United States Court of Appeals, District of Columbia Circuit
April 12, 2018
Petition for Review of Decision and Order of the Maritime
A. Perry argued the cause for petitioner. With him on the
briefs was Rachel S. Brass.
B. Ross, Attorney, U.S. Department of Justice, argued the
cause for respondents. With him on the briefs were Jessie K.
Liu, U.S. Attorney, Matthew M. Collette, Attorney, Steven G.
Bradbury, General Counsel, U.S. Department of Transportation,
Paul M. Geier, Assistant General Counsel for Litigation and
Enforcement, Joy Park, Senior Trial Attorney, and Joseph O.
T. Burgess argued the cause for intervenors. With him on the
brief were William M. Jay, Robert T. Basseches, and Gerard J.
Before: Rogers, Griffith, and Millett, Circuit Judges.
Rogers, Circuit Judge.
Navigation Company, Inc., a competitor of APL Marine
Services, Ltd., and APL Maritime, Ltd. (together,
"APL"), petitions for review of three orders of the
Maritime Administration approving APL's requested
replacement vessels in the Maritime Security Fleet. For the
following reasons, we dismiss the petition for review for
lack of jurisdiction under 28 U.S.C. § 2342.
Maritime Security Fleet, established by the Secretary of
Transportation, in consultation with the Secretary of
Defense, is to consist of "active, commercially viable,
militarily useful, privately owned vessels to meet national
defense and other security requirements and maintain a United
States presence in international commercial shipping."
46 U.S.C. § 53102(a). The Fleet is a part of the
Merchant Marine "necessary for the national defense and
the development of the domestic and foreign commerce."
Id. § 50101(a). It is "owned and operated
as vessels of the United States by citizens of the United
States." Id. § 50101(a)(3). Fleet vessels
must be covered by a Maritime Security Program Operating
Agreement with the owner or operator. Id. §
53103(a). The owner or operator, known as a
"contractor," must meet citizenship requirements
and, in turn, can receive operating subsidies for its
vessels. Id. §§ 53101(2), 53102(b) &
(c), 53105(b). As relevant here, "[a] contractor may
replace a vessel under an operating agreement with another
vessel that is eligible to be included in the Fleet under
section 53102(b), if the Secretary, in conjunction with the
Secretary of Defense, approves the replacement of the
vessel." Id. § 53105(f).
Maritime Security Program ("MSP") is administered
by the Maritime Administration ("MARAD").
See 46 C.F.R. § 296.1. MARAD regulations
A Contractor who disagrees with the findings, interpretations
or decisions of the Maritime Administration or the
Contracting Officer with respect to the administration of
this part or any other dispute or complaint concerning MSP
Operating Agreements may submit an appeal to the
Administrator . . . within 60 days following the date of the
document notifying the Contractor of the administrative
determination . . . . Such an appeal is a prerequisite to
exhausting administrative remedies.
Id. § 296.50(a). The regulations state a
"contractor" refers to "the owner or operator
of a vessel that enters into an MSP Operating Agreement for
the vessel with the Secretary of Transportation (acting
through MARAD)." Id. § 296.2.
after reviewing its "total network of U.S. flag
operations," requested MARAD on December 4, 2014, to
approve, with regard to APL reinstating its U.S.-Guam
shipping service, replacement of two "S-12"
vessels, pursuant to 46 U.S.C. § 53105(f). Letter from
Eric L. Mensing, Chief Executive Officer of APL, to Paul N.
Jaenichen, Sr., MARAD Administrator at 1, 3 (Dec. 4, 2014).
The vessels were covered under MSP Operating Agreements but
no longer met the eligibility requirements in 46 U.S.C.
§ 53102(b) on "commercial viability" or
requirements in the Operating Agreements on "militarily
useful capability." Id. at 1. APL sought their
replacement by two smaller "feeder" vessels that
met those requirements, and sought MARAD's approval
before proceeding with acquisition and U.S. flagging. After
receiving approval in principle by MARAD and the U.S.
Transportation Command, provided the replacement vessels met
all MSP requirements, APL requested, ...