Lakes Pilots Ass'n, Inc. v. U.S. Coast Guard

• Decision Date: 09 March 2004
• Docket Number: No. 03-5152.,03-5152.
• Citation: 359 F.3d 624
• Parties: LAKES PILOTS ASSOCIATION, INC., Appellant, v. UNITED STATES COAST GUARD and Thomas J. Ridge, Secretary of the Department of Homeland Security, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

359 F.3d 624

LAKES PILOTS ASSOCIATION, INC., Appellant, v. UNITED STATES COAST GUARD and Thomas J. Ridge, Secretary of the Department of Homeland Security, Appellees.

No. 03-5152.

United States Court of Appeals, District of Columbia Circuit.

Argued February 17, 2004.

Decided March 9, 2004.

Appeal from the United States District Court for the District of Columbia (No. 01cv01721).

Michael Roberts and Lawrence C. Friedman were on the briefs of appellant.

Roscoe C. Howard, Jr., U.S. Attorney, R. Craig Lawrence and Sherrie Evans Harris, Assistant U.S. Attorneys, were on the brief of appellees.

Before: GINSBURG, Chief Judge, HENDERSON, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

WILLIAMS, Senior Circuit Judge:

Lakes Pilots Association, Inc. sued in district court claiming that the Coast Guard misapplied the relevant formula in setting rate ceilings for pilotage services. The district court granted in part and denied in part the parties' cross-motions for summary judgment. While accepting various Coast Guard positions, it ruled for the pilots on three merits issues and remanded for further proceedings consistent with its order. The pilots appeal those aspects of the district court's opinion that were unfavorable to them (ripeness as to one issue, one substantive merits decision, and a claim based on certain non-record documents). Finding that we do not have jurisdiction to hear this appeal, we dismiss.

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The courts of appeals have jurisdiction to hear "appeals from all final decisions of the district courts." 28 U.S.C. § 1291. "A remand order usually is not a final decision." NAACP v. United States Sugar Corp., 84 F.3d 1432, 1436 (D.C.Cir. 1996). But the pilots invoke the collateral order exception created by Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). To qualify under that doctrine the order being appealed must: "(i) conclusively determine the disputed question; (ii) resolve an important issue completely separate from the merits of the action; and (iii) be effectively unreviewable on appeal from a final judgment." Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 375, 107 S.Ct. 1177, 94 L.Ed.2d 389 (1987) (citation and internal quotations omitted).

Under limited circumstances a remand order will qualify. The third requirement — that the decision not be susceptible of appeal from a final judgment — is met when "the agency to which the case is remanded seeks to appeal and it would have no opportunity to appeal after the proceedings on remand." Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 330 (D.C.Cir.1989); see also MCI Telecommunications Corp. v. BellSouth Telecommunications Inc., 298 F.3d 1269, 1271 (11th Cir.2002) (same). The principle is not normally available to the agency's adversary. This asymmetry may seem strange, but it flows from an evenhanded application of the requirement that the error asserted not be remediable on appeal from a final judgment. Here, for example, the pilots will still be aggrieved by the outcome (assuming that the Coast Guard doesn't spontaneously change its position on the...