Energy Transp. Group, Inc. v. Maritime Admin., s. 90-1547

• Citation: 956 F.2d 1206
• Decision Date: 02 June 1992
• Docket Number: Nos. 90-1547,90-5346,90-5363 and 90-5392,s. 90-1547
• Parties: ENERGY TRANSPORTATION GROUP, INC., Petitioner, v. MARITIME ADMINISTRATION and United States of America, Respondents, Argent Companies, Cabot LNG Shipping Corporation, Shell International Marine Limited, Shell Gas Nigeria, B.V., Shell Bermuda (Overseas) Limited, Shell International Gas Limited (Shell Appellees), Intervenors. CABOT LNG CORPORATION v. Samuel K. SKINNER, Energy Transportation Group, Inc., Appellant. SHELL INTERNATIONAL MARINE LIMITED, et al. v. MARITIME ADMINISTRATION of the UNITED STATES, et al., Energy Transportation Group, Inc., Appellant. ENERGY TRANSPORTATION GROUP, INC., Appellant, v. Samuel K. SKINNER, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1206

956 F.2d 1206

294 U.S.App.D.C. 85

ENERGY TRANSPORTATION GROUP, INC., Petitioner, v. MARITIME ADMINISTRATION and United States of America, Respondents,

Argent Companies, Cabot LNG Shipping Corporation, Shell

International Marine Limited, Shell Gas Nigeria, B.V., Shell

Bermuda (Overseas) Limited, Shell International Gas Limited

(Shell Appellees), Intervenors.

CABOT LNG CORPORATION v. Samuel K. SKINNER, Energy Transportation Group, Inc., Appellant.

SHELL INTERNATIONAL MARINE LIMITED, et al. v. MARITIME ADMINISTRATION of the UNITED STATES, et al., Energy Transportation Group, Inc., Appellant.

ENERGY TRANSPORTATION GROUP, INC., Appellant, v. Samuel K. SKINNER, et al.

Nos. 90-1547, 90-5346,

90-5363 and 90-5392.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 14, 1991.

Decided Feb. 21, 1992.

Rehearing Denied June 2, 1992.

Appeal from the United States District Court for the District of Columbia (Civil Action 90-00788).

Appeal from the United States District Court for the District of Columbia (Civil Action 90-02502).

Samuel Rosenthal, with whom David A. Strauss, Washington, D.C., was on the brief, for petitioner in Nos. 90-1547, 90-5346, 90-5363 and 90-5392. Preston Brown, Washington, D.C., also entered an appearance for petitioner.

Jeffrey Clair, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Michael Jay Singer, Atty., Dept. of Justice, and Rosalind Avnet Lazarus, Atty., Dept. of Transp., Washington, D.C., were on the brief, for respondents in all cases. Mary Bennett Reed, Atty., Dept. of Transp., Washington, D.C., also entered an appearance for respondents.

William E. McDaniels, with whom Bruce F. Kiely and Thomas Milch, Washington, D.C., were on the joint brief, for intervenors in No. 90-1547 and appellees in Nos. 90-5346, 90-5363 and 90-5392. Heidi K. Hubbard, Laurence Shore, Richard M. Cooper and Mark R. Merley, Washington, D.C., also entered appearances for intervenors.

Before: BUCKLEY, WILLIAMS and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

After prolonged efforts, the Maritime Administration in 1990 sold off three tankers designed for the transportation of liquified natural gas ("LNG"). Energy Transportation Group, Inc. ("ETG") here attacks the sale, asserting that the Maritime Administration failed to use competitive bidding, in violation of the Federal Property and Administrative Services Act of 1949, 40 U.S.C. §§ 471-544, and that its conduct of the sale was arbitrary and capricious. It also contends that the purchasers of two of the three tankers, the Argent Marine Companies, were not qualified purchasers because they were not U.S. citizens within the meaning of the Shipping Act of 1916, 46 U.S.C. app. § 802, and the Merchant Marine Act of 1936, 46 U.S.C. app. §§ 1151 & 1244. We consider three appeals from decisions of the district court and one direct petition for review; we dismiss all four for lack of district court or appellate jurisdiction.

* * *

The Maritime Administration acquired the three disputed tankers in 1986, after the owners defaulted on federal loans made under Title XI of the Merchant Marine Act of 1936, 46 U.S.C. app. §§ 1273(a) & 1274(a). It immediately put the tankers up for sale, issuing bid solicitations in April 1986 and April 1987, which yielded no offers from suitable purchasers, and a third one in September 1987. This last solicitation stated that purchasers had to be U.S. citizens within the meaning of 46 U.S.C. app. § 1244, and that the Maritime Administration could not "assure" parties who did not "respond" to the solicitation that they would be contacted again in the matter. ETG was sent all three bid solicitations but responded to none.

In October 1987 an affiliate of Shell Oil submitted a bid proposal on behalf of a U.S. citizen to be named later; Cabot LNG Corporation also expressed an interest in the tankers but at the time did not submit a bid. In mid-October the Maritime Administration sent a letter advising the parties that had expressed interest that it would consider any additional "best and final" offers submitted by the end of the month. No new bid was submitted, and the Maritime Administration ultimately accepted Shell's proposal in February 1988 and completed a purchase option agreement with Shell's U.S. citizen nominees, the Argents, in October 1988. Cabot submitted a firm offer for the vessels in June 1988, but the Maritime Administration replied that they were no longer available.

