Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-28-1994

Dia Navigation Company, Ltd v. Pomeroy, et al.
Precedential or Non-Precedential:

Docket 93-5538




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                          No. 93-5538


                DIA NAVIGATION COMPANY, LIMITED

                                         Appellant

                                  v.

          JAMES POMEROY, DISTRICT DIRECTOR IMMIGRATION
             AND NATURALIZATION SERVICE; CHRIS SALE,
      COMMISSIONER IMMIGRATION AND NATURALIZATION SERVICE;
       JANET RENO, ATTORNEY GENERAL DEPARTMENT OF JUSTICE




         On Appeal From the United States District Court
                  For the District of New Jersey
               (D.C. Civil Action No. 93-cv-01366)




                     Argued: March 24, 1994

          Before: HUTCHINSON, ROTH and ROSENN, Circuit Judges

                 (Opinion Filed    June 28, 1994)




Stephen H. Vengrow, Esquire
Joseph F. DeMay, Jr., Esquire (Argued)
Cichanowicz, Callan & Keane
21 West Street, 26th Floor
New York, NY 10006-2908
          Attorney for Appellant

Faith S. Hochberg
United States Attorney


                                                                1
James B. Clark, III,
Assistant United States Attorney
970 Broad Street, Room 502
Newark, NJ 07102
Frank W. Hunger
Assistant Attorney General
Mark C. Walters
Assistant Director
Alexander H. Shapiro, Esquire (Argued)
Office of Immigration Litigation
U.S. Department of Justice
Ben Franklin Station
P.O. Box 878
Washington, D.C 20044
          Attorneys for Appellees




                       OPINION OF THE COURT




ROTH, Circuit Judge:



          In this case, we are asked to examine the Immigration

and Naturalization Service's ("INS") policy of placing upon

common carriers the burden of detaining stowaways who have
applied for asylum in the United States.   In brief, we conclude

that the provisions of the Immigration and Naturalization Act

("INA") lack the requisite clarity which would justify the policy

as it presently has been established.    In light of the statutory

ambiguity and of the characteristics of the INS policy, we

believe that the policy constitutes a legislative rule which

could only have been promulgated pursuant to the notice and

comment provisions of the Administrative Procedure Act ("APA").

For this reason, we conclude that the District Court improperly


                                                                     2
dismissed the appellant's complaint under Fed.R.Civ.P. 12(b)(6).

We further find that the district court improperly denied

appellant's motion for summary judgment insofar as it sought a

judgment declaring that the INS policy on detention of stowaways

who have applied for asylum is invalid for failure to comply with

the notice and comment procedures of the APA.   We do find,

however, that the district court properly dismissed appellant's

other claims, including its claim for reimbursement of the

expenses it incurred in detaining the stowaways involved in this

case.1   We will, therefore, reverse in part and affirm in part

the order of the district court and we will remand this case to

the district court to enter judgment in favor of appellant

consistent with this opinion.

                                 I.

           Appellant Dia Navigation Company, Ltd., ("Dia") is a

Cyprus corporation which owns the M/V European Senator

("Senator"), an ocean carrier which transports commercial cargo

between the United States and Europe.   On February 13, 1993, four

Romanian stowaways were found aboard the Senator while it was en

route from Le Havre, France, to the Port of Newark, New Jersey.

The stowaways were presented to and interviewed by an INS

inspection officer upon arrival in Newark on February 21, 1992.

None of the four Romanians had proper identification for entry

into the United States.   The INS officer verified that they were


1
Because the stowaways involved in this case have now either been
deported or granted asylum, we do not reach appellant's claim for
injunctive relief.


                                                                    3
in fact stowaways, which meant that they were subject to

deportation without an exclusion hearing.   However, each of the

stowaways requested political asylum.

          Under existing INS policy, the carrier on which a

stowaway arrives must pay the expenses of detaining him for as

long as it takes the INS to process his asylum claim.

Accordingly, the INS officer presented the ship's master with a

Form I-259 "Notice to Detain, Deport, Remove or Present Aliens."

The form provided that "[p]ursuant to the provisions of the

Immigration and Nationality Act, and the Regulations issued by

the Attorney General thereunder," App. at 25, the aliens were to

be detained on board the ship.   A notation on the form read:

"CARRIER IS RESPONSIBLE FOR THE DETENTION[,] TRANSPORTATION AND

WELFARE OF THE ALIEN UNTIL OTHERWISE INSTRUCTED BY USINS."     

was presumably accompanied by some indication by the

officer that Dia could detain the stowaways off the ship pending

the processing of their asylum claims.

          Dia complied with INS's orders, housing the stowaways

in two rooms at the Staten Island Holiday Inn and hiring armed

guards to maintain one guard per stowaway around the clock.2

During the detention, one of the detainees began a hunger strike

and threatened to commit suicide.   To prevent this, the guards

placed him in a separate room and put him in leg irons.    Faced




2
According to Dia, if it had refused to assume the detention
costs, the Senator would have been prevented from entry into or
departure from the Port of Newark.


                                                                     4
with this situation, Dia requested that INS assume custody of

this detainee; INS refused to do so.

            Furthermore, because INS would not convene a hearing on

the asylum claims until it had received completed asylum

applications, Dia had to hire a Romanian interpreter to help with

preparation of the forms and to assist at the asylum hearings.

Ultimately two of the stowaways' asylum requests were granted;

the other stowaways were flown back to Romania at Dia's expense.3

In the end, the Romanians were detained for a total of 54 days.

Dia claims to have incurred $127,580 in detention-related

expenses.

