Watervale Marine Co., Ltd. v. United States Department of Homeland Security

• Court: District Court, District of Columbia
• Decided: July 18, 2014
• Docket: Civil Action No. 2012-0105
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) WATERVALE MARINE CO., LTD., as ) owner of the M/V AGIOS EMILIANOS, ) et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 12-cv-0105 (KBJ) ) UNITED STATES DEPARTMENT OF ) HOMELAND SECURITY, et al., ) ) Defendants. ) )

MEMORANDUM OPINION

This case presents an issue of first impression regarding the United States Coast

Guard’s statutory authority to impose non-financial conditions for the release of a

foreign-flagged vessel that the agency has detained at a United States port due to

suspected violations of federal and international environmental law. Plaintiffs in this

case are the owners and operators of four foreign-flagged merchant vessels that the

Coast Guard held at United States ports for investigation of criminal violations and later

released, but only after Plaintiffs had each posted a bond and executed a “security

agreement” that contained various non-financial conditions. By their complaint filed on

January 23, 2012 (Compl., ECF No. 1), Plaintiffs have brought this action against the

Coast Guard and the United States Department of Homeland Security (“DHS”)

(collectively, “Defendants”) under the Administrative Procedure Act (“APA”), 5 U.S.C.

§§ 701-706 (2014), challenging the non-financial security agreements that the Coast

Guard required them to execute as a condition of their ships’ departure clearance on the

1 ground that the Coast Guard lacked statutory authority to require any such condition

prior to releasing the vessels. (Id. ¶¶ 107-114.)

Before this Court at present are Defendants’ motion for summary judgment (U.S.

Mot. for Summ. J. (“U.S. Mot.”), ECF No. 13) and Plaintiffs’ cross-motion for

summary judgment (Pls.’ Cross-Mot. for Summ. J. (“Pls.’ Mot.”), ECF No. 16).

Plaintiffs ask the Court to vacate the security agreements and to enjoin the Coast Guard

from demanding anything other than a bond or financial surety as a condition of

departure clearance in the future. (Pls.’ Resp. in Opp’n to the Defs.’ Mot. for Summ. J.

& Pls.’ Cross-Mot. for Summ. J. (“Pls.’ Mem.”), ECF No. 16-1, at 40-41.) Defendants

argue that the exercise of the Coast Guard’s discretion to require Plaintiffs to execute

non-financial security agreements is nonjusticiable, and in any event, the security

agreements were entirely proper as a matter of law. (U.S. Mem. in Supp. of its Mot. for

Summ. J. (“U.S. Mem.”), ECF No. 13-1, at 2-3.)

This Court has now considered the cross-motions, the oppositions thereto, and

several rounds of supplemental briefing. 1 Because this Court agrees with Defendants

that section 1908(e) of Title 33 of the U.S. Code commits entirely to the agency’s

discretion the matter of when and under what circumstances the Coast Guard may grant

departure clearance to a vessel detained under that statute, the Court concludes that the

1 In addition to the summary judgment motions, the parties in this matter have filed notices of supplemental authority and responses thereto. (See Pls.’ Suppl. Stmt. of P&A (“Pls.’ Angelex I Suppl.”), ECF No. 24; U.S. Resp. in Opp’n to Pls.’ Offer of the Angelex Decision as Persuasive Auth. (“U.S. Angelex I Resp.”), ECF No. 25; U.S. Notice of Filing Suppl. Auth. (“U.S. Angelex II Notice”), ECF No. 26; Pls.’ Resp. to Defs.’ Notice of Suppl. Auth. (“Pls.’ Angelex II Resp.”), ECF No. 27; U.S. Notice of Filing Suppl. Auth. (“U.S. Monarch Shipping Notice”), ECF No. 28; Pls.’ Resp. to Defs.’ Notice of Suppl. Auth. (Pls.’ Monarch Shipping Resp.”), ECF No. 29.) This Court also requested additional supplemental briefing on a particular question of law, which the parties briefed in full. (See U.S. Suppl. Br., ECF No. 30; Pls.’ Mem. in Resp. to the Court’s Minute Order Dated April 25, 2014, Requesting Suppl. Briefing (“Pls.’ Suppl. Br.”), ECF No. 31; U.S. Reply (“U.S Suppl. Reply”), ECF No. 34; Pls.’ Resp. to the Defs.’ Suppl. Mem. Dated May 30, 2014 (“Pls.’ Suppl. Reply”), ECF No. 35.)

2 Coast Guard’s decision to require the challenged security agreements is nonjusticiable.

Therefore, as set forth in the separate order accompanying this opinion, the Defendants’

motion for summary judgment will be GRANTED, and Plaintiffs’ cross-motion for

summary judgment will be DENIED.

BACKGROUND FACTS

The underlying facts are not in dispute. Plaintiffs are the owners and operators

of four foreign-flagged oceangoing bulk carriers: the M/V AGIOS EMILIANOS

(“Agios Emilianos”), the M/V STELLAR WIND (“Stellar Wind”), the M/V GAURAV

PREM (“Gaurav Prem”), and the M/V POLYNEOS (“Polyneos”) (collectively,

“Plaintiffs’ vessels”). (Compl. ¶¶ 13, 24, 34, 43.) 2 Plaintiffs’ vessels periodically dock

at U.S. ports to offload or obtain cargo. (See id. ¶¶ 21, 31, 41, 50; U.S. Mem. at 2,

8-9.) At various times between April and September of 2011, Coast Guard inspectors

boarded Plaintiffs’ vessels to investigate alleged violations of the Act to Prevent

Pollution from Ships (“APPS”), 33 U.S.C. §§ 1901-1915 (2014)—alleged violations

that whistleblowers on board each ship had reported to Coast Guard authorities.

(Compl. ¶¶ 14, 25, 35, 44.)

The Act To Prevent Pollution From Ships

The APPS is a federal statute that implements an international maritime treaty

the goal of which is “to achieve the complete elimination of intentional pollution of the

marine environment by oil and other harmful substances and the minimization of

2 Defendants have compiled an administrative record for each vessel, and in this opinion, the administrative record for each vessel will be referred to as AR [name of vessel] [Bates number]. As reflected in the record, Plaintiffs’ four vessels each fly the flag of a different country: the Agios Emilianos is from Cyprus (AR Agios 000066); the Stellar Wind is from Liberia (AR Stellar Wind 000090); the Gaurav Prem is from Panama (AR Gaurav Prem 000047); and the Polyneos is from the Marshall Islands (AR Polyneos at 000091).

3 accidental discharge of such substances.” See Wilmina Shipping AS v. U.S. Dep’t of

Homeland Sec. (Wilmina Shipping II), 934 F. Supp. 2d 1, 6 (D.D.C. 2013) (quoting

United States v. Pena, 684 F.3d 1137, 1142 (11th Cir. 2012)); see also 33 U.S.C.

§ 1901(a)(4). The treaty, which the United States entered into along with other foreign

nations, is called the International Convention for the Prevention of Pollution from

Ships and is commonly known as “MARPOL” or the “MARPOL Protocol.” Among

MARPOL’s provisions are two requirements relevant to the case at bar: (1) that a

vessel may only discharge oily water at sea if special equipment is used to contain most

of the oil; and (2) that vessels are required to record all oil transfers and discharges in

an oil record book that must be made available for the government to inspect. See

Wilmina Shipping II, 934 F. Supp. 2d at 6-7 (citing United States v. Ionia Mgmt., S.A.,

555 F.3d 303, 306-07 (2d Cir. 2009)). Notably, the MARPOL Protocol is not self-

executing; therefore, each signatory nation must implement the treaty by establishing

rules that, among other things, sanction ships that violate any of MARPOL’s provisions.

See id. at 6.

The United States enacted the APPS in 1980 to implement MARPOL. The

“APPS authorizes the Secretary [of DHS] to administer and enforce MARPOL and to

issue regulations to implement the treaty’s requirements.” Id. at 7 (citing 33 U.S.C.

§ 1903(a), (c)(1); 33 C.F.R. § 151.01 (2014); see also United States v. Sanford Ltd., 880

F. Supp. 2d 9, 11-12 (D.D.C. 2012). Under the APPS, “[i]t is unlawful to act in

violation of the MARPOL Protocol . . . or the regulations issued thereunder.” 33 U.S.C.

§ 1907(a); see also id. § 1908(a) (“A person who knowingly violates the MARPOL

Protocol . . . commits a class D felony.”). Among the various activities that constitute a

4 knowing violation of MARPOL for the purpose of the APPS or its regulations is the

keeping or maintaining of a false oil record book. See id. § 1908(b)(2); 33 C.F.R.

§ 151.25 (requiring vessels to maintain oil record books and to monitor and record all

oily discharge). Maintaining a false oil record book is a criminal felony and may also

give rise to civil liability. See, e.g., Sanford, 880 F. Supp. 2d at 11 (individual

defendants charged with seven felony counts under the APPS including maintaining a

false oil record book); 33 U.S.C. § 1908(b) (setting forth the amount of fines that

individuals must pay when found civilly liable for violations of MARPOL).

Under the APPS as well as certain other statutes, the Coast Guard is authorized

to board and inspect ships that are docked at ports in the United States in order to detect

potential violations of the APPS, MARPOL, and other environmental laws. 33 C.F.R.

§ 151.23(a); see also 14 U.S.C. § 89 (2014) (authorizing Coast Guard officers to board

and inspect ships at ports). Pursuant to 46 U.S.C. § 60105(b) (2014), a foreign-flagged

ship must obtain departure clearance from Customs and Border Protection (“Customs”)

before it may depart a U.S. port, and under the APPS, government authorities are

required to withhold such clearance for established or suspected APPS violations. See

33 U.S.C. § 1908(e). Moreover, federal officials have statutory authority to grant

departure clearance for ships previously detained “upon the filing of a bond or other

surety satisfactory to the Secretary.” Id. Specifically, the APPS provides:

If any ship subject to the MARPOL Protocol . . . is liable for a fine or civil penalty under this section, or if reasonable cause exists to believe that the ship, its owner, operator, or person in charge may be subject to a fine or civil penalty under this section, the Secretary [of DHS] shall refuse or revoke the clearance required by section 60105 of Title 46. Clearance may be granted upon the filing of a bond or other surety satisfactory to the Secretary.

5 Id. (emphasis added). 3

The Detention And Release Of Plaintiffs’ Vessels

Beginning in the spring of 2011, the Coast Guard received various whistleblower

complaints alleging that Plaintiffs’ vessels had falsified oil record books, and the

agency determined that it had reasonable cause to believe that the vessels’

crewmembers had violated the APPS. Accordingly, pursuant to section 1908(e) of the

APPS, the Coast Guard ordered that Customs withhold the vessels’ departure clearance

from ports in New Orleans, Louisiana (Agios Emilianos and Stellar Wind and Polyneos)

and in Mobile, Alabama (Gaurav Prem). (Compl. ¶¶ 16, 27, 37, 46.) Customs complied

with the Coast Guard’s order and withheld the vessels’ departure clearance. (Id. ¶¶ 17,

28, 38, 47; see, e.g., AR Agios Emilianos 000043 (letter from Customs to Agios

Emilianos indicating clearance was being withheld because the vessel was believed to

be subject to a fine or penalty).) 4 The absence of departure clearance prevented

Plaintiffs’ vessels from leaving the ports and returning to business at sea, a state of

affairs that imposed significant costs on the vessel owners. The costs that resulted

directly from the denial of departure clearance included “losing daily charter hire [and]

3 The statute vests discretion to grant clearance with the Secretary of the department in which the Coast Guard operates, which is DHS. See Angelex Ltd. v. United States (Angelex II), 723 F.3d 500, 502 (4th Cir. 2013); Giuseppe Bottiglieri Shipping Co. S.P.A. v. United States, 843 F. Supp. 2d 1241, 1244 n.4 (S.D. Ala. 2012). The Secretary of DHS delegates this discretion to the Coast Guard. 33 C.F.R. § 151.07; see also Angelex Ltd. v. United States (Angelex I), No. 2:13cv237, 2013 WL 1934490, at *7 (E.D. Va. May 8, 2013), rev’d, 723 F.3d 500 (4th Cir. 2013). 4 Customs and the Coast Guard are both divisions of DHS, and Congress apparently intended for these agencies to work together in enforcing international and environmental law with respect to foreign sea- going vessels. See Arnold W. Reitze, Jr., Criminal Enforcement of Pollution Control Laws, 9 Envtl. Law. 1, 19 (Sept. 2002) (noting that “[o]ften, two or more federal agencies[,]” including Customs and the Coast Guard, “jointly work environmental crime investigations”); see also United States v. Gonzalez, 688 F. Supp. 658, 665 (D.D.C. 1988) (describing how Customs and the Coast Guard “have long worked together to enforce American laws” based on the legislative history of their governing statutes and their “long mutual relationship”).

