Matson Navigation Company, Inc. v. United States Department of Transportation; Maritime Administration

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 11, 2023 Decided August 15, 2023
No. 21-1137
MATSON NAVIGATION COMPANY, INC.,
PETITIONER
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION;
MARITIME ADMINISTRATION,
RESPONDENTS
APL MARITIME, LTD. ET AL.,
INTERVENORS
Consolidated with 22-1150, 22-5212, 22-5224
On Petitions for Review of Orders of the U.S. Department of
Transportation and On Appeals from the United States
District Court for the District of Columbia
(No. 1:21-cv-01606)
(No. 1:22-cv-01975)
Lucas C. Townsend argued the cause for
petitioner/appellant. With him on the briefs were Rachel S.
Brass, Joshua M. Wesneski, and Amalia E. Reiss.

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Casen B. Ross, Attorney, U.S. Department of Justice,
argued the cause for respondents/appellees. With him on the
brief were Brian M. Boynton, Principal Deputy Assistant
Attorney General, Charles W. Scarborough, Attorney, John E.
Putnam, General Counsel, U.S. Department of Transportation,
Paul M. Geier, Assistant General Counsel for Litigation and
Enforcement, Joy K. Park, Senior Trial Attorney, and Joseph
O. Click, Trial Attorney, Maritime Administration.
Brian T. Burgess argued the cause for intervenors in
support of respondents. With him on the brief was Gerard J.
Cedrone.
Before: WILKINS, RAO and PAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge RAO.
RAO, Circuit Judge: This case begins and ends with
jurisdiction, which we lack under the Hobbs Act. The United
States Maritime Administration (“MARAD”) approved a
shipping company’s request to replace two vessels operating in
the Pacific trade within the Maritime Security Program.
Matson Navigation Co., a competitor in the Pacific, petitions
for review of the replacements. As a source of jurisdiction,
Matson points to the Hobbs Act, under which we have original
jurisdiction over some acts of MARAD. But we have Hobbs
Act jurisdiction only when a “party aggrieved” files a timely
petition for review.
Matson was not a “party” to the replacement proceedings
for either vessel, and we therefore deny the petitions for direct
review. We also reverse two orders of the district court,
consolidated with these petitions, that held jurisdiction over
Matson’s claims under the Administrative Procedure Act
(“APA”) was exclusive in the court of appeals. Because we

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lack jurisdiction under the Hobbs Act, Matson’s APA claims
were appropriately brought to the district court in the first
instance, and we remand for further proceedings.
I.
A.
Matson is an American shipping company that has been
providing freight carrier services in the Pacific since 1882.
Matson’s vessels carry cargo from the West Coast of the United
States to ports in Asia, Hawaii, Guam, and the Northern
Mariana Islands, to name a few. One of Matson’s competitors
in the region is APL, a shipping company organized in
Delaware and owned by a French corporation.
APL participates in the Maritime Security Program
(“MSP”). The MSP provides annual payments to the owners of
vessels that are made available for use “by the United States
for national defense or military purposes in time of war or
national emergency.” 46 U.S.C. § 53102(b)(4)(A); see also id.
§ 53107. The purpose of the MSP is to “maintain a United
States presence in international commercial shipping” that can
be activated in a crisis. Id. § 53102(a). MARAD, an agency
within the Department of Transportation, oversees the MSP by
determining vessel eligibility, entering into operating
agreements, and approving “replacement” vessels for the MSP
fleet. Id. §§ 53102, 53103, 53105(f); see also 46 C.F.R.
§ 296.1.
MSP vessels must trade exclusively in foreign commerce
with one important exception. Vessels approved before 20181
1 Congress tightened the requirements for MSP vessels engaging in
domestic trade in the National Defense Authorization Act for 2018.
Pub. L. No. 115-91, § 3503, 131 Stat. 1283, 1911 (2017). Except a