            At this point we pause to note that the processing of

asylum applications often takes a considerable amount of time.

Indeed, the proceedings in this case appear to have been

relatively speedy.    Dia cites a General Accounting Office report

which indicates that in the period from 1986 to 1989 the average

amount of time required to process an asylum application ranged

from 5.8 months in San Francisco to 31.2 months in Chicago.

General Accounting Office, Report to Congress:    Immigration

Management 49 (1991).    Moreover, our attention has been directed

to no set standards, in the form of regulations or otherwise,

concerning the conditions under which such aliens are detained.

Instead, INS apparently claims the discretion to order whatever

measures and impose whatever conditions of detention it deems

appropriate.    In a hearing before the district court, counsel for

3
Dia does not contest having been required to pay the return
travel expenses of the deported stowaways.

                                                                     5
INS claimed that INS could require carriers to detain stowaways

for any period of time, without limitation.    App. at 131-34, 136-

38.    In response to this assertion, the district court judge

inquired:    "You can have [an INS officer] who has a bad day and

says, I want two guards on this guy 24 hours a day, I want him

put in the Plaza, I want him given gourmet meals, and you're

telling me that th[e] vessel owner can't say a thing about that,

right?"    Counsel for the INS simply responded, "Yes."   App. at

165.

            On March 30, 1993, Dia filed suit under 28 U.S.C. §2201

seeking 1) a declaratory judgment that the INS policy requiring

an ocean carrier to both detain stowaways who have applied for

political asylum and be responsible for those stowaways'

attendant detention costs and expenses was unlawful and void and

2) an injunction to prohibit the INS from enforcing or attempting

to enforce the policy.    Dia contended that the INS violated the

INA, including the User Fee provisions, the APA, and the INS's

own regulations.    Dia further claimed a right under the APA and

the Tucker Act to reimbursement of the expenses it had incurred

in detaining the aliens as well as for its related expenses.

            Defendants filed their answer to the complaint on May

14, 1993.    On May 28, 1993, the government filed a motion to

dismiss under Fed.R.Civ.P. 12(b)(6), and Dia filed a motion for

summary judgment.    On August 11, 1993, the district court granted

the government's motion, construing it as a motion for summary

judgment, and dismissed the complaint.    This appeal followed.




                                                                    6
           Dia advances a number of arguments on appeal.   It

contends first that the INA by its terms requires the INS to bear

the costs of detaining stowaways who apply for asylum and that

this court need not defer to the INS's interpretation of the

statute.   Dia next asserts that the INS policy violates the INS's

own regulations and that the INS's action in this case was

arbitrary and capricious.   Dia's final attack on the INS policy,

and the one with which we agree, is that the policy should have

been promulgated pursuant to notice and comment rulemaking.     Dia

also argues that the district court improperly dismissed its

claims for monetary relief.

                                II.

           The district court had jurisdiction over this case

pursuant to 5 U.S.C. § 702, 8 U.S.C. § 1329, and 28 U.S.C. §1331.

We have jurisdiction over Dia's timely appeal of the final

decision of the district court pursuant to 28 U.S.C. § 1291.     Our

decision not to consider Dia's claim for injunctive relief, see

supra note 1, does not render this appeal moot.   We must consider

the relevant statutory provisions and their interpretation by INS

in addressing Dia's claims for monetary relief.    See 13A Charles

A. Wright et al., Federal Practice and Procedure § 3533.8 at 378

(1984).    Moreover, to the extent that the claims for damages may

not support the depth of our analysis, we believe that this case

is among those "capable of repetition, yet evading review."     In

such cases a finding of mootness is avoided by a determination

that the complaining party may reasonably expect to be subject to

the challenged activity in the future and that the challenged

                                                                      7
activity is by its nature so short in duration that its validity

could not be fully adjudicated prior to its cessation or

termination.    See Reich v. Local 30, Int'l Brotherhood of

Teamsters, 

, 984 (3d Cir. 1993).     See also United

States v. Simone, 

, 836-37 (3d Cir. 1994); Clark v.

Brewer, 

, 229 (8th Cir. 1985); Finberg v. Sullivan,

, 55 (3d Cir. 1980) (in banc).    Both factors are

present here.   The international nature of Dia's business makes

it quite possible that it will be confronted with the problem of

stowaways in the future.   And the amount of time required to

process asylum applications, while lengthy, is typically less

than would be necessary to adjudicate the validity of the INS

policy.   Cf. ITT Rayonier v. United States, 

, 346

(5th Cir. Unit B July 1981) ("We would be most reluctant to

permit a federal agency to so arrange its timetables that the

scope of its authority would continue to elude judicial

scrutiny.").

          Because this case concerns the district court's grant

of summary judgment, we have plenary review.    E.g., Erie
Telecommunications, Inc. v. City of Erie, 

, 1093 (3d

Cir. 1988).

                                III.

          Under the INA, all aliens arriving in the United States

are subject to examination and inspection by an INS inspector

whose duty it is to determine whether they are permitted to enter

the country.    See 8 U.S.C. §§ 1224-25; 8 C.F.R. § 235.3.    If an

alien does not appear to be someone clearly entitled to enter--


                                                                      8
that is, if the INS inspector suspects that the alien is an

"excludable" alien--he is subject to an exclusion hearing to

determine whether he is eligible to remain.   "Excludable" aliens

are defined in 8 U.S.C. § 1182(a).   Stowaways are expressly

included in the category of "excludable" aliens.    8 U.S.C.

§1182(a)(6)(D).

