.

1. Appellant's Standing. The standing issue has already been litigated in Safir I, a suit brought by three parties: appellant Safir, his partner Arnold Weissberger, and Sapphire Steamship Lines. Read literally, that opinion affords standing only to Sapphire. See Safir I at 977. However, we think such a limited construction is unwarranted. The only evidence of an essential point that Sapphire "ha(d) not washed (its) hands of the business," id. at 978 was Safir's affidavit that "he desired to return to the shipping business as soon as possible." Id. Nor do we think much can be made of the characterization of Sapphire as the "victim" of the predatory practices since it is now clear, as it apparently was not at the time of Safir I, that Sapphire's financial losses have been transferred at least in part to Safir in his capacity as personal guarantor of many of Sapphire's debts. Moreover, we find no evidence at all that the Second Circuit intended to distinguish between the corporate entity Sapphire and its co-owners for purposes of standing. If it had intended to do so, it should have dismissed the claims of both appellant Safir and his partner Weissberger in Safir I and again in Safir II, but this it did not do. We hold, therefore, that Safir I established as of 1969 appellant's standing to sue to force the Maritime Administrator to make a "considered decision" on whether to seek recoveries. We further hold that implicit in the grant of standing in Safir I is a further grant of standing to seek judicial review of the decision of the Administrator (or Secretary of Commerce) once it was made.

Our inquiry is not finished by an examination of the scope of Safir I, however, because there has been a major clarification of the meaning of standing under Section 10 of the Administrative Procedure Act, 5 U.S.C. § 702 (1970), since Safir I was decided. In Ass'n of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), the Supreme Court announced a two-part test for standing to challenge administrative action: first, "whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise," id. at 152, 90 S.Ct. at 829; and, second, "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question," id. 397 U.S. at 153, 90 S.Ct. at 830. Subsequent cases put a gloss on these requirements. Of particular importance here is the decision in Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), in which the Court added the requirement that "the plaintiff who seeks to invoke judicial power stand to profit in some personal interest (if he wins the suit)." 426 U.S. at 39, 96 S.Ct. at 1925.

Although the Safir I court did not phrase its standing opinion in the above terms, we think Safir's standing under subsequently announced law nonetheless follows from what was said in Safir I. Safir I holds that Section 810 of the Merchant Marine Act of 1936, 46 U.S.C. § 1227 (1970), was intended by Congress "to promote the competitive interest of a victim by authorizing the recovery of subsidies improperly paid in the past * * *." Safir I at 978. From this language it is clear that, if Safir still has a competitive interest, it is one within the "zone of interests" protected by Section 810, and the second Data Processing standing requirement is met. The Second Circuit's analysis of the congressional history of Section 810 also establishes that Congress thought potential competitors would benefit from recovery of subsidy payments since such recovery "poses an added cost on the violators and thus will partially make up to the victim for the burden which the earlier payments indirectly imposed on him." Id. at 977 (footnote omitted). We do not think either Data Processing or Simon requires appellant to demonstrate the truth of the above proposition. It is enough if Congress thought a victim would "profit" through recovery of illegally paid subsidies and consequently failure of the Maritime Administrator to extend the intended benefit to a victim is injury in fact. Again, however,...