6 delaying cargo vital to commerce,” and also “costs for wharfage, bunkers for auxiliary

power, crew wages and maintenance, provisions, insurance, local agents expenses and

port charges[.]” (Compl. ¶¶ 21, 31, 41, 50.) Moreover, the vessel owners incurred

these additional expenses on top of the threat of significant and substantial breach of

contract claims from the charterers of the vessels. (Pls.’ Mem. at 8 & n.22.)

Plaintiffs’ ships were held at port subject to the Coast Guard’s APPS

investigation for a period of time that ranged between a few days and three weeks,

depending on the vessel. 5 At some point during this period of detention, the vessel

owners entered into negotiations with the Coast Guard, which sought both the posting

of a monetary bond and also the execution of a contract—titled a “Security

Agreement”—that imposed various non-financial conditions that the Coast Guard

Headquarters in Washington, D.C. had selected. (Compl. ¶¶ 19, 20, 29, 39, 48.)

One version of the required security agreement is reproduced in the Appendix to

this opinion; the terms of that agreement were substantially similar for each of the four

vessels. (See AR Agios 000035-42 (reprinted in the Appendix to this opinion)

[hereinafter “Appendix”]; AR Gaurav Prem 000024-30; AR Polyneos 000016-23; AR

Stellar Wind 000045-54.) For example, each security agreement required that specific,

listed crewmembers “remain within [ ] the jurisdiction” while the Coast Guard’s APPS

5 The Coast Guard ordered Customs to revoke the Agios Emilianos’s departure clearance on April 27, 2011, and conditional departure clearance was granted on May 7, 2011. (AR Agios 000031.) The Coast Guard ordered Customs to revoke the Stellar Wind’s departure clearance on September 15, 2011, and conditional departure clearance was granted on September 20, 2011. (AR Stellar Wind 000022, 000031.) The Coast Guard ordered Customs to revoke the Gaurav Prem’s departure clearance on September 26, 2011, and conditional departure clearance was granted on October 4, 2011. (AR Gaurav Prem 000021, 000030.) Finally, the Coast Guard ordered Customs to revoke the Polyneos’s departure clearance on October 26, 2011, and conditional departure clearance was granted on November 17, 2011. (AR Polyneos 000013, 000023.)

7 investigation was pending. (Appendix § 3.) Under the terms of the agreement, the

owners and operators of each vessel also agreed to take the following actions:

• pay wages, housing, and transportation costs, along with a per diem for

those crew members that remain in the jurisdiction and facilitation of their travel for

court appearances (id. §§ 2-3, 5c-d);

• encourage the crew to cooperate with the government’s criminal

investigation (id. § 2);

• maintain the employment of the crew members that remain in the

jurisdiction (id.);

• arrange for repatriation of crew members once they leave the United

States (id. § 3);

• hold the crew members’ passports for safekeeping and notify the

government if any crew member requests return of his passport (id. § 3);

• stipulate to the authenticity of documents and items seized from the vessel

(id. § 8);

• help the government serve subpoenas on foreign crew members located

outside of the United States (id. § 2);

• waive objections to both in personam and in rem jurisdiction (id. § 10);

and

• enter an appearance in federal district court (id. § 11).

In addition, the agreement set forth the particular conditions under which the posted

surety bond would be paid out to the United States. (Id. § 1.) In short, the agreement

provided that the surety bond would be paid to the United States if the federal

8 government prevails in a subsequent prosecution and a judgment is entered against the

Plaintiffs; otherwise, the full amount would be remitted to the payor. (See id.)

Unlike other vessel owners in similar circumstances who have filed emergency

petitions in federal court while their ships are still detained, seeking to have a judge set

the terms of release, see, e.g., Giuseppe Bottiglieri Shipping Co. S.P.A. v. United States,

843 F. Supp. 2d 1241, 1242-43 (S.D. Ala. 2012), the Plaintiffs in the instant matter

posted the bond amounts as the Coast Guard required and also executed the security

agreements. (Compl. ¶¶ 21-22, 31-32, 41, 50-51; see also AR Agios Emilianos 000035;

AR Gaurav Prem 000024; AR Polyneos 000016-17; AR Stellar Wind 000025.) 6 The

Coast Guard then directed Customs to grant departure clearance to the vessels. (AR

Agios Emilianos 000030; AR Gaurav Prem 000019; AR Polyneos 000011; AR Stellar

Wind 000042.)

After the vessels were released, Plaintiffs initiated the Coast Guard’s

administrative appeals process in order to challenge the agency’s requirement of the

security agreements as a condition of release. (Compl. ¶¶ 71, 78, 83, 86, 89.) The

Coast Guard’s administrative appeal process has four stages: (1) a request for

reconsideration at the Coast Guard Sector level; (2) appeal to the District Commander;

(3) appeal to the Area Commander; and (4) appeal to the Coast Guard Assistant

Commandant for Prevention. (Id. ¶¶ 71-76 (citing 46 C.F.R. § 1.03 and 33 C.F.R.

§ 160.7).) At the time Plaintiffs filed the instant complaint in federal court, all of

Plaintiffs’ requests for reconsideration (the first step in the appeals process) with

6 The amount of the bond that was posted for each vessel varied: the Coast Guard required a monetary bond of $1,125,000 for both the Agios Emilianos and the Polyneos (Compl. ¶¶ 22, 51; AR Agios Emilianos 000032; AR Polyneos 000014); and $500,000 for the Stellar Wind and the Gaurav Prem (Compl. ¶¶ 32, 41; AR Stellar Wind 000023; AR Gaurav Prem 000022).

9 respect to each of the four vessels had been denied. (Id. ¶¶ 78, 83, 86, 89.) The

administrative appeal for the Agios Emilianos was pending before the Area Commander

(the third step in the procedure). (Id. ¶ 81.) And the appeals for the three other vessels

were pending before the District Commander (the second step in the process). (Id.

¶¶ 84, 87, 90.) In the meantime, the Coast Guard moved forward with its criminal

prosecutions, which ultimately resulted in pleas of guilty regarding various MARPOL

violations and fines ranging from $300,000 to $2 million. See Plea Agreement, United

States v. Ilios Shipping Co. S.A., Crim. Case No. 11-286 (E.D. La. Dec. 13, 2011), ECF

No. 16 ($2,000,000 fine for the Agios Emilianos); Plea Agreement, United States v.

Target Ship Mgmt. PTE, Ltd., No. 11-cr-368 (S.D. Ala. May 29, 2012), ECF No. 249;

Plea Agreement, United States v. Odysea Carriers, S.A., Crim. No. 12-105 (E.D. La.

March 8, 2012), ECF No. 18; United States v. Cleopatra Shipping Agency, Ltd., Crim.

No. 12-102 (M.D. La. Sept. 11, 2012), ECF No. 11.

Procedural History

Plaintiffs commenced this action on January 23, 2012. The complaint contains

only one count that is captioned “The Coast Guard Lacks [ ] Statutory Authority to

Demand the Terms Extracted from the Plaintiffs in the Security Agreement.” (See

Compl. at 27.) In that count, Plaintiffs allege that “the Defendants purport to rely on

the APPS, specifically 33 U.S.C. § 1908(e)[,]” as the basis for “demanding the terms in

the Security Agreements,” but that statute “does not authorize the Coast Guard to

demand anything more than the posting of a bond or other financial surety in order to

grant a vessel Customs clearance to depart the United States.” (Id. ¶¶ 108, 109

(emphasis in original).) Consequently, according to the complaint, “[t]here is no

10 statutory basis or legal authority for the Defendants to demand . . . [the] fundamentally

unfair and objectionable terms [of the Security Agreement] as a condition of releasing a

vessel under 33 U.S.C. § 1908(e).” (Id. ¶ 111; see also id. ¶ 110 (asserting that “33

U.S.C. § 1908(e) neither requires nor authorizes the Defendants to condition release of

the vessel upon the Plaintiffs agreeing to forfeit constitutionally protected rights, or

assume any other financial obligations other than the obligation to post a bond or other

monetary security to assure payment of any potential fine or penalty”).) Citing the

APA, the complaint proceeds to allege that the Coast Guard used “economic coercion to

force the Plaintiffs to accept the[ir] terms and conditions” (id. ¶ 112), and that the

agency also improperly “require[d] the Plaintiffs to bear the costs of their own

prosecution” without statutory authority to do so (id. ¶ 113), in manner that was “(A)

arbitrary, capricious, an abuse of discretion, [and] otherwise not in accordance with

law”; “(B) contrary to [their] constitutional right, power, privilege, or immunity”; and

“(C) in excess of [the Coast Guard’s] statutory jurisdiction, authority, or limitations, or

short of statutory right.” (Id. ¶¶ 112, 113, 114 (quoting 5 U.S.C. § 706 (internal

quotation marks omitted) (alterations in complaint)).) The complaint concludes with a

request that, among other things, this Court both “[v]acate the Security Agreements

forced upon the Plaintiffs by the Defendants as an arbitrary and capricious abuse of

power” and “enjoin the Coast Guard from demanding anything more than a surety bond

or other financial surety for the granting of a departure clearance for any vessel”

detained for suspected violations of environmental law. (Id. at 29.)

In their motion for summary judgment, Defendants argue that the Coast Guard

has complete discretion under section 1908(e) to choose the type of “surety” that is

11 required for the release of a detained vessel, and that this discretion extends to the

selection of a non-financial security agreement. (U.S. Mem. at 21.) Furthermore,

Defendants maintain that because the release determination is committed solely to

agency discretion by law, this Court lacks authority to consider Plaintiffs’ challenge to

the conditions imposed here. (Id. at 18-21.) Plaintiffs have cross-moved for summary

judgment, conceding that there are no genuine issues of fact and seeking a ruling on the

legal questions underlying this matter. (Pls.’ Mem. at 4 n.3.)

DISCUSSION

The question before this Court at present is whether the Coast Guard exceeded

its statutory authority when it conditioned the release of Plaintiffs’ vessels on the

posting of a bond and also the execution of security agreements that contained various

non-financial terms. As mentioned above, the relevant statutory provision states that

“[c]learance may be granted upon the filing of a bond or other surety satisfactory to the

Secretary” of the Department of Homeland Security. 33 U.S.C. § 1908(e). The

meaning of this provision is a question of first impression in the context presented here,

and as a threshold matter, Defendants vigorously maintain that the question must

remain unanswered because this Court does not have the authority to address it. In

Defendants’ view, this Court cannot consider Plaintiffs’ challenge to the Coast Guard’s

practice of requiring non-financial security agreements because the agency’s decision to

release detained vessels pursuant to section 1908(e) fits into the narrow category of

legal issues that are fully committed to agency discretion by law and are thus

effectively nonjusticiable. (U.S. Mem. at 18.) Consequently, before diving into the

merits of Plaintiffs’ contention that Defendants have misinterpreted and misapplied the

12 statute, this Court must first evaluate whether the Coast Guard’s action is reviewable.

Only if that determination is answered in the affirmative can the Court proceed to

consider Plaintiff’s substantive arguments regarding the proper interpretation and

application of section 1908(e).