          In addition to being excludable aliens, stowaways are

generally viewed as a disfavored category.    E.g., Yiu Sing Chun

v. Sava, 

, 875 n.21 (2d Cir. 1983).    One consequence

of this is that, in contrast to other excludable aliens,

stowaways are automatically subject to deportation and have no

right to a hearing to determine their status. The INA provides:
          The provisions of section 1225 of this title
          for detention of aliens for examination
          before special inquiry officers and the right
          of appeal provided for in section 1226 of
          this title shall not apply to aliens who
          arrive as stowaways and no such alien shall
          be permitted to land in the United States,
          except temporarily for medical treatment, or
          pursuant to such regulations as the Attorney
          General may prescribe for the ultimate
          departure or removal or deportation of such
          alien from the United States.

8 U.S.C. § 1323(d).   Under this provision stowaways who do not

seek political asylum are subject to immediate deportation, and

under 8 U.S.C. § 1227(a)(1) the carriers on whose vessel or plane

they arrived are responsible for returning them to the place from

whence they came, as well as for the costs of any detention for

the period between the issuance of the deportation/exclusion

order and the actual departure of the stowaways.




                                                                     9
           This case presents us with the question of whether and

to what extent INS may place on carriers the additional burden of

detaining and maintaining asylum-seeking stowaways during the

period in which their asylum applications are pending.    The

statutory scheme by its express terms only contemplates placing

on carriers the cost of detaining stowaways who are subject to

immediate deportation.    Asylum seekers cannot, however, be

deported pending a decision on their asylum application, 8 U.S.C.

§ 1105a.   A fortiori an asylum-seeking stowaway is not subject to

"immediate deportation" while the asylum application is under

consideration.   Yet the INS has taken the position that it has

the authority to parole stowaways who have applied for asylum

into the custody of carriers, 8 C.F.R. § 253.1(f)(3), and that

carriers may be held liable for the costs of detention and

related services during this period.     See Legal Opinion of INS

Acting General Counsel (January 11, 1991).    Moreover, as noted

above, INS apparently reserves the right to impose whatever

conditions on detention it deems appropriate.    Of these three

rules, only the first, 8 C.F.R. § 253.1(f)(3), was adopted

pursuant to the notice and comment provisions of the APA.

           Prior to 1986, INS made carriers responsible for the

detention of all excludable aliens, arriving on their planes or

vessels, as well as for related costs.    See 8 C.F.R. §§ 233.1,
235.3 (1986).    In imposing this requirement, INS relied on the

provisions of 8 U.S.C. § 1223. That section provided in part:
          Whenever a temporary removal of aliens is
          made under this section, the vessels or
          aircraft or transportation lines which


                                                                    10
          brought them, and the masters, commanding
          officers, owners, agents, and consignees of
          the vessel, aircraft, or transportation line
          upon which they arrived shall pay all
          expenses of such removal to a designated
          place for examination and inspection or other
          place of detention and all expenses arising
          during subsequent detention, pending a
          decision on the aliens' eligibility to enter
          the United States and until they are either
          allowed to land or returned to the care of
          the transportation line or to the vessel or
          aircraft which brought them.

8 U.S.C. § 1223 (repealed Oct. 18, 1986, 100 Stat. 1783-56).

          Congress began to express concern about this state of

affairs as early as 1985.   In that year the House Appropriations

Committee noted its apprehension
          about the policy of the Immigration and
          Naturalization Service which requires
          scheduled passenger airlines to assume
          custody and financial responsibility for
          aliens who arrive by plane in the United
          States without proper documentation. The
          Committee understands that in the absence of
          Government detention facilities, air carriers
          must detain such aliens in custody and in all
          cases pay for their food and shelter. The
          Committee believes this policy raises
          significant questions about the equity and
          legal propriety of requiring private entities
          to assume the financial burdens of
          maintaining and, at times, exercising
          physical custody over excluded aliens for
          extended periods of time. Specifically, the
          Committee is concerned about the possible
          ramifications of detention of aliens by
          airline personnel or their agents who are
          not, of course, law enforcement officials.

H.R. Rep. No. 197, 99th Cong., 1st Sess., at 38 (1985).

Accordingly, the Committee requested that the INS Commissioner

submit a report concerning the policy, which was to include a

discussion of



                                                                  11
          the effect of a change in policy which would
          require the Immigration and Naturalization
          Service to assume all custodial
          responsibility when the transporting air
          carrier has demonstrated a good faith effort
          to detect inadmissibility prior to boarding.

reiterated these concerns the following

year.   It expressed
           strong support for a change in policy which
           would require the INS to assume, in all
           cases, all custodial responsibility and
           financial responsibility when the
           transporting air carriers have demonstrated a
           good faith effort to detect inadmissibility
           prior to boarding the aircraft.

H.R. Rep. No. 669, 99th Cong., 2d Sess., at 35 (1986).

           In 1986, Congress repealed § 1223 and enacted the User

Fee Statute.   Consistent with the congressional concerns outlined

above, one of the new statute's primary functions was to reverse

the existing rule, requiring carriers to bear the expenses of

detaining aliens pending hearings on their immigration status.

The Conference Report, accompanying the bill, described the

relevant provision as follows:
          Provides language proposed by the Senate
          which would release scheduled passenger
          airlines and vessels from the responsibility
          to assume custody or financial responsibility
          for aliens who arrive by plane or commercial
          vessel in the U.S. without proper
          documentation. The House bill contained no
          provision on this matter.

