Safir v. Dole
| Decision Date | 30 September 1983 |
| Docket Number | 81-2394,Nos. 81-2271,81-2396 and 82-1008,81-2395,81-2389,s. 81-2271 |
| Citation | 718 F.2d 475,231 U.S.App.D.C. 63 |
| Parties | Marshall P. SAFIR, Appellant, v. Elizabeth Hanford DOLE, Secretary of Transportation, et al. AMERICAN EXPORT LINES, INC., et al., Appellants, v. Elizabeth Hanford DOLE, Secretary of Transportation, et al. Marshall P. SAFIR v. Elizabeth Hanford DOLE, Secretary of Transportation, et al., American President Lines, Ltd., Farrell Lines, Inc., Prudential Lines, Inc., PPS Steamship Co., Inc., Appellants. Marshall P. SAFIR v. Elizabeth Hanford DOLE, Secretary of Transportation, et al., American Export Lines, Inc., Lykes Brothers Steamship Co., Inc., Moore-McCormack Lines, Inc., United States Lines, Inc., Appellants. AMERICAN PRESIDENT LINES, LTD., et al., Appellants, v. Elizabeth Hanford DOLE, Secretary of Transportation, et al. Marshall P. SAFIR v. Elizabeth Hanford DOLE, Secretary of Transportation, et al., American Export Lines, Inc., Lykes Brothers Steamship Co., Inc., Moore-McCormack Lines, Inc., United States Lines, Inc., Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (D.C. Civil Action Nos. 74-01474, 74-01788 and 75-00077).
T.S.L. Perlman, Washington, D.C., and Elmer C. Maddy, New York City, with whom William H. Fort, Walter H. Lion, New York City, Verne W. Vance, Jr., and William L. Gardner, Boston, Mass., were on the brief for American Export Lines, Inc., et al., appellants in 81-2389, 81-2395 and 82-1008, appellees in 81-2271 and 81-2394.
Robert T. Basseches, Washington, D.C., with whom Timothy K. Shuba, Daniel H. Margolis, Warren L. Lewis, Washington, D.C., Verne W. Vance, Jr., and William L. Gardner, Boston, Mass., were on the brief for American President Lines, Ltd., et al., appellants in 81-2394, 81-2396 and appellees in 81-2395 and 82-1008.
Marshall P. Safir, pro se, for appellant in 81-2271 and appellee in 81-2389, 81-2394, 81-2395, 81-2396 and 82-1008.
Allen van Emmerik, Bruce G. Forrest and William Kanter, Dept. of Justice, Washington, D.C., entered appearances for Elizabeth Hanford Dole, Secretary of Transp., et al., appellants in 82-1008 and appellees in 81-2271, 81-2389, 81-2394, 81-2395 and 81-2396.
Before WRIGHT and SCALIA, Circuit Judges, and MacKINNON, Senior circuit judge.
Opinion for the Court filed by Circuit Judge SCALIA.
In these consolidated cases, appellant Marshall P. Safir, whose former shipping business (terminated in 1967) was the victim of predatory pricing by certain competing carriers, seeks to set aside an order of the Secretary of Commerce which directs the recovery under Sec. 810 of the Merchant Marine Act of some, but not all, subsidies paid to those carriers by the United States during the period of such unlawful activity. He appeals the district court's refusal to require the Secretary to recover all past subsidies and enjoin payment of future subsidies. We find that there is no reasonable likelihood that Safir will in the future be a competitor of these companies, whether or not their power to compete is impaired by the action requested of the government with regard to subsidies; that the relief he seeks is therefore not likely to benefit him in any legally cognizable fashion, so as to remedy the injury of which he complains; and that he thus lacks standing to pursue the present suit.
The carriers affected by the Secretary's order likewise seek to set it aside on various grounds. The lines which the Secretary ordered to return subsidies request us to find that the statute precludes any recovery of subsidies paid prior to an administrative finding of illegal activities; we hold that the doctrine of collateral estoppel bars them from litigating this issue. The lines which the Secretary found to have "technically violated" Sec. 810 but from which he ordered no subsidy recovery have requested that we reverse the finding of a technical violation; we hold that they have no standing to challenge a pronouncement from which no tangible injury flows.
