Collins v. National Transportation Safety Board

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 October 10, 2003 Decided December 19, 2003

Nos. 02-1298

& 03–1001

THOMAS H. COLLINS,

PETITIONER

v.

NATIONAL TRANSPORTATION SAFETY BOARD,

RESPONDENT

JOHN NITKIN,

INTERVENOR

On Petitions for Review of Orders of the

United States Department of Transportation

John S. Koppel, Attorney, U.S. Department of Justice,

argued the cause for petitioner. With him on the briefs were

Peter D. Keisler, Assistant Attorney General, Roscoe C. How-

ard, Jr., U.S. Attorney, and Robert S. Greenspan, Attorney.

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

Michael E. Robinson, Attorney, U.S. Department of Justice,

entered an appearance.

Andrew W. Anderson argued the cause and filed the brief

for intervenor.

Before: RANDOLPH, ROGERS, Circuit Judges, and WILLIAMS,

Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

WILLIAMS, Senior Circuit Judge: A Coast Guard adminis-

trative law judge found that Captain John Nitkin committed

misconduct by failing to sound the warning signal—five whis-

tle blasts—required by treaty, specifically Rule 34(d) of the

1972 International Regulations for Preventing Collisions at

Sea, 28 U.S.T. 3459 (‘‘COLREGS’’), when a collision threat-

ens. The Commandant of the Coast Guard affirmed the

ALJ’s decision, but the National Transportation Safety Board

reversed, finding that the text of Rule 34(d) rendered the rule

inapplicable to the circumstances of Nitkin’s accident. We

reverse and remand.

* * *

On January 29, 1999 Captain Nitkin was serving as the

pilot of the S/S Chelsea when it collided with the M/V

Manzanillo in the Miami Harbor Channel. The two vessels

had initially agreed to pass one another starboard-to-

starboard, but as they approached each another, Captain

Fernandez, the pilot of the Manzanillo, radioed Nitkin and

announced his intention to attempt a port-to-port passing.

Nitkin radioed Fernandez that a port-to-port passing was not

possible and urged him to follow their original agreement by

turning to port. But the Manzanillo in fact turned to star-

board and, despite Nitkin’s efforts to maneuver to safety, the

two ships collided about 21/2 minutes after the Manzanillo

began its starboard turn.

At the time of the accident Nitkin was operating under the

authority of a Coast Guard pilot’s license. He was tried in a

disciplinary proceeding before a Coast Guard ALJ for negli-

gence and for violations of COLREGS Rule 14 (failure to turn

3

to starboard in a head-on meeting situation), Rule 8(e) (failure

to reduce speed or reverse engines), and Rule 34(d) (failure to

sound warning signal). The ALJ dismissed the negligence

charge and the Rule 14 and 8(e) misconduct charges, but

found that Nitkin committed misconduct by failing to comply

with Rule 34(d). That rule provides:

When vessels in sight of one another are approaching

each other and from any cause either vessel fails to

understand the intentions or actions of the other, or is in

doubt whether sufficient action is being taken by the

other to avoid collision, the vessel in doubt shall immedi-

ately indicate such doubt by giving at least five short and

rapid blasts on the whistle.

COLREGS, 28 U.S.T. 3459, Part B, Section I, Rule 34(d).

The ALJ suspended Nitkin’s license for five months, with

four months remitted on probation. ALJ Final Order at 2.

Nitkin appealed to the Commandant of the Coast Guard,

raising four primary objections. Besides charging that the

sanction was excessively harsh, Nitkin attacked the finding of

a violation, arguing, first, that Rule 34(d) doesn’t apply when

the danger of collision develops so late that the warning

signal would be useless; second, that any duty he had to warn

the Manzanillo of the collision risk was satisfied by his radio

communications with Fernandez; and third, that his failure to

sound the warning signal was excusable under COLREGS

Rule 2(b)’s exception for ‘‘special circumstances TTT which

may make a departure from these Rules necessary to avoid

immediate danger.’’ According to Nitkin, special circum-

stances existed in this case because the five-blast warning

signal would have prevented communication with crew mem-

bers at the Chelsea’s bow.

The Commandant of the Coast Guard rejected all these

claims and affirmed the ALJ’s decision. Appeal of Nitkin,

2001 WL 34080161. We need not address the Commandant’s

reasoning, because although Nitkin raised essentially the

same claims in his appeal to the NTSB under 49 U.S.C.

§ 1153, the Board reversed on quite different grounds and

never reached the issues posed in Nitkin’s appeal to the

Commandant.

