KETANJI BROWN JACKSON, United States District Judge.
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 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.
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.)
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 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;
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 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:
Id. (emphasis added).
Beginning in the spring of 2011, the Coast Guard received various whistleblower
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.
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 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.)
After the vessels were released, Plaintiffs initiated the Coast Guard's administrative appeals process in order to challenge
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
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 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.)
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 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).
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
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 whether the federal court has jurisdiction to consider it. See Sierra Club v. Jackson,
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, 87 S.Ct. 1507, 18 L.Ed.2d 681 (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 nonjusticiability argument.
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, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). The Supreme Court has identified only two related scenarios in which this exception 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, 91 S.Ct. 814 (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, 105 S.Ct. 1649, 84 L.Ed.2d 714 (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 Bottigilieri, 843 F.Supp.2d at 1246; Order, First Bus. Shipping Corp. v. United States, No. 06-cv-802, 2006 WL 2189077 (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.
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 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
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, 105 S.Ct. 1649).
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)
Id. (footnote omitted). Absent any standards to apply, the court concluded that the matter was committed to agency discretion by law. Id. at 1249.
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
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, 105 S.Ct. 1649 (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, 105 S.Ct. 1524, 84 L.Ed.2d 547 (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, 105 S.Ct. 1649. Notably, the statute need not provide an 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, 105 S.Ct. 1649).
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
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. 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
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 non-justiciable 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.
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, 105 S.Ct. 1649; 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 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, 108 S.Ct. 2047; 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.
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 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 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.
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:
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, 91 S.Ct. 814; Chaney, 470 U.S. at 830, 105 S.Ct. 1649; 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 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.
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
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, 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.
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
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 nonfinancial 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 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 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.
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.)
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,
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 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.
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 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
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 non-justiciable 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, 108 S.Ct. 2047, and judicial review of a constitutional due process claim that challenges unconscionable clearance conditions as wholly unconscionable 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 security demands").
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 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.
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),
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.
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
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 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
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
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.
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
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 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
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 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 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
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.
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.