FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICA CARGO TRANSPORT, INC., a
Corporation,
Plaintiff-Appellant, No. 08-35010
v. D.C. No.
CV-05-00393-JLR
UNITED STATES OF AMERICA,
Defendant-Appellee.
AMERICA CARGO TRANSPORT, INC., a
Corporation, No. 08-35276
Plaintiff-Appellant,
v. D.C. No.
2:05-cv-00393-JLR
UNITED STATES OF AMERICA, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted
September 1, 2010—Seattle, Washington
Filed November 5, 2010
Before: Michael Daly Hawkins and M. Margaret McKeown,
Circuit Judges, and Thomas J. Whelan,
Senior District Judge.*
*The Honorable Thomas J. Whelan, Senior United States District Judge
for the Southern District of California, sitting by designation.
18307
18308 AMERICA CARGO TRANSPORT v. UNITED STATES
Opinion by Judge McKeown
18310 AMERICA CARGO TRANSPORT v. UNITED STATES
COUNSEL
Timothy R. Lord and Vickey L. Quinn, San Francisco, Cali-
fornia, for the plaintiff-appellant.
Brian Kipnis and Thomas Merton Woods, Assistant United
States Attorneys, Seattle, Washington, for the defendant-
appellee.
OPINION
McKEOWN, Circuit Judge:
This appeal centers around federal cargo shipping prefer-
ences related to the United States government’s Food for
Peace program. Specifically, we consider whether the govern-
AMERICA CARGO TRANSPORT v. UNITED STATES 18311
ment’s changed position with respect to the administrative
process governing international food aid shipments moots this
appeal and whether the government is nonetheless subject to
money damages for failing to comply with those require-
ments.
BACKGROUND
America Cargo Transport, Inc. (“ACT”) filed suit against
the United States government, naming the Department of
State Agency for International Development (“USAID”) and
the Department of Transportation Maritime Administration
(“MARAD”) as defendants.1 ACT’s amended complaint
alleges a violation of federal cargo preference laws and
requests injunctive and declaratory relief as well as damages
for unjust enrichment. ACT also moved for attorney’s fees
and costs under the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412.
Under Title II of the Food for Peace program, 7 U.S.C.
§ 1721, Congress authorized USAID to distribute food aid
worldwide to countries in need and to “promote economic and
community development.” Id. Shipping food overseas is not
a simple matter from a regulatory point of view, as the pro-
cess implicates multiple agricultural, shipping, and other laws
and regulations.
To transport food to foreign countries, USAID works with
organizations that receive bids directly from cargo carriers
that transport the food shipments. See id. § 1722. The Cargo
Preference Act of 1954 (“CPA”), 46 U.S.C. § 55305(b), pro-
vides that USAID must take steps to ensure that fifty percent
of the gross tonnage of commodities under Title II are trans-
ported on U.S.-flag vessels “to the extent those vessels are
1
ACT also sued the Community Credit Corporation (“CCC”). Since
ACT makes no arguments specific to its claims against CCC, we do not
consider these claims on appeal.
18312 AMERICA CARGO TRANSPORT v. UNITED STATES
available at fair and reasonable rates.” Id. Where agricultural
commodities, like the vegetable oil at issue here, are involved,
the Food Security Act (“FSA”) requires an additional twenty-
five percent of the gross tonnage be shipped on U.S.-flag ves-
sels, see 46 U.S.C. § 55314(a)(1), raising the minimum to
seventy-five percent. The cargo preference regulation relevant
to this case provides that “each full shipload of cargo” must
be shipped on a U.S.-flag vessel, unless MARAD agrees with
USAID that (a) such “vessels are not available at fair and rea-
sonable rates,” or (b) there is a “substantially valid reason” for
using a foreign-flag vessel. 46 C.F.R. § 381.5.
In February 2005, two freight forwarders for eligible orga-
nizations issued solicitations for ocean transportation of Title
II food aid—specifically, 5,660 metric tons of vegetable oil—
from Texas to multiple port destinations in India. These solic-
itations provided that the “lowest responsive offeror meeting
the mandatory requirements of the solicitations” would
receive the bid. Maersk Sea-Land (“Maersk”) offered to trans-
port a portion of the vegetable oil for $125 per metric ton, and
ACT offered to transport the full shipload for $520 per metric
ton. Both offers were Priority 1 (“P1”) bids, or bids for trans-
port on U.S.-flag vessels. USAID recommended that the orga-
nizations award the contract for the partial shipment to
Maersk. USAID recommended awarding the remainder of the
vegetable oil shipment to Priority 2 and 3 bids—those involv-
ing either partial or full shipment on a foreign-flag vessel—
because ACT had not offered to transport less than a full ship-
load and there were no other offers from P1 vessels.