4

Rather, the Board’s July 26, 2002 Opinion and Order, 2002

WL 1727347 (‘‘July 26 Order’’), rested on the following in-

terrelated conclusions. First, the Board determined as a

matter of law that Rule 34(d) is inapplicable in situations

where a pilot is certain that the other vessel’s conduct makes

collision inevitable. The Board explained that, because Rule

34(d)’s plain text specifies that the warning signal require-

ment comes into play only when a pilot is ‘‘in doubt whether

sufficient action [is] being taken by the [other vessel] to avoid

collision’’ (emphasis added), the rule cannot apply where a

pilot is certain that sufficient action is not being taken. July

26 Order, at 3–4 (quoting COLREGS Rule 34(d)).

Second, the Board made a factual determination that Nit-

kin was certain that the Manzanillo was not taking sufficient

action to avoid a collision, rather than ‘‘in doubt’’ of the

reverse. According to the Board, the ALJ had found that

Nitkin ‘‘was not sure whether his vessel could avoid a collision

after the unilateral decision of [Fernandez] to execute a port-

side passing,’’ but the Board concluded that this finding was

unsupported by the record. July 26 Order, at 2–3.

The Coast Guard filed a notice of appeal (indeed, as we

shall see, two) and we granted Nitkin’s motion to intervene.

Before we reach the merits, we must consider whether our

jurisdiction is undercut either by the possibility that the

Coast Guard Commandant does not qualify as a ‘‘person’’

entitled to appeal under 49 U.S.C. § 1153(a), or by the Coast

Guard’s prior filing of a request that the Board reconsider its

July 26 Order.

Jurisdiction.

‘‘Person.’’ Although the word ‘‘person’’ is usually pre-

sumed not to include the sovereign, Vermont Agency of

Natural Res. v. United States ex rel. Stevens, 529 U.S. 765,

780 (2000); United States v. Cooper Corp., 312 U.S. 600, 604

(1941), this presumption can be overcome by an affirmative

showing of statutory intent to the contrary. See Vermont

Agency of Natural Res., 529 U.S. at 781 (citing Int’l Primate

Prot. League v. Administrators of Tulane Educ. Fund, 500

5

U.S. 72, 83 (1991)). Here 49 U.S.C. § 40102(a)(33) states that

‘‘ ‘person,’ in addition to its meaning under section 1 of title 1,

includes a governmental authority,’’ and 49 U.S.C. § 1101

explicitly applies the definitions in § 40102(a) to the chapter

containing 49 U.S.C. § 1153. Thus, the statute authorizes

jurisdiction over an appeal by the Commandant, so long as he

has a ‘‘substantial interest in the order,’’ 49 U.S.C. § 1153(a),

as he clearly does.

Timing. A petition for judicial review of a final NTSB

order must be filed no later than 60 days after the order, see

49 U.S.C. § 1153(a), and a request for administrative recon-

sideration must be filed within 30 days of the order, see

Commandant v. Mintz, 4 N.T.S.B. 1976 (1984) (holding that

the 30–day time limit established in the Rules of Practice for

aviation proceedings, 49 C.F.R. § 821.50(b), should also apply

to maritime proceedings). Here, the Coast Guard filed (1) an

untimely request for administrative reconsideration on Au-

gust 30, 2002 (35 days after the July 26 Order), which the

NTSB dismissed as untimely on November 20, 2003, after the

initial 60 days for seeking judicial review had run, (2) an

initial petition for review on September 23, 2002 (59 days

after the July 26 order), and (3) a second petition for review

on January 3, 2003 (44 days after the Board’s dismissal of its

request for NTSB reconsideration). Thus, the sequence of

orders and petitions is as follows:

1 July 26, 2002: The Board issued its Order reversing the

Coast Guard;

1 August 30, 2002: The Coast Guard requested administra-

tive reconsideration by the Board;

1 September 23, 2002: The Coast Guard filed its first

petition for judicial review;

1 November 20, 2002: The Board rejected the request for

administrative reconsideration as untimely;

1 January 3, 2003: The Coast Guard filed its second

petition for judicial review.

Attacking our jurisdiction, Nitkin correctly notes that our

cases treat a petition for review filed during the pendency of

6

a request for administrative reconsideration as ‘‘incurably

premature,’’ see TeleSTAR, Inc. v. FCC, 888 F.2d 132, 133–34

(D.C. Cir. 1989), and in effect a nullity. As Nitkin acknowl-

edges, the reconsideration request ordinarily tolls the running

of the time limit for judicial review. Id. at 133. See also

Outland v. Civil Aeronautics Bd., 284 F.2d 224, 227–28 (D.C.