I. LEGAL STANDARDS

A. Jurisdiction And Reviewability

The starting point for an evaluation of this Court’s authority to review the claims

in any complaint is confirmation that the Court has subject matter jurisdiction over the

dispute. See Loughlin v. United States, 393 F.3d 155, 170 (D.C. Cir. 2004) (“[S]ubject

matter jurisdiction is, of necessity, the first issue for an Article III court.” (internal

quotation marks and citation omitted)). The complaint alleges three alternative bases

for subject matter jurisdiction—(1) 28 U.S.C. § 1331 (2014) (federal question); (2) 5

U.S.C. §§ 701-706 (APA); and (3) 28 U.S.C. § 1333 (admiralty jurisdiction). (See

Compl. ¶ 11). 7 It is uncontested that this case at least presents a federal question

regarding whether the Coast Guard has misinterpreted and misapplied the statutory

provision that authorizes the detention and release of vessels, in violation of the APA.

(See U.S. Mem. at 16 (acknowledging that Plaintiffs were “correct to rely on federal

question jurisdiction” in this case).) Thus, the parties maintain, and this Court agrees,

that the Court has subject matter jurisdiction over the instant dispute. See 28 U.S.C.

§ 1331; see also Oryszak v. Sullivan, 576 F.3d 522, 524-25 (D.C. Cir. 2009) (noting that

7 Plaintiffs have conceded that jurisdiction based on a federal question and jurisdiction based upon the APA are one and the same, because jurisdiction for APA purposes is based on the underlying federal statute the agency is alleged to have violated; here, the APPS. (Pls.’ Mem. at 11-12.) See Oryszak v. Sullivan, 576 F.3d 522, 524-25 (D.C. Cir. 2009) (jurisdiction does not stem from the APA, which is not a jurisdiction-conferring statute, but from the underlying federal question); Gallucci v. Chao, 374 F. Supp. 2d 121, 128 (D.C. Cir. 2005) (same) (citing Califano v. Sanders, 430 U.S. 99, 107 (1977)).

13 a district court will have subject matter jurisdiction over an APA claim pursuant to the

“federal question” statute (citation omitted)); see, e.g., Sullivan v. Murphy, 478 F.2d

938, 960 n.33 (D.C. Cir. 1973) (declining to address a second potential basis for

jurisdiction having already found another). 8

Significantly, the fact that this Court has subject matter jurisdiction over

Plaintiffs’ APA claim does not fully resolve the instant disagreement regarding whether

this Court can review that claim. This is because the APA only provides a cause of

action under limited circumstances, and regardless of the scope of the court’s

jurisdiction, a particular alleged violation of the APA may nevertheless be

nonjusticiable. According to Black’s Law Dictionary, a “justiciable” claim is one that

is “properly brought before a court of justice” or “capable of being disposed of

judicially[,]” Black’s Law Dictionary 997 (10th ed. 2014), and a “nonjusticiable” claim

is one that is “[n]ot proper for judicial determination[,]” id. at 1078. Accordingly, in

this circuit, the justiciability issue is analyzed apart from jurisdiction, as a question of

whether or not a claim is of the type that can be brought in federal court, rather than

8 Notably, because the Coast Guard here required Plaintiffs to execute non-financial security agreements and the Plaintiffs did so, thereafter challenging the Coast Guard’s requirements in a series of administrative appeals, the two well-established prerequisites to the Court’s exercise of subject matter jurisdiction—final agency action and exhaustion of administrative remedies—have been met. These circumstances not only establish jurisdiction but also distinguish the instant case from similar departure-clearance cases that have been brought before other federal courts. Every other similar challenge to the departure clearance conditions imposed by the Coast Guard was brought before there was final agency action—i.e., while the ships were still being detained—therefore, among other things, prior courts have concluded that such cases were not reviewable because there was no subject matter jurisdiction. See, e.g., Nimmrich & Prahm Reederei Gmbh & Co. KG MS Sonja v. United States, 925 F. Supp. 2d 850, 855 (S.D. Tex. 2012) (finding no jurisdiction because, inter alia, there was no final agency action given that the Coast Guard had yet to impose release conditions and the plaintiffs sought the court’s intervention in the ongoing negotiations between the parties); Wilmina Shipping AS v. United States (Wilmina Shipping I), 824 F. Supp. 2d 749, 751 (same); see also Order of Dismissal, Lantra Shipping Ltd. v United States, No. 4-11-cv-4637 (S.D. Tex. May 4, 2012), ECF No. 17 (granting voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1) where the parties reached a settlement agreement regarding the conditions of release).

14 whether the federal court has jurisdiction to consider it. See Sierra Club v. Jackson,

648 F.3d 848, 854 (D.C. Cir. 2011); Oryszak, 576 F.3d at 526.

As far as the justiciability of challenges to agency action is concerned, there is a

statutory presumption in favor of judicial review of the decisions of administrative

agencies. See 5 U.S.C. § 704; see also Abbott Labs. v. Gardner, 387 U.S. 136, 140

(1967). However, the APA establishes two circumstances under which this

reviewability presumption is overcome: first, if the particular statute that the agency

allegedly has violated expressly precludes judicial review, 5 U.S.C. § 701(a)(1), and

second, if the challenged agency action concerns a matter that is otherwise “committed

to agency discretion by law,” id. § 701(a)(2); see also Sierra Club, 648 F.3d at 854-55.

Defendants argue that the challenged action here concerns such a “committed” matter,

and thus that Plaintiffs’ claim is nonjusticiable under section 701(a)(2) of the APA.

(U.S. Mem. at 19; U.S. Reply to Pls.’ Resp. to its Mot. for Summ. J. (“U.S. Reply”),

ECF No. 18, at 11.) An examination of the circumstances under which courts have

concluded that a matter is “committed to agency discretion by law” for the purpose of

section 701(a)(2) is crucial to an understanding and evaluation of Defendant’s non-

justiciability argument.

B. The Meaning Of “Committed To Agency Discretion By Law”

It is well established that the exception set forth at section 701(a)(2) of the APA

regarding matters that are “‘committed to agency discretion by law’ is a ‘very narrow’

one.” Hi-Tech Furnace Systs., Inc. v. FCC, 224 F.3d 781, 788 (D.C. Cir. 2000)

(quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971)). The

Supreme Court has identified only two related scenarios in which this exception

15 applies: (1) in “those rare instances where statutes are drawn in such broad terms that

in a given case there is no law to apply[,]” Overton Park, 401 U.S. at 410 (internal

quotation marks omitted); and (2) when “the statute is drawn so that a court would have

no meaningful standard against which to judge the agency’s exercise of discretion[,]”

Heckler v. Chaney, 470 U.S. 821, 830 (1985). “Agency actions in these circumstances

are unreviewable because the courts have no legal norms pursuant to which to evaluate

the challenged action, and thus no concrete limitations to impose on the agency’s

exercise of discretion.” Sierra Club, 648 F.3d at 855 (internal citation and quotation

marks omitted).

Neither the D.C. Circuit nor any other court has previously decided whether the

departure clearance conditions that the Coast Guard imposes under 33 U.S.C. § 1908(e)

are “committed to agency discretion by law” in the precise context that has arisen here.

All other courts that have addressed this statutory provision have done so under

markedly different circumstances; that is, they have considered plaintiff vessel owners’

emergency motions requesting that the court step into the shoes of Coast Guard officials

and not only select the terms of the “bond or other surety” but also order the vessels’

release. See supra n.8; see also, e.g., Angelex Ltd. v. United States (Angelex II), 723

F.3d 500, 503 (4th Cir. 2013); Monarch Shipping Co., Ltd. v. United States, No. 13-

80661, 2013 WL 5741836, at *1 (S.D. Fla. Aug. 15, 2013); Giuseppe Bottiglieri, 843 F.

Supp. 2d at 1246; Order, First Bus. Shipping Corp. v. United States, No. 06-cv-802,

(M.D. Fla. June 14, 2006), ECF No. 8. And even in those distinct circumstances, while

considering the plaintiffs’ emergency petitions, only two courts have reached the issue

of justiciability. See Angelex Ltd. v. United States (Angelex II), 723 F.3d at 502 (4th

16 Cir. 2013); Giuseppe Bottiglieri Shipping Co. S.P.A. v. United States, 843 F. Supp. 2d

1241, 1249 (S.D. Ala. 2012). In both of these cases, the courts determined that review

was precluded because setting the bond terms and ordering departure clearance are

matters that are committed to agency discretion by law. See Angelex II, 723 F.3d at 506

(“Because the action that occurred in this case is explicitly committed to the discretion

of the Coast Guard pursuant to APPS, we conclude that this matter was

unreviewable[.]” (reversing Angelex Ltd. v. United States (Angelex I), No. 2:13cv237,

2013 WL 1934490, at *1 (E.D. Va. May 8, 2013))); see also Giuseppe Bottiglieri, 843

F. Supp. 2d at 1249 (“Congress expressly afforded the Coast Guard virtually unfettered

latitude to decide whether or not to grant clearance, and if so, what terms of ‘bond or

other surety’ would be ‘satisfactory’ to it.”). 9

1. The Fourth Circuit’s Opinion In Angelex

The Fourth Circuit is, to date, the only court of appeals to have considered the

justiciability of the conditions of departure clearance that the Coast Guard imposes

under section 1908(e). Angelex involved an emergency petition filed in the Eastern

District of Virginia by a vessel (the Pappadakis, in rem) and its owner (Angelex Ltd.

(“Angelex”), in personam) seeking immediate release of the vessel or, in the

alternative, asking the district court to set the amount of bond appropriate for release.

723 F.3d at 503. The Pappadakis had come to port at Norfolk, Virginia, and Coast

Guard officers who boarded the ship for routine inspection found reason to believe that

9 Incidentally, both the Fourth Circuit, in Angelex, and the Southern District of Alabama, in Giuseppe Bottiglieri, collapsed the subject matter jurisdiction and reviewability questions into a single analysis. See Angelex II, 723 F.3d at 506; Giuseppe Bottiglieri, 843 F. Supp. 2d at 1249. By contrast, as noted above, the D.C. Circuit requires that reviewability be addressed separate and apart from jurisdiction, see Sierra Club, 648 F.3d at 853, and also requires a searching assessment of the reviewability issue, as will be discussed more fully below.

17 the crew members had been operating the vessel in violation of MARPOL and the APPS

because, among other things, the crew had failed to maintain an accurate oil record

book. Id. The Coast Guard instructed Customs to withhold the Pappadakis’s departure

clearance pursuant to 33 U.S.C. § 1908(e), and the parties began negotiating what kind

of “bond or other surety” would be required for the Pappadakis’s release. Id. After

several days of negotiating, the parties reached an impasse: the Coast Guard demanded

a $2.5 million bond along with a security agreement containing various non-monetary

obligations, and the vessel owner refused to comply with those conditions. Id.

The vessel owner then filed an emergency petition asking the federal district

court to fix a lower bond amount than the parties had considered and to order the Coast

Guard to release the vessel straight away upon the posting of that bond. Id. at 504. The

government argued that the court lacked jurisdiction to review the Coast Guard’s action

because the agency’s release terms were nonjusticiable. See id. Conflating jurisdiction

and justiciability, the district court concluded that it had subject matter jurisdiction

based on the APA because the matter was not committed to agency discretion by law, or

in the alternative, because the court had in rem admiralty jurisdiction. See Angelex I,

2013 WL 1934490, at *6. Then, turning to the merits, the court concluded that

section 1908(e) does not authorize the Coast Guard to impose anything other than non-

monetary conditions for the release of a detained vessel. Id. at *9 (finding the Coast

Guard’s “attempt to impose additional non-monetary conditions” to be an action that

exceeded the agency’s statutory authority to impose a “bond or other surety” pursuant

to 33 U.S.C. § 1908(e)). As a result of its legal conclusions, the district court entered

an order that displaced the Coast Guard’s required conditions for the release of the ship,

18 mandating that the ship be released upon the posting of only a $1.5 million bond. Id. at

*10.