ACT claims that the vessel offered by Maersk was not actu-
ally a P1 vessel (i.e., not a U.S.-flag vessel), and that if
USAID had sought MARAD’s concurrence, as USAID was
required to do under 46 C.F.R. § 381.5, it would have discov-
ered that fact and recommended acceptance of ACT’s bid.
Under USAID’s interpretation of § 381.5, the agency was not
required to seek MARAD’s concurrence. MARAD viewed
the process differently, claiming that USAID needed
AMERICA CARGO TRANSPORT v. UNITED STATES 18313
MARAD’s concurrence because ACT offered to carry a full
shipload of cargo.
In April 2006, in the midst of ongoing discovery disputes,
and upon a joint stipulation of the parties, the district court
stayed the proceedings to allow the Department of Justice to
reconcile this conflict between the federal agencies and to
determine the government’s litigation position going forward.
The court extended the stay through October 2006, but the
stay expired prior to a resolution of the dispute between
USAID and MARAD. Nonetheless, almost a year later, in its
motion for summary judgment, the government advised the
district court that the dispute between USAID and MARAD
had been resolved in favor of MARAD, which took the same
position as ACT. The government stated that “MARAD’s
concurrence is required prior to accepting an offer to carry
less than a full shipload of cargo, if a shipping company has
offered to carry a full shipload of cargo on a P1 vessel, and
that offer is responsive and otherwise meets the agency’s
needs.” In short, the Government “do[es] not dispute that
USAID was required by 46 C.F.R. § 381.5 to recommend that
the ACT offer be accepted.”
The district court granted the government’s motion for
summary judgment, finding ACT’s § 381.5 claims for injunc-
tive and declaratory relief moot because “the Government . . .
adopted ACT’s position that USAID was required to seek a
concurrence from MARAD before making a recommendation
about the cargo and has conceded that doing so would have
led to ACT being awarded the bid.” The district court also
dismissed ACT’s claims for unjust enrichment and money
damages, concluding that the government had not waived its
sovereign immunity under the Suits in Admiralty Act
(“SAA”), 46 U.S.C. § 30903. Finally, the district court denied
ACT’s motion for attorney’s fees and costs under EAJA.
18314 AMERICA CARGO TRANSPORT v. UNITED STATES
ANALYSIS
I. MOOTNESS OF CLAIMS UNDER 46 C.F.R. § 381.5
We first consider whether this appeal is moot in light of the
government’s changed position on the issue that is at the heart
of the suit—the requirement of MARAD review. The district
court found ACT’s claims for injunctive and declaratory relief
under 46 C.F.R. § 381.5 were moot because the United States
adopted ACT’s position going forward—that USAID was
required to seek MARAD’s concurrence before making a rec-
ommendation about the cargo because ACT offered to carry
a full shipload. We agree.
[1] Courts are understandably reluctant to declare a case
moot based on the defendant’s voluntary cessation of the
challenged activity. See, e.g., Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000)
(“[A] defendant claiming that its voluntary compliance moots
a case bears the formidable burden of showing that it is abso-
lutely clear the allegedly wrongful behavior could not reason-
ably be expected to recur.”); United States v. W. T. Grant Co.,
345 U.S. 629, 633 (1953) (noting the defendant’s burden of
“demonstrat[ing] that there is no reasonable expectation that
the wrong will be repeated . . . is a heavy one” (internal quota-
tion marks omitted)). Nevertheless, where there is “no reason-
able . . . expectation that the alleged violation will recur,” and
where “interim relief or events have completely and irrevoca-
bly eradicated the effects of the alleged violation,” the case is
moot. County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979) (internal quotation marks omitted).
[2] ACT argues that its § 381.5 claims are not moot
because the government has not met the heavy burden of
showing that it would not repeat the “same illegal conduct” in
the future. This argument is unavailing. The government was
faced with conflicting agency interpretations and resolved the
interpretive dispute in favor of MARAD. This approach mir-
AMERICA CARGO TRANSPORT v. UNITED STATES 18315
rors ACT’s claims, thus mooting any need for declaratory
relief. Because the shipment at issue has already been
completed—the ship has in this case literally sailed—ACT’s
claim for injunctive relief is moot as well.
[3] ACT’s effort to forestall mootness by characterizing
the government’s action as “strategic mootness” does not save
the day. The fact is the government changed its policy and
agreed with ACT. Although this change certainly affects the
litigation, there is no basis to suggest it is a transitory litiga-
tion posture. At a hearing before the district court on the gov-
ernment’s motion for summary judgment, counsel for the
government emphasized: “The government’s position is
[changed] to the new permanent . . . policy set forth in our
summary judgment papers. We stand by that.”