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and “replacement” vessels may trade in “mixed” foreign and
domestic trade with designated islands in the Pacific.2 See 46
U.S.C. § 53105(a)(1)(A) (explaining MSP vessels must trade
“exclusively in the foreign commerce or … in mixed foreign
commerce and domestic trade allowed under a registry
endorsement”); id. § 53105(a)(2) (“[I]n the case of a vessel,
other than a replacement vessel …, first covered by an
operating agreement after … 2018, the vessel shall not be
operated in the transportation of cargo between points in the
United States and its territories either directly or via a foreign
port.”). Because new vessels participating in the MSP cannot
engage in trade with domestic islands in the Pacific, it is
valuable for a new vessel to be approved as a “replacement.”
MARAD, in conjunction with the Secretary of Defense,
may approve the replacement of a vessel with another vessel
eligible to be included in the MSP fleet. Id. § 53105(f). To be
eligible for participation in the MSP, a vessel must be owned
and operated by United States citizens as defined by section
50501. Id. § 53102(c)(1); see also id. § 50501 (defining entities
“deemed citizens of the United States”). The vessel must be
“self-propelled” and suitable for “national defense” purposes.
carveout for replacements, only vessels approved before the Act may
engage in “mixed” domestic and foreign trade. See 46 U.S.C.
§ 53105(a).
2 In the United States, domestic shipping is heavily regulated. For
example, under the Jones Act, a vessel may not engage in the
transportation of merchandise “between points in the United States
to which the coastwise laws apply” unless several requirements are
met. 46 U.S.C. § 55102(b). And the vessel must be “wholly owned
by citizens of the United States,” id. § 55102(b)(1), and “built in the
United States,” id. § 12112(a)(2)(A).

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Id. § 53102(b)(3)–(4). And the vessel must provide
“transportation in foreign commerce.” Id. § 53102(b)(2).
Replacement approvals are handled informally between
MARAD and the MSP contractor. Neither the statute nor the
regulations provide for intervention by third parties in these
proceedings. See 46 C.F.R. § 296.30; 46 U.S.C. § 53105(f).
B.
This case involves two replacement vessels. APL
requested approval of the HERODOTE as a replacement for
the GUAM, a vessel operating in the Pacific.3 MARAD
approved the replacement in 2021, and the HERODOTE began
carrying cargo originating in the United States to Saipan. The
agency does not ordinarily provide public notice that an MSP
contractor has applied to replace one vessel with another, and
so Matson was unaware of the proceedings. When it learned of
the approval, Matson asked MARAD to provide the
administrative record so Matson could contest the approval.
MARAD refused.
Matson filed an APA challenge against MARAD in
district court pursuant to 28 U.S.C. § 1331, arguing that
approval of the HERODOTE was arbitrary, capricious, and
contrary to law. At the same time, Matson also filed a petition
for direct review in our court pursuant to the Hobbs Act. The
district court dismissed the APA challenge, holding the Hobbs
3 Matson previously contested the 2015 approval of the GUAM as a
replacement vessel. Matson’s challenge reached our court, and we
dismissed for lack of jurisdiction under the Hobbs Act because
Matson’s petition was untimely. Matson Navigation Co. v. DOT, 895
F.3d 799, 801, 804 (D.C. Cir. 2018).

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Act vested exclusive jurisdiction in the court of appeals, and
Matson appealed.
In June 2022, MARAD approved the DAKAR to replace
another APL vessel operating in the Pacific, the AGATE.
Because of litigation involving the SAIPAN, an earlier
replacement for the AGATE,4 MARAD informed Matson that
APL was seeking to replace the SAIPAN with an unnamed
vessel. MARAD initially provided no details to Matson about
the replacement vessel, but invited Matson to submit
comments. In its comments, Matson argued that MARAD had
violated the Due Process Clause, the APA, and various
regulations by not turning over more information about the
replacement proceedings. Matson also maintained the new ship
was an ineligible replacement under the MSP because it
engaged in domestic trade and because the SAIPAN had been
operating unlawfully. In total, Matson submitted 24 pages of
comments and 38 exhibits. Matson also requested to intervene
and fully participate in the proceedings.
In its order approving the DAKAR as a replacement
vessel, MARAD responded to Matson’s comments but rejected
the request to intervene and fully participate. Matson filed suit
again under the APA, in the district court pursuant to 28 U.S.C.
§ 1331 and in our court pursuant to the Hobbs Act. Matson
4 Matson also contested approval of the SAIPAN as a replacement
vessel in 2016. We dismissed Matson’s challenge to the SAIPAN for
lack of jurisdiction under the Hobbs Act because MARAD’s order
did not invoke section 50501. Matson Navigation, 895 F.3d at 805.
The district court vacated approval of the SAIPAN and remanded the
issue to MARAD. Matson Navigation Co. v. DOT, 471 F. Supp. 3d
60, 62–63 (D.D.C. 2020). APL eventually stopped seeking approval
for the SAIPAN because its age made it ineligible for the MSP. See
46 U.S.C. § 53102(b)(3). The parties dispute whether the DAKAR is
replacing the AGATE or the SAIPAN.

