Government of Guam v. American President Lines, 93-7023

• Decision Date: 08 July 1994
• Docket Number: No. 93-7023,93-7023
• Citation: 28 F.3d 142
• Parties: , 29 Fed.R.Serv.3d 953 The GOVERNMENT OF GUAM, et al., Appellants, v. AMERICAN PRESIDENT LINES, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 142

28 F.3d 142

307 U.S.App.D.C. 275, 29 Fed.R.Serv.3d 953

The GOVERNMENT OF GUAM, et al., Appellants, v. AMERICAN PRESIDENT LINES, et al., Appellees.

No. 93-7023.

United States Court of Appeals District of Columbia Circuit.

Argued May 13, 1994.

Decided July 8, 1994.

Appeal from the United States District Court for the District of Columbia (92CV00622).

Curtis C. Mechling, New York City, argued the cause for appellants. With him on the briefs was Panagiotis C. Bayz, Washington, DC. Marvin G. Pickholz, New York City, entered an appearance.

I. Michael Greenberger, Washington, DC, argued the cause for appellees. With him on the brief were John Townsend Rich, Richard L. Brusca, Washington, DC, and Robert S. Zuckerman, Liberty Corner, NJ. Raina H. Fishbane, Washington, DC, entered an appearance.

Before: MIKVA, Chief Judge, and BUCKLEY, and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Appellant shippers, including the Government of Guam, ¹ sought reparations from appellee carriers ² in a proceeding before the Federal Maritime Commission for allegedly unlawful rates under the Shipping Act, 1916, and the Intercoastal Shipping Act, 1933. ³ Appellants thereafter filed a virtually identical claim in the United States District Court for the District of Columbia. The district court dismissed the complaint for lack of subject-matter jurisdiction. Appellants now contend that the district court erred by not inferring an implied private civil action under the Shipping Acts, and by not allowing appellants an opportunity to amend the complaint. For substantially the reasons set forth in the thoughtful opinion of the district court, Government of Guam v. American President Lines, Ltd., 809 F.Supp. 150 (D.D.C.1993) (Guam I ), we affirm the dismissal of the complaint. Further, we hold that appellants have waived the right to raise the amendment claim of error on appeal because they did not file a motion to amend, or seek leave to amend, the complaint in the district court, and they have presented no special circumstances to excuse their failure to do so.

I.

The context in which this appeal arises is set forth in the District Court's opinion from which we quote:

On December 7, 1989, the Government of Guam filed a complaint with the Commission. That complaint is virtually identical to the complaint in the instant case. Each complaint includes four counts. Counts I and II allege that both defendants charge Guam shippers unjust, unreasonable, and discriminatory rates in violation of sections 16 First, 17, and 18(a) of the Shipping Act, 46 U.S.C.App. Secs. 815 First, 816, & 817(a), and section 2 of the Intercoastal Shipping Act, 46 U.S.C.App. Sec. 844. Counts III and IV allege that defendant Sea-Land operates as a water common carrier without having a required tariff on file with the Commission, ^* and also that Sea-Land improperly charges varying rates for similarly situated shippers, in violation of sections 16 First and 17 of the Shipping Act, 46 U.S.C.App. Secs. 815 First & 816, and section 2 of the Intercoastal Shipping Act, 46 U.S.C.App. Sec. 844.

On March 9, 1990, an administrative law judge granted Guam leave to amend the Commission complaint to add four shippers as plaintiffs. Three of those shippers are among the plaintiffs in the present case. In the same ruling, the ALJ dismissed that portion of the complaint seeking reparations on behalf of all similarly situated Guam shippers under a parens patriae theory. In so ruling, the ALJ relied on Commission decisions holding that reparations may be awarded only to those who have actually paid unreasonable rates unless there has been a valid assignment from one with a legal right to reparations. The Commission proceeding is presently ongoing.

Plaintiffs' complaint was filed in this Court on March 10, 1992. Plaintiffs' asserted purpose in bringing this action in court is to "toll" the two-year statute of limitations for the numerous Guam shippers that have allegedly been injured by defendants' shipping rates. They have thus moved for certification of a class consisting of shippers and persons who have dispatched or received shipments into or out of Guam via the defendant carriers. At the same time, plaintiffs have moved for a stay of proceedings in this case pending the Commission's determination in the parallel administrative proceeding. Plaintiffs thus concede that the Commission has the task of resolving the merits of the dispute; they call on this Court essentially to preserve, and ultimately to administer, the claims of the class.

Guam I, supra, 809 F.Supp. at 151-52. We write to emphasize two points.

II.