The Fourth Circuit reversed the district court’s order. With respect to the

amount of the bond, that court concluded that section 1908(e) “grants the Coast Guard

broad discretion to deny bond altogether, and [the Coast Guard] can dictate the terms of

any bond that it may accept.” Angelex II, 723 F.3d at 507 (citing Giuseppe Bottiglieri,

843 F. Supp. 2d at 1248). The Fourth Circuit panel also determined that the statute did

not provide judicially manageable standards for evaluating the conditions of departure

clearance, given that there are no specific guidelines in the statute that direct the Coast

Guard when to grant clearance, nor are there guidelines pertaining to what form of

surety the Coast Guard should impose. Id. Explaining that “[t]he reasonableness of the

Coast Guard’s decision cannot be determined pro forma in a vacuum, but only in the

context of the standards intended by Congress[,]” the Fourth Circuit concluded that this

is a situation where the statute provides no such standards such that there is no law to

apply. Id. (citing Chaney, 470 U.S. at 830).

In Giuseppe Bottiglieri, a judge in the Southern District of Alabama similarly

found that the Coast Guard’s clearance determination under section 1908(e) was

committed to agency discretion by law because there are no statutory standards to

apply. 843 F. Supp. 2d at 1248. As the district court explained it, in enacting section

1908(e)

19 Congress did not require the Coast Guard to accept a bond or other surety in any case. It did not grant an absolute right to a vessel owner to obtain departure clearance. It did not outline (even in the broadest brushstrokes) the parameters for what form or amount a bond or other surety should take. It did not impose a reasonableness limitation on the bond or other surety fixed by the Coast Guard. It did not even specify what a ‘bond or other surety’ is, or clearly bar the Coast Guard from including nonfinancial terms in [section] 1908(e) surety agreements. Id. (footnote omitted). Absent any standards to apply, the court concluded that the

matter was committed to agency discretion by law. Id. at 1249.

2. The D.C. Circuit’s Justiciability Jurisprudence

The Fourth Circuit’s conclusion in Angelex and the judge’s decision in Giuseppe

Bottiglieri appear to be based on two primary considerations: the fact that section

1908(e) grants discretion to the Secretary of DHS, and the apparent absence of

meaningful guidelines within the statute itself regarding when departure clearance

should be granted. See Angelex II, 723 F.3d at 507-08. In the D.C. Circuit, several

additional factors are taken into account when a court considers whether or not a matter

has been committed to agency discretion by law. Courts evaluating justiciability under

section 701(a)(2) of the APA in this jurisdiction consider a variety of factors that

appear to fit into three general categories: (1) “the nature of the administrative action

at issue”; (2) “the language and structure of the statute that supplies the applicable legal

standards for reviewing that action[,]” Sierra Club, 648 F.3d at 855 (internal quotation

marks omitted) (quoting Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 156

(D.C. Cir. 2006)); and (3) Congress’s intent to commit the matter fully to agency

discretion as evidenced by, among other things, the statutory scheme, see Dickson v.

Sec’y of Def., 68 F.3d 1396, 1404 (D.C. Cir. 1995).

20 The first consideration—the nature of the administrative action—refers to

“certain categories of administrative decisions” that the Supreme Court and the D.C.

Circuit consider presumptively unreviewable. Twentymile Coal, 456 F.3d at 156 & n.6

(collecting cases). For example, an agency’s refusal to take enforcement action is, by

its very nature, an unreviewable decision. Chaney, 470 U.S. at 831 (the FDA’s decision

not to institute enforcement actions to prevent use of drugs in lethal injections was, by

its nature, committed to agency discretion by law); Wayte v. United States, 470 U.S.

598, 607 (1985) (the government’s decision as to whom to prosecute criminally is

unreviewable); Twentymile Coal, 456 F.3d at 157 (an agency’s administrative charging

decision is unreviewable); Drake v. FAA, 291 F.3d 59, 70-71 (D.C. Cir. 2002) (the

agency’s decision to dismiss an administrative complaint without a hearing was an

unreviewable enforcement action). Likewise, it is established in this circuit that

“executive branch decision[s] involving complicated foreign policy matters[,]” Legal

Assistance for Vietnamese Asylum Seekers v. Dep’t of State (LAVAS), 104 F.3d 1349,

1353 (D.C. Cir. 1997), or sensitive matters of national security, see Oryszak, 576 F.3d

at 526, are nonjusticiable by nature.

The second consideration—the language and structure of the statute—involves

applying typical canons of statutory construction to determine whether the statute

provides standards for the agency to apply and for the courts to review. See Delta Air

Lines, Inc. v. Export-Import Bank of the U.S., 718 F.3d 974, 976-77 (D.C. Cir. 2013).

In this regard, the court must first determine whether “the statute is drawn so that a

court would have no meaningful standard against which to judge the agency’s exercise

of discretion.” Chaney, 470 U.S. at 830. Notably, the statute need not provide an

21 explicit list of particular standards; rather, so long as the court can infer some statutory

benchmark by which to evaluate the agency’s action, the action has not been committed

to the agency as a matter of law and is thus subject to judicial review. Cf. Robbins v.

Reagan, 780 F.2d 37, 45 (D.C. Cir. 1985) (“Even when there are no clear statutory

guidelines, courts often are still able to discern from the statutory scheme a

congressional intention to pursue a general goal.” (footnote omitted)). In other words,

the requirement of a “meaningful” statutory standard is just that: “‘a meaningful—not a

rigorous, but neither a meaningless—standard against which to judge’ the exercise of

agency discretion.” Arent v. Shalala, 70 F.3d 610, 614 (D.C. Cir 1995) (quoting Nat’l

Treasury Emps. Union v. Horner, 854 F.2d 490, 495 (D.C. Cir. 1988)). And it is only

“[i]f no ‘judicially manageable standard’ exists by which to judge the agency’s action[

that] meaningful judicial review is impossible and the courts are [unable] to review that

action.” Steenholdt v. FAA, 314 F.3d 633, 638 (D.C. Cir. 2003) (citing Chaney, 470

U.S. at 830).

The third and final consideration—whether the statutory scheme evidences

Congress’s intent to commit the matter totally to agency discretion—requires not only a

deep dive into an evaluation of the language and structure of the statutory section at

issue but also consideration of the function and purpose of the statute as a whole,

looking for the following factors, among other things: guidance or standards from other

portions of the statute, see Twentymile Coal, 456 F.3d at 158-59; whether or not the

statute provides alternative avenues for relief other than challenging the agency action

in court, see Inv. Co. Inst. v. FDIC, 728 F.2d 518, 526 (D.C. Cir. 1984) (citation

omitted); and whether “a deferential attitude on the part of Congress” toward the

22 agency’s decision making in this area permeates the “overall structure” of the statute,

Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1224 (D.C. Cir. 1993)

(citing Webster v. Doe, 486 U.S. 592, 600 (1988)). In addition, on the rare occasion

when applying the plain text of the statute would lead to “absurd” results, courts may

also consider the policy implications of the requested interpretation of the rule. Cook v.

FDA, 733 F.3d 1, 1 (D.C. Cir. 2013) (citing U.S. ex rel. Totten v. Bombardier Corp.,

380 F.3d 488, 494 (D.C. Cir. 2004)). However, in conducting its review, a court must

remember that the overall goal in this analysis is to determine whether the statutory

scheme evinces Congress’s intent to permit judicial review. See Toxco Inc. v. Chu, 724

F. Supp. 2d 16, 23 (D.D.C. 2010) (collecting cases).

II. ANALYSIS

With this legal framework firmly in mind, this Court turns to a consideration of

whether the conditions for release of a vessel that has been detained for suspected

violations of international law pursuant to 33 U.S.C. § 1908(e) are committed to agency

discretion by law. Plaintiffs in this case argue that judicial review is appropriate

because there is no indication in section 1908(e) that Congress “intend[ed] to bestow

limitless discretion” upon the agency (Pls.’ Mem. at 15), and that the instant case is

readily distinguishable from Angelex—the lessons of which, according to Plaintiffs, are

not easily transferrable. (Pls.’ Resp. to Defs.’ Notice of Suppl. Authority (“Pls.’

Angelex II Resp.”), ECF No. 27, at 3.) Defendants respond that the presumption in

favor of judicial review is overcome in this case, just as it was in Angelex, because the

language of section 1908(e) is highly discretionary, there is no meaningful law to apply,

and the statutory scheme provides for an alternative remedy. (U.S. Mem. at 19-21; U.S.

23 Reply at 4-8; see also U.S. Notice of Filing Suppl. Auth. (“U.S. Angelex II Notice”),

ECF No. 26, at 2.)

As an initial matter, this Court concludes that the Fourth Circuit’s non-binding

analysis in Angelex should not be applied automatically to the instant dispute without

further analysis for two reasons. First, the Fourth Circuit did not engage in the

extensive discussion of justiciability that is required in this jurisdiction. See Tonia

Edwards v. District of Columbia, No. 13-7064, 2014 WL 2895938 at *10 n.15 (D.C.

Cir. June 27, 2014) (declining to credit other circuits’ opinions where they “g[i]ve

cursory treatment to[ ]significant legal issues” (citations omitted)). Second, it is clear

that the circumstances of Angelex are materially different from those in the case at bar.

Most notably, the plaintiffs in Angelex had asked the district court to order release of

the vessel over the Coast Guard’s objection as an emergency matter and while the

vessel was still being detained. Angelex II, 723 F.3d at 501. The Angelex plaintiffs

requested that the court itself set the terms of the applicable bond and grant release, id.

at 503, which, in essence, was a request to bypass any exercise of Coast Guard

discretion regarding release of the vessel. By contrast, in this case, the Coast Guard has

already exercised the discretion that it has under section 1908(e) to clear Plaintiffs’

previously detained vessels, and Plaintiffs have asked this Court to review that exercise

of discretion. In other words, unlike Angelex, this Court is not being asked to make a

decision that has been statutorily delegated to the Coast Guard (i.e., whether the vessels

should be cleared and under what circumstances); but instead, the Court is being asked

to decide whether the Coast Guard acted within the scope of its statutory authority when

the agency determined that the vessels should be released subject to certain conditions.

24 Consequently, this Court agrees with Plaintiffs that the findings and conclusions in

Angelex—and in Giuseppe Bottiglieri, for that matter—“stand in stark contrast and are

wholly inapplicable to the issue before the Court in this action[.]” (Pls.’ Angelex II

Resp. at 3.)

Focusing now on the question of whether the Coast Guard’s decision to release a

detained vessel subject to non-financial conditions is a matter that is nonjusticiable

because it has been “committed to agency discretion by law” as that legal issue is

analyzed in this jurisdiction, this Court begins its evaluation where the D.C. Circuit

instructs: with the nature of the administrative action. See Sierra Club, 648 F.3d at

855. The Court will then examine the plain language and structure of the statute and

the relevant policy considerations related to Congress’s intent. See id.; see also Totten,

380 F.3d at 494. As explained below, this Court concludes that the matter of the Coast

Guard’s action under section 1908(e) is committed to agency discretion by law and,

therefore, is unreviewable.

A. The Coast Guard’s Clearance Conditions Are Not Nonjusticiable By Nature The Coast Guard’s discretionary decision regarding whether to grant departure

clearance, and under what conditions it is willing to do so, is unlike other agency

decisions that have been held to be unreviewable by nature under 5 U.S.C. § 701(a)(2).

An agency’s decision not to commence an enforcement action is the quintessential type

of matter that courts have determined to be wholly within the agency’s discretion, see,

e.g., Chaney, 470 U.S. at 830; Twentymile Coal, 456 F.3d at 157; Drake, 291 F.3d at

70-71, and if the challenged determination here related to the Coast Guard’s decision to

initiate prosecution (or not) with respect to the suspected violations of the APPS, the

25 agency’s discretionary act would very likely fall into this category. But Plaintiffs here

are not challenging the Coast Guard’s decision to enforce international environmental

law and thereby detain the vessels in order to investigate and potentially prosecute the

vessels’ crewmembers for APPS violations. Nor have Plaintiffs asked this Court to

review the Coast Guard’s decision to grant or deny departure clearance altogether—a

decision that perhaps sounds in foreign policy and could potentially fit into the category

of matters that are presumptively committed to agency discretion because they might be

deemed to relate to sensitive agency determinations relating to foreign relations or

national security. See LAVAS, 104 F.3d at 1353; Webster, 486 U.S. at 600; Oryszak,

576 F.3d at 526.

In short, this Court cannot conclude that, by its nature, the Coast Guard’s

decision regarding the amount of “bond or other surety” or other release conditions—a

decision that is clearly ancillary to the exercise of the agency’s core discretionary

decision to enforce MARPOL—fits into the category of matters that are “committed to

agency discretion by law” under the APA and thus not subject to review.