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moved for a preliminary injunction, but the district court denied
Matson’s motion, holding the Hobbs Act granted the court of
appeals exclusive jurisdiction. Matson filed an interlocutory
appeal. We granted the parties’ request to consolidate the four
dockets regarding the DAKAR and HERODOTE: the two
Hobbs Act petitions filed in this court, the interlocutory appeal
from the denial of a preliminary injunction, and the appeal from
a dismissal for lack of jurisdiction.
II.
Matson petitions for direct review under the Hobbs Act,
which provides a “party aggrieved by [a] final [agency] order
may, within 60 days after its entry, file a petition to review the
order in the court of appeals wherein venue lies.” Id. § 2344.
The Hobbs Act enumerates covered agency actions, which
include “all rules, regulations, or final orders of … the
Secretary of Transportation issued pursuant to section 50501.”
Id. § 2342(3). “Implementation of the [MSP] has been
delegated by the Secretary of Transportation to [MARAD].” 46
C.F.R. § 296.1. Matson claims MARAD’s approvals of the
HERODOTE and the DAKAR were issued pursuant to section
50501, which defines “[e]ntities deemed citizens of the United
States,” one of the eligibility criteria for participation in the
MSP. 46 U.S.C. § 50501; see also id. § 53102(c). We do not
reach the merits of Matson’s claim because Matson was not a
“party aggrieved” by APL’s replacement proceedings, and we
lack jurisdiction under the Hobbs Act.
To determine whether a petitioner is a “party aggrieved”
under the Hobbs Act, we apply “two successive steps.” Water
Transp. Ass’n v. ICC, 819 F.2d 1189, 1192 (D.C. Cir. 1987).
First, a petitioner is “aggrieved” when the traditional analysis
for Article III standing is satisfied—namely the petitioner “has
suffered an injury in fact traceable to the [agency’s] ruling and

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redressable by a decision” of our court. Id. at 1193. Second, we
consider whether the petitioner was a “part[y] to the underlying
agency proceedings.” ACA Int’l v. FCC, 885 F.3d 687, 711
(D.C. Cir. 2018). We “must read ‘party’ as referring to a party
before the agency, not a party to the judicial proceeding.”
Simmons v. ICC, 716 F.2d 40, 43 (D.C. Cir. 1983). This reflects
the “special judicial review provisions of the Hobbs Act,” in
which Congress specified a petitioner must be a “party
aggrieved,” rather than a “person aggrieved” as in the APA’s
judicial review provision enacted just four years earlier. Id.
(emphasis added). Giving “meaning to that apparently
intentional variation,” a petitioner must acquire “party” status
before the agency in order to invoke jurisdiction under the
Hobbs Act. Id.
The prerequisites to being a “party” will depend in part on
the nature of the agency proceedings because the Hobbs Act
provides for review of a variety of agency actions, including
“rules, regulations, [and] final orders.” See 28 U.S.C.
§ 2342(3). We have said the level of participation necessary to
be a “party” depends on the formality of the proceedings. Ohio
Nuclear-Free Network v. NRC, 53 F.4th 236, 239 (D.C. Cir.
2022); see also Simmons, 716 F.2d at 43 (explaining that when
agency proceedings are not “structured” so “at least some
persons may acquire party status,” there are “other means to
assure, where appropriate,” that an “order will be directly
appealable” under the Hobbs Act). When intervention before
the agency is required, review “will be denied to those who did
not seek—or who sought but were denied—leave to intervene.”
Ohio Nuclear-Free Network, 53 F.4th at 239 (cleaned up). In
informal proceedings, however, a petitioner may be considered
a “party” after making a “full presentation of views” before the
agency. Water Transp. Ass’n, 819 F.2d at 1193. “[D]e minimis
participation is insufficient.” S. Pac. Transp. Co. v. ICC, 69
F.3d 583, 587 (D.C. Cir. 1995) (cleaned up).