Since the facts underlying this litigation have been adequately recounted in two prior circuit opinions, Safir v. Kreps, 551 F.2d 447 (D.C.Cir.), cert. denied, 434 U.S. 820, 98 S.Ct. 60, 54 L.Ed.2d 76 (1977), and Safir v. Gibson, 417 F.2d 972 (2d Cir.1969), cert. denied, 400 U.S. 850, 91 S.Ct. 57, 27 L.Ed.2d 88 (1970), we will only sketch them here; but even a sketch of this protracted controversy can hardly be brief. Section 810 of the Merchant Marine Act, 46 U.S.C. Sec. 1227 (1976), allows any person injured in his business or property by illegal competitive agreements among shippers to recover treble damages from carriers guilty of such practices. 1 It also provides that no carrier engaging in such practices shall receive any government subsidies. Safir's shipping company was bankrupted, in part as a result of predatory pricing by a group of carriers collectively known as the Atlantic and Gulf American Flag Berth Operators (AGAFBO). He settled his treble damages claim with the carriers for about $2.5 million; he has been attempting to compel the United States to withhold all future subsidies to the carriers, and to recover all subsidies paid since the predatory pricing started.
After Safir's requests that the Maritime Administration take such action were rejected without satisfactory explanation, he filed an action in the Eastern District of New York to compel it. That court dismissed the case for failure to state a claim. Safir v. Gulick, 297 F.Supp. 630 (E.D.N.Y.1969). The Second Circuit Court of Appeals reversed, holding that the complaint did state a claim, that Safir had standing to bring the suit, and that the Maritime Administration could not decline to recapture past subsidies that were legally recoverable without making a considered decision to adopt that course. The court's reasoning with regard to standing, which we need neither endorse nor reject here, was that recovery of the subsidies would benefit Safir because he was a potential competitor of the AGAFBO lines and therefore stood to gain from impairment of their financial position. Safir v. Gibson, supra, 417 F.2d 972.
The Maritime Administration held a hearing, after which the hearing examiner recommended that the government recover about $10 million in subsidies paid to the four AGAFBO lines which served the same trade routes as Safir ("the trade lines"). He did not recommend full recovery because of a variety of what he considered mitigating factors. He further found that the three AGAFBO lines which did not serve the same routes as Safir ("the non trade lines") had not participated in setting the rates, had not benefited from Safir's company's demise, and had not violated Sec. 810; he therefore recommended no subsidy recovery from them. Sapphire Steamship Lines, Inc., 3 Maritime Subsidy Bd. Dec. 174 (1972).
The hearing examiner's recommended decision was modified by the Maritime Subsidy Board to reduce the amount of recovery ordered from the trade lines because it considered additional mitigating factors applicable, and because it disagreed with the examiner's views as to the types of subsidies affected by Sec. 810. The Board also held that the non trade lines, although in no way benefiting from the predatory pricing, had "technically violated" Sec. 810 by being members of the conference which had set the predatory rates. In light of the passive nature of their participation, however, the Board still felt no recovery of subsidies was appropriate. Investigation of Alleged Section 810 Violation, 3 Maritime Subsidy Bd. Dec. 128 (1973), final order on review, 14 Shipping Reg.Rep. (P & F) 77 (Maritime Subsidy Bd. 1973).
The trade lines then petitioned the Secretary of Commerce to review the Board's decision. The Secretary found that still further mitigation was appropriate, and reduced the total recovery to about $1 million. He affirmed the finding of the non trade lines' "technical violation."
Safir and the carriers appealed from the Secretary's order to the District Court for the District of Columbia, Safir requesting that the Secretary recover all the subsidies, the trade lines requesting that he recover none, and the non trade lines requesting that the finding of technical violation be reversed. Safir v. Dent, No. 74-1474 (D.D.C. Oct. 21, 1975); American Export Lines, Inc. v. Dent, No. 74-1788 (D.D.C. Oct. 21, 1975); American President Lines, Ltd. v. Dent, No. 75-0077 (D.D.C. Oct. 21, 1975). With those appeals, this circuit's involvement in the litigation commenced.
The District Court for the District of Columbia initially dismissed Safir's claim on summary judgment. It did not rule specifically on the trade lines' contention that Safir lacked standing. It stayed the carriers' action for review pending appeal of Safir's claim. No. 74-1474 (D.D.C. Oct. 21, 1975). Safir appealed, and this court, after finding that he had standing, reversed the summary judgment and remanded the case to the district court. Safir v. Kreps, supra, 551 F.2d 447. On remand, the district court decided both Safir's and the carriers' claims. It upheld the Secretary's determination that the non trade lines had technically violated Sec. 810, but struck down most of the Secretary's order, finding that the reasons for mitigating the subsidy recoveries from the trade lines were not supported by substantial evidence on the record as a whole. Instead, the court adopted the hearing examiner's recommended decision ordering the $10 million recovery. Safir v. Klutznick, 526 F.Supp. 921 (D.D.C.1981). The trade lines then moved for relief from the judgment under Federal Rule of Civil Procedure 60(b) on the ground that Safir lacked standing. The court denied that motion. Both Safir and the carriers have again appealed.
We deal first with Safir's appeal. We do not reach the merits, because we have...
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