[4] The government’s change of policy presents a special
circumstance in the world of mootness. Of course there is
always the possibility of bad faith and a change of heart. But,
unlike in the case of a private party, we presume the govern-
ment is acting in good faith. Our prior cases are consistent
with this principle, see, e.g., White v. Lee, 227 F.3d 1214,
1243 (9th Cir. 2000) (holding that permanent change in
HUD’s policy with respect to Fair Housing Act investigations
was sufficient to render plaintiff’s claim moot); Lyons v. City
of Los Angeles, 615 F.2d 1243, 1245-46 & n.4 (9th Cir. 1980)
(finding “[t]he city attorney has now announced an official
policy” and that “given the change in policy, there is not a
strong possibility of a recurrence of the behavior of which the
appellant complains”), and our sister circuits abide by this
presumption.
[5] The Seventh Circuit’s approach reflects the prevailing
norm: “[C]essation of the allegedly illegal conduct by govern-
ment officials has been treated with more solicitude by the
courts than similar action by private parties.” Ragsdale v.
Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988) (citing 13A
Charles Allan Wright, Arthur R. Miller & Edward H. Cooper,
18316 AMERICA CARGO TRANSPORT v. UNITED STATES
Federal Practice and Procedure § 3533.7, at 353 (2d ed.
1984)). As the court noted, “[a]nalogous assurances of discon-
tinuance of the challenged conduct have been held to render
challenges moot in other cases.” Id. In the years since Rags-
dale, other courts have followed the same principle of defer-
ence. See, e.g., Rio Grande Silvery Minnow v. Bureau of
Reclamation, 601 F.3d 1096, 1117 (10th Cir. 2010) (requir-
ing, to deny mootness, “clear showings“ of a governmental
“desire to return to the old ways”); Coral Springs St. Sys., Inc.
v. City of Sunrise, 371 F.3d 1320, 1328-29 (11th Cir. 2004)
(“[G]overnmental entities and officials have been given con-
siderably more leeway than private parties in the presumption
that they are unlikely to resume illegal activities.”); Ammex,
Inc. v. Cox, 351 F.3d 697, 705 (6th Cir. 2003) (noting that
cessation of conduct by the government is “treated with more
solicitude . . . than similar action by private parties”).
[6] The specific question that gave rise to the suit—
consultation with MARAD—was resolved in ACT’s favor.
Because we no longer have a concrete case or controversy
before us, we affirm the district court’s dismissal of ACT’s
claims for declarative and injunctive relief as moot.
II. MONEY DAMAGES AND THE SUITS IN ADMIRALTY ACT
In addition to challenging the government’s earlier inter-
pretation of the shipping regulation, ACT seeks monetary
damages, alleging that its bid was “wrongly rejected by
USAID in favor of substantially lower bids submitted by for-
eign flagged carriers.” The district court dismissed this claim
on the ground that the United States has not waived its sover-
eign immunity in this case. Because this case does not fall
within the exception to sovereign immunity in the SAA, we
affirm.
[7] As a general rule, “[t]he United States, as sovereign, is
immune from suit save as it consents to be sued, . . . and the
terms of its consent to be sued in any court define that court’s
AMERICA CARGO TRANSPORT v. UNITED STATES 18317
jurisdiction to entertain the suit.” Hercules, Inc. v. United
States, 516 U.S. 417, 422 (1996) (internal quotation marks
omitted). The SAA’s sovereign immunity exception provides
as follows:
In a case in which, if a vessel were privately owned
or operated, or if cargo were privately owned or pos-
sessed, or if a private person or property were
involved, a civil action in admiralty could be main-
tained, a civil action in admiralty in personam may
be brought against the United States or a federally-
owned corporation.
46 U.S.C. § 30903(a).
[8] Whether the United States has waived sovereign immu-
nity in connection with shipping under the Food for Peace
program is a question of first impression for our court. As the
text of the SAA makes clear, the waiver of sovereign immu-
nity applies only where a private party would be liable under
admiralty law for the same conduct. See Taghadomi v. United
States, 401 F.3d 1080, 1083 (9th Cir. 2005) (noting that the
SAA waiver of sovereign immunity applies “in any case in
which, if a private person or property were involved, a pro-
ceeding in admiralty could be maintained” (internal quotation
marks omitted)).