B. The Language Of Section 1908(e) Provides Insufficient Standards For The Court To Apply Under D.C. Circuit precedent, this Court’s finding that Plaintiffs’ action is not

nonjusticiable by its nature does not end the matter: the Court must also consider

whether the language and structure of section 1908(e) nevertheless clearly evidence a

legislative intent to “restrict access to judicial review.” Mistick PBT v. Chao, 440 F.3d

503, 509 (D.C. Cir. 2006) (internal quotation marks and citations omitted). As

previously noted, section 1908(e) states that, after departure clearance is revoked for a

suspected violation of the APPS, “[c]learance may be granted upon the filing of a bond

26 or other surety satisfactory to the Secretary.” 33 U.S.C. § 1908(e). There is no dispute

that the discretion to choose the “bond or other surety” and to grant departure clearance

is broad, and Defendants insist that this broadly-worded grant of authority is sufficient

to defeat Plaintiffs’ contention that judicial review is appropriate. (See U.S. Mem. at

25; U.S. Reply at 4.) But the D.C. Circuit has made clear that a grant of broad

discretion in a statute, through permissive language or otherwise, does not necessarily

mean there are no standards for the court to apply. See Amador Cnty., Cal. v. Salazar,

640 F.3d 373, 381 (D.C. Cir. 2011); Dickson, 68 F.3d at 1401-04; Envtl. Def. Fund v.

Hardin, 428 F.2d 1093, 1098 (D.C. Cir. 1970). To the contrary, so long as the statute

sets forth some limitations on the agency’s discretion, however slight, judicial review is

available. See, e.g., Cody v. Cox, 509 F.3d 606, 610 (D.C. Cir. 2007) (finding sufficient

standards to apply where the agency’s discretion to provide services was limited by the

requirement that it provide “high quality and cost-effective” care); Tourus Records, Inc.

v. DEA, 259 F.3d 731, 736 (D.C. Cir. 2001) (finding sufficient standards to apply where

the agency’s discretion was limited by the requirement that the decision be supported

by “satisfactory proof”).

Here, because section 1908(e) states in no uncertain terms that “[c]learance may

be granted upon the filing of a bond or other surety satisfactory to the Secretary[,]” 33

U.S.C. § 1908(e) (emphasis added), Defendants maintain that Congress surely meant for

the agency to have complete discretion when choosing the “bond or other surety” that

would be required for release. (See U.S. Reply. at 4.) Focusing on that same language,

Plaintiffs insist that Congress inserted “other surety” precisely to provide a meaningful

standard for judicial review of the Coast Guard’s conditions, and that based on this

27 plain language, the required release conditions must be financial terms, and also that

only one such surety can be required because the “or” in “bond or other surety” must be

given its ordinary disjunctive meaning. (See Pls.’ Mem. at 20-21.)

If the only indicia of Congress’s intent regarding the scope of the agency’s

discretion to release a detained vessel was the phrase “bond or other surety satisfactory

to the Secretary[,]” this Court would likely agree with Plaintiffs’ interpretation of the

statute. There is substantial support for the proposition that “surety” is used nearly

exclusively in financial contexts; indeed, the established definition of that term, as well

as other references to that term through the U.S. Code and the Code of Federal

Regulations, strongly suggest that a “surety” ordinarily is limited to a financial

obligation. 10 What is more, Congress’s use of the term “or” must be construed in

accordance with its ordinary disjunctive meaning, and thus, with respect to section

10 For example, a “surety” is principally defined as a person “who is primarily liable for paying of another’s debt or performing another’s obligation[,]” or as a “formal assurance; esp., a pledge, bond, guarantee, or security given for the fulfillment of an undertaking[,]” and a “surety bond” as a bond normally issued by a bank and that is “given by a surety to ensure the timely performance of a contract[,]” usually in an amount that is some percentage of the value that is owed. Black’s Law Dictionary 1617, 1670-71 (10th ed. 2014); see also Oxford English Dictionary Online (defining “surety” as a “formal engagement entered into, a pledge, bond, guarantee, or security given for the fulfillment of an undertaking[,]” or a “document embodying such an agreement or pledge”). Similarly, references to a “surety” throughout the U.S. Code and Code of Federal Regulations contain additional language that reflects the word’s financial meaning. See, e.g., 12 C.F.R. § 1010.10(c)(3) (to obtain financing, a developer must post a “bond or other surety . . . in the full amount of the cost” of a certain project); 24 C.F.R. § 1710 (same). Likewise, the historical use of the word “surety” over centuries of jurisprudence confirms the word’s financial underpinnings. See, e.g., Pearlman v. Reliance Ins. Co., 371 U.S. 132, 140-41 (1962) (discussing sureties’ ability to indemnify themselves against losses); Newton v. Consol. Gas Co. of N.Y., 265 U.S. 78, 86 (1924) (“Congress has made elaborate provision for the safe use of surety companies as security upon bonds required in court and other proceedings[.]”); United States v. Reynolds, 235 U.S. 133, 144 (1914) (discussing debt owed to a surety); Ross v. Jones, 89 U.S. 576, 591 (1874) (“Persons, bound as security for another, . . . includes sureties proper in a bond, bill, or note[.]” (internal quotation marks omitted)); Olney v. Arnold, 3 U.S. 308, 311 n.3 (1796) (a petitioner shall “giv[e] bond in the said office with one sufficient surety, in such sum as he, the secretary, considering the nature of such suit or executions shall think meet” certain conditions). Plaintiffs also persuasively point out that the bond provision in section 1908(e) is based not on any particular provision of MARPOL, but rather on language in the United Nations Convention on the Law of the Sea, see U.N. Convention on the Law of the Sea (“UNCLOS”), 1833 U.N.T.S. 397 (entered into force Nov. 16, 1994), which specifically notes that “release shall be made promptly subject to reasonable procedures such as bonding or other appropriate financial security.” (See Pls.’ Suppl. Reply at 9 (emphasis in original) (quoting UNCLOS).)

28 1908(e), the “or” generally evidences Congress’s intent to have the Secretary choose

one type of financial condition among the range of similar options. See In re Espy, 80

F.3d 501, 505 (D.C. Cir. 1996) (noting that “a statute written in the disjunctive is

generally construed as ‘setting out separate and distinct alternatives’” (citation

omitted)); United States v. Moore, 613 F.2d 1029, 1039 (D.C. Cir. 1979) (“Normally, of

course, ‘or’ is to be accepted for its disjunctive connotation, and not as a word

interchangeable with ‘and.’” (footnote omitted)). The plain meaning of “surety” and its

disjunctive relationship with “bond” in section 1908(e) are meaningful standards that

would certainly inform the Court’s determination of the permissibility of the Coast

Guard’s interpretation of “bond or other surety” to permit the imposition of a bond and

also non-financial conditions of release if that phrase was the only statutory language

that related to the Coast Guard’s challenged departure clearance determination. But

unfortunately for Plaintiffs, such is not the case. That is, even assuming that Plaintiffs

are correct that, by its terms, the statute establishes that the only “bond or other surety”

that the Secretary can find satisfactory as a condition of release is a financial surety, the

statute nevertheless appears to permit the Coast Guard to deny departure clearance

altogether, or to require some additional conditions before making the clearance

decision, and that, in this Court’s estimation, is the Achilles heel of Plaintiffs’

otherwise well-reasoned argument.

Specifically, the text of section 1908(e) plainly establishes that Congress has

vested the agency with the authority to make at least two discretionary judgment calls:

what “bond or other surety” will be deemed satisfactory as a condition of departure

clearance, and also whether or not to release the vessel. Put another way, by virtue of

29 section 1908(e)’s use of the term “may” in the statement “[c]learance may be granted

upon the filing of a bond or other surety satisfactory to the Secretary[,]” the statute

evidences no congressional intent to require the agency to release the vessel even if a

satisfactory “bond or other surety” is posted. Instead, Congress appears to have made

the “bond or other surety” a necessary but not sufficient prerequisite for departure

clearance after a vessel is detained under section 1908(e), and the statute provides no

standards for a court to use to determine whether the agency has improperly continued

to withhold clearance even after the “bond or other surety” condition is satisfied.

This statutory interpretation is inescapable for two reasons. First, in the earlier

clause of section 1908(e), Congress uses the term “shall” with respect to the agency’s

revocation of departure clearance, which means that Congress knew full well how to

require agency action, and its subsequent use of the term “may” with respect to the

matter of vessel release strongly indicates that the question of release remains within

the Coast Guard’s discretion even once the bond is posted. Second, and even more

important, the statute and its attendant regulations are devoid of any other limits,

requirements, or criteria that provide any guideposts by which a court can measure the

Coast Guard’s discretionary decision to continue to withhold departure clearance after

the owner has provided a bond (or other surety). See Overton Park, 401 U.S. at 410;

Chaney, 470 U.S. at 830; Sierra Club, 648 F.3d at 855. To be sure, as stated above and

as Plaintiffs point out (see, e.g., Pls.’ Mem. in Resp. to the Court’s Minute Order Dated

Apr. 25, 2014, Requesting Suppl. Briefing (“Pls.’ Suppl. Br.”), ECF No. 31, at 5-6), the

D.C. Circuit has repeatedly emphasized that the word “may” in a statute does not, in

and of itself, mean that the matter is committed to agency discretion by law. But the

30 Circuit has also held that where, as here, “may” is coupled with “absolutely no

guidance” as to how the agency should exercise that discretion, Robbins, 780 F.2d at

45, the matter has been committed to agency discretion by law.

C. The Overall Structure Of The APPS, Viewed In The Context Of Other Pronouncements About The Government’s Authority To Grant Or Deny Departure Clearance, Supports Non-Justiciability

The structure of the APPS provides further support for the conclusion that the

matter of what conditions may be required for the release of a vessel detained for

suspected violations of international environmental law is “committed to agency

discretion” for the purpose of 5 U.S.C. § 701(a)(2). First of all, the APPS provides the

Coast Guard with discretion not only to withhold departure clearance but also to engage

in a variety of measures to investigate and prosecute suspected MARPOL violations.

See e.g., 33 U.S.C. § 1908(e), 1903 (granting discretion to the Secretary to “administer

and enforce” MARPOL), 1907(a) (stating that the agency “shall use all appropriate and

practical measures” to detect environmental law violations and “shall establish adequate

procedures” to investigate them), 1904(a) (granting the agency discretion to designate

persons who may issue required certificates under MARPOL). The breadth of the

authorized tools that the Coast Guard can bring to bear on the problem, and the fact that

the agency has discretion to use any and all of them, demonstrates Congress’s

recognition of the Coast Guard’s particular expertise when it comes to investigating and

prosecuting such violations. See Webster, 486 U.S. at 600; Marshall Cnty., 988 F.2d at

1224. In addition, the APPS also provides an alternative avenue for relief for

unwarranted detention of a vessel—an action for compensation for unlawful detention,

see 33 U.S.C. § 1904; see also Wilmina Shipping AS v. United States (Wilmina Shipping

31 I), 824 F. Supp. 2d 749, 753 (S.D. Tex. 2010). This is further evidence that Congress

did not intend for there to be judicial review of the Coast Guard’s decision to withhold

departure clearance under the APA. See Inv. Co. Inst., 728 F.2d at 526 (noting that the

existence of alternative avenues for relief weighs against judicial review under the

APA).

