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SOUTHEAST SHIPYARD ASSN. v. UNITED STATES

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


April 30, 1990

SOUTHEAST SHIPYARD ASSOCIATION, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, et al., Defendants

The opinion of the court was delivered by: PENN

MEMORANDUM

 JOHN GARRETT PENN, UNITED STATES DISTRICT JUDGE

 Plaintiffs, domestic shipbuilders and fishing vessel operators, bring this action to challenge the United States Coast Guard's interpretation of the Commercial Fishing Industry Vessel Anti-Reflagging Act of 1987. Particularly, plaintiffs challenge the Coast Guard's interpretation of the Act's savings clause *fn1" relating to the citizen-control and domestic rebuilding requirements. Plaintiffs bring the suit pursuant to 28 U.S.C. § 1331 and 5 U.S.C. §§ 702, 703, and 706. This matter is before the Court on defendants' motion to dismiss or in the alternative for summary judgment and plaintiff's motion for summary judgment. *fn2" The Court heard oral argument on January 22, 1990.

 I.

 On January 11, 1988, Congress enacted the Commercial Fishing Industry Vessel Anti-Reflagging Act of 1987. Pub. L. No. 100-239, 101 Stat. 1778 (1988). The United States Coast Guard accepts applications, evaluates the submissions to determine eligibility and issues certificates of documentation to qualified vessels. See 46 C.F.R. Part 67. The defendants state:

 

In correspondence dated January 5, March 31, and May 31, 1989, the United States Coast Guard received inquires as to whether the vessels GULF FLEET NO. 10 AND 14 would remain eligible for documentation with fisheries endorsements following a proposed foreign rebuilding and stock transfer to a corporation requirements but not the new controlling interest restrictions established by the Anti-Reflagging Act.

 Defendants' Memorandum In Support of Its Motion to Dismiss or in the Alternative for Summary Judgment ("Defendants' Memorandum") at 4, citing Administrative Record ("AR"), Tabs D, T. and AA. In response to the inquiries, on June 13, 1989, the Coast Guard advised that "the vessels qualify for exemption from the controlling interest requirements of the Anti-Reflagging Act pursuant to Section 7(b) of the Anti-Reflagging Act" and that if "the vessels are converted as you have proposed, and are redelivered according to the schedule in your submissions, they will enjoy grandfather rights under Section 4 of the Anti-Reflagging Act." Defendants' Memorandum at 4, citing AR, Tab A.

 Plaintiffs contend that the Coast Guard's interpretation, as articulated in its June 13, 1989 letter, and the Coast Guard's past issuance and future intentions to issue United States fishery licenses to vessels owned by corporations controlled by non-U.S. citizens is arbitrary, capricious, an abuse of discretion, and contrary to law. Amended Complaint pars. 17, 21, and 22. *fn3" Defendants contend that plaintiffs' complaint should be dismissed on jurisdictional grounds because (1) the complaint fails to state a justiciable case or controversy and (2) the complaint is premature because the issue it raises are the subject of an ongoing agency rulemaking. In the alternative, the defendants submit that they are entitled to summary judgment as a matter of law, for the Coast Guard's statutory interpretation is not arbitrary and capricious.

 II.

 The initial question before the Court is whether the complaint states a justiciable case or controversy. Particularly, the Court must determine whether the claim is ripe or final. *fn4" The ripeness doctrine requires this Court to evaluate the fitness of issues for judicial review and the hardship to the parties from withholding reviewing. Public Citizen Health Research v. Commissioner, Food & Drug Administrative, 238 U.S.App. D.C. 271, 740 F.2d 21, 30 (D.C.Cir.1984). The "[Administrative Procedure Act]'s requirement that agency action be 'final' before a court reviews the substance of that action, 5 U.S.C. § 704, similarly serves to prevent premature judicial review of administrative action." Id.5

 The defendants contend that plaintiffs' complaint is similar to the complaint in Shipbuilders Council of America v. United States, 276 U.S. App. D.C. 123, 868 F.2d 452 (D.C.Cir.1989) (" Shipbuilders "). In Shipbuilders, this Circuit concluded that "appellees' plea is, essentially, a request for judicial advice - a declaration that a line of agency rulings should henceforth have no precedential effect"; accordingly, should be dismissed for want of a judicially-cognizable controversy. Id. at 456. Although there are some factual differences between Shipbuilders and the instant complaint, the Court agrees with the defendants that Shipbuilders does provide guidance in this case.

 In Shipbuilders, the United States Customs Service ("Customs") received an inquiry from a company as to whether the company's projected dry-docking operation violates the Jones Act. Id. at 454. The Customs responded by telex that the proposed dry-docking operations would not violate the Jones Act. Id. Plaintiffs, Shipbuilders Council of America, sought a declaratory judgment that the proposed dry-docking operation was in violation of the Jones Act and an order directing the defendants to issue no similar ruling in the future. Id.

 Plaintiffs in this case, likewise, seek a ruling that an agency interpretation based on proposed actions is in violation of federal law. Additionally, plaintiffs here contend that past interpretation is also in violation in the Anti-Reflagging Act. However, plaintiffs do not point to any particular past licensing that would allow the Court to determine the timeliness of the appeal or whether the administrative remedies have been exhausted. *fn6" The June 13, 1989 letter, like the telex in Shipbuilders, is not final agency action. *fn7" This Court must conclude that the complaint is not an appeal of final agency action; accordingly, the complaint is nonjusticiable. *fn8"

 III.

 For the reasons discussed above, the Court concludes that the complaint fails to state a justiciable case and defendants' motion to dismiss should be granted. An appropriate Order accompanies this Memorandum.

 Date April 30, 1990

 ORDER

 For the reasons discussed in the accompanying Memorandum, the Court concludes that defendants' motion to dismiss should be granted and plaintiffs' motion for summary judgment should be denied.

 It is hereby

 ORDERED that defendants' motion to dismiss is granted, it is further

 ORDERED that plaintiffs' motion for summary judgment is denied, it is further

 ORDERED that this case is dismissed without prejudice.

 Date April 30, 1990


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