Opposition Brief — Norfolk Dredging Co. v. United States, 125 S. Ct. 1825 (2005) (No. 04-809)

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Supreme Cour. US. 1

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(3 MAR 16 2005

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No. 04-809 __OFFICE OF THE ( “LERK |

IN THE

Supreme Court of the Anited States

NORFOLK DREDGING COMPANY, INC.,

Petitioner,

¥.,

UNITED STATES OF AMERICA,

and

BEAN STUYVESANT, L.L.C..

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

BRIEF FOR RESPONDENT

BEAN STUYVESANT, L.L.C. INOPPOSITION

JEFFREY F. LAWRENCE *

HEATHER M. SPRING

SHER & BLACKWELL, LLP

1850 M Street, N.W.,

Suite 900

Washington, D.C. 20036

(202) 463-2500

* Counsel of Record Counsel for Respondent

TRAE ITNT SE III i. TAT RR tT EOE EAE TLE I LENGE LENE IEEE LREPLELAELALOLL ELE A SEE ALE

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether the Federal Circuit properly concluded that Bean

Stuyvesant, L.L.C. could lawfully charter a U.S. flag, non-

hopper dredge for purposes of completing a specific contract

pursuant to Section 5501(a)(2) of the Oceans Act of 1992.

Pub. L. 102-587, § 5501(a)(2)(A)(il1) (codified at 46 U.S.C.

App. § 292 note).

(1)

CORPORATE DISCLOSURE STATEMENT |

Respondent Bean Stuyvesant, L.L.C. is a limited liability

company and is 50% owned by Bean Dredging L.L.C. which

is a privately held company. The other 50% is owned by

Stuyvesant Dredging Company which is ultimately 100%

owned by the Dutch public corporation Royal Boskalis West-

minster nv.

TABLE OF CONTENTS

Page

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CORPORATE DISCLOSURE STATEMENT ............. il

TABLE OF AUTHORITIES .............c.cccccccccssssscsssccesees iv

STATEMENT OF THE CASE... .cecececececccscscseseceees 2

REASONS FOR DENYING THE PETITION.............. 4

See S TIT issincevcasehsensenseichoteneeksonesseabtisbsenanosssacessesees 7

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CASES

TABLE OF AUTHORITIES

Alexander v. Sandoval, 532 U.S. 275 (2001).........

Conn. Nat'l Bank v. Germain, 503 U.S. 249

2 | RRR ara spin hesbiaasehadsiibiiaiaipiaaliendliideaiaiaaubiasa

Norfolk Dredging Company, Inc. v. United States

et al., 375 F.3d 1106 (Fed. Cir. 2004)..........0.....

Norfolk Dredging Company, Inc. v. United

Sines, Se FO. Ch. FO0 C I Picatccrensinsisccccsscninnns

Sullivan v. Stroop, 496 U.S. 478 (1990) 0... eee

United States v. Mead Corp., 533 U.S. 218

ST Dicbinnsriciniiniesnanihicniuadiindaishaablacasililestindadaséniairans

VE Holding Corp. v. Johnson Gas Appliance

Co., 917 F.2d 1574 (Fed. Cir. 1990)............0000

Williams v. Taylor, 529 U.S. 420 (2000)...

STATUTES

SP Sit SLs IG A nincenentcbesnlandasiebhnndbaninininaiadsaniieibin

46 U.S.C. App. § 292 (Oceans Act of 1992

OF TINE FIO sicccianseccasisnseisnncinsiailenpicasaalanieimlnanadiaiilinia

46 U.S.C. App. § 292 note (Oceans Act of 1992

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passim

IN THE

Supreme Court of the United States

No. 04-809

NORFOLK DREDGING COMPANY, INC..

Petitioner,

Vv.

UNITED STATES OF AMERICA,

and

BEAN STUYVESANT, L.L.C..,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

BRIEF FOR RESPONDENT

BEAN STUYVESANT, L.L.C. INOPPOSITION

RESPONDENT’S BRIEF IN OPPOSITION

Respondent Bean Stuyvesant, L.L.C. (“Bean Stuyvesant”),

respectfully requests that this Court deny the petition for a

writ of certiorari, seeking review of the Federal Circuit’s

opinion in this case, reported at 375 F.3d 1106 (2004). Re-

view is not appropriate because: 1) the case does not present

an issue of national importance on which courts of appeals

have issued conflicting decisions; and 2) the Federal Circuit

decision was correct and resulted from the sound application

of statutory construction principles.