Implying a private cause of action where the statute provides a remedy. Appellants concede that the Shipping Acts do not expressly provide for a private federal cause of action by a shipper to challenge a carrier's rates, but they contend that the district court erred in declining to infer, upon applying the factors in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), a protective cause of action on behalf of the Guam shippers as a class. Appellants maintain that Congress intended such a private cause of action because an analogous proceeding is impermissible before the Federal Maritime Commission and the only available way for the Guam shippers to obtain recovery is by a class action in district court.

Where a statute provides an express remedy, Cort v. Ash is, strictly speaking, inapplicable. In that case, the Supreme Court stated that "[i]n determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant." ⁴ 422 U.S. at 78, 95 S.Ct. at 2088. There, the Court faced the issue of whether a stockholder's derivative suit for damages against corporate directors could be implied under a criminal statute prohibiting corporations from making contributions in connection with Presidential elections. Id. at 68, 95 S.Ct. at 2083-84. The Court held that "implication of such a federal cause of action is not suggested by the legislative context of [the criminal provision] or required to accomplish Congress' purposes in enacting the [Federal Election Campaign Act]." Id. at 68-69, 95 S.Ct. at 2084. Thus, because the Shipping Acts provide appellants with an express reparations remedy before the Federal Maritime Commission, see 46 U.S.C. app. Secs. 821(a), 845a, the district court concluded that the Cort analysis did not appear to be directly applicable to appellants' claim that appellee carriers had violated the provisions of the Shipping Acts requiring "just and reasonable rates." Guam I, supra, 809 F.Supp. at 153.

Yet, as our opinion in Danielsen v. Burnside-Ott Aviation Training Ctr., Inc., 941 F.2d 1220, 1227-28 (D.C.Cir.1991), recognizes, the Cort v. Ash factors are relevant in determining whether the express remedy provided in a statute was intended by Congress to be the exclusive remedy. The Danielsen court noted with approval the Ninth Circuit's application of the Cort test in determining whether a private civil right of action could be inferred under the Service Contract Act, 41 U.S.C. Sec. 351, which itself provided an administrative remedy. Id. (citing Miscellaneous Serv. Workers, Local # 427 v. Philco-Ford Corp., 661 F.2d 776, 780-81 (9th Cir.1981)). This court agreed that implication of a private right would undercut the specific administrative remedy prescribed by Congress in that statute. Id. at 1228.

More precisely, the Supreme Court has made clear that when Congress has provided an express remedy, not all of the Cort factors have the same weight because the central analysis is directed at discovering legislative intent by means of "the language of the statute, the statutory structure, or some other source." Karahalios v. National Fed'n of Fed. Employees, Local 1263, 489 U.S. 527, 532-33, 109 S.Ct. 1282, 1286-87, 103 L.Ed.2d 539 (1989) (quoting Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988) (in turn quoting Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 94, 101 S.Ct. 1571, 1582, 67 L.Ed.2d 750 (1981))); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 23-24, 100 S.Ct. 242, 248-49, 62 L.Ed.2d 146 (1979) (citing Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 2488-89, 61 L.Ed.2d 82 (1979)). Where Congress has provided an express remedy, the Court has explained, "[t]he presumption that a remedy was deliberately omitted from a statute is strongest when Congress has enacted a comprehensive legislative scheme including an integrated system of procedures for enforcement." Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 147, 105 S.Ct. 3085, 3092-93, 87 L.Ed.2d 96 (1985) (quoting Northwest Airlines, Inc. v. Transport Workers, supra, 451 U.S. at 97, 101 S.Ct. at 1584). While this presumption may be overcome without evidence that Members of Congress actually had in mind the creation of a private cause of action, see Thompson v. Thompson, supra, 484 U.S. at 179, 108 S.Ct. at 516, and California v. Sierra Club, 451 U.S. 287, 293, 101 S.Ct. 1775, 1778-79, 68 L.Ed.2d 101 (1981), rebutting the presumption is not easily accomplished given the "elemental canon" of statutory construction that "where a statute expressly provides a remedy, courts must be especially reluctant to provide additional remedies." Karahalios v. National Fed'n of Fed. Employees, supra, 489 U.S. at 533, 109 S.Ct. at 1286 (citing Transamerica Mortgage Advisors, Inc. v. Lewis, supra, 444 U.S. at 19, 100 S.Ct. at 246-47). " '[I]n the absence of strong indicia of contrary congressional intent, [the Court is] compelled to conclude that Congress provided precisely the remedies it considered appropriate.' " Id. (quoting Middlesex County Sewerage Auth. v. Sea Clammers, 453 U.S. 1, 15, 101 S.Ct. 2615, 2623, 69 L.Ed.2d 435 (1981)).

Accordingly, in the instant case, the district court...