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Even assuming that MARAD’s orders approving the
HERODOTE and the DAKAR were issued pursuant to section
50501 and that Matson was “aggrieved” as a competitor to
APL’s replacement vessels, Matson was not a “party” to the
MARAD proceedings and therefore we lack jurisdiction over
Matson’s Hobbs Act petitions.
A.
We first consider MARAD’s order approving the
HERODOTE as a replacement vessel under the MSP.
“MARAD has always handled MSP participant requests for
approval of a replacement vessel as informal matters between
MARAD, in consultation with the [Department of Defense],
and the MSP participant.” Email from Joseph O. Click, Lead
Attorney, Maritime Support Programs, to Mark A. Perry &
Brian Burgess, Attorneys for Matson Navigation Co. (Sept. 1,
2021). MSP contractors send a request for approval to the
Maritime Administrator. There is no formal mechanism for
third parties to submit comments or intervene. Matson admits
it did not participate, in any way, in the 2021 MARAD
proceedings about whether the HERODOTE should be
approved as a replacement vessel. Matson did not seek to
intervene and did not otherwise present its views to the agency.
In fact, Matson complains it was unaware the replacement
proceedings were happening at all. After learning of the
HERODOTE’s approval, Matson requested the administrative
record, but MARAD refused.
Because it was in the dark about the proceedings, Matson
made no presentation of its views to the agency, much less the
full presentation necessary to being a “party aggrieved.” We
therefore lack jurisdiction over Matson’s Hobbs Act petition
challenging MARAD’s 2021 approval of the HERODOTE as
a replacement vessel.

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B.
With respect to the approval of the DAKAR as a
replacement vessel, Matson managed some participation in the
MARAD proceedings. In 2021, APL requested approval to
replace the AGATE. Because Matson had successfully sued
MARAD in district court for approving the SAIPAN as a
replacement for the AGATE in 2016, and the court had
“requested that MARAD keep Matson apprised of
developments,” the agency informed Matson about the
replacement application. See Email from Joseph O. Click to
Mark A. Perry & Brian Burgess. Although MARAD declined
to provide Matson with detailed information about the
replacement, because of “the unique circumstances” of the
long-running lawsuit against MARAD over the AGATE, the
agency invited Matson to “submit any comments with respect
to the vessel application” within two weeks. Id. This was
unusual for what is normally a bilateral process between the
MSP contractor and the agency.
Matson submitted 24 pages of comments and 38 exhibits
to MARAD. Matson maintained that the agency had violated
the Due Process Clause, the APA, and MARAD’s regulations
by not allowing Matson to participate fully. Additionally,
Matson argued, on the merits, that the new ship was ineligible
under the MSP because it engaged in domestic trade and was
ineligible as a replacement because the vessel being replaced
had been operating unlawfully. Finally, Matson asked to
“intervene” and “fully participate” in the proceedings.
MARAD allowed APL to submit a response.
MARAD approved the DAKAR in May 2022, responding
to Matson’s comments and APL’s response, but rejecting
Matson’s attempts to “intervene” and “fully participate” in the
proceedings. MARAD stated that for “informal adjudications”

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like the replacement proceedings, only “minimal procedural
requirements” are necessary. According to MARAD, it had
“provided Matson with a significant opportunity to appear
before the agency and present its views,” but allowing third
parties to intervene would “convert the MSP vessel
replacement process into an adversarial proceeding” and “only
disrupt[] what has heretofore been an informal process that has
operated smoothly and relatively expeditiously.” Although
MARAD rejected Matson’s request to participate more fully,
the agency responded to and rejected several of Matson’s
comments on the merits.5
Matson’s limited participation in the DAKAR’s approval
did not make Matson a “party” to the agency proceedings for
the purposes of the Hobbs Act. First, MARAD refused to turn
the replacement approval process into a formal proceeding.
Although MARAD permitted Matson to submit limited
comments, the agency explicitly rejected Matson’s request to
intervene. And we have held that a petitioner is not a party
when intervention is sought but denied. Ohio Nuclear-Free
Network, 53 F.4th at 239. Intervention is the process by which
a non-party becomes a party to a proceeding. See generally
Broidy Cap. Mgmt. LLC v. Muzin, 61 F.4th 984, 990 (D.C. Cir.
2023) (“Parties to the record include the original parties and
those who have become parties by intervention.”) (cleaned up).
Ordinarily, an individual denied intervention “is not a party.”
Defs. of Wildlife v. Perciasepe, 714 F.3d 1317, 1328 (D.C. Cir.
2013) (cleaned up). Matson never became a “party” under the
Hobbs Act because its request to intervene was denied. Ohio
Nuclear-Free Network, 53 F.4th at 239. In fact, Matson
5 MARAD disagreed with Matson’s claims that the DAKAR’s trade
with Saipan rendered it ineligible under the MSP, that the DAKAR
could not replace the AGATE because the AGATE was ineligible,
that the DAKAR violated MARAD’s “heel-to-toe” policy for
replacement, and that the DAKAR was not commercially viable.