It is also clear beyond cavil that, by mandating that departure clearance be

revoked for suspected APPS violations, section 1908(e) implicates the statutory and

regulatory scheme that governs the Coast Guard’s authority to order Customs to grant

or deny departure clearance in any event, and under that scheme, the Coast Guard

appears to have complete discretion. Plaintiffs have not cited, and the Court has not

found, any statute or regulation that requires the Coast Guard to order Customs to

release a detained vessel when certain criteria are met. This absence of standards

governing when the Coast Guard must order Customs to release a vessel stands in stark

contrast to the statutes and regulations that apply to Customs exercise of its own

departure clearance authority. Section 60105 of Title 46 of the United States Code

provides that all foreign-flagged ships must obtain clearance from Customs before

departing a U.S. port, and authorizes Customs to prescribe regulations that govern the

“manner in which clearance under this section is to be obtained, including the

documents, data, or information” required, 46 U.S.C. § 60105(b)-(c), which Customs

has done, see 19 C.F.R. § 4.61 (2014). Consequently, there are clear standards that

govern Customs’ decision to withhold clearance, and that agency’s clearance

determinations have been held to be reviewable. See Hendricks v. Gonzalez, 67 F. 351,

353 (2d Cir. 1895) (noting that, in the absence of some other statutory authority,

32 Customs must grant departure clearance when the required documentation is submitted

unless there is other statutory authority to withhold clearance). However, the same

cannot be said of the Coast Guard’s decision to order Customs to grant or continue to

withhold departure clearance once it has ordered that clearance be denied upon

suspicion of a violation of the APPS or any other statute. The fact that the statutory

and regulatory scheme establishes standards that govern Customs’ exercise of discretion

to grant or deny departure clearance, but there are no such standards in place to govern

the Coast Guard’s decision regarding whether to order Customs to release a vessel

detained pursuant to section 1908, is an additional reason to conclude that Congress

intended to commit fully to the Coast Guard the matter of whether and under what

circumstances Plaintiffs’ vessels must have been released.

D. Plaintiffs’ Arguments In Support Of Reviewability Fail

Plaintiffs vigorously resist the conclusion that a court cannot review the matter

of the conditions to be imposed for the clearance of a vessel detained pursuant to

section 1908(e) for a number of reasons. First, Plaintiffs contend that, under the plain

terms of the statute, “the discretion granted [to] the Coast Guard through the use of the

word ‘may[ ]’ is limited to determining the quantum of the bond or other financial

surety the Coast Guard may require[.]” (Pls.’ Suppl. Br. at 6 (footnote omitted).) But

this interpretation of section 1908(e) would clearly render the word “may” superfluous,

given that the phrase “satisfactory to the Secretary” already reflects the Coast Guard’s

discretion to fix the amount of the bond or other surety. Consequently, it is inconsistent

with the canon of statutory interpretation that requires that a statute be construed “so

that no provision is rendered inoperative or superfluous, void or insignificant.” Laurel

33 Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 472 (D.C. Cir. 2009)

(internal quotation marks omitted) (quoting Asiana Airlines v. FAA, 134 F.3d 393, 398

(D.C. Cir. 1998)); see also Corley v. United States, 556 U.S. 303, 314 (noting that “one

of the most basic interpretative canons” is that a “statute should be construed so that

effect is given to all its provisions” (internal quotation marks and citation omitted)).

Thus, contrary to Plaintiffs’ position, the word “may” must reflect a grant of agency

discretion beyond the discretion that is already clearly associated with the agency’s

determination of the amount of “bond or other surety.”

Next, Plaintiffs contend that the purpose of the statutory requirement of a bond is

to “ensure” vessel owners’ participation in the litigation, which leads Plaintiffs to

reason that the challenged non-financial conditions in the Coast Guard’s security

agreements—which are designed to accomplish that same end—are not necessary, and

thus Congress must not have intended for the agency to have the authority to require

such conditions in addition to a bond. (See Pls.’ Suppl. Reply at 6-7 (asserting that the

Coast Guard has discretion to “determin[e] the quantum of the bond or other financial

surety the Coast Guard may require to ensure payment of any fine or civil penalties that

might [ ] eventually be incurred” and that “[o]nce the bond or other financial surety is

posted, the statutory language does not authorize the Coast Guard or any other

governmental agency to continue to refuse to grant clearance to the vessel” (emphasis

in original)).) This argument lacks persuasive force because the language of the

security agreements at issue here, as well as the legislative history of section 1908(e)

and the practices that are actually used in the prosecution of criminal cases related to

the vessels, establish that the purpose of the bond is to assure an eventual judgment if

34 the government wins its case against suspected violators, not to “ensure” a suspect’s

participation in the prosecution of the case against him.

The distinction between “ensure” and “assure” is as subtle as it is important:

nothing in section 1908(e) or its legislative history suggests that Congress intended for

the bond or other surety to ensure participation in the APPS prosecution because, with

respect to the surety bonds that vessel owners post, the government is not entitled to

retain the bond amount unless it proves its case. Compare with 18 U.S.C. § 3142(b)

(2014) (authorizing the pretrial release of a person “upon execution of an unsecured

appearance bond”). A surety bond such as the one at issue here is unlike a bail bond

insofar as a surety bond is posted to assure—or guarantee—that the money is available

to pay a fine or penalty in the event that the government wins a judgment, not to ensure

that a suspect returns to participate in the prosecution proceedings. 11 This is

undoubtedly why Congress inserted the word “surety” into section 1908(e), and it is

also why the House Report that accompanied that statute’s enactment explained that

section 1908(e)’s purpose was “to assure payment of any fine or civil penalties that

might be incurred upon completion of criminal proceedings or civil penalty actions[.]”

H.R. Rep. No. 96-1224, at 17 (1980), reprinted in 1980 U.S.C.C.A.N. 4849, 4864

(emphasis added). And, indeed, the particular language of the challenged security

agreements here echo this sentiment, making clear both that the government is only

entitled to keep the posted bond money if it wins a judgment in court, and also that the

full amount of the bond must be remitted to the Plaintiffs if the government does not

win its case. (See, e.g., Appendix §§ 1a, 1b (providing that “[i]f judgment is entered in

11 See Gertrude Block, Making Sure We Understand ‘Insure,’ ‘Ensure’ and ‘Assure,’ 34 DEC Pa. Lawyer 58 (2012).

35 favor of” Plaintiffs, “the Surety Bond shall be returned[.]”), 1c-e (defining the

circumstances in which all or part of the surety bond must be remitted to the

owner/operators of the vessels).) Consequently, this Court finds unpersuasive

Plaintiffs’ argument that because the bond ensures a suspected violator’s participation

in any subsequent prosecution proceedings, the Coast Guard should not be deemed to

have discretion to withhold departure clearance in order to require execution of a

security agreement once a bond is posted.

The Court also rejects Plaintiffs’ contention that the Coast Guard’s policy

manuals and a variety of secondary sources establish that the agency must release a

vessel immediately upon the execution of a bond or other surety and cannot proceed to

require the execution of security agreements or anything else. In support of this

argument, Plaintiffs chiefly rely on a number of internal Coast Guard policy manuals

that describe the procedures the agency should follow when it detains foreign-flagged

vessels in United States ports. (See Pls.’ Suppl. Reply at 10-14.) 12 But policy

documents do not have the force of law. See Christensen v. Harris Cnty., 529 U.S. 576,

587 (2000) (noting that “policy statements, agency manuals, and enforcement

guidelines” all “lack the force of law”); Jolly v. Listerman, 672 F.2d 935, 940-41 (D.C.

Cir. 1982) (noting that “not every piece of paper emanating from” an agency is a

binding rule, particularly where the language is more “informative” than “directive or

12 Among the policy documents that Plaintiffs cite are the Coast Guard Guidance Report on Vessel Inspection, U.S. Coast Guard Navigation & Vessel Inspection Circular (NVIC) No. 06-03, Change 2, Coast Guard Port State Control Targeting and Examination Policy for Vessel Security and Safety, available at http://www.uscg.mil/hq/cg5/nvic/pdf/2003/NAVIC06_03_ch2.pdf; the Coast Guard Marine Safety Manual, COMDTINST M16000.7A, Volume I at 4-7, available at http://www.uscg.mil/directives/cim/16000-16999/CIM_16000_6.pdf; and the Coast Guard Policy Guidance on Criminal Enforcement. (See U.S. Coast Guard Commandant Instruction, COMDTINST M16201.1, Criminal Enforcement of Environmental Laws, 3-3 (July 30, 1997), Ex. A to Pl.’s Suppl. Br., ECF No. 31-1, at 2.)

36 mandatory” (citation omitted)). And even so, the directives in such documents cannot

be interpreted in a manner that is inconsistent with the plain language of the governing

statute.

Even if the Coast Guard’s manuals and internal policy statements constituted

binding law, a careful reading of the cited sources reveals that none of them actually

states that the Coast Guard must release a vessel once a bond or other surety is posted,

or conversely, that the Coast Guard lacks discretion to deny clearance after a financial

security has been received. For example, one such document provides that, if

“allegations exist that a vessel has violated certain U.S. safety and pollution laws, the

Coast Guard may request that [Customs] deny or withhold the required clearance from

the vessel until the vessel posts a letter of undertaking or surety bond.” See U.S. Coast

Guard Navigation & Vessel Inspection Circular (NVIC), No. 06-03, Change 2, Coast

Guard Port State Control Targeting and Examination Policy for Vessel Security and

Safety, at 104. 13 This is not a mandate that the only clearance requirement the Coast

Guard can demand is the posting of a bond. Similarly, another policy statement notes

that the Coast Guard may withhold clearance “pending the filing with the Coast Guard

of a bond or other surety satisfactory to the Coast Guard[,]” but does not speak to

whether the grant clearance is mandatory once the bond is filed. (See Coast Guard

Policy Guidance on Criminal Enforcement, U.S. Coast Guard Commandant Instruction,

COMDTINST M16201.1, Criminal Enforcement of Environmental Laws (July 30,

1997), Ex. A to Pls.’ Suppl. Br., ECF No. 31-1, at 2.)

To be sure, there is some indication in the cited materials that it is the Coast

Guard’s usual practice to grant clearance once a bond or other surety is posted, and in 13 Available at http://www.uscg.mil/hq/cg5/nvic/pdf/2003/NAVIC06_03_ch2.pdf.

37 some of its guidance, the agency specifically notes that “[departure] clearance

withholding is not a general enforcement tool.” U.S. Coast Guard Marine Safety

Manual, COMDTINST M16000, Volume V, at C1-13. 14 But the agency’s policy

pronouncements also typically state that the Coast Guard “retains discretion to deviate

from or change this guidance without notice,” id. at A1-4, which means that any quick-

clearance policy may not pertain in all circumstances, and given the fact that the Coast

Guard regulates departure clearance in a variety of contexts outside of investigating and

enforcing MARPOL and APPS violations, including mere civil penalty scenarios, such

flexibility is clearly warranted. See, e.g., 33 U.S.C. § 2716 (2014) (the Coast Guard

may detain a vessel subject to a civil penalty under the Clean Water Act); 16 U.S.C.

1376 (2014) (the Coast Guard may detain a vessel subject to a civil penalty under the

Marine Mammal Protection Act “until such penalty is paid, or until a bond or otherwise

satisfactory surety is posted”); 46 U.S.C. § 2110 (2014) (the Coast Guard shall detain a

vessel that has an unpaid shipping fee or other charge “until the fee or charge is paid or

until a bond is posted for the payment”). Thus, the cited manuals and materials do not

conclusively establish that the Coast Guard retains no discretion to withhold departure

clearance after the posting of a bond in the instant circumstances.

Nor do the secondary sources that Plaintiffs cite—at least one of which is

authored by one of the attorneys who has appeared as counsel in this case—

unambiguously maintain that the Coast Guard must grant clearance to a vessel as soon

as a bond or other financial surety is posted when the vessel has been detained under

section 1908(e). For example, one cited article notes that vessel owners “may avoid”

being detained for suspected APPS violations “by posting a bond in an amount 14 Available at http://www.uscg.mil/directives/cim/16000-16999/CIM_16000_10A.pdf.

