UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


DIST NO 1 PCD MEBA

v.

MARA


99-1517a

D.C. Cir. 2000


*	*	*


Ginsburg, Circuit Judge: Pursuant to s 9 of the Shipping  Act, 1916,
the Maritime Administration (MarAd) conditionally  granted
applications to transfer the registry of eight vessels  from the
United States to the Republic of the Marshall  Islands. District No.
1, Pacific Coast District, Marine Engi- neers' Beneficial Association,
the collective bargaining repre- sentative for the licensed officers
on the vessels, along with  certain of its members (hereinafter
collectively, the Union),  petitioned for review. The Union claims
that: (1) the Mar- Ad's decision was arbitrary and capricious; (2) the
MarAd  accepted and relied upon ex parte communications in violation 
of both the Administrative Procedure Act, 5 U.S.C. s 551 et  seq., and
the Fifth Amendment to the Constitution of the  United States; and (3)
s 9 of the Shipping Act is an unconsti- tutional delegation of
legislative authority. Because we lack  jurisdiction over the claims
based upon the APA, we dismiss  the petition in part. In all other
respects we deny the  petition: MEBA did not properly raise its Fifth
Amendment  argument and s 9 of the Shipping Act is not an unconstitu-


I. Background


Section 9 of the Shipping Act prohibits the owner of a  vessel from
transferring its registry out of the United States  without the
approval of the Secretary of Transportation. See  46 U.S.C. App. s
808(c)(2). The Secretary has delegated his  authority under that
section to the MarAd, 49 C.F.R. 


s 1.66(a), which has in turn promulgated regulations imple- menting the
approval requirement. The regulations provide  in pertinent part:


(b) Vessels of 1,000 gross tons or more.


(1) Applications for approval of Transfer to foreign regis- try and
flag ... of Documented Vessels or vessels the  last documentation of
which was under the laws of the  United States and which are of 1,000
gross tons or more  will be evaluated in light of--


(i) The type, size[,] speed, general condition, and age  of the
vessel;


(ii) The acceptability of the owner, proposed transfer- ee and the
country of registry ...; and


(iii) The need to retain the vessel under U.S. documen- tation,
ownership or control for purposes of national  defense, maintenance of
an adequate merchant marine,  foreign policy considerations or the
national interest.


46 C.F.R. s 221.15(b).


BLNG applied to the MarAd for permission to transfer the  registry of
eight vessels from the United States to the  Republic of the Marshall
Islands. Although not required by  statute or regulation to do so, the
MarAd published in the  Federal Register notice of the applications
and a call for  comments thereon. After the announced period for the
sub- mission of comments had ended, however, the MarAd accept- ed
additional comments from, among others, BLNG and its  attorneys.


In its decision the MarAd canvassed the arguments put  forth in the
comments and determined that the following  regulatory criteria were
relevant to its decision: (1) the  general condition of the vessels;
(2) the acceptability of the  Republic of the Marshall Islands; (3)
national defense; (4)  the maintenance of an "adequate merchant
marine"; (5)  "foreign policy considerations"; and (6) other aspects
of the  "national interest."


The MarAd applied these criteria as follows: (1) The  vessels, which
are used to ship liquified natural gas, are in  good working
condition. (2) The agency has previously found  the Republic of the
Marshall Islands to be an acceptable  transferee. (3) The Department
of Defense, upon the Mar- Ad's inquiry, determined that the vessels
are not necessary  for national defense; in any event, the transfer
was condi- tioned so that the vessels could be returned to the United 
States if needed in an emergency. (4) Maintenance of an  adequate
merchant marine does not require retaining the  vessels. The
Department of Energy confirmed there are no  current projects planned
that would require the vessels and,  although some jobs might be lost
to United States seamen  because of the transfer, BLNG has agreed for
at least five  years to maintain crews composed significantly of
United  States seamen on six of the eight vessels. (5) The Depart-
ment of State informed the MarAd that no foreign policy  consideration
required retaining the vessels in United States  registry. (6) The
national interest did not otherwise require  retaining the vessels,
primarily because the Republic of the  Marshall Islands adequately
regulates safety aboard vessels  and the crew will continue to be


II. Analysis


As indicated above, the Union raises three objections to the  MarAd's
order: (1) It is arbitrary and capricious and there- fore invalid
under the APA; (2) the MarAd's acceptance of  and reliance upon ex
parte comments violated both the APA  and the Fifth Amendment; and (3)
s 9 is an unconstitutional  delegation of lawmaking authority. Before
reaching the mer- its of those arguments, we address whether the Union
has  standing to raise them.


