Conoco, Inc. v. Skinner, Civ. A. No. 91-122-JLL.

• Decision Date: 16 December 1991
• Docket Number: Civ. A. No. 91-122-JLL.
• Court: U.S. District Court — District of Delaware
• Parties: CONOCO, INC. and E.I. duPont de Nemours Company, Plaintiffs, v. Samuel SKINNER, Secretary of Transportation, Nicholas F. Brady, William A. Kime, Commandant of the Coast Guard, Warren G. Leback, Administrator, U.S. Department of Transportation, Carol B. Hallett, Commissioner of Customs, United States Customs Service, Defendants.

781 F. Supp. 298

CONOCO, INC. and E.I. duPont de Nemours Company, Plaintiffs, v. Samuel SKINNER, Secretary of Transportation, Nicholas F. Brady, William A. Kime, Commandant of the Coast Guard, Warren G. Leback, Administrator, U.S. Department of Transportation, Carol B. Hallett, Commissioner of Customs, United States Customs Service, Defendants.

Civ. A. No. 91-122-JLL.

United States District Court, D. Delaware.

December 16, 1991.

COPYRIGHT MATERIAL OMITTED

Richard Allen Paul of E.I. du Pont de Nemours and Co., Wilmington, Del., and Mark P. Schlefer, T.S.L. Perlman, Leonard Egan, and William C. Buckhold of Fort & Schlefer, Washington, D.C., of counsel, for plaintiffs.

William C. Carpenter, Jr., U.S. Atty. and Kent A. Jordan, Asst. U.S. Atty., Wilmington, Del., Stuart M. Gerson, Asst. Atty. Gen., Washington, D.C., Sandra M. Schraibman, Asst. Director, and Susan Friedman Cohen, Civil Div. Trial Atty., for the U.S. Dept. of Justice, Rosalind Avnet Lazarus for the Dept. of Transp., Robert J. Patton, Jr., Deputy Chief Counsel and Sandra L. Jenkins, Asst. Chief Counsel, for the Maritime Admin., John Astley for the U.S. Coast Guard, and William Sandler for the U.S. Customs Service, Washington, D.C., for defendants.

MEMORANDUM OPINION

LATCHUM, Senior District Judge.

Plaintiffs, E.I. du Pont de Nemours and Company ("Du Pont") and its wholly owned subsidiary Conoco, Inc. ("Conoco"), seek judicial review in this Court of federal agency action concerning documentation, ownership, and chartering of vessels in coastwise trade under the Administrative Procedure Act ("APA"). 5 U.S.C. § 701 et seq. (1977 & Supp.1991) (Docket Item "D.I." 1, 13.) Defendants, the Secretaries of the United States Departments of Transportation and Treasury, the Commandant of the United States Coast Guard, the Commissioner of the United States Customs Service, the Maritime Administrator ("MARAD"), and the United States of America, contend that the issues raised by plaintiffs fall within the exclusive jurisdiction of the court of appeals under the Administrative Orders Act ("Hobbs Act"). 28 U.S.C. §§ 2341-51 (1978 & Supp.1991). Accordingly, the defendants move this Court to dismiss the action for lack of jurisdiction.

For the reasons set forth below, this Court has determined that it lacks subject matter jurisdiction to decide the issues in this case. Therefore, granting the defendants' motion to dismiss is appropriate.¹

I. BACKGROUND

A. Statutory Framework

1. Judicial Review

The APA places judicial review in the forum specified in the statute relevant to the subject matter and authorizes judicial review in the district court to the extent that other statutory procedures for review are inadequate. 5 U.S.C. §§ 703, 704. Defendants claim that the Hobbs Act is the special statutory review proceeding applicable to the dispute in this case. Thus, this Court will not have jurisdiction over the plaintiffs' claim unless the procedure under the Hobbs Act is deemed to be inadequate.

Before Congress enacted the Hobbs Act, judicial review of certain agency orders was conducted de novo by special district courts of three judges with an appeal of right directly to the United States Supreme Court. H.R.Rep. No. 2122, 81st Cong.2d Sess. 4, reprinted in, 1950 U.S.Code Cong.Service 4303, 4305. The Hobbs Act substituted a review by the appropriate circuit court of appeals upon the administrative record with further review by writ of certiorari to the United States Supreme Court. Id. at 4306. Simplicity and expedition were the expected advantages of the Hobbs Act. Id. Congress believed that an appeal based upon the record made before the administrative agency would "avoid the making of two records, one before the agency and one before the court, and thus avoid going over the same ground twice." Id.; Florida Power & Light Co. v. Lorion, 470 U.S. 729, 740, 105 S.Ct. 1598, 1605, 84 L.Ed.2d 643 (1985) (avoids duplication of effort in creating of a separate record before the agency and before the district court); Lindahl v. Office of Personnel Management, 470 U.S. 768, 797-98, 105 S.Ct. 1620, 1636-37, 84 L.Ed.2d 674 (judicial review by the district court, relying on same record and applying the same standard as the court of appeals, would be "duplicative, wasteful and inefficient)." Because factfinding is typically unnecessary to judicial review of agency decision-making, Florida Power & Light Co. v. Lorion, 470 U.S. at 744, 105 S.Ct. at 1607, district court review is "both a needless and time-consuming duplication of the ultimate appellate consideration." Modine Mfg. Corp. v. Kay, 791 F.2d 267, 270 (3d Cir.1986). Thus, the Hobbs Act eliminates the delay and expense of an unnecessary level of judicial review.