H.R. Rep. No. 1005, 99th Cong., 2d Sess., at 421 (1986).   The

statute created a User Fee Account, financed by a five dollar

surcharge on the tickets of international passengers and by civil

fines collected by INS.   The money from the account is to be used



                                                                   12
to refund the Attorney General "for expenses incurred by the

Attorney General in ... providing detention and deportation

services for excludable aliens arriving on commercial aircraft

and vessels."   8 U.S.C. § 1356(h)(2)(A)(v) (emphasis added).

Neither the statute nor its legislative history suggest any

distinctions between the various categories of "excludable"

aliens for purposes of this reallocation of the burdens of

detention.

           As noted above, INS has promulgated a rule, pursuant to

notice and comment, in which, despite the User Fee Statute, it

has interpreted the INA to authorize it, as one option, to parole

stowaways who have requested asylum into the custody of the

carrier.   "Pending adjudication of the application by the Asylum

Officer, the applicant may be detained by the [INS], or paroled

into the custody of the ship's agent or otherwise paroled in

accordance with § 212.5 of this chapter ... ."   8 C.F.R.

§253.1(f)(3).   As the following discussion of the statute will

reveal, this is a permissible reading of the INA to which we must

defer under the doctrine of Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 

, 

, 

(1984).   Thus we are concerned here only with the

question of responsibility for the costs of detention and its

incidents4 and the related issue of the lack of any standards

governing detention by carriers.

4
The question of who bears responsibility for the costs of
detention is distinct from the question of who is responsible for
taking custody of stowaways. For example, on at least two
occasions INS has taken stowaways into its custody without


                                                                  13
          Dia argues that, under the User Fee Statute, INS is

required to pay for the detention expenses of stowaways who

request asylum.    It relies primarily on the fact that stowaways

are expressly defined as "excludable" aliens in § 1182(a)(6)(D),

as well as the User Fee Statute's unqualified reference to the

Attorney General's bearing the costs of detention of excludable

aliens.   In support of this reading it points to the similarly

unqualified language of the legislative history, which also

suggests that Congress did not intend to distinguish between

stowaways and other excludable aliens in shifting the costs of

detention to INS.   Dia acknowledges that stowaways who do not

request asylum are subject to immediate deportation under

§1323(d) and that under § 1227(a)(1) carriers are responsible for

the costs of their deportation (including detention incident to

deportation) but contends that because those that seek asylum are

entitled to a hearing on that request INS should pay detention

costs while the hearing is pending.

          The government argues, and the district court found,

that § 1323(d) makes stowaways a de facto class of "excluded"

aliens.   Although there is no explicit statutory basis for this

categorization, the district court began its analysis by

observing that stowaways are subject to immediate deportation

with no hearing.    It then looked to the language of § 1227(a)(1),

which provides that "[a]ny alien ... arriving in the United

relieving carriers from liability for the expense of doing so.
See Legal Opinion of INS Acting General Counsel at 2 n.1, 6
(January 11, 1991). And in this case Dia argues that INS should
reimburse it for the costs incurred in detaining the stowaways.


                                                                    14
States who is excluded under this chapter, shall be immediately

deported ... unless the Attorney General, in an individual case,

in his discretion, concludes that immediate deportation is not

practicable or proper."   From this analysis, the district court

understood "excluded" as "a de facto category of aliens termed

'excluded' aliens, meaning those aliens defined as excludable

pursuant to 8 U.S.C. § 1182(1) and subject to immediate exclusion

and deportation."   Dia Navigation Co., Ltd. v. Reno, 831 F.Supp

360, 367 (D.N.J. 1993).   Under the district court's reading of

the statute, once it is conclusively determined that a particular

alien is a stowaway, because stowaways are not entitled to an

exclusion hearing, the stowaway becomes a member of a class of

"excludable" aliens and is therefore "excluded," having become

subject to immediate exclusion and deportation.   

is not granted, "the stowaway is again able to be deported."    

           Aliens who apply for asylum, however, cannot be

deported until their applications have been processed and denied.

8 U.S.C. § 1105a.   The district court concluded that asylum-

seeking stowaways still fell within the reach of § 1227(a)(1)

because of that section's provision relating to aliens whose

deportation has been stayed at the discretion of the Attorney

General.   Under that reading of the statute, in an instance when

the Attorney General exercises her discretion and determines that

"immediate deportation is not practicable or proper":
          [t]he cost of the maintenance including
          detention expenses and expenses incident to
          detention of any such alien while he is being


                                                                    15
          detained shall be borne by the owner or
          owners of the vessel or aircraft on which he
          arrived ... .

8 U.S.C. § 1227(a)(1).

          Dia's response to this interpretation is that the

deportation of stowaways who apply for asylum cannot be

characterized as having been stayed at the discretion of the

Attorney General.   Instead, 8 U.S.C. § 1105a requires that

deportation be stayed for all asylum applicants.     Dia's reading

seems correct, and it reveals a fundamental tension in the

statutory framework.     Sections 1227(a)(1) and 1323(d) require

that stowaways be deported immediately unless the Attorney

General in the exercise of her discretion determines otherwise,

and § 1227(a)(1) places the burden of deportation, and any

detention incident to deportation, on the carrier.    Section

1105a, however, provides that asylum applicants may not be

deported until their applications have been processed, and this

is not a matter of discretion.    The statute nowhere addresses the

question presented here -- the status of an asylum applicant,

otherwise excluded, pending the processing of the asylum

application.