BLNG contends that the Union lacks standing under Arti- cle III of the
Constitution because it has demonstrated  neither a legally
significant injury nor that the MarAd's order  is the cause of any
injury the Union may have suffered.  BLNG also maintains that the
Union lacks prudential stand-


ing to sue under s 9 of the Shipping Act because the interests  the
Union is seeking to protect are not "arguably within the  zone of
interests to be protected or regulated by" s 9.  Reytblatt v. NRC, 105
F.3d 715, 721 (D.C. Cir. 1997).


BLNG does not dispute that, as a result of the MarAd's  order, some of
the Union's members among the crews will  lose their jobs and the
Union will be displaced as the exclu- sive bargaining representative.
That is surely enough to give  the Union standing for the purposes of
Article III. In  addition, the Union's claimed interest in
"maintaining and  promoting jobs in the U.S. merchant marine to
service this  nation's economic and national defense needs" is
arguably  within the zone of interests protected by s 9. The preamble 
to the Shipping Act states as its purposes in creating the  MarAd's
predecessor "encouraging, developing, and creating  a naval auxiliary
and naval reserve and a merchant marine,"  39 Stat. 728 (1916), and
the MarAd reasonably concluded in  its order that a meaningful
merchant marine is one with "a  trained and efficient citizen
personnel." See also Meacham  Corp. v. United States, 207 F.2d 535,
542-43 (4th Cir. 1953)  (tracing legislative history of and amendments
to Shipping  Act). Indeed, the MarAd's organic statute provides that
"the  United States shall have a merchant marine ... operated  under
the United States flag by citizens of the United States  insofar as
may be practicable." 46 U.S.C. App. s 1101. We  therefore conclude
that the Union clearly has demonstrated  both the injury in fact and
the causation necessary to give it  constitutional standing and that
its interests are arguably  within the zone of interests protected by


A. Claims based upon the APA


The Union first contends that MarAd's order is invalid  under the APA
because it is arbitrary and capricious. See 5  U.S.C. s 706(2)(A). The
MarAd responds that decisions re- garding transfers of registry are
"committed to agency dis- cretion by law," 5 U.S.C. s 701(a)(2), and
therefore outside  the range of judicial review authorized in the APA.
If the  MarAd is correct, then this court lacks jurisdiction over the 
Union's claims based upon the APA. See, e.g., ICC v. Broth-


erhood of Locomotive Engineers, 482 U.S. 270, 282, 287  (1987).


The MarAd concedes that its regulations provide specific  criteria to
govern its decisions regarding transfers of registry,  but contends
that, as in National Federation of Federal  Employees v. United
States, 905 F.2d 400 (D.C. Cir. 1990)  (NFFE), the subject matter of
the agency's decision does not  admit of judicially manageable
standards. We agree. In  NFFE, we were asked to review an APA
challenge to the  closure of certain military bases. The Secretary of
Defense  had created a Commission on Base Realignment and Closure  and
directed it to "identify which bases should be closed or  realigned."
Id. at 402. The Secretary listed nine criteria  upon the basis of
which the Commission was to make its  recommendations, see id., but
the Commission itself decided  that, of the nine, the "military value
of a base should be the  preeminent factor." Id. at 405-06. After the
Commission  had submitted its recommendations to the Secretary, the 
Congress passed the Base Closure Act directing the Secre- tary to


The court held that the Secretary's decisions regarding  base closures
and realignments were "committed to agency  discretion by law" and
hence not subject to review under the  APA. See id. at 405. Although
the Base Closure Act incor- porated the nine specific criteria that
had informed the  Secretary's closure and realignment decisions, the
court held  that his decisions were not reviewable because the
"subject  matter of those criteria is not 'judicially manageable.' "
Id. at  405; see Heckler v. Cheney, 470 U.S. 821, 830 (1985). Review 
of the Secretary's decisions would require "second guessing  the
Secretary's assessment of the nation's military force  structure and
the military value of the bases within that  structure," and courts
are "ill-equipped to conduct reviews of  the nation's military


Even a cursory examination of the order under review in  this case
reveals that the primary factors driving the MarAd's  decision are
national defense, the adequacy of the merchant  marine, foreign
policy, and the national interest. Indeed, the 


MarAd specifically consulted the Departments of State, De- fense, and
Energy to aid in its decision, and the overwhelm- ing majority of the
analysis in the agency's decision relates to  these factors. Were we
to decide whether the MarAd's order  is reasonable, we would
necessarily be "second guessing" not  only the Executive's
determinations regarding the military  value of the eight vessels but
also its judgments on questions  of foreign policy and national
interest. These are not sub- jects fit for judicial involvement. See,
e.g., People's Mojahe- din Org. v. Dep't of State, 182 F.3d 17, 23


The Union attempts to distinguish NFFE on the ground  that the
concededly "preeminent factor" in the decision under  review in that
case was the military value of the bases,  whereas in this case
consideration of the national defense was  "but one factor [the MarAd]
was required to consider per its  own regulations." As we have noted,
however, considerations  of national security, foreign policy, and
national interest were  clearly at the center of the MarAd's decision;
the Union does  not even suggest that the other criteria listed in the
regula- tions were given similar weight in this case.