38 satisfactory to the Secretary.” James B. Nelson, Alternative Sentencing Under the

MARPOL Protocol: Using Polluters’ Fines to Fund Environmental Restoration, 10

Hastings W.-N.W. J. Envtl. L. & Pol’y 1, 6-7 (Fall 2003). But the article neither states

explicitly nor provides any support for the proposition that the Coast Guard must

provide clearance once the bond is posted—it simply repeats the statutory mandate that

a bond is a necessary perquisite to release. See id. Likewise, a second source only

contends—as do Plaintiffs—that the bond provision in the APPS stems from the United

Nations Convention on the Law of the Sea (“UNCLOS”), an international treaty that

provides that, once departure clearance is withheld, “release shall be made promptly

subject to reasonable procedures such as bonding or other appropriate financial

security[,]” and that signatory countries “shall not delay a foreign vessel longer than is

essential for purposes of the investigations[.]” Lt. Benedict S. Gullo, The Illegal

Discharge of Oil on the High Seas: The U.S. Coast Guard’s Ongoing Battle Against

Vessel Polluters and a New Approach Towards Establishing Environmental

Compliance, 209 Mil. L. Rev. 122, 142 n.164 (Fall 2011) (quoting UNCLOS Art.

226(1)(b)). Of course, the Coast Guard’s argument here is that the challenged security

agreements are “essential” to its investigation and prosecution of suspected MARPOL

violations (see U.S. Suppl. Br. at 16), which means that the UNCLOS statement is not

inconsistent with the conclusion that Congress intended for the Coast Guard to have

discretion to determine that a vessel needs to be detained in order to facilitate its

criminal investigation. 15

15 The other secondary articles on this subject that this Court has found fare no better when it comes to providing support for Plaintiffs’ position. In fact, most of them merely lament the Coast Guard’s broad discretion to determine when granting departure clearance is appropriate once it has been revoked and advocate for the position that Plaintiffs here seek to advance. See Katriel Statman, “To Comply or Not

39 Plaintiffs’ final argument against interpreting section 1908(e) to confer upon the

Coast Guard complete discretion over the conditions of release is that adopting this

reading would lead to untenable results. Specifically, according to Plaintiffs, a finding

that the Coast Guard’s requirement of non-financial security agreements is

nonjusticiable would leave the agency with “unchallengeable authority to demand any

terms and conditions it so desires in exchange for the granting of a [departure]

clearance.” (Pls.’ Reply in Supp. of Cross-Mot. for Summ. J. (“Pls.’ Reply”), ECF No.

21, at 11 (emphasis in original).) Plaintiffs’ fear of this outcome is unfounded, as is

their suggestion that the security agreements at issue here involved such untenable

terms, for two basic reasons.

First, there is nothing to prevent a court from considering constitutional

challenges to the Coast Guard’s departure clearance demands, see Webster, 486 U.S. at

603-04, and judicial review of a constitutional due process claim that challenges

unconscionable clearance conditions would prevent absurd results. See Estate of

Phillips v. District of Columbia, 455 F.3d 397, 403 (D.C. Cir. 2006) (noting that a

substantive due process violation occurs if the government’s conduct is “so egregious,

so outrageous, that it may fairly be said to shock the contemporary conscience”

(citation omitted)). Defendants even concede this point. (See U.S. Reply at 7 (noting

that Defendants do “not argue that no court could ever review the Coast Guard’s

to Comply?” An Argument In Favor of Increasing Investigation And Enforcement of MARPOL Annex I Violations, 5 Wash. & Lee J. Energy, Climate, & Env’t 251 (2013); Michael G. Chalos, Wayne A. Parker, The Criminalization of Maritime Accidents and Marpol Violations in the United States, 23 U.S.F. Mar. L.J. 206, 211 (2011); Bruce Pasfield, Jocelyn A. Steiner, Crew Detention: What Can A Ship Owner Can Do?, 38 J. Mar. L. & Com. 215, 217 (2007).

40 security demands”). 16 Thus, a finding that this Court can review Plaintiffs’ APA claim

is not necessary in order to avoid the agency overreach that Plaintiffs fear.

Second, and perhaps even more important, Plaintiffs’ repeated suggestion that a

court must be able to review (and reject) the Coast Guard’s required security

agreements because the terms of those contracts are unfair, arbitrary, and unjustified

(see, e.g., Pls.’ Reply at 15-16) minimizes the fact that, unlike other ships subject to the

departure clearance process, the crew aboard Plaintiffs’ vessels were suspected of

serious violations of international and environmental law. If the posting of a bond was

all that the Coast Guard had discretion to require before it must grant departure

clearance when a vessel’s crew is suspected of having falsified records to conceal the

dumping of oil into international waters, then the people who staff, own, and operate

cargo vessels could effectively avoid liability for APPS violations with impunity—by

simply posting a surety bond and then sailing away—and in so doing, prevent the U.S.

government from effectively investigating and prosecuting their offenses. Surely that

result was not what Congress intended when it enacted a comprehensive statutory

scheme that makes MARPOL violations a federal crime and thus seeks to hold violators

of international and environmental law accountable for their actions.

To the contrary, section 1908(e) reads as if Congress intended only to make clear

to federal authorities that, if a vessel that is suspected of APPS violations was going to

be released after being mandatorily detained for investigation of that serious crime, the

owners of the vessel should at least be required to post a satisfactory bond. This 16 Notably, as explained at the outset, the instant complaint contains only one claim that is based solely on the Plaintiffs’ contention that the Coast Guard has violated the APA in various respects—including that the agency’s actions were “contrary to [a] constitutional right, power, privilege, or immunity” of the Plaintiffs (see Compl. ¶¶ 102, 113 (quoting 5 U.S.C. § 706(2)(B)); consequently, Plaintiffs have not stated a claim directly under any constitutional provision.

41 admonition in the statute does not suggest an intent to require federal authorities to

release a suspect vessel in any event; and indeed, there is nothing in the statute that

would prevent the Coast Guard from refusing to accept any bond at all and detaining a

ship throughout the course of the agency’s investigation and any subsequent

prosecution. Plaintiffs’ insistence that section 1908(e) should be read to mean that the

Coast Guard must release a ship suspected of violating the APPS if a bond is posted

without requiring anything more—and more to the point, that this Court can review and

overturn the Coast Guard’s decision to withhold departure clearance unless and until

other release conditions are met—is inconsistent with Congress’s clear intent (as

manifest in the text, structure and purpose of the APPS) that the APPS be effectively

enforced and that federal authorities be given broad discretion to do so.

CONCLUSION

To summarize, Plaintiffs’ arguments all fall short of convincing this Court that

the broad discretion that section 1908(e) confers upon the Coast Guard to withhold

departure clearance is limited in any respect. Rather, this Court concludes that the

statutory text, structure, and purpose of the APPS all confirm that Congress placed the

question of whether, and under what circumstances, departure clearance is to be granted

under section 1908(e) entirely within the Coast Guard’s discretion. Put another way,

even if Plaintiffs are correct that a bond or other financial surety is a necessary

prerequisite of the exercise of the Coast Guard’s departure clearance authority under

section 1908(e), that statute makes clear that the Coast Guard “may” release the vessel

upon the posting of such a bond, and does not provide any standards for this Court to

apply when evaluating the Coast Guard’s decision not to grant departure clearance even

42 if a bond is posted without satisfaction of other conditions. And this lack of any

statutory standard by which to assess the circumstances under which the agency may (or

may not) grant departure clearance for the purpose of section 1908(e) means that this

clearance matter is “committed to agency discretion by law.” See Delta Air Lines, 718

F.3d at 976-77. Consequently, as set forth in the separate order entered concurrently

with this opinion, Defendants’ motion for summary judgment is GRANTED, and

Plaintiffs’ cross-motion for summary judgment is DENIED.

Date: July 18, 2014 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge

43 APPENDIX AGREEMENT ON SECURITY

RECITALS

A. WATERVALE MARINE CO. LTD. (“Owner”), a corporation formed

pursuant to the laws of Cyprus with offices at John Kennedy Street, Iris House Office

740B, Limassol, Cyprus, was at all relevant times the registered owner of the M/V

AGIOS EMILIANOS (IMO # 8802935) (“the Vessel”).

B. ILIOS SHIPPING CO S.A. (“Operator”), a Greece-domiciled company

with offices at 41, Akti Miaouli, 185 35 Piraeus, Greece, was at all relevant times the

operator of the Vessel under applicable United States law.

C. The United States of America (“United States”) asserts that the Vessel is

subject to the MARPOL Protocol 73/78, the Act to Prevent Pollution from Ships

(“APPS”), and the Clean Water Act (“CWA”); that the Vessel violated MARPOL

Protocol 73/78, APPS, 33 U.S.C. § 1901 et seq., and the regulations thereunder, and

the Clean Water Act 33 U.S.C. § 1251 et seq. (collectively, the “Alleged Violations”);

and that a U.S. District Court may assess criminal penalties against the Vessel in rem or

its Owner and/or Operator in personam.

D. The United States, pursuant to a request from Captain of the Port Sector

New Orleans on April 27, 2011, is withholding the Vessel’s U.S. Customs and Border

Protection (“CBP”) departure clearance until the Vessel provides security as authorized

by 33 U.S.C. § 1908(e).

E. The Owner, Operator, and the United States, as parties to this Agreement,

desire to arrange for security to be posted to secure the performance of this Agreement

and to permit CBP to issue the Vessel’s departure clearance.

A-1 AGREEMENT

This Agreement in its entirety constitutes surety satisfactory to the Secretary of

Homeland Security (“Secretary”) per 33 U.S.C. § 1908(e). As consideration for surety

satisfactory to the Secretary for the release of the Vessel, the undersigned parties agree

as follows:

1. Owner and Operator shall post a Surety Bond in the amount of $1,125,000

United States Dollars (USD), as security for any adjudicated potential fines or penalties

for the offenses mentioned above and to ensure performance of this Agreement. The

Surety Bond shall be posted prior to the Vessel’s departure from New Orleans,

Louisiana, and delivered to the U.S. Coast Guard, to the attention of Lieutenant

Commander Angela Holbrook, Commander (dl), Eighth Coast Guard District, 500

Poydras Street, Suite 1311, New Orleans, LA 70130. When the U.S. Coast Guard

receives the Surety Bond, and upon receipt of an executed copy of this document, the

U.S. Coast Guard will promptly notify U.S. Customs that departure clearance of the

Vessel may be granted as it relates to the violations alleged in the U.S. Coast Guard’s

letter to the Master of the Vessel dated April 27, 2011. The Surety Bond shall be paid

out to the United States as provided for in the Surety Bond and as follows:

a. Subject to any right of appeal, if a penalty is assessed by a United States

court or authorized administrative body in a civil, criminal, or administrative

action against the vessel in rem or its Owner or Operator in personam for

violation of the Act to Prevent Pollution from Ships (APPS) (33 U.S.C. §1901

et seq.), and/or the Clean Water Act (33 U.S.C. §1251 et seq.), then the net

amount of such penalty (or the full amount of the Surety Bond, if the penalty

A-2 is in excess of the Surety Bond) shall be paid to the United States as directed

by the Court. The balance amount of the Surety Bond remaining in excess of

the amount paid to the United States shall be remitted to Owner and/or

Operator.

b. If judgment is entered in favor of Owner and Operator in a criminal or civil

action, the Surety Bond shall be returned to the Owner and/or Operator.

c. If either the Owner and/or Operator fail to appear as required by this

Agreement, or fail to waive objections to jurisdiction as required by this

Agreement, then the amount of the Surety Bond shall be paid to the United

States.

d. If a United States court renders a finding that either the Owner or Operator

materially breached any obligation contained in this Agreement, then such

amount of the Surety Bond, as directed by the court, shall be payable to the

United States in reimbursement for actual expenses required for performance

of the aforementioned obligations by the United States[.]

e. If a full or partial plea agreement or compromise is reached in a civil,

criminal, or administrative action, then payment shall be made in accordance

with joint written instructions from the United States and Owner and

Operator, and the unused portion of the original surety bond shall be

promptly returned to the Owner and Operator.