           Presumably the logic of the INS's position is that

carriers are responsible for the detention of aliens once they

become "excluded" without regard to what might happen after that

point.   However, this attempt to reconcile these statutes suffers

from several flaws.    As noted above, the language of § 1227(a)(1)

seems to contemplate placing stowaways in the custody of carriers

only for the short period between the issuance of their


                                                                     16
deportation orders and their immediate deportation; its

provisions do not encompass situations other than those in which

deportation is to be "immediate" or more specifically the

detention of stowaways who apply for asylum.   The INS's reading

of the statute also creates tension with INS regulations.

Specifically, 8 C.F.R. § 253.1(f)(3) indicates that a stowaway

"shall not be excluded or deported before a decision is rendered

by the Asylum Officer on his asylum application."   Furthermore,

the backdrop for the present statutory scheme is the repeal of

§1223, which clearly did place the burden of paying for detention

on carriers, and a legislative history strongly evincing

congressional desire to place responsibility for detention on

INS.   Yet INS relies on § 1227(a)(1), the "immediate deportation"

provisions, as authority for placing the financial burden of

detention in asylum-seeking stowaway cases on the carrier.     See

Legal Opinion of INS Acting General Counsel (January 11, 1991).

           Turning from the statutory language to the regulations

we find a similar lack of clear answers.   In response to the User

Fee Act, INS adopted, pursuant to notice and comment, a rule that

"addresses the change from carrier responsibility to INS

responsibility for the custody and detention of excludable

aliens."   53 Fed. Reg. 1791 (1988) (proposed rule).   See also 54
Fed. Reg. 100 (1989) (final rule) (characterizing the rule with

substantially the same language).   Aside from reiterating what

the statutes make clear--that "[c]arriers become liable for

detention and transportation expenses immediately upon the

issuance of a deportation/exclusion order," 54 Fed. Reg. at 100--

                                                                     17
the rule does not address the situation with which we are

currently faced.   Indeed, in response to commenters' concerns

about detention conditions INS noted that the rule "does not

address details of specific alien detention conditions.   The

conditions under which aliens are held would be a matter for

other proceedings."   

           Dia points to a number of other regulatory provisions

in support of its contention that the INS policy in this case

contravenes INS regulations.   Dia directs our attention to 8

C.F.R. §§ 235.3(e) and 237, both of which indicate that

"excluded" aliens are to be delivered to the appropriate carrier,

which becomes responsible for the costs of detention from that

point.6   In stating that rule, however, the regulation, like 8

U.S.C. § 1227(a)(1), does not provide an answer to the question



5
 The rule did set forth minimum criteria for INS detention at
non-INS facilities. Id.; 8 C.F.R. § 235.3(f). As counsel
agreed, however, those criteria do not apply to detention by
carriers.
6
 Section 235.3(e) states:
           [If i]n the opinion of the examining
           immigration officer, it is not practical to
           resolve a question of admissibility at the
           time of arrival of an alien passenger on a
           vessel or aircraft, the officer shall execute
           a Form I-259C to notify the agent, master, or
           commanding officer of the vessel or aircraft,
           if applicable, that the alien passenger may
           be excludable from the United States and in
           the event the alien is formally ordered
           excluded and deported, the carrier will be
           responsible for detention and transportation
           expenses to the last foreign port of
           embarkation as provided in § 237.5 of this
           chapter.
8 C.F.R. § 235.3(e).


                                                                   18
of whether carriers are responsible for the costs of detention

pending the processing of an asylum application.

          Dia further argues that under 8 C.F.R. § 235.3(d) the

INS is responsible for the cost of detaining all aliens, except

"Transit Without Visa" passengers.   The relevant provisions are

as follows:
          (b) Aliens with no documentation or false
          documentation. Any alien who appears to the
          inspecting officer to be inadmissible, and
          who arrives without documents ... or who
          arrives with documentation which appears on
          its face to be false, altered, or to relate
          to another person, or who arrives at a place
          other than a designated port of entry, shall
          be detained in accordance with section 235(b)
          [8 U.S.C. § 1225(b)] of the Act. ...

          (c) Aliens with documents. Any alien who
          appears to the inspecting officer to be
          inadmissible, but who does not fall within
          paragraph (b) of this section, may be
          detained, paroled, or paroled for deferred
          inspection by the inspecting officer. ...
          (d) Service custody. The Service will assume
          custody of any alien subject to detention
          under § 235.3 (b) or (c) of this section,
          except in the case of an alien who is
          presented as a Transit Without Visa (TWOV)
          passenger.

8 C.F.R. § 235.3.

          Dia points out that this section divides aliens into

only two categories--those with documents and those without--and

argues that stowaways clearly will be either one or the other.

Thus, because the reference in subsection (d) is to "any alien,"

Dia contends that INS is violating its own regulations by not

taking custody of stowaways who seek asylum.




                                                                   19
            The government's response to this argument is that the

statutory provision the rule implements concerns only the

detention of those aliens "who may not appear to the examining

immigration officer at the port of arrival to be clearly and

beyond a doubt entitled to land [and] shall be detained for

further inquiry to be conducted by a special inquiry officer."       8

U.S.C. § 1225(b).    In contrast to such aliens, stowaways are

clearly not entitled to land.    8 U.S.C. § 1323(d).   As such, they

are not within the ambit of § 1225(b) or 8 C.F.R. § 235.3(b), and

thus 8 C.F.R. § 235.3(d) does not apply.    In addition, we note

that the regulation by its terms concerns only responsibility for

the custody of aliens.    As we have explained above, the question

of custody is distinct from that of financial responsibility and

is already addressed by the regulations.

