Lakes Pilots Ass'n v. United States Coast Guard

Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 17, 2004 Decided March 9, 2004

No. 03-5152

LAKES PILOTS ASSOCIATION, INC.,
APPELLANT

v.

UNITED STATES COAST GUARD AND
THOMAS J. RIDGE, SECRETARY OF THE DEPARTMENT OF
HOMELAND SECURITY,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 01cv01721)

Michael Roberts and Lawrence C. Friedman were on the
briefs of appellant.
Roscoe C. Howard, Jr., U.S. Attorney, R. Craig Lawrence
and Sherrie Evans Harris, Assistant U.S. Attorneys, were on
the brief of appellees.

Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
 2

Before: GINSBURG, Chief Judge, HENDERSON, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Lakes Pilots Association,
Inc. sued in district court claiming that the Coast Guard
misapplied the relevant formula in setting rate ceilings for
pilotage services. The district court granted in part and
denied in part the parties’ cross-motions for summary judg-
ment. While accepting various Coast Guard positions, it
ruled for the pilots on three merits issues and remanded for
further proceedings consistent with its order. The pilots
appeal those aspects of the district court’s opinion that were
unfavorable to them (ripeness as to one issue, one substantive
merits decision, and a claim based on certain non-record
documents). Finding that we do not have jurisdiction to hear
this appeal, we dismiss.

* * *
The courts of appeals have jurisdiction to hear ‘‘appeals
from all final decisions of the district courts.’’ 28 U.S.C.
§ 1291. ‘‘A remand order usually is not a final decision.’’
NAACP v. United States Sugar Corp., 84 F.3d 1432, 1436
(D.C. Cir. 1996). But the pilots invoke the collateral order
exception created by Cohen v. Beneficial Industrial Loan
Corp., 337 U.S. 541, 546–47 (1949). To qualify under that
doctrine the order being appealed must: ‘‘(i) conclusively
determine the disputed question; (ii) resolve an important
issue completely separate from the merits of the action; and
(iii) be effectively unreviewable on appeal from a final judg-
ment.’’ Stringfellow v. Concerned Neighbors in Action, 480
U.S. 370, 375 (1987) (citation and internal quotations omitted).
Under limited circumstances a remand order will qualify.
The third requirement—that the decision not be susceptible
of appeal from a final judgment—is met when ‘‘the agency to
which the case is remanded seeks to appeal and it would have
no opportunity to appeal after the proceedings on remand.’’
Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 330 (D.C.
 3

Cir. 1989); see also MCI Telecommunications Corp. v. Bell-
South Telecommunications Inc., 298 F.3d 1269, 1271 (11th
Cir. 2002) (same). The principle is not normally available to
the agency’s adversary. This asymmetry may seem strange,
but it flows from an evenhanded application of the require-
ment that the error asserted not be remediable on appeal
from a final judgment. Here, for example, the pilots will still
be aggrieved by the outcome (assuming that the Coast Guard
doesn’t spontaneously change its position on the issues where
the district court rejected its claims) and thus will be able
again to seek judicial review, including review in the court of
appeals, raising not only new issues but all those on which it
got no satisfaction in its original challenge. Mall Properties,
Inc. v. Marsh, 841 F.2d 440, 443 (1st Cir. 1988). The Coast
Guard, by contrast, will have to follow on remand the stan-
dard declared by the district court, and will be able to get
appellate review only if another party seeks appellate relief,
Occidental Petroleum, 873 F.2d at 330, and then only under
some circumstances. See Consarc Corp. v. Iraqi Ministry,
27 F.3d 695, 700 (D.C. Cir. 1994) (describing use of pendant
appellate jurisdiction to review an interlocutory order that is
not yet subject to appeal but is ‘‘closely related’’ to an
appealable order); Freeman v. B & B Assocs., 790 F.2d 145,
151 (D.C. Cir. 1986) (appellate court will consider any argu-
ment by an appellee that supports the judgment of the
district court). The pilots mistakenly rely on Chugach Alas-
ka Corp. v. Lujan, 915 F.2d 454, 457 (9th Cir. 1990), which is
simply a straightforward application of these concepts, allow-
ing an agency to appeal from a district court remand order.

* * *
The appeal is accordingly dismissed.
So ordered.