Cir. 1960); City of Pittsburgh v. Federal Power Comm., 237

F.2d 741, 749 (D.C. Cir. 1956). But, Nitkin argues, the

Supreme Court said in Bowman v. Lopereno, 311 U.S. 262

(1940), that an untimely request for agency reconsideration

could not extend the time for appeal (although it actually held

that if the agency addressed the merits of such a request, its

ultimate denial thereof would start a new period for seeking

review), id. at 266.

We can find jurisdiction without resolving the precise effect

of the untimely request for NTSB reconsideration. If the

request suspended the running of the time limit for appeal,

then the Coast Guard’s second petition for review was timely;

if it did not, then the initial petition was effective. Either

way, we have jurisdiction.

The only alternative—which Nitkin does not express in so

many words, perhaps because of the embarrassment of doing

so—is that the filing of an untimely request for administrative

reconsideration renders the original agency order non-final

for purposes of judicial review petitions filed before the

agency dismisses the reconsideration request, but does not

affect the finality of the original order for purposes of judicial

review petitions filed after the dismissal of the reconsidera-

tion request, so long as that dismissal is on procedural

grounds. Thus, according to Nitkin’s theory, the July 26

order was non-final for the 82–day period between August 30

and November 20, 2002, but became final, retroactively, the

moment the Board dismissed the untimely reconsideration

request on November 20.

This theory of finality makes little sense, and serves no

purpose other than to create traps for the unwary. It is

clearly not compelled by Bowman, as nothing in that case

requires that the July 26 Order be regarded as non-final

7

during the 60 days after its issuance, or indeed at any other

time. We find the Coast Guard appeal timely.

Merits.

Our first question is the appropriate scope of review.

Three elements complicate the standard picture. First, the

COLREGS are established by treaty rather than an ordinary

statute. Second, their enforcement is divided vertically, in

the sense that the Coast Guard acts as general regulator, as

prosecutor, and as initial adjudicator of claims of violation,

with the NTSB initially reviewing Coast Guard adjudications

before they come before a court of appeals. Finally, the

COLREGS’ enforcement is divided horizontally, as the Coast

Guard shares responsibility for initial enforcement with the

Navy and the states. We tackle these issues seriatim.

That the COLREGS are established by treaty does not

have a substantial impact on our analysis. We have held that

treaty interpretation should be ‘‘guided by principles similar

to those governing statutory interpretation,’’ Iceland S.S. Co.,

Ltd.-Eimskip v. Dept. of Army, 201 F.3d 451, 458 (D.C. Cir.

2000), and that courts should give great weight to the views of

those executive agencies charged with enforcing particular

treaties. See id. (citing Sumitomo Shoji America, Inc. v.

Avagliano, 457 U.S. 176, 184–85 (1982)); Hill v. Norton, 275

F.3d 98, 104 (D.C. Cir. 2001) (applying Chevron framework to

agency’s interpretation of treaty and implementing statute);

cf. Collins v. Weinberger, 707 F.2d 1518, 1522 (D.C. Cir. 1983)

(pre-Chevron case deferring to executive interpretation of

treaty).

The vertical split of enforcement clouds the matter, as here

we have two conflicting interpretations of Rule 34(d) from two

different executive agencies. According to the Board,

‘‘doubt’’ denotes uncertainty, and excludes certainty of the

negative. In contrast, the Coast Guard proposed the follow-

ing conclusion of law which was accepted by the ALJ:

In regards [sic] to the failure of Captain Nitkin to sound

the ‘‘doubt’’ signal as required by International Naviga-

tion Rule 34(d), the Rule and the corresponding guidance

is clear. LLANA and WISNESKEY [Christopher B.

8

Llana & George P. Wisneskey, Handbook of the Nautical

Rules of the Road (1991)] comment:

Paragraph (d) describes the ‘‘doubt’’ signal, also re-

ferred to in the Inland Rules as the ‘‘danger’’ signal.

The signal is five or more short and rapid blasts, which

may be supplemented by a light signal. Give the

signal as soon as you are in doubt about the action of

another approaching vessel—when you don’t know

what the other vessel is doing or when you think it is

doing the wrong thing.

ALJ decision at 35 (emphasis added). Thus, the Coast Guard

interpreted ‘‘doubt’’ about the sufficiency of the other vessel’s

actions to include not only cases where one is uncertain

whether the other vessel’s actions are sufficient, but also

cases where one is certain that those actions are not suffi-

cient. The Coast Guard’s view, though probably the less

frequent meaning, appears to be among the ordinary usages.

Webster’s Third New International Dictionary (1981), for

instance, includes among the meanings of doubt ‘‘an inclina-

tion not to believe or accept,’’ which is at least akin to

certainty of the negative.