In August 1989 the Maritime Subsidy Board (three specified officials of the Maritime Administration acting in that capacity, 49 CFR § 1.67(c) (1990)) approved the transfer of title of the vessels to the Argents. Cabot challenged the sale before the agency and in the district court, alleging flawed bidding procedures and the Argents' non-citizenship. The Maritime Administration meanwhile began its own investigation and, in March 1990, terminated the purchase agreement on the ground that the Argents were not citizens because they were effectively controlled by Shell's affiliate. The Argents petitioned this court for review and also filed a cross-claim against the Maritime Administration in Cabot's suit; Shell filed a district court action that was consolidated with Cabot's.

In February 1990 ETG entered the picture, writing to the Maritime Administration to express its interest in the vessels in the event that the sale to the Argents should be cancelled and to propose negotiations looking toward a purchase. (ETG's letter spoke of "a price in the range of $80 million each"--$65 million per vessel more than the Argent/Shell offer, a differential that ETG makes much of in its briefs. Its formal bid, however, in October 1990, was $25 million per vessel, more but not vastly more than the ultimate selling price of $18 million per vessel.) ETG also sought to intervene in all the pending suits, but its motions to intervene were denied here, see Argent Marine I, Inc. v. United States, No. 90-1147, Order (D.C.Cir. July 16, 1990) (per curiam), and in the district court, the latter expressly finding ETG's motions untimely and ETG without standing, see Cabot v. Skinner, Civ. Nos. 89-2711 & 90-0788, Order at 3-5 (D.D.C. Oct. 4, 1990).

All the parties but ETG managed to resolve their differences in September 1990. The Maritime Subsidy Board approved the Maritime Administration's agreement to sell the vessels for about $18 million each, one to Cabot and the other two to the Argents; Cabot, Shell, and the Argents agreed to dismiss all of their pending claims against the Maritime Administration. ETG petitioned the Secretary of Transportation for review of the Board's order approving the sale, asking that he direct the Maritime Administration to rebid the vessels. The Secretary denied review, however, holding that the government was not required to rebid because it had discretion to negotiate a private sale to settle the litigation, citing § 1105(c) of the Merchant Marine Act of 1936, 46 U.S.C. § 1275(c). Argent Marine I, Inc. (Sec.Transp. Nov. 14, 1990), reprinted in Joint Appendix ("J.A.") at 1096.

ETG also filed a complaint in the district court seeking relief under § 10(a) of the Administrative Procedure Act, 5 U.S.C. § 702. As in its administrative filing, ETG claimed that the Maritime Administration had violated the Federal Property Act and the citizenship provisions of the Shipping and Merchant Marine Acts, and that its conduct was arbitrary and capricious. The district court dismissed ETG's claims; it held that ETG had no standing because it had not participated in the original bidding process and that the court of appeals had exclusive jurisdiction of the citizenship issues. ETG v. Skinner, 752 F.Supp. 1 (D.D.C.1990). ETG appeals that decision as well as the district court's denial of its motions to intervene in the consolidated Cabot and Shell cases. It also petitions this court pursuant to the Hobbs Act, 28 U.S.C. § 2342(3)(A), for review of the Maritime Subsidy Board's September 1990 decision as to citizenship under § 2 of the Shipping Act of 1916, 46 U.S.C. app. § 802.

* * *

We first dismiss as moot the appeals from the district court orders denying intervention. The complaints in the underlying litigation were dismissed by agreement of the parties pursuant to the settlement, so there is no longer any action in which to intervene. See Tosco Corp. v. Hodel, 804 F.2d 590, 592 (10th Cir.1986); United States v. Ford, 650 F.2d 1141, 1142-43 (9th Cir.1981). This dismissal of course does not foreclose any of ETG's claims against the Maritime Administration that might otherwise be viable.

Second, before turning to ETG's lack of standing for either its Hobbs Act petition or its district court suit, we note a peculiarity in the first and a possible additional jurisdictional defect in the second. The oddity of the Hobbs Act claim is that it attacks the Maritime Subsidy Board's decision, which was non-final until the Secretary acted, rather than the Secretary's (final) decision. See 46 CFR § 202.1 (1991) (Maritime Subsidy Board decisions do not become final until the Secretary either grants review or fails to act within 15 days after a reply is due); see also 28 U.S.C. § 2342(3)(A) (conferring exclusive jurisdiction on the D.C. Circuit to review "all rules, regulations, or final orders of ... the Secretary of Transportation issued pursuant to section 2 ... of the Shipping Act, 1916") (emphasis added). As the Secretary had acted before the petition was filed, the defect was probably non-jurisdictional, compare TeleSTAR, Inc. v. FCC, 888 F.2d 132, 134 (D.C.Cir.1989) (challenge filed during pendency of challenger's petition for reconsideration is "incurably premature"), but it has led ETG to focus its briefs more on the Maritime Subsidy Board's decision than on the Secretary's.

As to ETG's APA suit, we note a potential...