STATEMENT OF THE CASE

1. This is a bid protest action filed by petitioner, Norfolk

Dredging Company, inc. (“Norfolk”), in the U.S. Court of

Federal Claims on September 25, 2003 in response to the

U.S. Army Corps of Engineers (“Corps”) notice that Bean

Stuyvesant was the apparent low bidder on solicitation num-

ber DAW54-03-B-O011 (relating to maintenance dredging

work to be performed in North Carolina). Norfolk contended

that Bean Stuyvesant could not lawfully perform the contract

under 46 U.S.C. App. § 292, because it is not 75% owned

by U.S. citizens. Bean Stuyvesant, however, is subject to a

statutory exemption from the general rule. The exemption

provides in relevant part that the 75% ownership requirement

of § 292 does not apply to:

(iii) any other non-hopper dredging vessel documented

under chapter 121 and chartered to Stuyvesant Dredging

Company or to an entity in which it has an ownership

interest, as is necessary (a) to fulfill dredging obligations

under a specific contract, including any extension pe-

riods; or (b) as temporary replacement capacity for a

vessel which has become disabled but only for so long as

the disability shall last and until the vessel is in a posi-

tion to fully resume dredging operations; however, this

exception expires on December 8, 2022 or when the

vessel] STUYVESANT ceases to be documented under

chapter 121, whichever first occurs; . . .

46 U.S.C. App. § 292 note (Oceans Act of 1992, Pub. L. 102-

587, § 5501(a)(2)(A)(iii)).. Bean Stuyvesant is a company in

which Stuyvesant Dredging Company (“SDC”) has an owner-

ship interest. Bean Stuyvesant proposed chartering a dredge

called the MERIDIAN for purposes of completing the Corps

contract. The MERIDIAN is a non-hopper dredge which is

documented under the U.S. flag pursuant to chapter 121 of

Title 46 of the U.S. Code.

The Court of Federal Claims granted Norfolk's protest

finding that:

An arrangement would satisfy this part of the exception

only if the chartered non-hopper vessel “is necessary . . .

to fulfill dredging obligations under a specific contract,”

supplementing a hopper vessel documented as of 1992,

“including any extension periods,” or to complete tem-

porary replacement of a hopper or non-hopper perform-

ing a hopper contract.

Norfolk Dredging Company, Inc. v. United States, Pet. App.

40a (ellipses in original).'

The Federal Circuit unanimously reversed, holding that:

The Court of Federal Claims’ interpretation erroneously

adds conditions not present in the statutory language.

Neither the plain language of exception (A)(iii) nor the

structure of the three exceptions pertaining to SDC pro-

vides any basis for the court’s conclusion that non-

hopper dredges could only be used in a supplemental or

replacement capacity to fulfill contracts expressly calling

for the services of the vessel] STUYVESANT or other

hopper vessels documented as of 1992. If Congress had

intended these additional restrictions, it could easily

have added express language to that effect.

Norfolk Dredging Company, Inc. v. United States et al., Pet.

App. 9a. Norfolk's petitions for rehearing and rehearing en

banc were denied on August 13, 2004.

‘The decision was initially published at Norfolk Dredging Company,

Inc. v. United States, 58 Fed. Cl. 167 (2003). A corrected version was

later issued at Norfolk Dredging Company, Inc. v. United States, 58 Fed.

Cl. 741 (2003). .

2. In accordance with the Federal Circuit’s decision, the

Corps reinstated the contract award to Bean Stuyvesant on

August 26, 2004. Contract work involving the MERIDIAN

was completed in January 2005.

3. The petition contains numerous misstatements of fact

and law with respect to the origins, purpose, policy, and ef-

fect of the dredging statute and its exceptions, other cabotage

laws, and the operations, structure, and effect of Bean Stuyve-

sant. These matters have been discussed at some length in the

proceedings below and to the extent relevant disposed of in

the Federal Circuit's decision.

REASONS FOR DENYING THE PETITION

Norfolk maintains that the narrow question of statutory

interpretation presented requires this Court’s review, because

it “presents a question of great practical importance to the

domestic maritime commerce” (Pet. 11) and because “the

Federal Circuit reached this result through the use of an

analysis that cannot be reconciled with the approach to statu-

tory construction that is mandated by this Court and followed

by other courts of appeals” (Pet. 12). Norfolk is wrong for

the following reasons.

1. The petition does not present an issue of national

importance. The sole question presented involves the plain

meaning of a statutory exception with limited applicability

and duration. The portion of the exemption at issue involves

only SDC and companies in which SDC has an ownership

interest (which consists solely of Bean Stuyvesant); the spe-

cific subparagraph at issue involves only non-hopper dredges

documented under the U.S. flag that are chartered to SDC or

Bean Stuyvesant for use on specific projects; and the exemp-

tion has a finite duration, expiring in 2022.