Any dispute between the United States and Owner or Operator regarding this agreement

shall be submitted to the United States court which hears the criminal action. In any

such dispute wherein one party claims a breach of the terms and conditions herein, the

A-3 party asserting that there has been a breach of the Agreement shall bear the burden of

proof.

2. Owner and Operator agree to facilitate interviews of any officer or

crewmember employed by Owner or Operator, to the extent reasonably feasible at the

time such a request is made by the United States. Owner and Operator agree to

cooperate with the United States to arrange for testimony of such employed officer or

crewmember before a Grand Jury or other judicial or administrative proceeding arising

from the Alleged Violations. Owner and Operator agree to assist the United States in

effecting proper service of process related to the Alleged Violations for such employed

officer or crewmember who is not in the United States at the time the subpoena is

issued, in a manner consistent with U.S. laws and the laws of the foreign country where

the individuals are located. To the extent permitted by the limitation set out in

paragraphs 6 and 7, the Owner and Operator will encourage these officers and

crewmembers to cooperate with the United States in carrying out its investigation and

in appearing for their scheduled testimony. Owner and Operator will act in good faith

in carrying out these obligations. No disciplinary measures or legal proceedings or any

other retaliatory actions will be instituted by the Owner and/or Operator or any agent of

the Owner and/or Operator of the Vessel against any officer or crewmember or other

employee as a result of the officer’s or crewmember’s or other employee’s cooperation

with the United States. No efforts will be undertaken to retaliate against the officers or

crewmembers or other employees for their cooperation, either now or at any time in the

future, and the Owner and Operator will make reasonable efforts to prevent third parties

from [ ] doing the same. The United States agrees that it will provide reasonable notice

A-4 of its need for these officers and crewmembers to be present so that Owner and

Operator may arrange for substitute officers and crewmembers.

3. At the request of the U.S. Coast Guard acting on behalf of the United

States, the following ship’s officers and crewmembers will remain within [ ] the

jurisdiction of the U.S. District Court – Eastern District of Louisiana

1) MISLANG, Valentino – Master;

2) ESPERAS, Romulo – Chief Engineer;

3) MAGBANUA, Allan – Second Engineer;

4) LUGA, Renato – Third Engineer;

5) DAQUIOAG, Oscar – Fourth Engineer;

6) DACILLO, Armandito – Electrician;

7) CAMACHO, Noel – Oiler;

8) MONDEGA, Nelson – Oiler;

9) PADASAY, Roy – Oiler;

10) RABENA, Rodolfo – Oiler.

The Owner and Operator agree to provide reasonable lodging, a meal allowance

of $60.00 USD per day, and health care coverage to the aforementioned ship’s officers

and crewmembers of the Vessel while in the United States, regardless of the current

employment status of the aforementioned ship’s officers and crewmembers, until the

United States, through its attorney responsible for the pending criminal investigation,

advises that their presence is no longer necessary. The Owner and Operator are on

notice that the Travelodge/Travel Best Inn in Kenner, Louisiana is not considered

“reasonable lodging” under this section.

A-5 Owner and Operator agree to immediately notify the United States, through both

its attorney responsible for the pending criminal investigation, as well as Lieutenant

Commander Angela Holbrook, of the name, address and telephone number of the hotel

where each ship’s officer and crewmember resides.

The U.S. Coast Guard, in conjunction with the U.S. Customs and Border

Protection, will process, as expeditiously as possible, the necessary paperwork to grant

immigration status necessary to enable the aforementioned ship’s officers and

crewmembers to remain in the United States for the duration of the Security Agreement.

Should the Vessel depart prior to the aforementioned ship’s officers and crewmembers

being granted immigration status necessary to enable them to remain in the United

States commensurate with the duration of this Agreement, the Owner and Operator are

on notice that U.S. Customs and Border Protection may impose additional requirements

for these officers and crewmembers. The “duration of this Agreement” is defined as

“when all criminal trials arising from and related to the facts of this case have been

completed.” Owner and Operator agree that no such ship’s officer or crewmember will

be allowed to remain aboard the Vessel when it departs from the United States unless

the United States, through its attorney responsible for the pending criminal

investigation, advises Owner and/or Operator that the ship’s officer or crewmember

may leave the United States aboard the Vessel. Owner and Operator agree to continue

to employ and to pay total wages in a timely manner and in a manner consistent with

any applicable collective bargaining agreements or employee contracts until the United

States, through its attorney responsible for the pending criminal investigation, advises

that their presence is no longer necessary. “Total wages” as used in this paragraph

A-6 includes the total wage the crewmember contracted for and anticipated, including

guaranteed overtime. Additionally, the payment of wages shall continue even in the

event that the normal employment contract for the employee may otherwise or

ordinarily expire.

After being advised by the United States, through its attorney responsible for the

pending criminal investigation, that the presence of an aforementioned ship’s officer or

crewmember is no longer necessary, Owner and Operator will repatriate the ship’s

officer or crewmember to his home country, or to another port so that the ship’s officer

or crewmember may complete his employment contract, unless otherwise agreed or

ordered by a court of competent jurisdiction. The requirements of the Owner and

Operator set forth in this paragraph shall continue until the case (or cases) is (are)

declined, go to trial, or depositions are taken in accordance with Rules of Criminal

Procedure[ ], Rule 15, after an indictment or information has been returned. Owner and

Operator will act in good faith in carrying out these obligations.

4. The United States and the Owner and Operator agree to take reasonable

measures to expedite the investigation of the Alleged Violations and any subsequent

proceedings. If Owner and/or Operator have grounds to believe that the investigation or

any subsequent proceedings are being unreasonably and significantly delayed, then after

notifying the U.S. Coast Guard signatory to this Agreement of the basis for their

position in writing, and allowing ten (10) business days for a response, they may seek

judicial review by the U.S. District Court – Eastern District of Louisiana[.]

5. The United States agrees that the Owner and Operator cannot exercise

complete control over the ship’s officers and crewmembers of the Vessel and therefore

A-7 Owner’s and Operator’s obligations in respect to ensuring any ship’s officer or

crewmember of the Vessel remains within or returns to the jurisdictions of the U.S.

District Court – Eastern District of Louisiana, shall be limited to:

a. requesting such ship’s officers and crewmembers of the Vessel to

surrender their passports to the Owner and Operator for safe keeping;

b. requesting such ship’s officers and crewmembers of the Vessel to remain

within the jurisdiction of the U.S. District Court – Eastern District of Louisiana[;]

c. providing such ship’s officers and crewmembers of the Vessel with

reasonable lodging, a meal allowance and health care coverage as provided in this

Agreement; and

d. providing such ship’s officers and crewmembers of the Vessel with

transportation to all places of testimony and all meetings with attorneys from the

Department of Justice, and will accommodate reasonable request to provide

transportation to meetings with law enforcement agents when alternate transportation

arrangements cannot be made.

If such a ship’s officer or crewmember refuses to surrender his passport to

Owner or Operator, then Owner and Operator shall immediately provide actual notice to

the United States, through both its attorney responsible for the pending criminal

investigation as well as Lieutenant Commander Angela Holbrook. If at any time any

such ship’s Officer or crewmember requests the return of his passport by Owner and/or

Operator, then Owner and/or Operator shall provide actual notice to the United States,

through both its attorney responsible for the pending criminal investigation, as well as

Lieutenant Commander Angela Holbrook, at least seventy-two (72) hours before

A-8 returning the passport to the ship’s officer or crewmember. Regarding such ship’s

officers and crewmembers of the Vessel, Owner and Operator shall have no further

responsibility or obligations to the U.S. Coast Guard other than those stated herein,

except as otherwise provided by law or regulation.

6. The obligations of the Owner and Operator set forth herein with respect to

the specifically aforementioned ship’s officers and crewmembers of the Vessel are

subject to all rights of each ship’s officer and crewmember as may be asserted by the

ship’s officer or crewmember or by any attorney working on his behalf.

7. Nothing in this Agreement is to be deemed as binding on non-parties to

this Agreement. In particular, for each ship’s officer and crewmember who may be

served with a federal Grand Jury, Rule 15 deposition, or trial subpoena or material

witness warrant and who is required to remain within the jurisdictions of the U.S.

District Court – Eastern District of Louisiana, their rights pursuant to 18 U.S.C. § 3144,

F. R. Crim. P. Rule 15 and other federal laws are specifically preserved.

8. The United States has previously provided an inventory of all documents,

copies of documents, or items seized from the Vessel. Owner and Operator agree to

stipulate to the authenticity of documents listed on the inventory provided by the United

States after the Owner and Operator, through counsel, have had a reasonable

opportunity to review the inventory and compare it against actual documents referenced

in the inventory. The United States agrees that by so stipulating, Owner and Operator

do not waive any objections they may have to the relevance or admissibility of the

documents into evidence in any proceeding, or to the manner in which they were seized

and removed, or to any other matter concerning the documents except their authenticity

A-9 at the time of their seizure. Owner and Operator also agree to reasonably facilitate and

assist the United States in effecting service of federal Grand Jury, deposition, and/or

trial subpoenas to records custodians employed by the Owner and Operator and who are

not in the United States at the time the subpoena is issued. The Owner and Operator

will instruct records custodians to cooperate with the United States in carrying out its

investigation and will act in good faith in carrying out this obligation.

9. Owner, Operator and the United States agree that the criminal and civil

penalty claims of the United States against the Vessel in rem shall attach to the Vessel

release’s security as provided pursuant to the Federal Rules of Civil Procedure,

Admiralty, Maritime Claims, Supplemental Rule E(5). In consideration of the Surety

Bond, the United States agrees not to cause the arrest of the Vessel, nor the arrest,

seizure or attachment of any other vessel owned, operated, managed, or chartered by the

Owner or Operator, and not to withhold [Customs] departure clearance of the Vessel, or

any other vessel under the same management and control of the Owner and Operator, on

account of the Alleged Violations in the U.S. Coast Guard’s letter to the Master of the

Vessel dated April 27, 2011.

10. This Agreement is to be binding whether the Vessel be in port or not in

port, lost or not lost, and regardless of its condition, and is given without prejudice as

to all rights or defenses which the Vessel, Owner and/or Operator may have, none of

which is to be regarded as waived, except the Owner and Operator agree to waive any

objections to in personam jurisdiction over them, and in rem jurisdiction over the

Vessel, with respect to the potential claims of the United States described above, in the

United States court which hears the criminal action.

A-10 11. Owner and Operator authorize Michael Chalos and/or Brian McCarthy of

Chalos, O’Connor, and Duffy, LLP, as agents of Owner/Operator for this Agreement, to

accept service of any correspondence or legal papers relating to the Alleged Violations

on behalf of the Vessel, Owner and Operator at its offices at 366 Main Street, Port

Washington, New York 11050. The Owner and Operator agree to enter an appearance

in any criminal action brought against them in a United States court concerning the

Alleged Violations, or in any civil penalty action brought against them in any other

forum, and to defend the Vessel from any in rem criminal claim asserted against it.

12. The United States and Owner and Operator enter into this Agreement

without prejudice as to all rights or defenses, none of which is to be regarded as waived

except as expressly set forth above.

13. This Agreement may be signed in duplicate originals.

Dated: May 7, 2011 WATERVALE MARINE CO. LTD. As Owner, M/V AGIOS EMILIANOS

_______________/s/_______________ By: Michael Chalos Chalos, O’Connor, and Duffy, LLP

As attorney in fact per authority received May 7, 2011

Dated: May 7, 2011: ILIOS SHIPPING CO, S.A. As Operator, M/V AGIOS EMILIANOS

_______________/s/_______________ By: Michael Chalos Chalos, O’Connor, and Duffy, LLP

A-11 Dated: May 9, 2011 United States of America

_______________/s/_______________ By: Scott C. Herman Lieutenant Commander, U.S. Coast Guard Deputy Staff Judge Advocate Eighth Coast Guard District

A-12