The opinion of the court was delivered by: OBERDORFER
A coalition of maritime labor organizations and individual merchant seamen and boatmen filed an action challenging a Coast Guard final rule that established user fees for maritime licensing, certification of registry, and merchant mariner documentation. A November 23, 1994 Memorandum and Order held that (i) the Coast Guard user fees were constitutional and consistent with the Independent Offices Appropriations Act, 31 U.S.C. § 9701; and (ii) the Coast Guard could not recover from each applicant a $ 17 fee to conduct a background check of the applicant. The case was remanded to the Coast Guard for further calculations of the costs of its licensing and documenting activities. Seafarers Intern. Union of No. Am. v. United States Coast Guard, 871 F. Supp. 9, 14-16 (D.D.C. 1994). Plaintiffs and the Coast Guard appealed. On April 12, 1996, the Court of Appeals affirmed in part and reversed in part and remanded. The Court of Appeals upheld the Coast Guard's general authority to charge merchant mariners reasonable user fees. The Court of Appeals also held that the Coast Guard may charge a fee to cover the cost of an FBI investigation to determine if the applicant has a disqualifying criminal record. Seafarers Intern. Union of No. Am. v. United States Coast Guard, 317 U.S. App. D.C. 84, 81 F.3d 179 (D.C. Cir. 1996). The Court of Appeals remanded the following issue to the district court:
If the background check at issue is strictly limited to ensuring compliance with statutory requirements, then the $ 17 fee can be assessed. If, however, the FBI check sweeps more broadly than the statutory authorization, then a question arises whether the full cost of the background check can be passed on to the applicant. This matter must be considered on remand. 81 F.3d at 186.
A dissenting opinion argued that remand of this issue was unnecessary. It stated that "because the Coast Guard's rule refers to the FBI check as a 'criminal record check,' the court should find, as a matter of law, that the FBI check sweeps no more broadly than the agency's statutory authorization." Id. at 186 n.5 (internal quotation omitted). The majority opinion disagreed, stating:
Such a conclusion misconceives our role as appellate judges. In this case, the District Court made no factual findings regarding the scope of the FBI check. Therefore, there is no basis for deciding whether the check is limited to what the statute requires. The rule promulgated by the Coast Guard may indicate that the FBI inquires only into the criminal record of each applicant. However, the District Court must determine, on remand, what the scope of the FBI check is, in actual practice. We simply cannot dispose of this question based on the vague language of the Coast Guard's regulations without any factual basis.
Id. (emphasis in original).
The Court of Appeals issued its mandate on June 9, 1996. Defendants moved for summary judgment arguing that "in actual practice" the FBI inquires only into the criminal record of applicants for licenses, certificates of registry, and merchant mariner documentation. Defendant's motion for summary judgment must be granted because the background check at issue -- in theory and in practice -- is strictly limited to reviewing the criminal record of such applicants.
Congress authorizes the Coast Guard to deny a marine license, a certificate of registry or a merchant mariner document to an applicant who (i) "within 10 years before applying for the license, certificate, or document, has been convicted of violating a dangerous drug law of the United States or of a State;" or (ii) "when applying, has ever been a user of, or addicted to, a dangerous drug unless the individual provides satisfactory proof that the individual is cured." 46 U.S.C. § 7503(b)(1) & (b)(2). See 46 C.F.R. § 10.201(b) (applicant with drug conviction within 3 years of filing application is ineligible for license or certificate; period may be extended up to 10 years if warranted);id. § 12.02-4 (document presumptively will not issue to applicant with drug conviction within 10 years of filing application). In addition, Congress authorizes the Coast Guard to "review the criminal record" of any individual who applies for a license, certificate or document. 46 U.S.C. §§ 7101(h), 7302(d).
1. The Coast Guard sends the FBI a fingerprint card of the applicant, displaying the applicant's fingerprint and biographical information, including the applicant's name, date of birth, and social security number.
2. The Criminal Justice Information Services Division of the FBI processes fingerprint cards for the Coast Guard.
3. The CJIS division checks the applicant's biographical information against the FBI's computer records to determine if the applicant has a criminal record. If it appears from the biographical information that the applicant does have a criminal record, the applicant's fingerprints are compared to the fingerprints of the individual with that criminal record. If the applicant's fingerprints do not match the fingerprints of the individual identified as having a criminal record, then a separate fingerprint search of that applicant is conducted.
4. The FBI investigation is limited to the applicant's criminal record.
5. The FBI returns to the Coast Guard the fingerprint card of each applicant together with a report of any ...