            The inescapable conclusion of our analysis is that no

clear answer emerges from the statutes and regulations.    Congress

clearly wished to shift the bulk of financial responsibility for

detention to INS, but neither the statute nor the legislative

history provide an indication of whether it wished to shift that

burden with respect to stowaways who apply for asylum.    The

question, quite simply, was not answered.    Similarly, the

regulations evince no consideration of the issue except to the

extent that INS has reserved the right to force carriers to take

custody of such aliens.    Moreover, neither the statutes nor the

regulations address the conditions in which aliens are to be

detained.   Indeed, the INS at oral argument before us conceded

that, even though the INS considers § 1227(a)(1) to make more


                                                                    20
sense when read the government's way, i.e., holding the carrier

responsible for detention, there's no need to read it that way.

In light then of the statutory and regulatory language and of the

INS's concession, we must determine whether INS's position

regarding carrier responsibility was legitimately adopted.

                                 III.

          The APA defines "rule" broadly to include:
          the whole or a part of an agency statement of
          general or particular applicability and
          future effect designed to implement,
          interpret, or prescribe law or policy or
          describing the organization, procedure, or
          practice requirements of an agency and
          includes the approval or prescription for the
          future of rates, wages, corporate or
          financial structures or reorganizations
          thereof, prices, facilities, appliances,
          services or allowances therefor or of
          valuations, costs, or accounting, or
          practices bearing on any of the foregoing.

5 U.S.C. § 551(4).   In light of this broad definition we think it

plain that the INS policies at issue in this case constitute

rules for purposes of the APA.

          Under the APA,
          [g]eneral notice of proposed rulemaking shall
          be published in the Federal Register, unless
          persons subject thereto are named and either
          personally served or otherwise have actual
          notice thereof in accordance with the law.
          ... Except when notice or hearing is
          required by statute, this subsection does not
          apply--
                         (A) to interpretative
               rules, general statements of
               policy, or rules of agency
               organization, procedure, or
               practice ... .

5 U.S.C. § 553(b).   When an agency is required to give notice, it

must then consider the comments of interested parties upon the


                                                                  21
proposed rule, 5 U.S.C. § 553(c), and publish the final rule

within thirty days of its effective date.    5 U.S.C. § 553(d).

          The distinction between "substantive" or "legislative"

rules and "interpretive" or "interpretative" rules has proven to

be one incapable of being drawn with much analytical precision.

Indeed, courts customarily begin recitations of the law on the

subject with remarks such as the distinction is "fuzzy," National

Family Planning and Reproductive Health Ass'n v. Sullivan, 

, 231 (D.C. Cir. 1992); "'enshrouded in considerable

smog,'" La Casa Del Convaleciente v. Sullivan, 

,

1177 (1st Cir. 1992) (quoting General Motors Corp. v.

Ruckelshaus, 

, 1565 (D.C. Cir. 1984)); or "'far from

crystal clear.'"    Metropolitan Sch. Dist. v. Davila, 

, 489 (7th Cir. 1992) (quoting Chemical Waste Management, Inc.

v. EPA, 

, 1534 (D.C. Cir. 1989)), cert. denied, 

, 

(1993).   And the cases live up to

this billing, setting forth tests that are often circular and

usually somewhat Delphic.    Nevertheless, certain principles

emerge, and, while we are not able to capture their essence any

more succinctly than our predecessors, we believe their

application in this case is clear.

           Our most recent statement of the law on this question

appeared in FLRA v. Department of the Navy, 

(3d Cir.
1992)(in banc).    The critical difference between legislative and

interpretative rules, we noted, is that the former "have the

force and effect of law" while the latter do not.   

n.14.   Stated differently, legislative rules have "substantive


                                                                   22
legal effect," while interpretative rules typically involve

construction or clarification of a statute or regulation.     

Bailey v. Sullivan, 

, 62 (3d Cir. 1989);

United States v. Walter Dunlap & Sons, Inc., 

, 1238

(3d Cir. 1986).   "If a rule creates rights, assigns duties, or

imposes obligations, the basic tenor of which is not already

outlined in the law itself, then it is substantive."   La Casa Del

. Put yet another way,
          what distinguishes interpretative from
          legislative rules is the legal base upon
          which the rule rests. If the rule is based
          on specific statutory provisions, and its
          validity stands or falls on the correctness
          of the agency's interpretation of those
          provisions, it is an interpretative rule. If,
          however, the rule is based on an agency's
          power to exercise its judgment as to how best
          to implement a general statutory mandate, the
          rule is likely a legislative one.

United Technologies Corp. v. EPA, 

, 719-20 (D.C. Cir.

1987).

          Of course as applied to many rules, such statements are

apt to amount to conclusions about the rule rather than

principled bases on which to categorize them.   Thus courts have

inquired into the agency's perception of the rule.   This inquiry

concerns first the agency's characterization of the rule as

legislative or interpretative.   See, e.g., 

; United 

; Levesque v. Block, 

, 182 (1st Cir. 1983); Cerro Metal Prods. v. Marshall,

, 981 (3d Cir. 1980).   The more basic determination,

however, involves whether "'if by its action the agency intends

to create new law, rights or duties.'"   United Technologies, 

(quoting General Motors Corp. v. Ruckelshaus, 

, 1565 (D.C. Cir. 1984) (en banc), cert. denied, 

(1985)).   See also Daughters of Miriam Center for the

Aged v. Mathews, 

, 1255 n.9 (3d Cir. 1978).    Courts

have also looked more broadly to "the impact that a given rule

has on those to whom the rule applies."    Ohio Dep't of Human

Servs. v. HHS, 

, 1233 (6th Cir. 1988).    While the

substantial impact of a rule is relevant to its classification,

however, such an impact will not, without more, compel a finding

that a rule is legislative.   