Assuming that some deference to the executive is proper in

this case, the next question is which executive branch agen-

cy—the Coast Guard or the NTSB—is entitled to it. Martin

v. Occupational Safety & Health Rev. Comm’n, 499 U.S. 144

(1991), addressed a similar split-enforcement regime under

the Occupational Safety and Health (‘‘OSH’’) Act and held

that deference was owed to the interpretation of the primary

executive branch enforcer (the Secretary of Labor) rather

than to that of the independent review board (the Occupation-

al Safety and Health Review Commission). The Court saw

Congress as intending ‘‘to make a single administrative actor

[the Secretary of Labor] ‘accountable for the overall imple-

mentation’ of the Act’s policy objectives by combining legisla-

tive and enforcement powers’’ in a single entity, id. at 156, a

goal that would be marginally frustrated if the Commission

could substitute its own (reasonable) interpretations for those

of the Secretary, id. And the adjudicative administrative

9

reviewing agency (there, the Commission) could adequately

accomplish the purpose of avoiding biased review of enforce-

ment decisions if it merely exercised ‘‘the type of nonpolicy-

making adjudicatory powers typically exercised by a court in

the agency-review context,’’ reviewing ‘‘the Secretary’s inter-

pretations only for consistency with the regulatory language

and for reasonableness.’’ Id. at 154–55.

Although the Martin Court was careful to limit its holding

to the OSH Act and to ‘‘take no position on the division of

enforcement and interpretive powers within other regulatory

schemes that conform to the split-enforcement structure,’’ id.

at 158, we find the logic of Martin applicable to this case.

Nitkin, indeed, has offered no reason to suppose that Con-

gress did not here intend the same essential trade-offs as the

Court found present in the parallel OSHA scheme.

The final deference complication arises from the horizontal

division of authority between the Coast Guard (which en-

forces the COLREGS against pilots operating U.S.-flagged

vessels pursuant to their Coast Guard pilot’s licenses), the

Navy (which enforces the COLREGS against Naval officers),

and the various state maritime commissions (which have

exclusive authority to enforce the COLREGS against pilots of

foreign-flagged vessels pursuant to their state pilot’s licens-

es). See Soriano v. United States, 494 F.2d 681, 684 (9th Cir.

1974). We must therefore decide what effect, if any, this

shared enforcement authority has on the appropriate level of

deference to Coast Guard interpretations of the COLREGS.

Nitkin urges no deference to the Coast Guard, pointing to

case law in this circuit holding that deference under Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S.

837 (1984), is inappropriate when multiple agencies are re-

sponsible for implementing the same statute. But many of

these cases involved generic statutes that apply to dozens of

agencies, and for which no agency can claim any particular

expertise. See Ass’n of Amer. Physicians & Surgeons v.

Clinton, 997 F.2d 898 (D.C. Cir. 1993) (interpretation of

Federal Advisory Committee Act (‘‘FACA’’)); Prof’l Reactor

Operator Soc’y v. N.R.C., 939 F.2d 1047 (D.C. Cir. 1991)

10

(interpretation of Administrative Procedure Act (‘‘APA’’));

FLRA v. D.O.T., 884 F.2d 1446 (D.C. Cir. 1989) (interpreta-

tion of Privacy Act); Reporters Comm. For Freedom of the

Press v. D.O.J., 816 F.2d 730 (D.C. Cir. 1987), rev’d on other

grounds, 489 U.S. 749 (1989) (interpretation of Freedom of

Information Act (‘‘FOIA’’)). Although some of these cases

state the no-deference principle rather broadly, they seem as

a whole easily distinguishable from the case at hand. Where

a statute is generic, two bases for the Chevron presumption

of implied delegation are lacking: specialized agency exper-

tise and the greater likelihood of achieving a unified view

through the agency than through review in multiple courts.

See Rehabilitation Ass’n of Virginia, Inc. v. Kozlowski, 42

F.3d 1444, 1471 (4th Cir. 1994); Allnet Communication Ser-

vice, Inc. v. Nat’l Exch. Carrier Ass’n, Inc., 965 F.2d 1118,

1120 (D.C. Cir. 1992).

More relevant to Nitkin’s claim are our cases dealing with

enforcement of the Federal Deposit Insurance Act (‘‘FDIA’’),

12 U.S.C. § 1811. See Proffitt v. FDIC, 200 F.3d 855 (D.C.

Cir. 2000); Rapaport v. D.O.T., Office of Thrift Supervision,

59 F.3d 212 (D.C. Cir. 1995); Wachtel v. Office of Thrift

Supervision, 982 F.2d 581 (D.C. Cir. 1993). These cases

establish that, because the FDIA is administered by four

separate agencies (the Comptroller of the Currency, the

Board of Governors of the Federal Reserve Board, the Fed-

eral Deposit Insurance Corporation, and the Office of Thrift

Supervision in the Treasury Department), the interpretation

of any one of them is not entitled to Chevron deference.