The Union also argues that the MarAd's decision must be  subject to
review for conformity with the APA because the  Hobbs Act specifically
provides that the courts of appeal  have:


jurisdiction ... to determine the validity of--


(3) all rules, regulations, or final orders of--


(A) the Secretary of Transportation issued pursuant to  section 2, 9,
37, or 41 of the Shipping Act, 1916 ...


28 U.S.C. s 2342(3)(A). That the courts have statutory juris- diction
over an act of the Executive in some contexts does not  automatically
imply, however, that the courts always have  jurisdiction to review
that act for conformity with the APA.  In ICC v. Brotherhood of
Locomotive Engineers, the Supreme  Court held, despite the grant of
jurisdiction in the Hobbs Act  over "final orders" issued by the ICC,
that the agency's order  denying reconsideration of a prior order was
not subject to  review under the APA because the latter decision was


mitted to agency discretion by law." See 482 U.S. at 282.  Having held
that the MarAd's decision is likewise committed  to agency discretion
by law, it follows that the grant of  jurisdiction in the Hobbs Act to
review final orders issued  under s 9 is similarly qualified.


In sum, the MarAd's decision regarding the transfer of  registry in
this case is committed to its discretion by law.  We therefore lack
jurisdiction over the Union's claims based  upon the APA. See
Locomotive Engineers, 482 U.S. at 282,  287. We also note, but we do
not decide, that in a case where  considerations of national defense,
foreign policy, and the  national interest do not play a significant
role, if such there  be, we may well have jurisdiction to review the
MarAd's  decision regarding a transfer of registry.


B. Ex Parte Communications


The Union next contends that the MarAd's acceptance of  and reliance
upon ex parte communications denied it "funda- mental fairness" in
violation of both the APA and the Fifth  Amendment. To the extent the
Union's procedural complaint  rests upon the APA, again, we lack
jurisdiction to review it.


Although the APA prohibits ex parte contacts in an adjudi- cation or
rulemaking "required by statute to be made on the  record after
opportunity for an agency hearing," 5 U.S.C.  s 553(c), see 5 U.S.C.
ss 554(a), 557(d), there is no such  requirement applicable to the
MarAd's review of an applica- tion under s 9. In the absence of such a
statutory command,  of course, "[a]gencies are free to grant
additional procedural  rights in the exercise of their discretion, but
reviewing courts  are generally not free to impose them if the
agencies have not  chosen to grant them." Vermont Yankee Nuclear Power
 Corp. v. NRDC, 435 U.S. 519, 524 (1978). Here the agency  has not
granted anyone the right to be free of ex parte  communications. In
the absence of any statutory or self- imposed limitation, we have no
jurisdiction to review under  the APA an agency's procedural decision
regarding how best  to make a substantive decision committed by law to


The Union attempts to circumvent this analysis by arguing  that once
the MarAd requested comments from interested  parties, it relinquished
its discretion to "accept and rely upon  ex parte communications
without giving the public an oppor- tunity to respond to them." The
authorities the Union cites  as support for that claim, however, do
not stand for that  broad proposition. In each case either the
governing statute  or a regulation or both required the agency to
afford interest- ed parties an opportunity to submit comments. See
Indepen- dent U.S. Tanker Owners Comm. v. Lewis, 690 F.2d 908, 923 
(D.C. Cir. 1982) (regulation requiring "opportunity for com- ment by
interested parties"); United States Lines, Inc. v.  FMC, 584 F.2d 519,
539 (D.C. Cir. 1978) ("Under the Ship- ping Act notice and a hearing
are required prior to Commis- sion approval of any agreement subject
to Section 15");  National Wildlife Fed'n v. Marsh, 568 F. Supp. 985,
992-93  (D.D.C. 1983) (statute requiring "notice and opportunity for 
public hearings" and regulation requiring opportunity for  "meaningful
comments"). As we have already noted, no  statute or regulation
requires the MarAd to afford interested  parties the opportunity to
submit comments on an application  for a transfer of registry under s
9 and, in the absence of  such a requirement, whether the MarAd
permits comments  and how it deals with those comments are procedural
deci- sions that, like the underlying substantive decision, are mat-
ters within the agency's discretion. See Vermont Yankee, 435  U.S. at


To the extent the Union's objection to ex parte communica- tions rests
upon the Fifth Amendment, its argument is not  properly before the
court. In its opening brief the Union  conclusorily asserted that the
MarAd accepted ex parte com- munications in violation of the Fifth
Amendment. The other  parties understandably did not dignify this
naked assertion  with a response; nor shall we. See Carducci v. Regan,
714  F.2d 171, 177 (D.C. Cir. 1983) ("We ... decline to entertain 
appellant's asserted but unanalyzed constitutional claim"); see  also
United States v. Watson, 171 F.3d 695, 699 n.2 (D.C. Cir.  1999)
(same). Even if the Union had developed the argument  in its reply
brief beyond the vanishingly terse afterthought it 


did present, out of fairness to the parties we still would not  review
the Union's argument. Cf. Sitka Sound Seafoods, Inc.  v. NLRB, 206
F.3d 1175, 1181 (D.C. Cir. 2000) ("In order to  prevent this sort of
sandbagging of appellees and respon- dents, we have generally held
that issues not raised until the  reply brief are waived").