In 1986, Congress re-examined the judicial review provisions of the Hobbs Act with respect to the shipping laws. After making substantial revisions to the Shipping Act of 1916, Congress unintentionally created a bifurcated review procedure which was found to be burdensome and unnecessary.² H.R.Rep. No. 423, 99th Cong.2d Sess. 15, reprinted in, 1986 U.S.Code Cong. & Admin.News 1545, 1555. (D.I. 23 Ex. 6; July 29, 1985 Statement of Jim Marquez, General Counsel for the United States Department of Transportation ("DOT").) The Hobbs Act, as amended in 1986, provides that:

The court of appeals has exclusive jurisdiction ... over all rules, regulations, or final orders of

(A) the Secretary of Transportation issued pursuant to ... 46 U.S.C.App. 802-03, 808, 835, 839, and 841a; and

(B) the Federal Maritime Commission issued pursuant to ... 46 U.S.C.App. 822, 824 or 841a ... 876 ... 844-845b ... 1713 or 1716....

28 U.S.C. § 2342(3) (Supp.1991). Congress intended to merely clarify the Hobbs Act in 1986, reinstating the court of appeals' traditional jurisdiction rather than broadening the scope of its application. H.R.Rep. No. 423, 99th Cong.2d Sess. 15, reprinted in, 1986 U.S.Code Cong. & Admin.News 1545, 1555. (D.I. 13 at 38-39; 23 at 16-17, Exs. 6-7; 30.)

2. The Maritime Laws

The statutory framework regulating shipping does not treat the industry as a mere form of commerce. Congress wanted to build a domestic merchant marine, ultimately to be owned and operated by citizens of the United States, to carry the greater portion of its commerce and to assist in national defense in time of war or national emergency. 46 U.S.C.App. § 861 (Supp.1991). The laws serve the dual goals of ensuring a viable American merchant marine for defense and benefitting American shipowners competing economically in the coastwise³ trade. Alaska Excursion Cruises, Inc. v. United States, 603 F.Supp. 541, 546 (D.D.C.1984). The Secretary of Transportation ("Secretary") is required to keep these two underlying goals in mind when promulgating regulations and administering the shipping laws. 46 U.S.C.App. § 861.

In furtherance of the policy protective of American citizens, Congress enacted the three statutes involved in the present dispute: 1) The Shipping Act of 1916, 46 U.S.C. § 801 et seq. (1975 & Supp.1991); 2) the Merchant Marine Act of 1920, 46 U.S.C. § 861 et seq. (1975 & Supp.1991); and 3) The Vessel Documentation Act, 46 U.S.C. § 12101 et seq. (1991). First, the law generally prohibits, with limited exceptions, the transfer⁴ of U.S. owned vessels to non-citizens unless approved by the Secretary. 46 U.S.C.App. § 808 ("The Shipping Act of 1916"). The Shipping Act of 1916 considers corporations to be U.S. citizens if: 1) the controlling interest is owned by U.S. citizens; 2) the chief executive officer and chairman of the board are U.S. citizens; 3) no more directors than a minority necessary to constitute a quorum are non-citizens; and 4) the corporation itself is organized within the United States. 46 U.S.C.App. § 802(a). But to engage in coastwise trade, the definition is more stringent and imposes an additional requirement. A "United States citizen" for corporate operation of vessels in the coastwise trade also requires that citizens of the United States own 75% of the corporation. Id.

Second, to ensure that American citizens have ultimate control of the coastwise merchant marine fleet, the law also restricts domestic water transport. With limited exceptions, the laws restrict transportation by water to U.S. owned vessels of merchandise between points in the United States. 46 U.S.C.App. § 883 ("The Merchant Marine Act of 1920"). The Shipping Act's definition of U.S. citizen and the additional ownership requirement for coastwise trade are incorporated into the Merchant Marine Act of 1920. 46 U.S.C.App. § 888.

Third, the Vessel Documentation Act, procedural in nature, ensures American ownership of vessels so that the requirements of the Shipping Act of 1916 can be met. Alaska Excursion Cruises, Inc. v. United States, 603 F.Supp. at 546. Vessel documentation is a type of national registration which establishes a vessel's nationality and evidences a vessel's entitlement to be employed in specified restricted trades. 46 U.S.C. § 12104; 55 Fed.Reg. 51244 (1990) (to be codified at 46 C.F.R. Part 67). In addition to general documentation, a vessel must have a coastwise endorsement to be employed in the coastwise trade. 46 U.S.C. § 12106(b). (D.I. 7 at 4; 13 at 12-13.) The coastwise endorsement is subject to the laws of the United States regulating the coastwise trade and must otherwise qualify under the coastwise laws. 46 U.S.C. § 12106 (D.I. 7 at 4; 13 at 12, 51; 23 at 28.) The regulations promulgated by the Coast Guard governing vessel documentation specifically refer to sections 802 and 808 of the Shipping Act of 1916. 46 C.F.R. § 67.03-9.⁵

By 1958, foreign ownership of domestic corporations became increasingly common because of the robust global economy. Ingram Barge Co. v. United States, 691 F.Supp. 474, 478 (D.D.C.1988), rev'd on other grounds, 884 F.2d 1400 (D.C.Cir. 1989). Congress determined that equity and justice dictated a minor exception, ("Bowater Amendment"), to the...