The FDIA scheme is somewhat analogous to COLREGS

enforcement, in that each of the agencies responsible for

FDIA enforcement has jurisdiction over a different set of

regulated parties. See 12 U.S.C. §§ 1813(q)(1)-(4). But un-

der the FDIA division of responsibility, as the statute itself

notes, ‘‘more than one agency may be an appropriate Federal

banking agency with respect to any given institution.’’ 12

U.S.C. § 1813(q). This is a potentially important distinction

between the FDIA and the COLREGS. Since the respective

jurisdictions of the Coast Guard, Navy, and state commissions

11

are exclusive as to specific sets of mariners, there appears no

danger that any one regulated party will be faced with

multiple and perhaps conflicting interpretations of the same

requirement.

We may then reasonably distinguish three types of shared-

enforcement schemes. For generic statutes like the APA,

FOIA, and FACA, the broadly sprawling applicability under-

mines any basis for deference, and courts must therefore

review interpretative questions de novo. For statutes like

the FDIA, where the agencies have specialized enforcement

responsibilities but their authority potentially overlaps—thus

creating risks of inconsistency or uncertainty—de novo re-

view may also be necessary. But for statutes where expert

enforcement agencies have mutually exclusive authority over

separate sets of regulated persons, the above concerns don’t

work against application of Chevron deference.

A facet of COLREGS enforcement does, however, suggest

that interpretive uniformity across agencies may be important

enough to undermine the case for Chevron deference to one

agency’s interpretation. Even if every pilot knows what is

expected of him, it is likely to be helpful—in some cases

perhaps vital—that he also know the obligations of other

pilots. Vessels whose masters behave in accord with well

established common rules are more likely to communicate

clearly with each other, and thus avoid accidents across the

enforcement agencies’ jurisdictions, than if a variety of rules

creates a Babel. When vessels under Navy, Coast Guard and

state supervision converge, five whistle blasts should mean

the same thing.

Even if Chevron deference is not called for, we think there

is at a minimum a case for deference under Skidmore v. Swift

& Co., 323 U.S. 134 (1944), given the Coast Guard’s expertise

both in maritime safety and in deciding the most efficient way

to administer its licensing and discipline procedures. If the

three enforcement agencies were found to have conflicting

(though individually very reasonable) interpretations, the var-

12

ied positions’ ‘‘power to persuade’’ would sharply fall. See id.

at 140.

We need not try to assess the exact weight of Skidmore

deference, which is obviously less than Chevron, see United

States v. Mead Corp., 533 U.S. 218, 236–39 (2001), but more

than acknowledgement that the agency’s position is more

convincing than its adversaries’, as would be true any time it

submitted the more convincing brief. Assuming some non-

trivial boost to the Coast Guard, its interpretation of Rule

34(d) is sufficiently persuasive that the NTSB should have

upheld its view that the Rule 34(d) obligation to sound the

warning signal applies even when a pilot is certain that

‘‘sufficient action’’ is not ‘‘being taken by the other [vessel] to

avoid collision.’’

Indeed, it seems to us that it is precisely in such cases that

sounding the warning signal is most important, absent special

factors such as Nitkin here invoked and the Board did not

reach. Suppose that, in a collision between Vessel A and

Vessel B, all agreed that Vessel A knew that Vessel B’s

present course would cause a collision. It cannot be the case

that Vessel A’s failure to sound the warning signal would

nonetheless be excused because there was certainty, rather

than ‘‘doubt,’’ about the insufficiency of Vessel B’s conduct.

Yet the Board’s interpretation would allow precisely this

result. We note that the Board subtly shifted the focus of the

rule—from the risk that B’s conduct was insufficient, plainly

suggesting the likely advisability of a warning whistle—to the

actual likelihood of a collision, a related but separate point,

and one perhaps captured in the three substantive defenses

that the Board never addressed. Of course we take no

position on those defenses, which the board must consider on

remand.

***

The Board erred in failing to defer to the Coast Guard’s

reasonable application of Rule 34(d) to cases where mariners

are certain that ‘‘sufficient action’’ is not ‘‘being taken by the

other [vessel] to avoid collision.’’ We reverse and remand the

13

case so that the Board can consider Nitkin’s other factual and

legal arguments.

So ordered.