[9] ACT’s alleged injury is that USAID wrongly rejected
ACT’s bid in violation of the federal laws governing cargo
preference and food safety. But those laws—the Cargo Prefer-
ence Act and the Food Security Act—regulate only the gov-
ernment’s conduct. Because a private party could not be liable
under either the CPA or FSA, the statutory waiver is inappli-
cable here. As the district court succinctly stated, “the fatal
flaw of [ACT’s] argument is that no private person could be
sued for a violation of the cargo preference laws or the federal
regulations implementing them. The relevant statutes and reg-
ulations are directives to be followed by the Government, not
18318 AMERICA CARGO TRANSPORT v. UNITED STATES
private persons.” Simply put, these laws regulate government,
not private, conduct.
An analogous situation arises in the context of the Federal
Tort Claims Act (“FTCA”), which provides a waiver of sover-
eign immunity “if a private person[ ] would be liable to the
claimant.” 28 U.S.C. § 1346(b)(1). On the basis of this lan-
guage, “courts have held that the FTCA applies only if state
law would impose liability on private persons under similar
circumstances.” Woodbridge Plaza v. Bank of Irvine, 815
F.2d 538, 543 (9th Cir. 1987).
The case of Westbay Steel, Inc. v. United States, 970 F.2d
648 (9th Cir. 1992), is instructive. Westbay was a subcontrac-
tor of a construction company, Kardan Construction, Inc.
(“Kardan”), that the Federal Aviation Administration
(“FAA”) hired to construct an airport service station. Id. at
649. Kardan and proposed sureties executed a payment bond
to comply with the Miller Act, 40 U.S.C. § 3131 (formerly 40
U.S.C. § 270a(a)), and an FAA officer approved the sureties.
Westbay, 970 F.2d at 649-50. The Miller Act provides that a
federal contracting officer should not approve a contract with-
out ensuring adequate surety. 40 U.S.C. § 3131. When the
contract fell through, Westbay filed suit against the United
States under the FTCA, alleging that the FAA contracting
officer negligently approved the sureties. Westbay, 970 F.2d
at 649-50. We held that the contracting officer’s alleged negli-
gent approval of the surety bond was not cognizable under the
FTCA. See id. at 651. Because the Miller Act governs only
the actions of federal employees, there was no analogous pri-
vate conduct for the failure to use reasonable care in the
approval of sureties and the FTCA thus did not apply. See id.
at 650-51. The same rationale applies here.
Nor are we persuaded by the cases cited by ACT, as they
involve situations in which a plaintiff would have a claim
under maritime law were a private party in the government’s
shoes. See Asta Eng’g, Inc. v. United States, 46 Fed. Cl. 674
AMERICA CARGO TRANSPORT v. UNITED STATES 18319
(2000) (seeking cancellation of government contract with
third party because it interfered with plaintiff’s own contract
with government), abrogated on other grounds by Red River
Holdings, LLC v. United States, 87 Fed. Cl. 768 (2009); N.
Metal Co. v. United States, 350 F.2d 833 (3d Cir. 1965) (con-
sidering an action to recover sum of money allegedly
deducted from payment in bad faith); Gen. Marine Constr.
Corp. v. United States, 738 F. Supp. 586, 587 (D. Mass. 1990)
(alleging harm resulting from “failure of dredge inspectors to
appear in a timely manner”).
[10] In sum, because a private party would not have been
subject to the CPA or FSA or their implementing regulations
—and because ACT would therefore have no claim against a
private party in the government’s shoes—the government has
not waived sovereign immunity under the SAA. We affirm
the district court’s dismissal of the claim for damages.
III. FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT
[11] The district court appropriately denied ACT’s EAJA
claim for attorney’s fees and costs based on the determination
that ACT was not a “prevailing party.” See 28 U.S.C. § 2412
(permitting an award of fees and costs to a prevailing party
where the government’s position was not substantially justi-
fied).
To be a prevailing party, a litigant must “achieve a material
alteration of the legal relationship of the parties[,]” and the
alteration must be “judicially sanctioned.” Carbonell v. INS,
429 F.3d 894, 898 (9th Cir. 2005) (internal quotation marks
omitted). ACT does not qualify as a prevailing party because
its regulatory victory was the result of the government’s vol-
untary behavior, not judicial action. See Perez-Arellano v.
Smith, 279 F.3d 791, 794 (9th Cir. 2002) (“[A] ‘prevailing
party’ under the EAJA must be one who has gained [a mate-
rial alteration] by judgment or consent decree.”). We need not
18320 AMERICA CARGO TRANSPORT v. UNITED STATES
address whether the government’s position was “substantially
justified.”
AFFIRMED.