District 2, Marine Engineers Beneficial Ass'n v. Burnley

• Decision Date: 25 June 1991
• Docket Number: No. 90-1933,90-1933
• Citation: District 2, Marine Engineers Beneficial Ass'n v. Burnley, 936 F.2d 284 (6th Cir. 1991)
• Parties: DISTRICT 2, MARINE ENGINEERS BENEFICIAL ASSOCIATION, Plaintiff-Appellant, v. James H. BURNLEY, IV, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 284

936 F.2d 284

DISTRICT 2, MARINE ENGINEERS BENEFICIAL ASSOCIATIONPlaintiff-Appellant, v.James H. BURNLEY, IV, et al., Defendants-Appellees.

No. 90-1933.

United States Court of Appeals Sixth Circuit.

Argued May 14, 1991.

Decided June 25, 1991.

Joan Torzewski, Lackey, Nusbaum, Harris, Reny & Torzewski, Fritz Byers(argued), Toledo, Ohio, Dean A. Robb, Sr., Messing, Robb, Traverse City, Mich., for plaintiff-appellant.

Robert Haviland, Asst. U.S. Atty., Flint, Mich., James K. Augustine, Washington, D.C., Robert Bruce(argued), Miami, Fla., for Paul A. Yost, Jr., Lafarge Coppee, S.A. and John Gaughan.

Philip M. Frost, Dickinson, Wright, Moon, Van Dusen & Freeman, Detroit, Mich., Gerald A. Novack(argued), Lord, Day, Lord, Barrett, Smith, New York City, for Lafarge Corp.

William A. Moore, Hill, Lewis, Adams, Goodrich & Tait, Detroit, Mich., David G. Davies, Gene B. George, Ray, Robinson, Hanninen & Carle, Cleveland, Ohio, for Inland Lakes Transp., Inc., Inland Lakes Management Inc.

Wallace H. Glendening, Jaffe, Snider, Raitt & Heuer, Detroit, Mich., for First Union Commercial Corp.

Before GUY and NELSON, Circuit Judges, and HIGGINS, District Judge.^*

DAVID A. NELSON, Circuit Judge.

This is an appeal from a district court judgment dismissing a complaint in which a maritime union challenged the legality of the Government's failure to stop the operation in the "coastwise trade" of six privately owned bulk carriers that had allegedly been "sold foreign" within the meaning of a Jones Act proviso codified at 46 U.S.C. Sec. 883.In addition to seeking judicial review pursuant to the Administrative Procedure Act, the complaint prayed for injunctive and declaratory relief against the owners and operators of the six vessels.

The claims against the private defendants were dismissed on a ground not challenged on appeal.As to the claim against the Government, the district court held that the plaintiff union had no standing to seek judicial review because it asserted neither an "injury in fact" nor an interest within the "zone of interests" protected by the Jones Act proviso.We shall affirm the judgment for the latter reason.

I

The plaintiff--District 2, Marine Engineers Beneficial Association, Associated Maritime Officers, AFL-CIO--is a labor union that represents personnel aboard U.S.-flagged vessels.The union filed the present action in February of 1989.Named as defendants were: Lafarge Coppee, S.A., a foreign corporation with its headquarters in Paris; Lafarge Corporation, the American subsidiary through which Lafarge Coppee does business in the United States; Inland Lakes Transportation, Inc.; Inland Lakes Management, Inc.; Chrysler Capital Corporation; James H. Burnley IV, Secretary of Transportation; Admiral Paul A. Yost, Jr., Commandant of the United States Coast Guard; and John Gaughan, Chief Administrator of the Department of Transportation's Maritime Administration.

The six vessels in question were owned by Chrysler, ¹ which leased them to Inland Lakes Transportation and Inland Lakes Management, which in turn furnished them to Lafarge for operation on the Great Lakes.The union's complaint alleged that the vessels had been "sold foreign" within the meaning of the first proviso of the section of the Jones Act codified at 46 U.S.C. Sec. 883, thereby making them ineligible to engage in what the statute calls "the coastwise trade."The complaint requested judicial review of the federal defendants' failure to stop the allegedly illegal conduct; an injunction requiring the federal defendants to discharge their legal duties; a declaration that the vessels were ineligible to operate in the coastwise trade; and an injunction prohibiting the private defendants from operating the vessels in that trade.

The matter was referred to a magistrate, and all of the defendants subsequently moved to dismiss the complaint for lack of standing.The magistrate recommended that the court grant the private defendants' motions because the Jones Act proviso does not create a private right of action.As to the federal defendants, the magistrate recommended against dismissal; the union, he concluded, had made an adequate showing of standing to seek judicial review.

All sides filed objections to the magistrate's report.The district court sustained the objections of the government defendants and dismissed the case in its entirety.The union has perfected a timely appeal on the issue of its standing to seek judicial review of the Government's failure to act.

II

Article III of the United States Constitution, which limits the federal judicial power to "Cases" and "Controversies," requires a plaintiff to show (1)" 'that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant' "; (2) that "the injury 'fairly can be traced to the challenged action' "; and (3) that the injury " 'is likely to be redressed by a favorable decision.' "Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700(1982)(citations omitted).

Beyond these constitutional requirements, a plaintiff seeking judicial review under Sec. 10(a) of the Administrative Procedure Act,5 U.S.C. Sec. 702, ² must demonstrate that " 'the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the "zone of interests" sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.' "Air Courier Conference of America v. American Postal Workers Union, AFL-CIO, --- U.S. ----, 111 S.Ct. 913, 918, 112 L.Ed.2d 1125(1991)(quotingLujan v. National Wildlife Federation, --- U.S. ----, 110 S.Ct. 3177, 3186, 111 L.Ed.2d 695(1990)).The Supreme Court has said, by way of illustration, that:

"the failure of an agency to comply with a statutory provision requiring 'on the record' hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency's proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not ... [fall within the 'zone of interests'] of the statute."National Wildlife Federation, 110 S.Ct. at 3186.

In the case at bar the union (identified as ...