C. Delegation of Legislative Authority


The Union's final contention is that s 9 of the Shipping Act  is an
unconstitutional delegation of legislative authority to the 
Executive. Relying primarily upon our recent decision in  American
Trucking Ass'ns v. EPA, 175 F.3d 1027, modified,  195 F.3d 4 (1999),
cert. granted sub nom. Browner v. Ameri- can Trucking Ass'ns, No.
99-1257, 2000 U.S. LEXIS 3577  (May 22, 2000), and No. 99-1426, 2000
U.S. LEXIS 3629  (May 30, 2000), the Union argues that neither the
statute nor  the MarAd's regulations provide an "intelligible
principle" to  guide the agency's decisionmaking under s 9. For its
part,  the MarAd contends there is an intelligible principle but, even
 were there not, the constraints upon the ability of the Con- gress to
delegate its lawmaking authority do not apply in this  case. Because
we agree with the latter point, we do not  address the former.


In United States v. Curtiss-Wright Corporation, 299 U.S.  304 (1936),
the Supreme Court held that the bar against  excessive delegation of
the Congress's lawmaking authority  did not apply to a Joint
Resolution authorizing the President  to declare unlawful the sale of
arms to certain countries if he  determined such a ban would encourage
peace between them.  See 299 U.S. at 312. The Court offered two
general ratio- nales. First, it reasoned that the "investment of the
federal  government with the powers of external sovereignty did not 
depend upon the affirmative grants of the Constitution," id.  at 318,
and, in the realm of "external affairs," "the President  alone has the
power to speak or listen as a representative of  the nation." Id. at
319. The Court noted especially the need  for the President to have
wide discretion in order to avoid  embarrassing our relations with
foreign nations. See id. at  320. Second, the Court traced the long


supporting the delegation of broad discretion to the Executive  in
external affairs. See id. 322-326. The legislation noted by  the Court
includes: (1) an act permitting the President to  "lay the embargo
upon all ships and vessels in the ports of  the United States,
including those of foreign nations," when- ever he determined the
public safety so required, id. at 322;  (2) an act authorizing the
President, "whenever an armed  vessel entering the harbors or waters
within the jurisdiction  of the United States and required to depart
therefrom should  fail to do so," to "forbid ... all intercourse with
such vessel  ... and the officers and crew thereof" and to "prohibit
all  supplies and aid from being furnished them," id. 323-24; and  (3)
numerous acts permitting the President to suspend the  duties laid
upon foreign vessels if he determined that duties  laid upon ships of
the United States were removed. See id.  at 324-25 n.2. On the basis
of these two lines of reasoning,  the Court held that the "uniform,
long-continued and undis- puted legislative practice just disclosed
rests upon an admissi- ble view of the Constitution which, even if the
practice found  far less support in principle then we think it does,
we should  not feel at liberty at this late day to disturb." Id. at


The transfer of a vessel's registry from the United States  to a
foreign nation involves considerations and concerns simi- lar to those
operative in Curtiss-Wright. Little imagination  is required to
envision situations in which a request to  transfer the registry of a
vessel might involve delicate foreign  policy and national defense
concerns. Indeed, in the course  of granting the application in this
case, the MarAd consulted  with the Departments of State, Defense, and
Energy in an  effort to gauge just those types of concerns.
Furthermore,  as the Court noted in Curtiss-Wright, there is a long
tradi- tion of permitting the Executive broad discretion in the area 
of international shipping; the Union has offered no reason to  treat s
9 differently. Instead, the Union simply asserts that  "[s]ection 9
does not involve delicate negotiations with other  governments or any
manner of interaction with other coun- tries." In fact, however, the
Union itself opposed the applica- tion below on the ground that the
transfer would adversely  affect the balance of trade with Japan and


of the Marshall Islands would not adequately regulate the  safety of
the vessels. In sum, because "the whole aim of  [s 9] is to affect a
situation entirely external to the United  States," it is not "open to
... challenge [as] an unlawful  delegation of legislative power to the
Executive." Curtiss- Wright, 299 U.S. at 315.


III. Conclusion


For the foregoing reasons, the petition for review is


Dismissed in part and denied in part.