; La Casa Del

.

           Recognizing that even consideration of all these

factors will not always lead to a clear determination, we noted

in FLRA v. Department of the Navy that it is often helpful to

analyze a rule with an eye to the policies animating the APA's

notice and comment requirement.    FLRA v. 

n.14 (citing Batterton v. Marshall, 

, 705 (D.C. Cir.

1980)).   As the D.C. Circuit noted in Batterton: "Analysis that

improves upon semantic play must focus on the underlying purposes

of the procedural requirements at issue.    The essential purpose

of according § 553 notice and comment opportunities is to

reintroduce public participation and fairness to affected parties

after governmental authority has been delegated to

unrepresentative 

.   See also Morton v.
Ruiz, 

, 232, 

, 1073 (1974) ("The

Administrative Procedure Act was adopted to provide, inter alia,
that administrative policies affecting individual rights and


                                                                    24
obligations be promulgated pursuant to certain stated procedures

so as to avoid the inherently arbitrary nature of unpublished ad

hoc determinations.").

           Consideration of these factors in the context of this

case leads us to the conclusion that the INS rules here are

legislative in nature.   As our analysis in the preceding section

reveals, the statute simply does not set out a standard

concerning liability for the costs of detention in cases such as

this.   Any attempt to divine an answer leads only to the

conclusion that there is tension if not outright inconsistency

within the INA to the extent that it can be read as addressing

the question.   Moreover, there is no suggestion that the statute

speaks at all to the conditions of detention.   Yet, in the face

of what is at best statutory ambiguity, INS has adopted rules

holding carriers liable for unlimited costs of detention and

imposing custody with no guidelines, or subject only to standards

as determined by an INS officer on the scene.   This is no less a

legislative decision than would be the adoption of a detailed

code concerning the limits and conditions of detention.

           Our conclusion squares with those of other courts

confronted with agency implementation of statutes that do not

address the agency action at issue.   "In the present case,

'interpretation' could only go so far as to spot the dilemma

posed by the statutory inconsistency, while legislative-type

action was required to carry the agency the rest of the way ...

."   Citizens to Save Spencer County v. EPA, 

, 879
(D.C. Cir. 1979).   See also National Family 

237 (noting that filling in gaps and resolving inconsistencies in

statutory scheme involves legislative rulemaking); Chamber of

Commerce v. OSHA, 

, 469 (D.C. Cir. 1980) ("It is

clear to us that the [agency] has attempted through this

regulation to supplement the [statute], not simply to construe

it, and therefore the regulation must be treated as a legislative

rule.").   The INS has stretched the limits of the INA, without

the benefit of input from the affected parties, and now contends

that these parties are without power to challenge its actions.

This plainly amounts to legislative rulemaking.

           Our conviction is only strengthened when we consider

the impact of the INS's rules.    In this case Dia was forced to

spend a considerable sum of money detaining the four stowaways

under armed guard in a commercial hotel for 54 days--a period

which appears to be considerably shorter than is normally needed

to process asylum applications.    Dia also had to assist the

stowaways in the preparation of their applications, which

included hiring an interpreter.    Perhaps most significantly, Dia

was forced to deal with a suicidal stowaway on a hunger strike,

with the resulting use of leg irons.    This was certainly a less-

than-ideal situation for both Dia and the stowaway, and perhaps

for the other guests at the Holiday Inn, but the INS refused to

assume custody.   Episodes such as this appear to be what

motivated Congress to enact the User Fee Statute and require the

INS to take custody of aliens.

           In sum, we hold that, if the INS wishes to impose on

private carriers the costs of detaining stowaways who have

                                                                   26
applied for asylum, it must do so pursuant to the notice and

comment requirements of the APA.     Moreover, because the decision

to impose custody and/or the costs of detention on carriers

necessarily involves some decision as to the extent and

conditions of these obligations, the INS must adopt its rules,

governing these issues and setting forth how questions concerning

the extent and conditions of detention will be answered, pursuant

to notice and comment.

           Because the INS has not conformed with the requirements

of the APA in establishing its policy on the costs and conditions

of detention of asylum-seeking stowaways pending a decision on

the asylum application, the district court erred in failing to

grant that portion of Dia's motion for a declaratory judgment to

that effect.

                               IV.

           We now turn briefly to Dia's claims for reimbursement

of its expenses in detaining the stowaways.     Dia argues that it

is entitled to reimbursement under the APA and under the Tucker

Act.   We believe the district court correctly concluded that Dia

may not recover its expenses under either of these statutes.

           A. The APA

           Dia first claims that it is entitled to reimbursement

under § 702 of the APA. That section provides in part:
               A person suffering legal wrong because
          of agency action, or adversely affected or
          aggrieved by agency action within the meaning
          of a relevant statute, is entitled to
          judicial review thereof. An action in a
          court of the United States seeking relief
          other than money damages and stating a claim


                                                                     27
            that an agency or an officer or employee
            thereof acted or failed to act in an official
            capacity or under color of legal authority
            shall not be dismissed nor relief therein be
            denied on the ground that it is against the
            United States or that the United States is an
            indispensable party.

5 U.S.C. § 702 (emphasis added).    The district court found that

the relief Dia seeks qualifies as money damages for purposes of

this section, 

, and that as a result

recovery is barred by the doctrine of sovereign immunity.      

urges us to adopt this analysis.

            In Bowen v. Massachusetts, 

, 

, 

(1988), the Supreme Court noted that "[t]he

fact that a judicial remedy may require one party to pay money to

another is not a sufficient reason to characterize the relief as

'money damages.'"    