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acknowledges that “MARAD refused to allow Matson to
intervene and fully participate in the DAKAR proceedings.”
Reply Br. 5. Matson may separately claim MARAD’s denial of
intervention was unlawful, but it has not done so in the petition
before this court.
Second, Matson did not make a “full presentation of
views” before MARAD. In its comments, Matson argued the
agency had acted unlawfully by denying the opportunity to
“fully participate.” Matson pointed out that it did not have the
requisite information to present all its views, including “timely
copies of any submissions, applications, correspondence, or
other communications” to the agency. In addition, Matson was
not provided with the “how, when[,] and why” of APL’s
decision to operate the DAKAR, or even the technical
specifications of the vessel like “size, type, and age.” In no way
was the 2022 replacement proceeding an “adversarial” one.
Rather, it was an administrative application process between
APL and MARAD. Matson played a limited outside role and
submitted comments within the narrow scope permitted by
MARAD. Because Matson did not, and was not allowed to,
fully present its views in the DAKAR proceedings, Matson was
not a “party” within the meaning of the Hobbs Act.
While we have held that less formal participation may
sometimes be sufficient for “party” status, those cases are
distinguishable from the facts here. For example, in Water
Transportation Association, the agency “did not call for formal
intervention” and instead “solicited general protests.” 819 F.2d
at 1193. “Given the informality of th[e] proceeding,” we found
the petitioner participated fully by submitting a protest and
therefore had “party status.” Id. There, the petitioner had full
access to information about the proceedings, and so was able
to present a full protest to the agency’s action. Id.; see also ACA
Int’l, 885 F.3d at 711 (finding the petitioner had achieved party

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status by commenting on another’s request for a declaratory
ruling from the agency because the petitioner had “expressed
support” for the request and “address[ed] certain additional
issues,” similar to the process of “submitting comments … in
the context of a rulemaking”) (cleaned up).
By contrast, Matson tried to participate fully and was
prevented from doing so. The agency action here was not a
rulemaking in which a person could participate by submitting
comments; nor did the agency provide information about the
proceedings and allow third parties to make a general protest.
As MARAD has explained, replacement proceedings under
section 53105(f) have always been informal and bilateral,
between the MSP Contractor and the agency, without
adversarial participation or public comments. There is no
process for intervention and no specific procedures the agency
must follow. See 46 C.F.R. § 296.30 (explaining simply that
the vessel owner can seek replacement). Here, Matson was able
to make limited comments, with limited information about the
proceeding, as a matter of administrative grace. Matson’s
participation was so limited, it argued the proceedings violated
the APA and the Constitution. Accordingly, Matson was not a
“party” before MARAD under the Hobbs Act and we lack
jurisdiction to review Matson’s petitions for review.
III.
Our lack of jurisdiction under the Hobbs Act also
dispenses with Matson’s two appeals from the district court. In
Matson’s challenges to the DAKAR and HERODOTE
proceedings under the APA, the district court held that the
court of appeals had exclusive jurisdiction under the Hobbs
Act. Because this was error, we reverse and remand both cases
to the district court to consider the merits of Matson’s claims.

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* * *
Whether a case begins in district court or is eligible for
direct review in our court is a policy decision that is for
“Congress rather than us to determine.” Simmons, 716 F.2d at
43. The important thing is clarity. As Matson’s counsel stated
at oral argument, the company is just “trying to get review.”
Because sending limited comments based on limited
information to an informal agency proceeding does not confer
“party” status under the Hobbs Act, that review starts in the
district court.
We therefore dismiss the two petitions for review under
the Hobbs Act; we reverse the district court’s denial of a
preliminary injunction in the challenge to the 2022 approval
order; and we reverse the dismissal of the 2021 approval order.
We remand to the district court for further proceedings
consistent with this opinion.
So ordered.

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