In addition, while Norfolk claims the Federal Circuit’s de-

cision has important ramifications, it has cited no basis for

the litany of hypothetical and entirely speculative evils that

it alleges could result from the ruling. There is no support

a ee ee Te ee

whatsoever in the record or in fact for the supposed competi-

tive advantages or impacts listed by Norfolk (Pet. 13-15).

Nor is there any reason to believe the outlandish claim that

SDC (which is a U.S. entity owned by a Dutch company) or

Bean Stuyvesant (which is a U.S. entity with equal U.S. and

Dutch citizen ownership) pose any threat to national security

as a result of having all or partial Dutch ownership as

suggested by Norfolk (Pet. 12-13).

The Federal Circuit’s decision did not provide a new or

broader interpretation of the exemption than previously ex-

isted. It maintained the status quo by relying on the plain

meaning of the statute. U.S. Customs and Border Protection

has administered the dredging statute and other U.S. cabotage

laws for many decades; and it has consistently interpreted the

dredging statute in accordance with the same plain meaning.

As such, SDC’s operating authority has not been expanded in

any way by the Federal Circuit’s decision. It will simply be

able to continue to operate as it has since the statute’s enact-

ment in 1992 until the exemption expires in 2022.°

In addition, Norfolk acknowledges the lack of a conflict

between circuit courts but claims that such a conflict is not

necessary on the grounds that “due to the vagaries of the

Federal Circuit’s jurisdiction, no circuit split ever can develop

on the meaning of the provision” (Pet. 15-16). Norfolk is,

however, incorrect in its assumption that the Federal Circuit

has exclusive jurisdiction over the statute in question. This

case did not arise under the Tariff Act like the question in

United States v. Mead Corp., 533 U.S. 218 (2001) relied upon

> SDC has operated in the United States since 1980. Prior to 1992, it

had broader operating authority and was able to compete on equal footing

with U.S. companies. As a result of the 1992 legislation, SDC’s pre-

existing operating rights were largely preserved. However, under the

exemption, SDC, as well as Bean Stuyvesant, is subject to certain limita-

tions in how it operates. These limitations were discussed in the Federal

Circuit’s decision.

by Norfolk. The matter was appealed to the Federal Circuit

solely because Norfolk chose to challenge the statute via a bid

protest rather than through typical judicial review procedures.

2. The Federal Circuit’s decision is correct. Norfolk

contends that in reaching its decision the Federal Circuit

failed to follow well accepted principles of statutory con-

struction. The Federal Circuit actually relied primarily on

the most commonly accepted principle of statutory construc-

tion: adherence to the plain language of the statute. As the

court stated:

Statutory interpretation begins with the language of

the statute. Williams v. Taylor, 529 U.S. 420, 431, 120 S.

Ct. 1479, 146 L.Ed.2d 435 (2000). A court derives the

plain meaning of the statute from its text and structure.

Alexander v. Sandoval, 532 U.S. 275, 288, 121 S. Ct.

1511, 149 L.Ed.2d 517 (2001). If the language is clear

and fits the case, the plain meaning of the statute

generally will be regarded as conclusive. Sullivan v.

Stroop, 496 U.S. 478, 482, 110 S. Ct. 2499, 110 L.Ed.2d

438 (1990); see also VE Holding Corp. v. Johnson Gas

Appliance Co., 917 F.2d 1574, 1579-80 (Fed. Cir. 1990)

(noting that unambiguous statutory language controls,

unless legislative intent is clearly contrary or when its

application produces a result so unlikely that Congress

could not have intended it). “We have stated time and

again that courts must presume that a legislature says in

a statute what it means and means in a statyte what it

says there.” Conn. Nat'l Bank v. Germain, 503 U.S. 249,

253-54, 112 S. Ct. 1146, 117 L.Ed.2d 391 (1992).

The language of the statute at issue in this case is clear

and unambiguous, and absent extraordinary circum-

stances our inquiry must end here. See VE Holding, 917

F.2d at 1580. Thus, it is unnecessary to seek clarifica-

tion in the admittedly sparse legislative history. See

;

Norfolk Il, 58 Fed. Cl. at 756 (“The legislative history

is limited”).

Norfolk Dredging, Pet. App. 6a-7a. The Federal Circuit

clearly did not deviate from the well accepted rules of statu-

tory construction as Norfolk contends. re

CONCLUSION

For all of the reasons above, Respondent Bean Stuyvesant,

L.L.C. respectfully requests that the petition for a writ of

certiorari be denied.

Respectfully submitted.