108 S.Ct. at 2732.   In Bowen the

state of Massachusetts sued the Secretary of Health and Human

Services to enforce a provision of the Medicaid Act which

required payment of certain amounts to the state for Medicaid

services.    The Court noted that Massachusetts' suit
            is not a suit seeking money in compensation
            for the damage sustained by the failure of
            the Federal Government to pay as mandated;
            rather, it is a suit seeking to enforce the
            statutory mandate itself, which happens to be
            one for the payment of money. The fact that
            the mandate is one for the payment of money
            must not be confused with the question
            whether such payment, in these circumstances,
            is a payment of money as damages or as
            specific relief.

108 S.Ct. at 2735.   The Court concluded that

"since the [district court's] orders are for specific relief

(they undo the Secretary's refusal to reimburse the State) rather


                                                                     28
than for money damages (they do not provide relief that

substitutes for that which ought to have been done) they are

within the District Court's jurisdiction under § 702's waiver of

sovereign immunity."    

108 S.Ct. at 2740.

          Following the Supreme Court's lead, this court has

similarly determined that a monetary award can in some instances

constitute equitable relief rather than money damages for

purposes of § 702.     See Zellous v. Broadhead Assocs., 

(3d Cir. 1990).   Other courts have reached the same conclusion.

See, e.g., Esch v. Yeutter, 

, 984 (D.C.Cir. 1989);

Beverly Hospital v. Bowen, 

, 487 (D.C.Cir. 1989).      As

the district court concluded, "all of these cases have concerned

some form of statutory entitlement to monetary relief."     

.   The crucial distinction involves whether a

claimant "'is seeking funds to which a statute allegedly entitles

it, rather than money for the losses ... suffered by virtue of'"

the agency's failure to do that which it was required to do.

, 108 S.Ct. at 2735 (quoting Maryland Dept.

of Human Resources v. Department of Health and Human Services,

, 1446 (D.C.Cir. 1985)).

          In this case the reimbursement Dia seeks falls squarely

within the category of "money damages" as prior case law has

defined that term.     The INA simply does not speak to the question

of responsibility for the costs of detention of stowaways who

apply for asylum.    Thus there is no statutory entitlement to

these funds.   Instead, Congress has explicitly given the INS the

authority to promulgate regulations as it deems necessary in

                                                                   29
implementing the INA.    8 U.S.C. § 1103.     The entitlement to these

costs, then, must originate from INS rather than from a court

that lacks the requisite expertise and information to craft an

appropriate standard.    Indeed, were we to fashion a rule out of

Congress' silence simply because Dia has alleged a statutory

entitlement we would not only be usurping the role of the agency

but also inviting parties to use § 702 to circumvent

administrative agencies in favor of the courts.      We cannot allow

the identity of the decisionmaker to be determined by crafty

lawyering.    Cf. 

, 108 S.Ct. at 2743

(Scalia, J., dissenting).

             As we view this case, the wrong that Dia has suffered

is not the denial of money to which the INA entitles it, but

rather the INS' failure to follow the appropriate procedures in

implementing the INA.     An award of money in these circumstances

could only be characterized as a substitute for what ought to

have been done, and therefore would constitute money damages.      As

such, Dia's claim is barred by the doctrine of sovereign

immunity.

             B. The Tucker Act
            The district court dismissed Dia's Tucker Act claim on

the ground that it lacks substantive merit.       

n.40.     We conclude that the district court correctly

dismissed this claim, though we do not reach the merits of the

claim because we hold that the district court lacked jurisdiction

over it.

             As our prior cases make clear:

                                                                     30
          Under the Tucker Act, the United States
          Claims Court and district courts share
          original jurisdiction over non-tort monetary
          claims against the United States not
          exceeding $10,000. 28 U.S.C. § 1346(a)(2)
          (sometimes referred to as the "Little Tucker
          Act"). Original jurisdiction over such
          claims seeking more than $10,000 vests
          exclusively in the Claims Court. 28 U.S.C.
          §1491 (the so-called "Big Tucker Act").

Chabal v. Reagan, 

, 353 (3d Cir. 1987).   See also

United States v. Hohri, 

, 67 n.1, 

, 2249

n.1, 

(1987); Livera v. First Nat'l State Bank of
N.J., 

, 1195 (3d Cir.), cert. denied sub nom. Livera

v. Small Business Admin., 

, 

, 

(1989); Hahn v. United States, 

, 585-86

(3d Cir. 1985).

          Dia asserts that the Claims Court's exclusive

jurisdiction is overridden by the Supplemental Jurisdiction Act.

28 U.S.C. § 1367.   We reject this argument in light of the Tucker

Act's explicit jurisdictional bar.   See Pershing Div. of

Donaldson, Lufkin & Jenrette Secs. Corp. v. United States, --F.3d

---, 

, *1-2 (7th Cir. 1994).   Dia has alleged

damages amounting to $127,580, far in excess of the maximum claim

over which the district court could exercise its jurisdiction.

The district court therefore properly dismissed this claim.

                                V.

          For the foregoing reasons, we will reverse the district

court's order, dismissing Dia's complaint, and we will remand

this case to the district court to award a declaratory judgment

in favor of Dia on its claim that the INS policy on the costs and



                                                                  31
conditions of detention of asylum-seeking stowaways is invalid

for failure to comply with the notice and comment procedures of



the APA.   We will affirm the order of the district court insofar

as it dismissed Dia's other claims, including its claim for

monetary relief.




                                                                  32